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Toghovotu v Regina [2009] SBCA 7; CA-CRAC 11 of 2007 (26 March 2009)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

There are three appellants in this appeal who have filed separate appeals against their convictions on murder charges. Andrew Toghovotu and John Gurusu were convicted of the murder of Augustine Govu and John Gurusu and Joseph Kulia convicted of the murder of Teke Kenisi.

The three appellants were part of a joint operation group involving members of the Solomon Islands Police Force and local militant groups. They were part of an operation which took place on 16 March 2001 at the Weathercoast to hunt for the militant war lord Harold Keke and his followers. They had divided into two groups and then came together at a particular point when one of their members was killed by sniper fire. That death sparked the chain of events which led to the killing of the two victims in this case. It appears the decision was then made to kill Augustine Govu. When Teke Kenisi sought to escape by running away he was gunned down by rifle fire. There were initially four defendants charged for their murders but one Adrian Volia was acquitted.

Andrew Toghovotu ("Te’e") raises three grounds of appeal as follows:

(i) The learned trial judge erred in not instructing himself in relation to an alternative verdict of manslaughter;

(ii) The verdict is unsafe as counsel failed to advise the appellant of the significance of his failure to give evidence and in particular of the relative weight that would be attributed to his unsworn record of interview; and

(iii) The verdict is unsafe as counsel failed to put the appellant’s case to the court in that he failed to act in accordance with the appellant’s express instructions to call witnesses in the defence case.

Ground 1 - the learned trial judge erred in not instructing himself in relation to an alternative verdict of manslaughter.

The case for the appellant can be summarised as follows, that the learned trial Judge erred in finding a conviction on the charge of murder when the evidence of a specific intent was in doubt and therefore should have instructed himself in relation to an alternative verdict of manslaughter.

Learned counsel, Mr. Cade for the appellant submits that the most that can be gleaned from the evidence was that the appellant was guilty of causing grievous bodily harm. The only direct evidence of an intention to kill he says came from witness Aldrick Sese ("Sese"). Sese had stated in evidence that the appellant told him he would be killed to compensate for the death of one of his boys that had been killed by sniper fire. Sese however was not killed and so Counsel submitted that what the appellant had told him should not be construed to include the killing of anyone else other than him. Mr. Cade also submitted that he thought this was stated after the killing of Augustine Govu and before the killing of Teke Kenisi. Counsel however later conceded that this statement was made before the killings took place.

In his conclusions the learned trial judge found that the appellant had said that one or more of the people who had been captured would be killed to compensate for the death of his group member. We form the view that even if there was no express statement to that effect, we are satisfied on the material before us that there was as his Lordship had found, ample credible evidence of a specific intent to kill Augustine Govu.

The appellant was the leader of his group. He was therefore in charge of everything that happened that day. There is evidence which showed that not only did he attack the deceased, but was directly involved in stabbing him and holding him while the others attacked him. One of the witnesses, James Saurango stated the appellant was involved in holding the deceased while they cut him until he fell down.

We are satisfied there was clear evidence before his Lordship to make a finding of guilty against this appellant for murder. Section 202 of the Penal Code provides that malice aforethought may be expressed or implied and is established inter alia where there is proof of an intention to cause the death of or grievous bodily harm to any person whether such person is the person actually killed or not. We are satisfied there was material before the trial judge to enable him make the finding he did in this case.

This ground therefore has been misconceived. The appellant has failed to point to sufficient material that would raise doubt in the mind of the trial judge so as to require him to consider an alternative verdict of manslaughter. We dismiss this ground.

Ground 2 - the verdict is unsafe as counsel failed to advise the appellant of the significance of his failure to give evidence and in particular of the relative weight that would be attributed to his unsworn record of interview.

Section 269(2) of the Criminal Procedure Code ("CPC") provides inter alia that if the court forms a view at the close of the prosecution case, that there is a prima facie case against the defendant, then it shall:

"... inform each such accused person of his right to address the court, either personally or by his advocate (if any), to give evidence on his own behalf, or to make an unsworn statement, and to call witnesses in his defence, and in all cases shall require him or his advocate (if any) to state whether it is intended to call any witnesses as to fact other than the accused person himself. Upon being informed thereof, the Judge shall record the same."

There is no suggestion that the trial judge did not inform the appellant of his right to give evidence or to make an unsworn statement and to call witnesses in his defence. It is a requirement of law that the court must inform the defendant of his rights. It is also normal practice for a lawyer to advise his client of his rights under section 269(2) of the CPC. In the court transcripts at pages 777 – 779 it is clear the court complied with its duty to inform the appellant of his rights as required under section 269(2) of the CPC. According to the record of transcripts the learned trial judge alerted the appellants of their rights generally on Friday 15 September 2006. He told them that on the following Monday 18th September 2006 he was going to require them to indicate to him their rights regarding whether they intended to give evidence under oath, give an unsworn statement, remain silent or call witnesses on their behalf. The appellants therefore had the weekend at least to think over what they wanted to do and to instruct their lawyers.

We have carefully considered the affidavit of the appellant in which he said he was not aware of the difference between telling the court about his story under oath or not and their effect and compared that with what Mr. Evans says he did. Mr. Evans says he recalled that the appellant was adamant he did not want to give evidence in court and would rely on the contents of his record of interview with police. We form the view that Mr. Evans version of events is more believable and likely than that of the appellant and reject the appellant’s assertions that he was not aware of his rights. We are not satisfied therefore it has been shown that the verdict is unsafe and would dismiss this appeal ground.

Ground 3 – The verdict is unsafe as counsel failed to put the appellant’s case to the court in that he failed to act in accordance with the appellant’s express instructions to call witnesses in the defence case.

The allegation of the appellant that his counsel Mr. Evans failed to put his case fairly before the court by failing to call witnesses in his defence according to his instructions must be carefully weighed against what Mr. Evans says in his affidavit.

Trial counsel has a wide discretion on the manner in which proceedings are conducted, decisions as to what witnesses are to be called, questions to be asked, lines of argument to pursue, and or what points to abandon etc. Counsel often has to make difficult calls of judgement sometimes involving judgement as to tactics. It is usually only in exceptional circumstances, where it has been demonstrated that there has been "flagrant incompetence"[1] on the part of counsel or some other cause which will have the effect of causing a miscarriage of justice that an appellate court will intervene. An appellate court will rarely intervene where it is shown that decisions have been made in good faith, after proper consideration of the competing arguments and after due discussion with the defendant[2]. On the other hand, where it is shown that the decision was taken in defiance of or without proper instructions, or when all the promptings of reason and good sense pointed the other way[3], then an appellate court may set aside the verdict as unsafe or unsatisfactory.

We have read the affidavit of the appellant dated 14th March 2008 and the affidavit of Daniel Evans dated 21st May 2008 and form the view that it was more likely than not that Mr. Evans would have explained clearly to the appellant his rights and the effect of merely making an unsworn statement. We are not satisfied the decision taken not to call any witnesses was taken lightly by Mr. Evans. It is more likely than not that Mr. Evans would have instructed his client not to give evidence based on a professional assessment of the facts of the case than refusing out-rightly to do so. In his affidavit he pointed out that he did recall giving the appellant a couple of days to confirm his instructions, as he wanted to be sure the appellant was certain of his instructions.

We are not satisfied it has been demonstrated that counsel for the appellant was flagrantly incompetent or that he had made the decision in defiance of proper instructions or contrary to good reason and sense or that he was negligent in any way. The appellant’s allegations must be pitted with the version of events provided by Mr. Evans. We are not satisfied it has been shown that the appellant was not fully appraised of his rights and the probable consequences of not giving evidence and calling any witnesses in his defence. We are not satisfied Mr. Evans had defied any instructions to call witnesses in evidence. The decision whether or not to call witnesses, nearly all of whom are ex-combatants, may have jeopardised or done more harm than good; this is a matter within the discretion of Mr. Evans to exercise his professional judgement and provide advice upon. We find nothing in the material to convince us that his actions were irregular, contrary to reason and good sense, or demonstrating gross incompetence. We are not convinced the appellant’s case had not been put fairly to the court and we dismiss this ground as unfounded.

John Gurusu.

Ground 1 - there was a miscarriage of justice in that counsel failed to act in accordance with the appellant’s express instructions to call witnesses in the defence case, that is, that counsel failed to put the appellant’s case to the court.

This ground is similar to ground 3 in the appeal of Toghovotu. It turns on the factual issues before this court and the weight to be attached to the affidavit evidence that has been adduced. We have had opportunity to read both affidavits of the appellant and Mr. Evans and come to the conclusion that there is no miscarriage of justice in this case. We are not satisfied it has been shown on the balance of probabilities that Mr. Evans defied instructions to call witnesses or that he failed to properly, adequately or fully discuss with him the decision not to call evidence on his behalf. Mr. Evans pointed out in his affidavit that he recalled discussing the issue of calling witnesses with the appellants and explaining to them the problems that could arise if they relied upon the witnesses nominated. He advised them not to call the witnesses. He says the appellant agreed with his advice. We are satisfied the actions of Mr. Evans were within his professional discretion and entailed making tactical decisions. Nothing has been shown to suggest that his actions were not done in good faith or not done after due consultation or proper discussion with his clients. To the contrary he states in his affidavit he gave them a couple of days to think through his instructions carefully and to confirm them with him.

It has not been shown that he was flagrantly incompetent, negligent or failed in the circumstances to properly put the appellant’s case to the court. It has not been shown his actions resulted in the appellant’s case being prejudiced or that it would have had an adverse effect on the trial and the verdict which ensued. This ground therefore must also be dismissed.

Ground 2 – the conviction cannot be supported having regard to the Evidence.

We have had the opportunity to peruse carefully the submissions of learned Counsels in regard to this matter but cannot be satisfied on the balance of probabilities that the learned trial judge was wrong in his assessment of the facts or that there was insufficient evidence before him to support a conviction. To the contrary, we are satisfied there was as he described, "abundant credible evidence" that the appellant participated in the killing of Augustine Govu and in the shooting of Teke Kenisi. There is ample evidence that the appellant participated in stabbing Govu. The evidence of the pathologist who carried out a post-mortem report on the body of the deceased found evidence of multiple injuries, stab wounds, a bullet wound and other bone fractures, which are consistent with the evidence of stabbing.

The hurdle which the appellant faces in this appeal is that the issues raised entail questions of credibility, which are limited in character and scope. Bearing in mind that the trial judge would have been in the best position to assess issues of credibility, demeanour, mannerisms and conduct of the witnesses in court and decide which are trustworthy and not, this court will be loath to interfere with the trial judge’s findings unless we are convinced it is wrong.

We are satisfied the appellant has failed to demonstrate in this appeal that the finding of the trial judge was wrong or unsupported by the evidentiary material before him.

The same conclusion can be said in respect of the murder of Teke Kenisi. We are satisfied there was sufficient material before the trial judge which entitled him to make a finding of guilty. This appeal is more about issues of credibility than the question whether there was sufficient evidence before the court to enable the judge make a finding of guilty beyond reasonable doubt. We agree with the findings of the learned judge that there was ample credible evidence to find that the appellant took part in firing shots at Teke Kenisi from which he died. We must also dismiss this appeal.

JOSEPH KULIA

Ground 1 – the conviction was unsafe and cannot be supported having regard to the evidence.

Ms. Brown for the appellant submits that the inconsistencies in the evidence of Crown witnesses were such as to raise reasonable doubt as to the participation of the appellant in the murder of Teke Kenisi. She referred to the statements of a number of witnesses in particular that of Aldrick Sese who described a person by the name of James Kulia and submitted that this raised doubt as to the correct identity and recognition of the appellant as the man that shot Kenisi.

In his findings however, the trial judge disagreed with defence counsel’s submissions that the crown witnesses were lying. He formed the view instead that these were honest witnesses who were doing the best they could to relate a distressing story long after it occurred and in very unfamiliar surroundings. He held that the inconsistencies were no more than what can be expected from a large group of people in stressful circumstances.

We have listened carefully to the submissions of Ms. Brown regarding the sufficiency and reliability of evidence against the appellant but cannot be satisfied that it had been shown that the learned trial judge erred in his assessment of the evidentiary material before him. We are satisfied there was ample credible evidence before him which he carefully considered and weighed before making the decision whether it was credible and to be relied upon. We dismiss this appeal.

Ground 2 – The conviction was unsafe as the learned trial judge relied upon transcript material from a previously aborted trial to convict the appellant.

We have listened carefully to submissions of Ms. Brown regarding this appeal ground but are not convinced the admission of the transcript material from a previous aborted trial was erroneous in law. Section 266 of the Criminal Procedure Code provides that depositions taken before a committing Magistrates’ Court may be read as evidence provided inter alia, it is signed or endorsed by the committing Magistrate. The common law position on this point is also clear. Depositions and oral testimony given by a witness are admissible in a civil case and also in criminal proceedings[4] provided the following conditions[5] are met:

1. The proceedings are between the same parties;

2. Substantially the same issues are involved;

3. The party against whom the evidence is tendered had on the former occasion a full opportunity to cross-examine;

4. The witness is incapable of being called at the second trial.

Ms. Brown relied on section 185 of the CPC, which provided inter alia, that where another Magistrate succeeds another Magistrate in a trial, he may act on the evidence so recorded by his predecessor or resummon the witnesses and recommence the trial. She points out that paragraph 185(a), places a duty on the Magistrate to inform an accused of his right to resummon and rehear their evidence. She submits that this is analogous to trials in the High Court where evidence from an aborted trial should not be admitted without giving opportunity to an accused to resummon and rehear the evidence of earlier witnesses.

There is however a distinction to be borne in mind in the conduct of matters between the Magistrates’ Court and the High Court. It is not unusual for an accused to be self-represented before the Magistrates’ Court. Such a requirement therefore would be proper and necessary to ensure that the defendant understands fully what his rights are. This is consistent with his rights to a fair trial which entail access to a legal representative and to be afforded facilities to be able to examine witnesses called by the prosecution. More often than not however, those appearing in the High Court are represented and so would have the benefit of legal counsel to provide advice as to what to do.

We are satisfied in this case the appellant was adequately represented and had opportunity to discuss his case and the question of admission of the evidence of the witness Nigel Eric with his counsel. We are satisfied the learned trial judge addressed his mind to the availability and possibility of recalling that witness but accepted the course of action chosen by counsels in consenting to his records of transcripts to be admitted as appropriate in the circumstances. That is a matter within the professional judgement of learned counsels as to the conduct of their case and having satisfied himself there was prejudice to the case of the appellant he accepted that course of action. We are not satisfied he erred in so doing. This course of action was open to him in the circumstances before him and therefore this appeal ground must also be dismissed.

Ground 3 – the conviction was unsafe as the learned trial judge relied upon the evidence of an unreliable witness to convict the appellant.

We have considered carefully the submissions by Ms. Brown on this appeal point but are unable to accept that there was insufficient evidence which the trial judge relied on. Even if the evidence of Nigel Eric is completely disregarded we are satisfied there was, as correctly pointed out by the learned judge ample credible evidence to find that the appellant was one of the persons who shot at the deceased Teke Kenisi and which resulted in his death. The trial judge was entitled to make such findings based on credible evidence before him. We dismiss this ground of appeal as well.

Ground 4 – the verdict was unsafe as Counsel should not have consented to the admission of the transcript of the First Trial as evidence in the Second Trial.

This ground can shortly be disposed of. The decision exercised by Counsel for the appellant in consenting to the evidentiary material to be used as evidence in the second trial touches on the competence and professional judgement of trial counsel acting for the appellant. In her affidavit dated 31st October 2008, Ms. Garo stated she consented to the admission of the transcript to be admitted as evidence after carefully comparing her instructions with the material on the transcript. She formed the view that counsel in the aborted trial had done a thorough job in cross examination of the witness Nigel Eric and there was nothing further she could add to it. Counsel Steven Lawrence, who represented the appellant in the aborted trial, was a senior and competent public defender in Public Solicitor’s Office.

We have touched on this appeal ground in this judgement, that unless it can be shown actions of counsel in this particular case was flagrantly incompetent, grossly negligent, not in good faith or contrary to good sense and what is properly expected of counsel, an appellate court will be slow to interfere. We are satisfied it has not been shown that the course of action taken by learned counsel in this case was wholly unreasonable or had any adverse effect on the verdict given. The decision not to consent to the admission of the transcript of the first trial as evidence in the second trial was as much a tactical decision exercised in the professional judgment of counsel. This ground must also be dismissed.

Conclusion.

The appeal therefore must be dismissed in its entirety and the orders of the High Court upheld.

ORDERS OF THE COURT:

1. Dismiss appeals of Andrew Toghovotu, John Gurusu and Joseph Kulia.

2. Uphold orders of the High Court.

Sir Albert R. Palmer
Chief Justice

Vice-President

Williams JA
Member

Hansen JA
Member

^[1] R. v. Birks (1990) NSW LR 677
^[2] Archbold Criminal Evidence and Practice pp996, p 7 – 82.
^[3] R. v. Clinton [1993] 1 W.L.R. 1181
^[4] Phipson on Evidence, 13^th Edition 1989 p29-13
^[5] Garrow and Willis’s Principles of The Law of Evidence 6^th edn. J.D. Willis page 169.