IN THE SOLOMON ISLANDS COURT OF APPEAL	
		
Nature of Jurisdiction:	Appeal from Judgment of the High Court of Solomon Islands (Justice Faukona)	
		
Court File Number: 	Criminal Appeal Case No. CA. 9 of 2011 - (On Appeal from High Court Criminal Case Nos: 331 of 2005, 454 & 455 of 2007).	
		
Date of Hearing:	17 November 2011	
		
Date of Judgment: 	25 November 2011	
		
The Court: 	Sir Robin Auld, President	
	Sir John Hansen, JA.	
	Justice Gordon Ward, JA.	
		
Parties:	Morris Bolami & John Leinga - Appellants	
		
 	-V-	
		
	Regina - Respondent	
		
Advocates:		
Appellant: 	A Nori for Bolami	
	M Waqavonovono for Leinga	
Respondent: 	R Barry & F Taeburi for Crown	
		
Key Words: 	Perjury, Admissibility under section 112 of Penal Code. Relevance of delay to sentence.	
		
Ex Tempore/reserved: 	RESERVED	
		
Allowed/Dismissed: 	Bolami 	
	•	Appeal against conviction dismissed	
	•	Appeal against sentence adjourned	
	Leinga 	
	•	appeal against conviction for conspiracy dismissed	
	•	appeal against sentence for conspiracy allowed	
	•	Appeal against conviction for perjury allowed	
		
Pages: 	17	

JUDGMENT OF THE COURT

[1] This case arises from a long history of hostility between members of the Bolami and Namona families on Lord Howe Island in Temotu Province which, on the 11 October 2001, once again flared up with tragic consequences when Andrew Nieda, an uncle of the appellant Morris Bolami, was fatally shot. A brief account of the prosecution version of events that day can be summarised from the judgment.

[2] In the morning, the appellants and others went to an area where the people from Nila village had caused some damage. Three of the men, the two appellants and a co-accused, Titus Tevara(2), had home-made guns and the fourth man, Laulae, who was the leader of the group, had a .303 rifle. On the way, they saw three women from Nila and a shot was fired in the air to frighten them and to warn them that the appellants’ group were ready to fight. The women ran away and the four men returned to Bamoi village.

[3] That afternoon they returned to the bush with others, including Nieda. At a place where the path forked by a tave tree, (described in the trial as the ‘tave junction’) they divided into two groups. One group came across some Nila men nailing a warning notice on a Bamoi drier and, shortly after that, the Nila people began to sing war songs, blow cone shells and shout as they started to advance.

[4] The appellants’ group retreated to a safe area and Bolami told Laulae to open fire but he refused. Bolami was angry at this and fired his own weapon. Others in the group then opened fire. Nieda told them to stop and left in the direction of Bamoi village having told them not to discharge any firearms until he returned.

[5] As he reached the tave junction, he met the two appellants and asked them to tell Laulae not to shoot at people but to shoot into the air to scare them. The appellants were not standing far from Nieda and Bolami had an angry exchange of words with him including saying, “What is this that you are saying, why are you always talking, do you want me to shoot you?” Bolami then raised his gun and shot Nieda on his left side. The deceased staggered a few yards before collapsing.

[6] Shortly afterwards, when Bolami was asked by Laulae and Tevara(2) who fired the shot which they had heard, he replied “Tana, Tana, Tana”. John Tana was one of the men from Nila village and the prosecution case was that, over the next few days, there were meetings between the appellants and their erst while co-accused in which it was agreed that they would all name Tana as Nieda’s killer. 

[7] Tana was charged, tried in August 2003 and convicted of the murder. But following the discovery of fresh evidence, his conviction was overturned by this Court and he was acquitted.

[8] Subsequently Bolami was charged with murder, conspiracy to defeat the course of justice and perjury in a judicial proceeding and the appellant, John Leinga, was charged with the same conspiracy and perjury. They were both convicted on all charges. Barnabas Nimelie and Tevara(2) were also charged as co- conspirators and the latter also with perjury. They were both acquitted.

[9] Bolami appeals only against his conviction and sentence for murder and Leinga against his convictions and sentences for conspiracy and perjury. 

Bolami 

[10] Bolami’s defence to the murder charge was a denial. The deceased man was his uncle and he denied shooting him or even being angry with him. His case was that it was one of the men from Nila, Tana, who fired the fatal shot. Bolami denies ever having a home-made shotgun and called expert evidence to suggest that the weapon described as being seen earlier in the possession of the men was incapable of firing a shotgun cartridge. The same expert also told the court that the fatal wound as seen from the damaged shirt of the deceased suggested the gun had been fired from a much greater distance than that described by witnesses as being between Bolami and the deceased at the time he was shot.

[11] The single ground of appeal against Bolami’s conviction for murder is:

"The findings of guilt by the learned presiding judge were either against the weight of evidence or were not supported by any evidence at all, in particular findings that-

(a)	That Bolami had a shotgun which was capable of firing a shotgun bullet;

(b)	that Tana did not have a shot gun;

(c)	that the shotguns have long barrels;

(d)	that the fatal shot fired by the appellant was fired from a distance of between 20 to 25 metres: that a shot fired from such a distance could create a wound consisting of a single large wound and multiple small wounds;

(e)	that the Nila people did not advance into the Bomai territory as far as the tave tree."

[12] The trial in this case was prolonged and involved a number of witnesses both for the Prosecution and the Defence. In such a case, there are inevitably discrepancies and it is always necessary for the court to evaluate each witness in terms both of credibility and accuracy.

[13] Mr Nori, for this appellant, suggests that the judge was wrong in his findings concerning the five topics in the ground of appeal. The first and fourth of these relate to the shotgun. It was the prosecution's case, supported by a number of witnesses and disputed by others, that the appellant had a home- made shotgun and it was this weapon that was used to shoot the deceased. The defence called Emmanuel Maepurina, who was accepted as an expert on firearms.

[14] It was put to him that a gun as described by some witnesses would not be capable of firing and he agreed it would not. The description was that there was a vasa wood handle, a length of pipe and rubber for a trigger. However, he explained that the description he was given would fit home-made shotguns but was incomplete and agreed that the addition of a nail as a firing pin to a gun of that description could result in an effective firearm. The learned judge analysed Maepurina’s evidence in some detail and concluded that the prosecution had established beyond reasonable doubt that such home-made guns were capable of firing live ammunition.

[15] Maepurina also gave evidence in respect of the manner and degree of spread of the shot as described in the fatal wound and seen in the damage on the deceased man's shirt. That evidence was inevitably largely speculative as he had not seen the gun in question and he had no knowledge of the gauge or of the length of the barrel. Mr Nori suggests his evidence was that the fatal shot could not have been fired from as close a distance as that described by witnesses as being between Bolami and the deceased when the latter was shot. 

[16] In his determination of who fired the fatal shot, the learned judge carefully reviewed the evidence of the expert in respect of the wound suffered by the deceased. He pointed out that the evidence was not as conclusive as Mr Nori suggested. We set out his analysis of that aspect. 

"It is not disputed that Nieda died of multiple pellet wounds surrounding a major wound on the left chest. Mr Nori argued that according to Maepurina, it was most likely that the shot fired from a distance of about 25 to 30 metres. If it was fired from a distance between 5 to 10 metres it would have caused a large hole to the body”.

In examination in chief, Maepurina has never mentioned what Mr Nori based his argument on. When the witness was cross-examined by Mr Barry he said, the further the distance away from the shooter the greater the disposal (dispersal?) of the pellets. And closer the shooter to the victim the pellets would not spread too much. In further cross-examinations the witness answer by saying the type of wound as a major wound surrounded by small wounds, is consistent with the shooter being 5 to 10 metres away. In re-examinations the witness was asked by Mr Nori, would that kind of wound or holes cause by person stood far or close (referring to major wound and multiple wounds surrounding it). The answer the witness gave was, stood far. Then Mr Nori asked, how far? The answer is 25 to 30 metres. The next question asked if a person stood 25 to 30 metres away will the pellets caused one big wound and many wounds around? The answer is yes. Mr Nori continued to ask, if a person stood 5 to 10 metres will the pellets spread? The witness answered and said it will cause a big wound and pellets will spread.

The evidence adduce by the expert witness in regards to the issue of the nature of the fatal wound does not assist accused Bolami’s case at all. In fact it corroborates the prosecution evidence. Teveko said that Bolami and Leinga stood 15 to 20 metres away from Nieda and that was the distance Bolami fired the fatal shot.”

[17] The defence case was that Tana had a gun and was the person who shot Nieda. As with so many matters of evidence in this case, there were conflicting accounts from both prosecution and defence witnesses as to whether Tana had a gun. Some witnesses saw him with a gun. Others saw him hiding something under his shirt and, of those, some were able to see it was a gun and some were not. The judge pointed out that eleven prosecution witnesses did not see a gun in Tana’s possession but four did. Again the learned judge analysed the evidence, considered the various conflicting accounts and decided which were credible and whether they proved the prosecution case to the criminal standard. He had correctly directed himself on the burden and standard of proof and concluded that the prosecution had proved to that standard that Tana was not armed with a gun.

[18] He explained the basis of that conclusion and is it necessary to consider it further. After reviewing the evidence in respect of Tana’s possible possession of a gun, including Tana’s own denial, he continued:

"From the assessment, I would be able to say that the evidence suggesting John Tana was armed with a shotgun on the morning of 11 October 2001, is unconvincing. Eleven prosecution witnesses did not see it. Their evidence is much more convincing than four who said they did. I will deal with the evidence of accused Bolami and Tevara(2) in regards to the issue of Tana being armed in latter course of this judgment. Even so I am satisfied beyond reasonable doubt the evidence adduce by the prosecution that John Tana has never been armed or in possession of any shotgun real or otherwise, on the day in question." (emphasis added)
 
[19] Later, when describing the evidence of the appellant he stated:

"Bolami’s evidence was that he saw Tana running with something like a gun. He in fact did not see Tana shot Nieda. In fact, he was not sure at all. Uncertainty evidence is bad evidence and not a credible one. I have dismissed earlier the evidence that Tana was armed with a gun whilst at Nila village preparing to go into the bush. Therefore, to raise that Tana was armed with a gun at this latter part of chronology of events is absurd and cannot be believed." (emphasis added)

[20] Those passages cause us concern. When dealing with the prosecution witnesses, the judge appears to be evaluating their evidence on the basis that those he believed were ‘more convincing’ than others whom he had found ‘unconvincing’. That is not the proper test. The test is whether the evidence of those witnesses is sufficient to satisfy him of the truth and accuracy of their evidence beyond reasonable doubt. A witness whose evidence is simply more convincing than that of an unconvincing witness falls far short of that standard and it is not acceptable simply to say, on that basis, that he is satisfied beyond reasonable doubt. 

[21] When he later came to consider Bolami’s evidence and suggested it is ‘absurd and cannot be believed’, it is clear he had already decided the issue solely on the evidence of the prosecution witnesses. The appellant’s evidence should have been considered equally with the rest of the evidence before any conclusion on credibility was made. The suggestion that Tana had a gun was part of the defence case so it was only necessary for the judge to accept that it may be true in order to negative the prosecution case on that issue. To have decided that he was satisfied solely on the evidence of the prosecution witnesses before considering the defendant’s case was a serious misdirection of himself on an important aspect of the prosecution case. 

[22] The overall result is that we cannot accept his conclusion that Tana was not in possession of a gun.

[23] It has long been recognised that an appellate court should be slow to interfere with findings of fact made by the trial judge who has had the advantage of seeing and hearing the witnesses. It will only do so if the conclusions are not supported by the evidence or are clearly wrong. In the case of Keke v R [2006] SBCA 1, this Court explained:

"It has been stated many times that an appellate court will only interfere with the trial judge's assessment of the credibility and weight of the witnesses at the trial if they are clearly wrong or cannot be supported on the evidence as a whole. The reason is plain. The judge in the lower court has the benefit of having seen and heard the witnesses and is in a much better position to evaluate their evidence than the appellate judges who can only rely on the written record of the evidence.

Counsel provided detailed submissions in support of this ground. We have been through them with care and are satisfied the learned judge’s conclusions as to credibility and truth can reasonably be decided on the evidence before him and we do not find any reason to interfere."

[24] That is the position in this case. The issue of whether or not Tana had a firearm was an important aspect of the case but we consider the remainder of the judge’s decisions can be supported by the evidence he accepted as credible. If the evidence as a whole is considered on the basis that Tana did have gun, the remainder of the evidence is still overwhelming. In particular the evidence of the only eye witness to the actual shooting, George Teveko, which was accepted by the judge, was clearly sufficient in itself. Teveko was tested by a lengthy cross examination and his account was supported in many aspects by the evidence of other witnesses whose evidence the judge accepted. It was clear and overwhelming evidence that Bolami murdered Nieda.
 
[25] The appeal by Bolami against his conviction for murder is dismissed.

Leinga

[26] The appellant, Leinga, appeals against his convictions of conspiracy and perjury. Counsel for the appellant dealt with the issue of perjury first and we should do the same.

[27] At the conclusion of the prosecution case, the judge rejected a submission of no case to answer by the appellant based principally on the issues of whether court documents from the previous trial of Tana at Lata High Court were admissible as to their contents and whether corroboration of a single witness was necessary and, if so, whether there was corroborative evidence. At the close of the case those issues were raised again.

[28] The offence is charged under section 102 (1) of the Penal Code:

"Any person lawfully sworn as a witness … in a judicial proceeding who wilfully makes a statement material in the proceeding which he knows to be false or does not believe to be true shall be guilty of … perjury"

[29] The Particulars of Offence in the indictment simply followed the terms of the section:

“John Leinga of Bamoi Village, Temotu Province, on or about 25 August 2003, gave material evidence in a judicial proceeding in the High Court which he knew to be false or did not believe to be true."

[30] We note that the content or the nature of the evidence alleged to have been given and its materiality to the charge has not been stated. It is difficult to see how such particulars can possibly inform the defendant of the case he must answer. This is especially important in an offence of the nature of perjury and should always be indicated in the Particulars.

[31] We have been advised from the Bar table that there was no pre-trial conference or directions in this case and it appears the defence sought no clarification from the prosecution prior to the trial. In cases of this nature, a pre-trial hearing would not only have clarified such issues but would almost certainly have shortened the trial itself. We understand that, since the time of this trial, such pre-trial consideration has become the usual practice.

[32] In order to prove an offence under section 102 (1) the prosecution must prove that the defendant was lawfully sworn as a witness in a judicial proceeding and deliberately made a statement which, viewed objectively, was material to the proceeding and which he knew to be false or did not believe to be true. 

[33] In opening the case, the prosecution explained that the false evidence given by this appellant was to the effect that Tana shot and killed the deceased. In order to prove that matter they relied on the transcript of the previous trial produced under section 112 of the Penal Code. That document was produced as Exhibit O.

[34] Section 112 provides that, in a prosecution for an offence of perjury alleged to have been committed during a previous trial:

"The fact of the former trial shall be sufficiently proved by the production of a certificate containing the substance and effect (omitting the formal parts) of the information and trial purporting to be signed by the registrar or other person having the custody of the records of the court where the information was tried by the deputy of that registrar or other person without proof of the signature or official character of the clerk or persons appearing to have signed the certificate."

[35] The certificate produced by the prosecution was signed by the registrar of the High Court and had attached typed copies of the judge’s note of part of the evidence given by the appellant. The registrar certified that “they were true copies of the original extracted from the High Court file”. The defence objected to the admission of the contents of those notes as proof of the evidence the appellant had given. They were correct to do so.

[36] The prosecution contended that the reference to both ‘substance’ and ‘effect’ of the previous trial must refer to the fact of what was said by the accused in the former trial and so it was intended to refer to the evidence itself. There can be no doubt that the actual evidence given at the trial is relevant and will, in most cases, be essential to prove this offence. If proved in the correct way, it will be admissible as to its content but that does not mean it is admissible under section 112. 

[37] The provisions set out above from that section allow such certified record to prove "the fact of the former trial". It sets out the matters that must be included in the certificate in order accurately to identify the former trial. It is solely a means of proving the judicial proceeding and does not in any way allow the introduction of the evidence given in that trial nor does it, in itself, prove any of the other ingredients of the offence.

[38] It has long been the law that the evidence given by the defendant in the previous proceedings must be proved by someone who was present and can give his recollection of the defendant’s evidence. Whilst judges of the superior courts should not be called as witnesses, other judges or court officials may and may use their notes as aides memoires. The actual words need not be proved but the substance of the alleged perjured statement as set out in the indictment must be proved substantially by the live evidence of the person who was present. The introduction of the statements in Exhibit O as a side wind from the clearly limited terms and effect of section 112 was wrong.

[39] Although the judge, when ruling on the submission of no case, admitted Exhibit O and accepted that the registrar’s certificate also proved the contents of the judge’s notes of the appellant's evidence at the earlier trial, he appears possibly to have taken a different view at the close of the trial.

[40] In his judgment, he first stated that he had “the privilege to read the statements of the accused under Exhibit O” but later, in a rather confused direction, considered that section 112 does not apply:

"There are three important aspects in proving what materialises in a former judicial proceeding where the charge of perjury is alleged. Firstly, if the fact of the proceeding at which the perjury is alleged to have taken place is not admitted, this may be proved by production of the record of trial pursuant to section 112 of the Penal Code. That is exactly what prosecution has done. Secondly if the alleged perjured statement is not admitted the proof may be by the testimony of the persons who present at the trial. One such witness would suffice. Lastly corroboration is only required as to the falsity of any statement alleged to be false, section 109 of the Penal Code. The last two issues hold the major focus of the defence argument of which the prosecution had failed to meet the proof required by law. However it would appear that defence counsels did not understand the difference between the last two issues, and worst still prosecution for that matter.

In this case there is no dispute that there was a High Court proceeding at Lata on 25 August 2003 hearing the murder trial of Tana. In such circumstances section 112 Penal Code does not apply. It may well appear, that all three accused did not deny whole or part thereof of their statement given at the Lata trial of what they believed to be true. As such to proof by the testimony of persons present at the Lata trial, is no longer relevant in law, and in fact it is not an issue any more."

[41] Finally, when dealing specifically with the case against this appellant and Bolami, he concluded:

"It is now apparent that Exhibit O which prosecution rely on and tendered under section 112 of Penal Code to prove the charge of perjury, does not in any way assist the prosecution case at all. The intent to do so fall outside the requirement of the section itself. In reality it is out of context as far as the law is concern. Also out of context is the argument that witnesses attending High Court proceedings at Lata should be called to give evidence to prove the falsity of the statements. The issue in this court is falsity of the entire statement not whether the accused disagree with or part of the statement said in the Lata proceeding which require who ever attend the court proceeding to give evidence.”

[42] We find it difficult to determine, from those passages, the actual basis upon which the judge decided the issue of this appellant's guilt on the perjury charge. However it is quite clear that, whether or not he took it into account, Exhibit O could not prove the appellant's evidence at the previous proceeding. Of the necessary ingredients, therefore, the prosecution has only proved the fact of the earlier trial. The exhibit is no evidence that the appellant was a sworn witness or of the content of any evidence he gave and, therefore, of its materiality. Without that evidence there is nothing upon which to decide the appellant’s knowledge of its truth.

[43] The appellant’s conviction for perjury is quashed.

[44] The appellants Bolami and Leinga were charged with their co-accused, Nimelie and Tevara(2) with conspiring to defeat the course of justice contrary to section 116 (a) of the Penal Code. This section provides:

"Any person commits a misdemeanour who – (a) conspires with any other person to accuse any person falsely of any crime or to do anything to obstruct, prevent, pervert or defeat the course of justice;"
 
[45] The Particulars were that the four accused:

“… on 12 October 2001 … did conspire together to falsely implicate John Tana in the murder of Andrew Nieda.”

[46] Counsel for the appellant has sought to distinguish between the two parts of subsection (a). However it is clear that the prosecution case is that the accused agreed to accuse Tana falsely of the murder with the intention that it would defeat the course of justice. The prosecution opened the case clearly on that basis. The case was that at a meeting of all four accused on 12 October 2001, the agreement had been reached and was evidenced, in respect of this appellant, by his subsequent actions in making a police statement implicating Tana and giving perjured evidence at Tana’s trial. Similar actions were alleged against Bolami and Tevara(2) as confirming their participation in the agreement.

[47] The prosecution evidence had been that Bolami and Leinga had arrived together at Bamoi village after the shooting and that they paddled together to Dendu clinic where they told the medical attendant that the deceased was shot by Tana and caused a radio message to the same effect to be sent to the police. Subsequently, when they were still together sitting on the veranda of Bolami’s father's house, they offered no comment when another man, Tevara(1) said he didn't think the deceased was killed by Tana because the Nila men had not reached the Tave junction.

[48] The meeting specified in the charge took place when Nimelie, who was a police officer, had arrived having been told, prior to his arrival, that Tana was the killer. His evidence suggests that, at that meeting, he was seeking support for that allegation. The learned judge, when considering the case against Nimelie, concluded that from the evidence; "I find there is no evidence to prove beyond reasonable doubt that there was an agreement concluded by accused Nimelie with others on 12 October 2001 to conspire to defeat the course of justice.”

[49] He then passed on to the case against Tevara(2) and concluded, "There was no agreement at all materialised at the second meeting to blame Tana. Or that accused Tevara(2) has agreed with the intention to commit the crime of perjury at latter course. There is no evidence at the second meeting he consented and agreed to blame Tana." He was also acquitted.

[50] The judge dealt with the case of conspiracy against Bolami and Leinga together. Having reviewed the evidence of the earlier association of the two men, he concluded:

"The second meeting was rather a one-sided one. It was accused Nimelie doing all the talking and forcing Laulae which affected other conspirators to blame Tana. The evidence of the meeting seemed ineffective so far as accused Bolami and Leinga are concerned. In fact the circumstances under which such meeting was conducted is not favourable to conclude that a simple agreement was reached to blame Tana for the killing of Nieda. Whether that meeting was held or not, accused Bolami and Leinga had concluded that it was Tana who shot Nieda. Police, Provincial Executive and accused Nimelie had fully aware of that before Police and accused, Nimelie, travel to Bamoi village.

On behalf of accused Leinga, submissions are premised on the facts surrounding the conduct, and whether a simple agreement was conclusive at the second meeting. I have agreed there was no agreement made on the second meeting to blame Tana. It was a one-sided meeting where accused Nimelie forced the conspirators to blame Tana.”

[51] Counsel for the prosecution explained to this Court that, in that finding, the learned judge had "gone off at a tangent". The prosecution case, Mr Barry told us, is still that the agreement to defeat justice by falsely implicating Tana was reached at that meeting. We do not consider, in the light of the clear finding in the judgment that there was no agreement at that meeting, that we can decide the matter differently from the judge.

[52] What the judge did was to look at the evidence of the earlier actions of Bolami and Leinga and find a conspiracy between the two of them falsely to shift the blame for the murder on to Tana. Counsel for the appellant suggested that the failure of the prosecution to prove that the agreement was made on 12 October 2001 was sufficient to defeat the charge. However, it is clear that the date is not a material ingredient of the averment unless it is an essential ingredient of the offence. 

[53] Having concluded there was no agreement reached at the 12 October meeting, the judge considered the earlier matters and concluded they proved conspiracy to defeat the course of justice between these two men only. He based it principally on his finding in the case as a whole that both men knew the deceased had been killed by Bolami. He set out his reasoning in the following passage: 

"There are no submissions by all counsels in relation to an important issue of prior knowledge of who actually shot Nieda. So important so that any agreement or decision made in the latter course to divert from the real truth amount to conspiracy. All submissions pivoted on the fact of whether or not an agreement was concluded at the second meeting, that all the conspirators had prior knowledge of the existence of facts that the commission of perjury will materialise. And that all the elements required concluding such agreement has been fulfilled. That is partial submissions. No one has ever informed this Court of the event of the killing which is the basis of an agreement to falsify the whole truth, thus defeating the course of justice.

However there is evidence that accused Bolami and Leinga knew who actually shot Nieda. Both have full knowledge of what had happened, and yet had opted to divert criminal responsibility to Tana. This is where conspiracy comes in to cover up the real truth. After the shooting of Nieda evidence reveal both accused were together. They arrived in Bamoi village together, both paddled to the clinic on the mainland together to inform Police and Medical. The message relayed was that Tana was responsible for the killing of Nieda. The message was received by accused Nimelie, from non-other than accused Bolami and Leinga, as it was. He [Nimelie] acknowledge in his dock statement receiving a message that implicated Tana as being the culprit. From the evidence I could safely draw inference that an agreement had been concluded right at that stage. They could have orchestrated the blame on Tana.

The forceful attitude by accused Nimelie at the second meeting to blame Tana may not conclusively have any effect on accused Bolami and Leinga. They have already decided what to say. In fact accused Nimelie’s attitude confirms to them as to what to say. Whether they accept what accused Nimelie said or not, is irrelevant, their minds have already concluded and had been exposed, even before accused Nimelie arrived at Bamoi village. The evidence extracted above revealed so. Subsequently both implicated Tana in their statements to Police record in 2001 and again at the High Court trial on 25 August 2003, and again in their statements to Police in February 2005. The unlawful act anticipated by both accused was when they swore on oath and gave evidence at the High Court trial at Lata.

From the evidence and the inferences I could reasonable draw that there was indeed an agreement between accused Bolami and Leinga to conspire to defeat the course of justice. I find the prosecution has proved its case beyond reasonable doubt. And I am convinced that is so."

[54] Although the original charge was of a conspiracy between the four named accused, there is good authority that the acquittal of some does not prevent the prosecution proving the case against other individual conspirators. However two matters require further consideration.

[55] First is the question of whether it was open to the judge, having rejected the evidence of any agreement on 12 October 2001, to find that the evidence of a prior agreement between these two men was sufficient to prove the charge.

[56] It is clear that the judge found this appellant and Bolami came to an agreement at some stage after the murder and before the second meeting on 12 October 2001 and that that agreement was falsely to implicate Tana. The judge’s decision that the latter meeting did not produce any agreement was based partly on his conclusion that these two men had already reached such an agreement. He also found that the intention of that agreement was to defeat the course of justice. We are satisfied that, on the evidence, he was entitled to reach that conclusion and that it proves the case against them on this count of conspiracy.

[57] The second matter relates to the judge's finding that the fact Leinga gave perjured evidence at the trial of Tana helped to prove the conspiracy. In view of our decision about the perjury charge, was that conclusion properly available to the judge in respect of his finding of conspiracy?

[58] Had it been the only evidence of the intention to commit an unlawful act in order to defeat justice, our finding on the perjury count would require us to acquit the appellant of conspiracy but it was only one of a number of aspects of the evidence on which the judge was able to decide the appellant's intention. In particular, the fact that he went with Bolami to report Tana’s involvement in the incident and subsequently made a written statement further advancing his false allegation against Tana and then gave evidence at Tana’s trial.

[59] The appeal by Leinga against his conviction for conspiracy is dismissed.

Sentence

[60] Both appellants have appealed against sentence. In the case of Bolami, the judge passed a mandatory sentence for murder of life imprisonment. The basis of the appeal is that the inclusion of a mandatory sentence in the legislation is an unwarranted intrusion into judicial independence. The decision as to the appropriate sentence is a matter for the trial judge and should not be taken away by the Legislature.

[61] This has been the subject of judicial scrutiny in a number of common law jurisdictions and we are advised that in the case of R -v- Manioru [2011] SBHC 124 the same point is to be raised. We, therefore, adjourn Bolami’s appeal against sentence to the next session of this Court and direct that the two appeals should be listed together.

[62] The learned judge sentenced Leinga to consecutive sentences of three and a half years imprisonment for perjury and one year for conspiracy. We are now, of course, concerned only with the conspiracy. Ms Waqavonovono accepts that the learned judge, in Leinga’s case, gave proper and adequate weight to the matters of mitigation with the exception of the delay in this case.

[63] The judge summarised the circumstances and effect of the delay in this way:

“It is not in issue that the offence of conspiracy was committed on 11 October 2001 and perjury on 25th of August 2003. … The offences were discovered towards the end of 2003 when some information was received by police that John Tana was wrongly convicted … Formal investigations were commenced at the beginning of 2004. It would appear the first two years after the offences were allegedly committed could rightly be said to be in the hands of the two prisoners.

Leinga was charged for the offences on 5 July 2007 and his PI was conducted on 7 November 2007. It appears that by 7 November 2007 all investigations and PI had been completed. It took three years and nine months to accomplish such task. Is that what we could term as delay, in particular where murder allegation was the major offence? And then the filing of information on 25 July 2008 which is the beginning of the High Court processes, which eventually paved the way for a trial commencing 24 April 2009. I do not seem to perceive if there is any delay at all. Delay that may have been experienced is not as such as to describe as extraordinary or unreasonable but normal in the court process. Even if there is some element of delay they are minimal in nature. I noted that this is a full investigation into the allegation of murder, conspiracy and perjury. And time taken for investigation and prosecution of the charges are reasonable in normal circumstances.”

[64] It is clear that the early delay lay entirely in the hands of the appellants but we cannot accept the trial judge's conclusion that the total period of more than five years from the time this man was charged to his sentence is normal. We acknowledge that the trial itself was delayed for some months by the unfortunate illness of the judge and Ms Waqavonovono has, perhaps generously in terms of her client’s appeal, not included that period in her assessment of the total delay.

[65] The effect of substantial delay on a man waiting for trial and sentence has been acknowledged in numerous cases as being a factor that should always be taken into account when determining the appropriate sentence. We consider the delay in this case was undoubtedly substantial. Mr Barry for the Crown points out that it may not be considered unreasonable in view of the contribution made by the appellants’ conduct. Not only did that result in the wrongful conviction of another man but it meant that, by the time the police started investigating these appellants, the evidence needed to be totally reassessed.

[66] We accept that delay should have been accepted by the learned judge as a relevant factor pointing to some reduction in the sentence. It was unreasonable but we do not feel that the emphasis placed on the unreasonableness of the delay in some past cases is particularly significant to the accused man. Delay, whether reasonable or unreasonable in its genesis, will have the same deleterious effect on the man awaiting sentence.

[67] We do not suggest that the sentence of one year in prison for a conspiracy to defeat the course of justice as serious as that proved in this case is excessive. However, our belief that the judge erred in not allowing for the delay means we consider it appropriate to make some reduction to that sentence. We understand that this appellant was in custody from the date of his conviction, 4 May 2011. We quash the one year sentence and substitute one of nine months imprisonment. Our intention is that if he is eligible for the usual remission, this sentence will result in his immediate release.

ORDERS:

(1) Bolami

Appeal against conviction for murder dismissed.

Appeal against sentence adjourned to the next session of this Court when it shall be listed with the appeal from R –v- Manioru.

(2) Leinga

Appeal against conviction for perjury allowed. Conviction and sentence quashed.

Appeal against conviction for conspiracy dismissed.

Appeal against sentence for conspiracy allowed. Sentence reduced to nine months imprisonment from the date the appellant was taken into custody following conviction. 

Sir Robin Auld P
President of the Court of Appeal

Hon J Hansen JA
Member of the Court of Appeal

G Ward JA
Member of the Court of Appeal