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Ngoro v Regina [2015] SBCA 13; SICOA-CRAC 33 of 2012 (24 April 2015)

SICOA CrAC NO 33 OF 2012

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. This Appellant, together with another, was convicted, after trial, of murder and sentenced to life imprisonment. Two others were convicted of manslaughter following the same trial. The Appellant alone seeks to appeal his conviction. That process was begun with a Notice of Appeal filed on 15 November 2012. In that Notice of Appeal ground one of twelve suggests that the trial judge erred in his factual finding. Of all twelve grounds of appeal, in fact only one is confined to matter of law alone. The others are either entirely on questions of fact or are of mixed fact and law.
2. In those circumstances to comply with section 20 of the Court of Appeal Act. [Cap 6] leave must be sought and obtained prior to filing the Notice of Appeal. The section provides:-
   • A person convicted on a trial held before the High Court of Solomon Islands may appeal under this Part of this Act to the Court of Appeal-
     • (a) against his conviction on any ground of appeal which involves a question of law alone;
     • (b) with the leave of the Court of Appeal or upon the certificate of the judge who tried him that it is a fit case for appeal against his conviction on any ground of appeal which involves a question of fact alone or a question of mixed law and fact or any other ground which appears to the Court to be a sufficient ground of appeal; and
     • (c) with the leave of the Court of Appeal against the sentence passed on his conviction unless the sentence is one fixed by law.

By this stage in the appeal leave has now been sought, both to file a notice out of time and to call further evidence. That further evidence is to come from Sam Dagi, a person convicted at the same time and for the same offence as the Appellant. He has not appealed against his conviction or sentence. It is not clear from the papers whether he will at some future time attempt to commence an appeal, a matter only relevant because of an expressed previous intention to appeal for some reason never put into effect.

3. The circumstances of the charge against both the Appellant and his co-accused were that on the evening of 26 February 2010 at Poitete, Kolombangara Island in the Western Province they together murdered Obed Ramo. It is the case for the Crown that this Appellant was the principal offender, stabbing the deceased with a knife, and that his co accused were secondary offenders, either aiding and abetting the crime or as parties to a joint enterprise. In his findings the judge sets out how he found that the Appellant was the one who stabbed the deceased with a knife taken to the scene by the accused Dagi.
4. The trial began on 16 July 2012 and continued until 30 July 2012. Judgment was delivered on 16 October 2012. Each of the four accused has separate legal representation for that trial. Nine witnesses were called by the Crown and all four accused gave evidence. Two witnesses were called by the defence in addition to the accused themselves giving evidence.
5. There was held within the trial a voir dire on the admission of a statement made by the co-accused Dagi. As a result of that procedure the statement he made to the police was ruled inadmissible. It was ruled inadmissible, so the record shows, because the trial judge was not satisfied that the police had taken sufficient care to ensure that the alleged offender had both understood the formal caution and the effect of making a statement to the police at that time. It was expressly said not to be because of any police intimidation or threat, the judge indicating that he did not believe Dagi on those points. At the request of the Appellant we have seen the statement ruled inadmissible and the decision handed down on the voir dire.
6. The findings of the trial judge in respect of this Appellant and the co-accused Dagi are that the Appellant stabbed the deceased with a knife that the knife belonged to Dagi and that the knife went from Dagi who took it to the scene to the Appellant following which the Appellant used the knife to inflict what turned out to be a fatal wound. The cause of death was triggered by blood loss resulting from the stab wound.
7. Although in his statement and in his evidence Dagi suggested that he was holding the knife when the knife accidentally came into contact with the deceased and so he accepted responsibility for the accidental death of the deceased, no appeal by the co-accused Dagi has yet been filed. The purpose of drawing this court's attention to his warned and caution statement is to demonstrate that his story did not change from the start of the police investigation into the matter.
8. The co accused continues to assert the cause of death to be contrary to findings of trial judge. He appears to want this court to know of that fact even though he does not seek himself to overturn the findings of the trial judge that the death did not take place in this way. The learned trial judge found that the fatal blow was a deliberate stab wound inflicted not by Dagi but by this Appellant.
9. From the judgment it is clear that, having heard the same evidence from Dagi as is contained in his excluded statement, the learned trial judge does not accept it as credible evidence. The learned trial judge makes positive findings, based on other admissible evidence, the stabbing did not occur as Dagi said in both instances, his statement now before this court on this application and in his evidence at the trial.
10. The other evidence on which the learned trial judge made positive findings came from a witness who gave evidence that she saw Ngoro stab the deceased from the position where she observed the incident. Part of the appeal grounds raised questions about where she was during the fight and whether she could see properly that which was happening given the prevailing lighting conditions. We do not overlook those grounds but note that all of these questions were raised before the learned trial judge during the trial and are not something on which he did not have an opportunity to make findings.

Leave to appeal out of time

11. The document headed Notice of Appeal was filed within 30 days of the conviction. It contained the grounds on which the Appellant sought to challenge his conviction. That a Notice of Application for leave should have been filed rather than a Notice of Appeal is not something for which the Appellant was responsible. The failure to adhere to the correct procedure rests with his legal practitioner. To that extent the Appellant should not be penalised and therefore the application to seek leave out of time is granted.
12. There will come a time and a case where another failure on the part of a legal practitioner of this nature will oblige this court to intervene in a different way. This is not that case given the consequences of a murder conviction; legal practitioners are nevertheless advised not to take on work for which they have neither the experience, learning nor nor expertise lest they fail in their duty to the client, the court and the public and find themselves at the wrong side of a negligence suit.

Leave to adduce additional evidence

13. The principles on which material not before the original trial court may be admitted are well established. The following principles have emerged over time:
    • (1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases.
    • (2) The evidence must be relevant in the sense that it bears potentially decisive issue in the trial,
    • (3) The evidence must be credible in the sense that it is reasonably capable of belief.
    • (4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
14. Looking at this evidence sought to be adduced two categories arise. There is the statement of Dagi which was not admitted during the trial and there is surrounding evidence of the reasons why Dagi asked for a voir dire and the suggestion that this was not the choice he would have made through his own free will. Of the first there is nothing contained in that statement which Dagi did not repeat in his evidence at the trial. Of the latter there is nothing to be gleaned other than the notion that the story Dagi told in his evidence and now maintains is a story that he has told consistently since his initial arrest.
15. The evidence which Dagi gave in the trial has been considered by a trial judge and has been found to be less than credible. Even his evidence about the circumstances leading up to the making of his statement has been found not to be credible. For those reason it seems that the additional material sought to be admitted does not meet (3) above. Nor can it be said to have met the first criterion as it was in fact available at the trial at first instance.
16. For those reasons the application to admit the evidence on this appeal fails.

Leave to appeal on facts and/or mixed facts and law

17. Given the decision to refuse leave to admit additional evidence from Dagi, there remains only consideration of the evidence below from the female witness who said in her evidence that she saw the Appellant stab the deceased. It is common ground that the knife used to inflict the wound was the knife owned and brought to the scene by Dagi.
18. There are raised on this appeal, as previously mentioned, questions about whether she was actually there as she maintains and whether given the lighting she could actually see the events. All of these issues were canvassed before the trial judge and nothing new is raised. That suggests that this Court on appeal is required to do little other than to second guess the trial judge without the benefit that the trial judge has over the Court in having seen and heard the witnesses and to assess their credibility following cross examination.
19. There is also raised a question on the post mortem evidence and the cause of death. In submissions counsel for the Appellant suggests that culpability for the death rested (at least in part) with the attending nurse for failing to stem the blood loss quicker than was done. There is, in our view, no merit in that submission. The blood loss was a direct result of the piercing of vessel carrying blood around the body of the deceased and that piercing was caused not by the attending medical staff but by the stab wound.
20. When considering either to grant a certificate, if requested, that the case is one fit for appeal or as in this case where leave to appeal must be sought before the appeal proceeds, the presiding judge or the Court must turn to consider the prospect of success of the intended appeal. Given the lack of merit shown in any of these intended appeal grounds it seems that the prospects of success are non-existent.
21. Leave to appeal is refused.

Goldsbrough P
President of the Court of Appeal

Ward JA
Member of the Court of Appeal

Wilson JA
Member of the Court of Appeal