IN THE SOLOMON ISLANDS COURT OF APPEAL

Nature of Jurisdiction:	
Appeal from Judgment of The High Court of Solomon Islands (Kouhota J)	

Court File Number:	
Criminal Appeal Case No 15 of 2017 
(On Appeal from High Court Criminal Case No. 353 of 2014)       

Date of Hearing:
	
5 October 2017	

Date of Judgment:
	     
13 October 2017	

The Court:	
Goldsbrough P 
Ward JA
Hansen JA

Parties:	
REGINA  -V- ALPHY MANEDETEA 
	
ADVOCATES:

APPELLANT:

RESPONDENT:	

Ms. F. Joel

Mr. G. Grey

KEY WORDS:	   
questions of law only, no case to answer

ExTempore/reserved:
	
Reserved	

ALLOWED/DISMISSED
	
DISMISSED	

PAGES	
1- 8

JUDGMENT OF THE COURT

1.  	The respondent Alphy Manedetea was charged with murder of Noel Manele Rongo on 11 November 2010.  The trial was held on 21 April 2017.  Another person, Stanley Gitoa had already been tried for the same murder and had been convicted on a plea of guilty.

2.  	The charge in respect of this respondent was, after amendment by the prosecution, stated to be “Murder, contrary to section 200 of the Penal Code as read with section 21 of the Penal Code”.

3.  	Briefly, the prosecution allegation was that, on 11 November 2010, the respondent and the deceased had been drinking together for much of the day and, at about 5 pm, arrived together at the KD Bottle shop in Tetere.  Shortly thereafter, the respondent was seen punching the deceased.  Others, including possibly Gitoa, joined in and the deceased was knocked or fell to the ground.  At that, Gitoa picked up some concrete building blocks and alone used them to beat the recumbent man.  There is no dispute that those blows were the cause of death.  The force with which they were administered resulted in numerous injuries including fracture of the deceased’s sternum and all his ribs and puncture of the pericardium, the trachea and the right cardiac atrium.

4.  	The prosecution did not suggest the respondent took part in the actual violence which Gitoa visited on the deceased.  The Crown case was that the respondent was standing by watching when Gitoa struck the fatal blows and made no attempt to stop the attack.  The case against the respondent was that he, by that action, aided and abetted Gitoa in the murder.

5.  	At the close of the prosecution case, the defence submitted there was no case to answer.  The judge agreed and acquitted the respondent.  This is an appeal by the Crown against that acquittal under section 21(1)(a) of the Court of Appeal Act on three grounds:

1.	The learned trial judge erred in law when he misapplied the test in a No case to answer at the High Court.

2.	The learned trial judge erred in law when he failed to adequately; and accurately applies section 21 of the Penal Code (aiding and abetting) so as to establish the respondent’s culpability.

3.	The learned judge erred in law in failing to find that there was a case to answer on the charge of murder; or an alternative charge, open to his Lordship from the evidence.

6.  	The respondent submits that these grounds are not open to consideration on appeal against conviction because, by section 21 of the Court of Appeal Act, such appeals must be limited to questions of law.  Section 21 provides:

“21 - (1) Subject to the provisions of this section, the Director of Public Prosecutions may appeal under this Part of this Act to the Court of Appeal where -
(a)	a person is tried before the High Court in the first instance and acquitted (whether in respect of the whole or part of the indictment) on any ground of appeal which involves a question of law only;  …”

Counsel submits that none of the Director’s grounds raise questions of law only and the restricted terms of section 21(1)(a) do not permit grounds which raise questions of fact or of mixed law and fact.

7.  	The definition of questions of law or fact is frequently confused and imprecise.  However, in criminal jury trials in common law jurisdictions it is generally answered by asking if the question is one which must be answered by the judge or by the jury.  The judge’s role is to answer any question of law and the jury’s role is to answer any question of fact.  In this jurisdiction there are no longer jury trials and it is therefore important for the judge in a criminal trial to distinguish whether the question is one only he can answer in his role as the trier of law from one which would be determined by a jury and which therefore forms part of his determination as the trier of fact.  Although he is the sole tribunal in the case and therefore performs both roles, he is still bound by the same rule that he must determine issues of law separately from those of fact.

Ground One

8.  	Any challenge to the manner in which the judge directed himself on the appropriate test is a matter of pure law.  However, his first determination of whether there is a case to answer requires his consideration of the evidence as an essential stage in his analysis of the law at the close of the prosecution case.  For that reason there is a different burden of proof applied when considering the evidence for the submission of no case from that of the question of fact at the conclusion of the case. All the evidence the judge has considered in the no case submission will, if that submission is unsuccessful, then have to be considered by him again as the tribunal of fact. When that occurs, the determination of the weight, sufficiency and credibility of the evidence is a matter of fact which would be determined separately by the judge as the tribunal of fact.

9. 	 The judge’s duty when deciding if there is a case to answer is provided in section 269(1) of the Criminal Procedure Code;

“269. - (1) When the evidence of the witnesses for the prosecution has been concluded, and the statement or evidence (if any) of the accused person before the committing court has been given in evidence, the court, if it considers that there is no evidence that the accused or anyone of several accused committed the offence, shall, after hearing, if necessary, any arguments which the public prosecutor  or advocate for the prosecution or the defence may desire to submit, record a finding of not guilty.”

10.  	In recent years this Court has had to consider precisely what those words mean and how the judge must consider the issue.  The matter is discussed in Regina v Tome [2004] SBCA 13;10 November 2004 and confirmed in Regina v Somae [2005] SBCA 11; 4 August 2005. 

11.  	Mr Grey for the respondent accepts that the judge used the correct test when directing himself on the law to be applied to a consideration of a submission of no case to answer.  However, Tome’s case is also helpful on the different standards of proof and the separation of the judge’s role as both tribunal of fact and of law. The Court referred to the Australian case of Doney v The Queen [1990] HCA 51 and continued:

“Their honours’ reasoning on page 214 makes it clear that issues of truthfulness of evidence are for the tribunal of fact (jury) and are not relevant at the stage of considering whether there is a case to answer. …
It is clear that the general law, enshrined in section 269(1), requires a different test to be applied when ruling on a no case submission from that which would be applied in determining guilt or otherwise at the end of the trial. That distinction must also be maintained when the trial is by judge alone. 

… inconsistencies in evidence (whether within the testimony of a witness or as between witnesses) are not relevant at the no case stage.  The court must take the prosecution evidence at its highest and that means accepting the evidence most favorable to the prosecution when determining whether an accused has a case to answer.  The test then is not whether the prosecution has proved its case beyond reasonable doubt but rather whether there is evidence capable of supporting a conclusion beyond reasonable doubt that the accused is guilty.

The distinction is important because rejecting the no case submission leads to the next stage of the trial.  The accused may elect to give evidence in which event the final test would be applied in the light of all the evidence then before the court.  If the accused does not give evidence the tribunal of fact has the benefit of final addresses during which issues of credibility and sufficiency of  evidence not relevant to the no case determination will be explored.”

12.  	The result of the double role of the judge means that, in order to decide whether there is a case to answer, there must inevitably be consideration of the prosecution evidence.  In a jury trial, the jury is excluded from the court for the submission of no case because the necessary consideration of the evidence adduced up to that stage is a matter of law exclusively for the judge.  Whilst it may appear the judge is trespassing on the jury’s decision on the evidence, what he is considering is part of the decision on whether there is a case to answer - a matter solely within his province and a matter of law.

13.  	The first ground is that the judge erred “when he misapplied the test of no case to answer”.  The appellant submits that the evidence is not reliable in particular because the evidence of each witness is inconsistent with itself and in many aspects with that of other witnesses.  Those aspects of the evidence would only be appropriate to the judge’s view of the facts if the accused had been put to his defence. We accept that the manner in which he considered the evidence in respect to that test was correct. 

Ground Two

14.  	Although this is submitted as a separate ground of appeal, it was another aspect of the evidence the judge had to consider when deciding whether there was a case to answer.  In addition to considering whether there was a case on any actual participation in the murder, the same test had to be applied to the respondent’s possible involvement as an aider and abettor.  For that, it was necessary to decide whether there was any evidence that the respondent’s standing-by while Gitoa attacked the deceased with the concrete blocks was evidence of involvement in terms of section 21 of the Penal Code.  We treat the judge’s consideration of the evidence, in that context, as an integral part of the same question of law.   

15.  	Section 21 of the Penal Code provides:

“21. - When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say –

(a)	every person who actually does the act or makes the omission which constitutes the offence;

(b)	every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c)	Every person who aids or abets another person in committing the offence;

(d)	any person who counsels or procures another person to commit the offence.”

16.  	The manner in which counsel for the prosecution put the Crown’s case against the respondent at the trial was that he was present with the deceased earlier in the day but, when an altercation occurred, fought with him and the deceased was knocked to the ground.  While Gitoa was hitting the deceased with the bricks, the respondent was standing close by watching without doing anything.  

17.  	In his opening, counsel stated;

“As to the charge of murder, if court did not find sufficient evidence that [the respondent] has the necessary motive to kill the deceased, the Crown relies on section 21 (aiding and abetting) of the Penal Code to establish the accused’s culpability in that [he] was there at the time and being a purported good friend of the deceased should compel him to do something like stopping Gitoa or alert the nearest Tetere Police Station to avert the killing of the deceased.  His direct participation, omissions and subsequent meet up with Gitoa immediately after the incident is what the prosecution will rely on to show that the [accused] had aided and abetted Gitoa in the assault and subsequent murder of the deceased.”

18.  	The learned judge, having directed himself correctly on the manner in which he should consider the evidence on a no case submission, had to determine whether the evidence was sufficient to put the accused on his defence either as a principal in the murder and as an aider and abettor to it.  He clearly accepted that the prosecution was principally alleging that the appellant’s role was aiding and abetting Gitoa’s assault.  He stated:

“The medical report confirmed the condition directly leading to death of the deceased was multiple chest injuries. The condition was consistent with the evidence of what Gitoa did to the deceased with the brick however, there was no evidence that the [accused] aided or abetted Gitoa when he took the brick and smashed it on the deceased’s chest.  Even if the prosecution relied on section 21 of the Penal Code, for a case to be made out against the accused or to prove him guilty, the prosecution has to adduce evidence that the accused contemplated that Gitoa was going to murder the deceased otherwise they have [to] adduce evidence that the injury resulting in the death of the deceased were caused by the respondent.

At the close of the prosecution case and without assessing the credibility of the witnesses and their evidence, all that the prosecution is was that they say they saw the accused was present and assaulted the deceased however, there was no evidence of whether the punches and kicks landed on the deceased or caused any injuries to the deceased.  The charge against the accused is murder hence it is necessary that prosecution must adduce evidences to support the charge including evidence that the accused had the malice aforethought to cause the death of the deceased, in other words, that he had the necessary intention to cause the death of the deceased and such evidence must be capable of supporting a conclusion beyond reasonable doubt that the accused is guilty of murder.

The prosecution has failed to adduce any such evidence hence I find the accused not guilty and he must be acquitted.”

19.  	That passage makes it clear that the judge found that there in no evidence of a joint enterprise or any common intent in respect to the murder.  He found the evidence of aiding and abetting the murder was, at best, that the respondent had demonstrated hostility to the deceased before he fell to the ground but the only evidence he was willing or intending to assist in the murder was that he was present and did not leave.  Equally he made no attempt to participate in the attack with the concrete blocks.

20.  	The prosecution principally founded its case on the charge of murder against the respondent on a basis of aiding and abetting under section 21 of the Penal Code.   The amendment of the statement of offence at the start of the trial made that clear.  None of the evidence prior to Gitoa’s attack suggested his intention was to kill or cause grievous injury to the deceased.  When that occurred, there was no evidence that the respondent took any further part - he neither assisted in the fatal attack nor left nor tried to stop it.

21.  	The prosecution evidence was that the respondent was certainly involved in the initial assault on the deceased. That consisted of punches and kicks causing him to fall to the ground.  Once that occurred, the attack took on a much more serious dimension when Gitoa used the blocks to beat the deceased as he lay on the ground.  Whilst the evidence of the respondent’s hostility to the deceased was clear from the earlier attack, there was no evidence that he was aware of Gitoa’s subsequent intention to use weapons or that he took any further part in the attack once they were used.

22. 	 For well over a century, the judgment of Cave J in R v Coney [1882] QB 534 has been authority for the degree of responsibility a person bears for being present at the conduct of a criminal offence.  If a person is present with knowledge that the offence with which he is charged as an accomplice may take place and chooses to remain, it is evidence of presence but no more.  In order to be guilty as an aider and abettor, he must not only be present but must at least be concurring in the offence.  

23.  	In the present case, the judge found no evidence of anything which might have alerted the respondent to an attack of the extremely serious nature of that carried out by Gitoa.

24.  	In R v Bryce [2004] EWCA Crim 1231 the English Court of Appeal outlined the requirements that the prosecution must prove to establish the mental intention of an aider and abettor.  They were:

1.	an act done by the defendant which in fact assisted the later commission of the offence;

2.	that the defendant did the act deliberately realising that it was capable of assisting the offence;

3.	that the defendant at the time of doing the act contemplated the commission of the offence by the perpetrator in the sense that he foresaw it as a real or substantial risk or a real possibility and;

4.	That the defendant when doing the act intended to assist the perpetrator in what he was doing. 

25.  	The judge in the present case was correct to look for evidence that the respondent knew or reasonably anticipated that Gitoa was going to kill or seriously injure the deceased and with that knowledge remained ready and able to assist if needed.  There was no such evidence beyond mere presence.

Ground Three

26.  	Apart from repeating the substance of the two preceding grounds, this ground challenges the judge’s failure to consider any alternative charge when he found no case to answer on the murder.  The appellant explains the ground in the following way:

“The operation of section 21 of the Penal Code by law, puts the respondent on par with Gitoa in terms of culpability.  Section 21 makes the respondent equally liable just like Gitoa.  Having considered the evidence and on proper and adequate application of section 21, the learned trial judge would have found that there is a case to answer on the charge of murder.

Even if the learned trial judge found there is no case to answer on the charge of murder, the judge has erred in law in failing to find a case to answer against the respondent on an alternative charge as there is clear evidence that the accused assaulted the deceased.  Instead he acquitted him completely.

The learned judge’s reasoning with respect, is defective on two grounds.  First there is clear evidence that the respondent was involved in the fight and has in fact failed to stop Gitoa.  Second, the respondent is charged based on his participation with Gitoa pursuant to section 21 of the Penal Code.  The circumstance of this case renders the respondent equally liable as the principal in the first degree.”

27.  	We do not agree.  The trial judge had no proper basis for convicting on an alternative count of assault arising from the earlier attack on the deceased.  The prosecution case was that the respondent was aiding and abetting the murder.  There was no evidence that the murder was the final part of a planned overall attack on the deceased and the judge found there was no evidence that the respondent had aided and abetted it.  That conclusion left the evidence of the earlier assault as a separate incident from the fatal attack by Gitoa.  There was no evidence that any injury on the deceased was caused by the respondent and so any case to answer would have been common assault.  The judge was right not to consider that as a basis for continuing the trial.

28. 	The Director’s appeal is dismissed and the respondent’s acquittal confirmed.

………………………………………………
Goldsbrough P

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Ward JA

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Hansen JA