IN THE COURT OF APPEAL OF SOLOMON ISLANDS

Criminal Appeal Case No. 15 of 2005

WHITNEY PIO PIKO

v.

REGINA

Court of Appeal of Solomon Islands
(Palmer CJ)

Date of Hearing: 26th May 2005
Date of Ruling: 23rd June 2005

K. Avere for the Appellant
S. Balea for the Crown

Palmer CJ.: The Appellant was found guilty of the offence of murder and convicted on 19th September 2003. No appeal however was lodged pursuant to section 26 of the Court of Appeal Act within the thirty days requirement.

In his application for leave to be granted out of time, learned Counsel Mr. Averre explained that following conviction on 19th September 2003, the Appellant was transferred from Gizo Prison to Rove Prison, Honiara. At that same time, the Regional Assistance Mission to Solomon Islands was making a large number of arrests and charges and resulting in the office of the Public Solicitor being understaffed and overwhelmed by the level of requests for assistance. There were a large number of inmates who indicated they had lodged appeals in person, including the Appellant. Despite letters being sent to the High Court and to the Public Solicitor Gizo, to make inquiries on this matter and despite it being allocated to a lawyer, no progress was made. The Appellant also made enquiries of his case with little progress as well. It later transpired when the files were eventually received in Honiara that no appeal had ever been lodged.

This is therefore an application for leave to appeal out of time under section 35 of the same Act.

Apart from the requirement to provide as much detail regarding the delay caused, the court is also required to consider the merits of the appeal or whether there is a likelihood of a successful appeal and may consider granting leave especially where the applicant was serving a life sentence1. Even if a number of years had lapsed, the court would not simply refuse an application to extend time on that basis. In this instance, learned Counsel submits that the learned trial judge failed to apply the correct test for self defence and therefore there was likelihood that the appeal would be successful.

The appeal relies on the following comments of the learned trial judge as erroneous. At page 1:

"3. The facts do not satisfy the test for self defence, even on the lesser proof standard.

4. The defence accorded by s. 204(b) of the Code had not been made out for even on the lesser standard of proof, the court could not be satisfied that the arts of the old man so terrorized the accused as to deprive him of his self-control."

At page 9:

"Piopiko has not satisfied me (on the balance of probabilities) that he had such a justifiable fear from the actions of the old man approaching him in the water, so as to be acting in self defence."

Learned Counsel for the Appellant relied on section 4(2) of the Constitution which provides a defence in the use of force as is reasonably justifiable for the defence of any person from violence or property, and section 204(b) of the Penal Code, which reduces the offence of murder to manslaughter where it is proved 'that he was justified in causing some harm to the other person; and that, in causing harm in excess of the harm which he was justified in causing, he acted from such terror of immediate death or grievous harm as in fact deprived him for the time being of the power of self control'.'

Learned Counsel Mr. Averre submits that the correct test for self defence is whether (on a subjective test) the accused was defending himself from violence and then whether (on an objective test) the force used in all the circumstances, was reasonable. If the force used was excessive then the verdict is one of manslaughter but if it was reasonable the result is acquittal.

Learned Counsel submits that once a defence of self defence is raised then it is for the Crown to disprove it beyond reasonable doubt. The accused does not have to prove the defence on a balance of probabilities, but the onus of disproving the defence rests on the prosecution2.

The burden of proof in self defence

The common law position regarding definition of self defence requires merely that the evidential burden for self defence be discharged by the Appellant; that is, there is sufficient evidence for the defence to be raised. Once sufficient evidence has been raised by the accused, prosecution has the legal burden of negativing or disproving that defence3 . The legal burden of proof does not shift to the accused to prove self defence on the balance of probabilities. Once sufficient evidence has been raised, the accused merely has to raise reasonable doubt in the mind of the court regarding the application or relevance of that defence. If successful, then the accused must be acquitted.

The common law test was aptly put in Zecevic v. DPP4 as follows:

'The question to be asked in the end is quite simple It is whether the accussed believed upon reasonable grounds that it was necessary in self defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury as left in reasonable doubt about the matter, then he is entitled to an acquittal. Stated in form, is one of general application and is not limited to cases of homicide.  Where homicide is involved some elaborating may be necessary.'

It is my respectful view that the common law test of self defence was encapsulated in section 4(2) of the Constitution as follows:

"(2) A person shall not be regarded as having been deprived of his life in contravention of this section if he dies as the result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably justifiable.

(a) for the defence of any person from violence or for the defence of the property".

To that extent, in so far as the learned trial judge had given the impression that the Appellant was required to establish on the balance of probabilities his defence of self defence, I am satisfied there is prima facie case of a misdirection of the appropriate test and that leave to appeal should be granted.

I note the test under section 204(b) of the Penal Code is a different test but that is not relevant as the appeal is not under that section.

Order of the Court:

Leave to appeal out of time granted.

Sir Albert R Palmer CJ
Justice of Appeal.

ENDNOTES:

1 See Walsh; Foster (1984) 79 Cr.App.R. 61 at 67; Hobson (1998) 1 Cr.App.R. 31
2 authorities relied on include, R v. Lovell (1957) 1 Q.B. 547; Chan Kau v. R (1955) A.C. 206; R. v. Wheeler (1968) 52 Crim.App.R. 113; Palmer v. R (1971) 1 All ER 1077; R. v. Abraham (1973) 1 WLR 1270; R v. Folley (1978) Crim. L.R. 556.
3 See Lobell [1957] 1 QB 547.
4 (Vic) (1987) 162 CLR 645; 71 ALR 641; 25 A Crim R 163 per Wilson, Dawson and Toohey JJ at 661; 652; 174