IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	An Appeal from a judgment of the High Court of Solomon Islands.
	
COURT FILE NUMBER:	Criminal Appeal No. 11 of 2006
Criminal Appeal No. 12 of 2006
Criminal Appeal No. 18 of 2006
	
DATE OF HEARING:	Friday 20th October 2006
	
DATE OF JUDGMENT:	Monday 20th November 2006
	
THE COURT:	Lord Slynn of Hadley P, 
McPherson JA 
Morris JA
	
PARTIES:	Russell Edolo
Joseph Noneke
Livae Meqo

-v-

Regina
	
ADVOCATES:
Appellant:

Respondent:	
K. Averre
G. Brown
P. Southey

R. B. Talasasa
	
KEY WORDS:	Murder – Unsafe, unsatisfactory verdict
	
EX TEMPORE/RESERVED:	Reserved
	
ALLOWED/DISMISSED:	Russell Edolo: Allowed 
Joseph Noneke: Dismissed
Livae Meqo: Dismissed
	
PAGES:	1-11	

JUDGMENT OF THE COURT

1. The appellants appeal their convictions on 27th March 2006 for the murder on 22nd February 2002 of Fred Fawcet-Kay ("Fred") and Rex Dalia ("Rex") at Noro Passage.

2. The facts can be stated quite shortly. Fred was the son of a relatively wealthy land owner. Rex, a Malaitan friend, was visiting him. On the morning of 22nd February 2002, the two deceased borrowed a boat and travelled from the Fawcet-Kay Estate to Noro. The purpose of the trip was to fill a gas bottle. It was not planned in advance. Basil Neuwa was the driver of the boat. He lived on the Fawcet-Kay Estate and was employed there.

3. On their return journey, the boat driven by Neuwa was followed by a white boat driven by the appellant Meqo. The appellant Noneke and two Bouganvillians, Connie and Tschika, were passengers in this boat. The men from Bouganville had come to the western province to provide security at the request of the Government. 

4. As the boat driven by Neuwa approached the landing area at the Faucet-Kay Estate, it was fired upon by some of the occupants of the white boat. Fred was shot whilst in the boat. Rex jumped overboard and was shot in the water. Both men died instantly. Neuwa escaped and swam ashore.

5. The case against the appellant Noneke was he was one of the shooters. The case against Meqo was as driver of the boat he was a participant in the shooting. The case against Edolo was he, and possibly others, organized the killings. It was alleged against all three the shootings were to ensure security in the area was controlled by Edolo and the Bouganvillians. The reason for shooting the two deceased was to remove any possible threat caused by Fred and his friend Rex. Fred was believed to possess a firearm. 

6. It was accepted both the deceased died as a result of the shootings. It was also accepted the two Bouganvillians had fired rifles. They have since disappeared and cannot be found. 

7. Noneke’s defence was he knew nothing of any proposed shooting of either of the deceased and was astonished when the shootings took place. He denied he was one of the shooters and claimed any shooting was done by the Bouganvillians. He gave evidence at his trial.

8. Meqo’s defence, like Noneke, was he knew nothing of any proposed shooting of either of the deceased. He claimed he had been asked by the Bouganvillians to drive the boat and agreed to do so. He claimed he was taken by surprise when the shooting began and initially lost control of the white boat. He denied steering the boat so as to gain a better firing position. He gave evidence at his trial.

9. Edolo’s defence was he played no part in organizing the killings. 

10. THE APPEAL BY MEQO:

This appellant’s Amended Notice of Appeal set out the following 5 grounds:

(i) That the learned trial judge took into account irrelevant and prejudicial matters in arriving at the verdicts;

(ii) That the learned trial judge drew conclusions with little or no evidence to support such conclusions;

(iii) That the learned trial judge approached the evidence in a manner inconsistent with the Crown bearing the burden of proof;

(iv) That the learned trial judge failed to consider properly the defence case;

(v) That the learned trial judge failed to warn himself as to the risk of the reconstruction having a displacement effect, thereby unconsciously influencing key prosecution witnesses. 

11. GROUND 1:

This is not made out. Mr Southey submitted the trial judge had drawn inferences adverse to Meqo’s defence as he considered some Crown witnesses were afraid to give evidence of anything they knew. He submitted the trial judge read too much into the evidence of such witnesses and their fears. A consideration of the transcript of evidence and the judgment satisfies us there is no basis for this submission.

12. GROUND 2:

This is not made out. Mr Southey submitted the trial judge erred in finding the appellant was a party to the killings and a party to the whole affair. He submitted the trial judge misunderstood the defence in a number of important respects and further submitted had the defence been given fair consideration, the trial judge could not have excluded the appellant’s account of what occurred, as given by him in evidence, beyond reasonable doubt.

13. This criticism of the trial judge is not justified. It was for him to consider what weight he should give to matters raised in the evidence before him. Certainly, there was an abundance of evidence which, if he chose to accept as he in fact did, established the white boat was at all relevant times under control. The acceptance of this evidence, of course, defeats the appellant’s claims.

14. GROUND 3: 

This is not made out. Mr Southey submits the trial judge gave insufficient weight to the defence case. He further submitted the trial judge applied a different standard when assessing the credibility of the prosecution witnesses as compared with the appellant. He also submits the trial judge placed undue weight on his findings this appellant gave an untrue version of events and used his untruths to strengthen the Crown case.

15. "At pages 22 & 23 of his judgment, the judge said:

The use to which the court may put any untruths of the defendants. 

Where there are these denials in the defendant stories to those given by the various Crown witnesses, having heard and seen the defendant in the witness box, I am satisfied despite the defendant’s assertions to the contrary, that the various untruths that I have touched on above, support the prosecution case. I have considered their respective stores in the light of Richens (R v. Richens (1993) 4 All ER 887 at 886):

"The mere fact that the defendant tells a lie is not in itself evidence of guilt. A defendant may lie for many reasons, for example, to bolster a true defence, to protect someone else, to conceal disgraceful conduct of his, short of the commission of the offence, or out of panic or confusion. If you think that there is or may be some innocent explanation for his lies, then you should take no notice of them but if you are sure that he did not lie for some such or innocent reason, then his lies can support the prosecution case.""

16. The trial judge was, in view of the nature of the appellant’s untruths, entitled to act as he did and use the untruths as he did. We see nothing in his judgment to support this submission.

17. GROUND 4:

This is not made out. The trial judge spent quite some time considering this appellant’s case. 

18. GROUND 5:

This is not made out. Our reasons are fully set out when we consider the appeal by the appellant Noneke whose counsel made a similar submission.

19. Meqo’s appeal is accordingly dismissed. 

20. THE APPEAL BY NONEKE:

NONEKE’S Amended Notice of Appeal raises 9 grounds. They are:

(i) The verdict is unsafe and unsatisfactory and against the weight of the evidence;

(ii) The learned trial judge relied upon erroneous principles and irrelevant factors in arriving at the verdicts;

(ii) The learned trial judge erred in failing to properly consider and assess the evidence of complicity;

(iv) The learned trial judge failed to properly consider and apply the onus of proof;

(v) The learned trial judge failed to properly consider the defence case;

(vi) The learned trial judge intervened in the trial to an extent that made it difficult for defence counsel to properly put the defence case;

(vii) The delay in delivering the judgment has caused a miscarriage of justice;

(viii) The learned trial judge failed to take into account the prejudicial effect of the re-enactment exercise;

(ix) The learned trial judge erred in his consideration of motive. 

21. GROUND 1:

This is not made out. Ms Brown submitted there was little evidence to involve the appellant in the shooting. In fact a number of witnesses testified three men in the white boat had guns and were shooting. These sightings did not include the driver, Meqo, which left only this appellant and the two Bouganvillians in the white boat.

22. We accept there are differences in the descriptions given by the witnesses of the shootings. This is to be expected. Any differences were minimal and did not detract from the main thrust of their evidence to the effect three persons on the white boat were firing shots. 

23. Furthermore, the trial judge carefully analysed what each witness said before accepting their evidence. He was entitled to do so. We see no basis to interfere with his findings on this issue.

24. GROUND 2:

This is not made out. While it can fairly be said the trial judge was critical of the conduct of this appellant’s trial counsel, there is, however, nothing to support the submission this affected his consideration of the appellant’s case.

25. Nor do we accept the trial judge, in the overall context, erred in his consideration of the motive for these killings. He was entitled to ask himself why these killings had occurred particularly as the Crown contended as part of its case the killings had taken place to ensure security in the area remained in the hands of Edolo and his supporters and was not challenged by others such as the deceased. The question of motive in this appellant’s case was of no real significance as it was accepted by the trial judge he was one of the actual shooters.

26. GROUND 3:

This is not made out. The judgment makes it clear the trial judge was well aware of the issue and dealt with it appropriately.

27. GROUND 4:

This is not made out. Counsel has criticized the words used by the trial judge in part of his judgment where he sets out his conclusions on points requiring determination. None of the passages referred to satisfy us the trial judge failed to apply the test of proof of guilt beyond a reasonable doubt. Indeed at pp.23-24 of his judgment he said this:

"It can be seen from my extensive reference to various parts of the evidence that this evidence is a matrix and thus it is unnecessary to seek to identify links in a chain for the facts illustrate a combination of acts by all involved so as to make the metaphor particularly apt. Having had regard to all the evidence and illustrating my reasoning by reference to some, I am satisfied beyond reasonable doubt of the guilt of the three defendants and they are convicted of both murders".

28. GROUND 5:

This is not made out. It is plain from the judgment the trial judge carefully considered in detail the evidence of the appellant.

29. GROUND 6:

This is not made out. We have earlier commented on the trial judge’s disagreement with the manner in which trial counsel conducted his case. Difference between counsel and the trial judge at first glance appear considerable. But the trial extended over three months with almost a thousand pages of evidence and submissions. This was not a jury trial where a perceived criticism of counsel by a Judge may well be considered to have had an effect upon the consideration by the jury of an appellant’s evidence. The criticism of Counsel may have been over stated but we are not satisfied that the trial judge allowed any possible annoyance with counsel to affect his judgment thereby resulting in a miscarriage of justice.

30. GROUND 7:

This is not made out. We do not consider a period of approximately six months from completion of the trial to delivery of the judgment to be too long for an experienced Judge to deliver his judgment. This is particularly so as the issues here were straightforward and we are satisfied there has been no miscarriage of justice on this ground. 

31. GROUND 8:

This ground has caused us some concern. The reconstruction complained of took place shortly before commencement of the trial. The prosecutor, some investigators and prosecution witnesses attended.

32. It was accepted this conduct was contrary to sound police practice. Clearly it raised the possibility witnesses would embellish their evidence and/or be affected by what others claimed to have done or what others said at the reconstruction.

33. Criticism of the police action and the possible effect on witnesses and their testimonies was raised before the trial judge by defence counsel. At p.16 of his judgment, he said this:

"The later prosecution and police investigations at the scene.

There was criticism of prosecution and police attendance at the scene before this case came to trial, criticism based on what defence counsel asserted was the effect on witnesses of "re-enactments" and photographs taken at the scene. I am satisfied defence criticism was baseless for witnesses alleged to have been influenced by what they saw or heard when the prosecution party arrived at the plantation, denied any such influence. Apart from the boat trip of Mr Basil Neuwa, there was nothing in the way of re-enactment. Neuwa’s trip and photographs were not put to other witnesses as the route of the journey on the fateful day. In the circumstances of these killings, the court would expect the prosecution to reassess the evidence originally taken by reference to the scene to ensure the evidence was at least plausible from a view of the geographical area. Anything less would be negligent."

34. The trial judge was in the best position to assess the nature of the alleged re-enactment and what effect, if any, the "re-enactment" had had on the memory of witnesses. We do not consider in the end that the "re-enactment" has led to a miscarriage of justice or that this conduct has rendered the verdict unsafe.

35. GROUND 9:

This is not made out. We have discussed the consideration of motive earlier in this judgment.

36. Noneke’s appeal is accordingly dismissed.

37. THE APPEAL BY EDOLO:

Edolo’s Amended Notice of Appeal sets out a number of specific grounds on which it was alleged the trial judge had erred. The main thrust of this appeal is the charges were not proved beyond a reasonable doubt and/or the verdict was unsafe and/or unsatisfactory and/or against the evidence.

It is therefore necessary to detail what evidence the crown relied upon to establish this appellant was involved in the organizing and overseeing of the killings of Fred and Rex.

38. There was evidence:

(i) this appellant was in a store near Noro when the shootings were taking place and he had a gun with him, probably a rifle, covered by what a witness described as a pair of trousers;

(ii) A recent neighbour of the appellant had seen Bouganvillians at the appellant’s home armed with high-powered rifles;

(iii) This same neighbour had spoken to the appellant around the time of the shootings in relation to the whereabouts of the neighbour’s brother. This man testified the appellant appeared concerned the brother had gone with Fred. He claimed the appellant communicated to him by a hand motion across his throat "Fred would be dead". This witness appears to have been referring to a time when this appellant was in fact in the store near Noro;

(iv) Three men, while drinking with the appellant a few days before the killings, said the appellant had asked them if they would be willing to kill Fred. It is clear from the transcript, and the trial judge obviously accepted, all of these witnesses and this appellant had been drinking at the time of this conversation. The transcript shows varying versions of the conversation. 

(v) A male acquaintance of the appellant spoke to him on 21st February and claimed the appellant asked him to keep a lookout for Fred’s canoe. He also said on an earlier date the appellant, when drunk, had told him "Mifula going to shoot Fred".

(vi) A witness testified to seeing Mr Neuwa at Noro on 22nd and also seeing a white boat. This witness spoke of being questioned about guns owned by Fred and this this appellant was present during part of the questioning;

(vii) The appellant was very interested at finding out whether Fred did possess firearms. There was evidence the appellant knew of shots being fired on the Fawcet-Kay Estate.

39. The appellant gave evidence. He denied any involvement in the killings. He denied having a rifle wrapped in a pair of trousers at the store near Noro. He denied any claims he had asked whether people were prepared to kill Fred. He acknowledged he was part of a group who considered it their responsibility to keep the area secure.

40. In considering this submission we note:

(i) it was conceded by the prosecution others other than Edolo could have been involved in organizing these shootings;

(ii) there was no direct evidence to show he arranged for his co-accused or the Bouganvillians to carry out the killings;

(iii) there was no substantial evidence of any bad blood between him and the deceased and no real motive for him to be involved was established in the evidence. Indeed in this regard, we note the Crown’s possible motive seems to have changed from differences over a land dispute to ensuring no guns were on the Fawcet-Kay Estate;

(iv) there was no evidence he took steps to flee the scene of the shootings or hide following the shootings;

41. In fairness to the trial judge, he appears to have considered most of the matters we have referred to in the previous paragraphs and he concluded, after considering them, the Crown had established its case against this appellant.

42. Having anxiously considered the record and, with respect to the trial judge, we consider there was insufficient evidence to justify his conclusion the charge of murder against this appellant was proved beyond a reasonable doubt. The finding of guilty, in our view, cannot stand.

43. Edolo’s conviction is accordingly quashed and a verdict of not guilty substituted. 

Lord Slynn of Hadley P
McPherson JA
Morris JA