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Hese v Regina [2006] SBCA 7; CA-CRAC 032 of 2005 (31 May 2006)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

The Appellant was convicted of the murder between the 9th and 14th April 2003 of Jack Taka, his cousin brother. Two facts central to the charge which are admitted are that the Appellant shot Taka and killed him; secondly that the Appellant was, and had for the period of up to two years been, a member of the Guadalcanal Liberation Front, a group whose members, under the control and leadership of one Keke, had committed serious acts of violence often resulting in deaths. The defence raised was that the Appellant had killed his cousin under compulsion or duress. He was ordered to do it by Keke, directly or through another member of the GLF on Keke’s orders. He feared that if he did not kill Taka he would killed himself.

The learned Judge found the offence proved and sentenced the Appellant to life imprisonment. Having set out section 16 of the Penal Code which provides –

'A person is not criminally responsible for an offence if it is committed by two or more offenders, and if the act is done or omitted mainly because the whole of the time in which it is being done or omitted the person is compelled to do or omit to do the act by threats on the part of the other offender or offenders instantly to kill him or to do grievous bodily harm if he refuses; the threats of future injury do not excuse any offence'.

he added –

'The defence of compulsion/duress [whilst] may be available to an accused who has voluntarily joined a criminal organization. The defence is not available if the accused fails to take the opportunity to escape the duress/compulsion or had joined a group known to use violence such as an illegal para-military organization. ..... If he was unaware of any propensity to violence the defence may available'.

Here the Appellant said that 'he joined Harold’s group and assist them sometimes he did not do anything but just followed them, and joined the group and do whatever the boss [Keke] told him to do'. The Judge added 'the accused had been a member of the GLF for over a period of a year and he knew or should be aware of the nature of the organization and the criminal activity that they were clearly involved with.' the accused had further been seen in the company of Harold Keke and observed carrying a gun'.

The Judge referred to passages from cases in England and in Ireland in particular R -v- Sharp 1987 (CRIM APP) where Lord Lane CJ said 'where a person has voluntarily and with knowledge of its nature, joined a criminal organization or gang which he knew might bring pressure on him to commit an offence and was an active member when he was put under such pressure, he cannot avail himself of the defence of duress.

The learned Judge concluded –

'I find the prosecution has negatived the defence of duress in the case by virtue of the accused membership of the illegal organization, the GLF, whose leadership encouraged and committed such brutal and barbaric act against their own people. Anyone who was a threat was executed, family members were killed, brothers, uncles, cousins were ruthlessly executed. The accused intention is clear. He chose to execute the deceased who was a cousin brother, he totally disregarded their family connection as he was determined to follow the orders of the leaders of GLF, and the course of the organization.'

The Appellant seeks to quash the conviction on the basis that (a) the learned Judge was in error to impose restrictions on the application of the defence of compulsion which are not applicable in this jurisdiction; (b) the judge failed properly to apply the defence of compulsion and consequently failed to consider relevant evidence; (c) the conviction is unsafe and unsatisfactory and against the weight of the evidence.'

Mr Anders on behalf of the Appellant in clear and careful submissions says that the common law/rules as such do not apply to the extent that they are inconsistent with the Constitution or any Act of Parliament or are 'inapplicable or inappropriate in the circumstances of Solomon Islands from time to time' (Constitution Schedule 3 para 2 (1)).

It is of course true that in section 2 of the Penal Code, it is provided 'Except as hereinafter expressly provided nothing in this Code shall affect (a) the liability, trial or punishment of the person for an offence against the common law or any other law enforced in Solomon Islands other than this Code.'

Here, the charge was not of a common law offence as such but of breach of section 200 of the Penal Code. As Kapi J said in Toriteria –v- R (1987) SILR 4 at page 30 the Penal Code is intended to be an exhaustive statement of the law. That is to say it describes not only the elements of offences necessary to find a person guilty, but it also establishes any defence in law.' See also R –v-Selleck [2000] SASC 190 and R –v- Wong Chin Kwee [1983] SILR 78.

Mr Anders says, therefore, it is now wrong to look at common law cases which excluded the defence of duress where the accused had committed crimes as a consequence of threats from violent gangs which he had voluntarily joined such as R v Sharp [1987] QB 583, R v Shepherd 1987-1986 Crim App R 47 and R v Hasan [2005] UKHL 22.

This restriction, like other restrictions in the Common Law such as excluding the defence of duress in charges of murder, is not to be found in section 16 of the Penal Code. The latter incorporates its own limitations on the defence – the act is to be committed by two or more offenders. The act has to be done 'only' because during 'the whole of the time in which [the act] is being done or omitted' the accused is compelled to do the act by threats on the part of the other offenders 'instantly' to kill him or to do 'grievous bodily harm if he refuses'. Moreover threats of future injury do not excuse any offence'. In some ways this is, it seems, less flexible, more restrictive than the common law defence.

We agree that the relevant defence must be considered under section 16 of the Penal Code and not just under Common Law principles. In particular in the present case the question is whether the Appellant can be said to have been 'compelled' to do the act which led to death of Taka.

It is clear from his judgment that the trial judge recognized that the defence of compulsion had to been decided in the light of section 16 of the Code and he considered whether the Appellant could say that he was 'compelled' to kill his cousin brother within the meaning of section 16. That is the right approach.

In the view of this Court, the question of compulsion really arises at two stages. Was he 'compelled' by Keke’s order to kill his cousin brother and the threat to be killed instantly himself.' But there is also a prior question. Why was he compelled to carry out Keke’s order? Was that solely because of the threat and of factors over which he had no control or was it because he had put himself in a position where in reality he was compelled to obey the order either because he had joined an organization which required him to obey such an order or he had joined an organization which in practice would kill or harm him if he did not obey the order.

If he had, without compulsion, joined such an organization and either he had given an undertaking that he would obey orders, or when he joined he knew or must have foreseen that he would have to obey such orders, under penalty of death or grievous bodily harm if he did not do so, he cannot be heard to say that he was compelled within the meaning of section 16 of the Code and that he is exonerated from liability. Similarly if he subsequently could have left but did not do so he would not be able to rely on the defence because he was not 'compelled' to say and obey the order. Again if he did not know initially that the organization carried out such acts of violence but failed to leave the organization when he did know and could have left, he will not be able to rely on the defence of compulsion for subsequent acts.

The learned Judge did not say that he was bound by Hasan, or by other Common Law authorities. He said he 'adopted' Hasan. Judges in this jurisdiction are not bound by Hasan as a common law rule. But that does not mean that the proper interpretation of section 16 prevents the Judge from holding that the word 'compel' does not excuse conduct which is due to the voluntary participation of a person in a violent organisation. If he continues even unwillingly to remain in that organisation then he may not be able to excuse himself by relying on legal compulsion by others. That is what I read the Judge as meaning when he said that he adopted the principle stated in Hasan.

In this context although it is not part of the law binding here (and it is not part of the definition of the Common Law exclusion) it is well to remember the caution, based on experience, by Lord Morris of Borth-y-Gest in R –v- Lynch [1975] AC 657 that 'duress must never be allowed to be the easy answer of those who can devise no other explanation of their conduct nor of those who have readily avoided the dominance of threats nor of those who have allowed themselves to be at the disposal and under the sway of the gangster-tyrant'. In the present context one must substitute 'compulsion' for 'duress'.

In applying section 16 Mr Anders argued that it cannot be said that the appellant had joined the GLF voluntarily i.e. without compulsion. His village had been burned to the ground by Government forces in 2002 and many people fled to the hills or, as Supt Stafford put it at p175 of the transcript of evidence, 'many of the males fled to the sanctuary of the GLF when no police protection from government forces was available. He did not 'seek out' membership of the criminal organisation. He was compelled to associate with the GLF 'as a result of being part of the small community to which he was born' (appellant’s submission para 57). Sarevo (transcript p14) said that in his village [Keke] 'just say these words 'you join us''. In his evidence the appellant said: p192 ...after the burning of the village what did you do? 'I did not do anything I just ran away with all the boys that followed Harold Keke.' P193 And why did you go after Harold Keke? 'For our safety. He has things we can depend on so for our safety we followed him.' On the other hand there is no evidence that the appellant was compelled to join GLF by threats from Keke or others.

When he joined the GLF, it is said on behalf of the appellant, GLF’s purpose was to protect and promote the interest of peoples who were natives of Guadalcanal. It began with the objective of protecting land rights and to secure Guadalcanal independence. There was no evidence that they were engaged in criminal activities or coerced their members. It is only subsequently that the GLF transformed itself 'into a murderous gang' (submission para 72). He could not have foreseen that he would be subject to compulsion or that violent methods would be adopted. Moreover there was only limited evidence that the appellant was an active member of the GLF.

He said just before killing his cousin that he was doing so because 'Harold had ordered him to do so'. 'These 2 men (the deceased are evil and that is why they die'.

The Judge heard much evidence about these matters. He does not set out in detail a conclusion that the appellant had willingly joined the GLF or that he was an active member when he was put under pressure to kill his cousin.

The learned Judge does, however, repeat the appellant’s admission of his involvement with GLF and that he had been a member for a period between 1 to 2 years. In March to April 2003 Keke was active in the area where the appellant lived and 'in the period leading up to the shooting of Jack Taka a great many people had been violently murdered in public places' in the vicinity of where the accused ended up shooting the deceased. The accused said that he had joined Harold’s group and 'assist them sometimes'. Because of his membership the Judge found that he knew or should be aware of the nature of the organisation and the criminal activity which they were clearly involved in. He should have left when it became violent. Far from seeking to leave the GLF he was the Judge found 'determined to follow the orders of the leader of the GLF'. His explanation for not leaving was 'if I ran away I would die' (transcript p 217).

In this regard it is to be noted that Allan Sarevo gave evidence that he and his family had left the area after the killing of Jack Taka because they were appalled by what was happening and they remained away from the area for a year or more.

The transcript of evidence makes it clear that during several months prior to the killing of Taka, Keke had been in the region of Ghorambau. On two occasions Hese was with him and there was quite a long gap between Hese’s first visit when he had a gun and the final visit when Taka was killed, and when it seems that a gun was handed to him. Hese had also been in the area of Ghorambau with Keke in between those two visits at a time when food had been taken from the villagers. Keke gave the appellant and his brothers an order to shoot Taka. The brothers discussed this and said that if they did not follow Keke’s order they would all be killed. They knew or were satisfied that this in the light of previous experience would be the result. So it was agreed that the appellant should shoot Taka. He said 'they forced me to do it. If I do not do it, all of us, all eight of us would die'. In his evidence he said:

'So I killed him because if I do not kill him I would die and so he would die and there would – no one else would be alive. 'From where we were standing that is where we would fall'. Sarevo’s group and Sam Leketo’s group; whole of the would either shoot us at the same time.'

He was asked:

'Did you believe that you would be killed, all of you if you did not follow the order of Harold Keke?'. 'Exactly I would not be sitting here' (page 199).

Keke himself had said 'I gave an order for you to shoot them'. 'He told us' so we looked at each other but we know that his methods are like that. What he says you must do'.

At page 251 he was asked:

Q. So I put it to you that Harold Keke never directly threatened that he would kill you unless you kill Jack Taka when you met with him?

A. 'All my brothers and myself, everyone knew fully well if you do not follow order from Harold you will be shot dead.'

It is plain from this that the appellant knew the methods which were adopted and that Keke did not stop at ordering family members to kill each other. That was his and their perception in the light of their experience. Although it is clear that men on the beach had guns (Kooloki p138 appellant p209) there is no evidence of a specific threat on that occasion of instant death or grievous bodily harm if they failed to obey. Even less can it be said that he did the act 'only' because during the whole of the time in which the act was being done he was compelled to do it by threats on the part of the other offender 'instantly to kill him or do him grievous bodily harm' if he refused.

In summary the appellant does not rely on any specific or direct threat made by Keke; Keke merely gave him an order to shoot. What the appellant relies on is fear of reprisal based on a general understanding of what membership of the organization involved. That cannot amount to a threat from a co-offender to cause instant death or grievous bodily harm if the act was not done. Further, the continued membership of the organization not withstanding the fear makes it impossible in the circumstances for the appellant to establish he was 'compelled' to commit the crime.

To the extent that the trial judge concluded that voluntary membership of the GLF in itself precluded reliance on the defence he erred, but the evidence makes it clear that in any event the appellant could not have successfully raised the defence.

The Judge found that in all the circumstances the appellant had without compulsion joined the organisation and he was actively associated with it for a period of up to two years or so. In the light of these findings it does not seem to the Court that there is substance in the argument that he failed to consider the relevant evidence which was given to him or that the conviction is unsafe and unsatisfactory.

Accordingly the appeal is dismissed.

Lord Slynn of Hadley P
Williams JA
Ward JA