Republic v Roland [2007] NRSC 5; Criminal Case No 4 of 2007 (6 December 2007)

IN THE SUPREME COURT OF NAURU

CRIMINAL CASE NO.4/2007

BETWEEN:

THE REPUBLIC

AND:

MYRON ROLAND

[Editor's note: Judgment by Hon. Robin Millhouse, QC]

Mr. Peter MacSporan for the Republic
Mr. Vinci Clodumar for the Accused

JUDGMENT

Myron Roland is charged with murder.

PARTICULARS

"In that he did on or about the 15th day of April 2007, at Aiwo District, in Nauru murdered one Mr. LI DONG LIANG.

Soon after seven o’clock in the morning of Sunday 15th April a body was found beside the open front passenger door of a Toyota Surf motor vehicle near Cantilever No. 2. A doctor was called. At half past eight Dr. Rakesh Sisodia pronounced the person dead. The body was identified was that of Li Dong Liang. It was taken to the RON Hospital.

Two days later Dr. Sisodia examined the body. His first opinion was that a broken neck caused death. X-rays had been taken showing fracture at levels C5 and C6. The body showed injuries which would have been caused before death: they were possibly caused by kicking and punching. By the time Dr. Sisodia gave evidence he had revised his opinion on the cause of death: the probable cause was injuries to the head.

A book of photos in Exh P1. The first of them, numbered 0277, shows the body lying on the back, by the nearside front wheel of a vehicle. The vehicle has a running board. Mr. Clodumar, for the accused, put to Dr. Sisodia that the deceased may have hit his head on the edge of the running boarding when coming out of the vehicle: this blow may have caused the death. The doctor discounted the possibility.

Dr. Malcolm John Dodd, Senior Forensic Pathologist at the Victoria Institute of Forensic Medicine, gave evidence. Dr. Dodd formed his opinion from photographs, X-rays and witness statements. There had been no autopsy; there is no facilitiy in Nauru to carry out autopsies. My notes on Dr. Dodd’s evidence:-

Approximately 20 injuries – bruises, abrasions, laceration to back of head, most in region of head and neck, other minor abrasions. No immediate cause of death on external examination – but all consistent within blunt force trauma. X-rays showed two fractures of l 5, and l 6 of neck; quite severe injury to cause those fractures. Most likely cause of death bleeding around brain secondary to blunt force trauma to head. Blunt object such as fist, punching or kicking or head coming into contact with firm surface. Basal sub-arachnoid haemorrhage. Hard to be sure interval between injuries and death. – generally this cause of death within minutes.... Most likely cause of death neck fractures – not a punch but a forceful kick rather. Unlikely killed falling out of a car because of severity of injury. (examination in chief)

Mr. Clodumar asked Dr. Dodd about hitting the running board as being the cause of death.

My Notes:-

"Possible he could have hit his head on running board but I doubt it would have been with sufficient force to cause those injuries – spines are well protected: can’t conceive caused by hitting running board etc .... Headlock would be insufficient to break bone. (cross examination)

Basal sub-arachnoid haemorrhage to arteries supply brain: struck behind ear, causing head to jerk back – rupture. (re-examination)

Dr. Dodd illustrated an upwards kick behind the ear as the likely cause of the rupture to the spines. He explained that two arteries supply the brain: if these be ruptured as he believed they had been when the spines of the neck a l 5 and l 6 were broken, then the base of the brain is flooded with blood and soon ceases to work: death.

I accept beyond reasonable doubt the opinion of the medical men that the injuries inflicted on the deceased caused his death. Death was not caused by his hitting his head on the running board coming out of the vehicle.

The prosecution relied on the evidence of Wu Dah Xhan also known as "Chum" or "Archum". I shall refer to him as Archum.

Achum’s evidence was given through an interpreter Ms. Irene Ko.

When called Archum was unwilling to take an oath or to make an affirmation. I assumed this was for religious or ethnic reasons. I asked him whether he promised to tell the truth. He promised. His evidence proceeded. It was a difficult process. The witness kept his head down, spoke in so low a voice that the interpreter could hardly hear him. His evidence did not implicate the accused in any wrong action.

He had been arrested by the Police.

"Arrested by Police: I was sleeping. I was told Myron had killed someone and I was accused of the killing as well. I told them there should not try to accuse me of doing something. Told them not to make fun of me. I could understand Myron’s name and having killed someone."

Mr. MacSporran then put to the witness two statements he was said to have made, on 15th April and on 20th April. He agreed he had had an interpreter on both days. He acknowledged his signature on each statement. Mr. MacSporran applied to tender the statements.

I consulted Archbold (43rd Edition) at 4 – 305:

"A party producing a witness ...... may,..... by leave of the judge, prove that he has made at other times a statement inconsistent with his present testimony; but before such last-mentioned proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement."

I allowed the tender.

The Court adjourned to allow the interpreter to read through the statements and to prepare herself to translate them. I overruled Mr. Clodumar’s objection that she would be translating into Cantonese what another interpreter had translated from Cantonese into English, thus risking inaccuracies. I ruled that this did not invalidate what was being done but could go to weight.

Upon resumption the interpreter read the first statement (of 15th April) to the witness. He agreed that it was what he had said. I accepted the tender of the statement.. It is Exhibit P2.

The interpreter then read the second statement (of 20th April). The witness said:

"When I was asked to give statement I was stripped and very frightened and I have forgotten what I said. I was so scared that’s why I said like that. I am still scared. I don’t know a lot of things and I thought if I didn’t say anything. I would be punished like last time. That’s why I was scared."

Archum’s evidence to that point (and that of earlier witnesses) was taken on Saturday 1st December. The Court adjourned to Sunday 2nd December at two fifteen in the afternoon.

My note when the hearing resumed:

"I asked whether he had been told if he co-operated he would be released. Mr. MacSporran explains he was sentenced to 3 months – Section 102 of the Criminal Procedures Act. He had refused to take the oath. No one has told him that if he co-operated he will be released."

At the Preliminary Inquiry the Magistrate had sentenced him. The relevant parts of Section 102:

Refractory Witnesses

"Any person who, attending either in obedience to a summons or by virtue of a warrant, or being present in court and being verbally required by the Court to give evidence, -

1. refuses to be sworn or affirmed, ......

without in any such case offering any sufficient excuse for such refusal or neglect, is guilty of an offence and is liable to imprisonment for six months and a fine of two hundred dollars."

I had not known that. I invited Mr. Clodumar to examine the witness on the voir dire.

"I afraid my wife and children would all be killed: not by the Police. I am frightened after the way the Police treated me the second time as well but I am frightened for my wife and children."

Mr. MacSporran examined on the voir dire.

"I was worried for Liang (the deceased.) I was worried because he is related to me and I thought that Myron might hurt him. Myron has bashed me before. That is true. I did not tell the Police the truth earlier because I was very scared of Myron and I think if I say anything he will do to me like he did to Liang. I did say that".

I remark that the accused is a well built man, I assess in his thirties. He looks strong and powerful. Archum is lightly built in his forties.

Having heard the evidence, having seen those involved and especially Archum’s demeanour, I came to the conclusion beyond reasonable doubt the accused was the cause of Archum’s fear: Archum may have had some fear of the Police, especially of being stripped (to his underpants) but the accused was the real reason for his fear.

I admitted the statement of 20th April. It is Exhibit P3.

I ordered that the accused be removed from the Court room until Archum had completed his evidence. [There is no other way available in Nauru for a witnesses’ evidence to be taken not in the presence of the accused.] I also ordered that all relatives of the accused should leave the court room and not return until the witness had finished his evidence.

Archum complained of feeling faint and asked to be allowed to lie down. The Court adjourned.

During the adjournment Archum asked to see Constable Nigel Fairbairn. Constable Fairbairn is a member of the Australian Federal Police attached to RAMSI. On 16th April he came to Nauru to assist in the enquiry. He had taken part in Archum’s interviews. That Archum asked to see Constable Fairbairn confirmed my conclusion that he was afraid most of all of the accused and not of the Police.

When Archum came back into court he expressed the hope that

"the Police can protect my family.....I am afraid they will be hurt."

Exhibit P3 is a coherent account by Archum of what happened. Mr. Clodumar could not impugn it in cross examination.

I must remember, however, that Archum may be regarded as an accomplice. The Court must always be wary of the evidence of an accomplice. Yet, even bearing that in mind, I accept the contents of the statement as substantially accurate account of events. I may rely upon it. I set out the relevant part:-

"LIANG’S car was then parked in behind Myron’s house. You could hardly see that it was there. I could see that Myron was bashing LIANG with his hands and feet. They were outside the car as this happened. I then got out and was begging Myron to stop bashing LIANG. I then pushed Myron away. Myron then sat down and was asking LIANG if he had any cargo in his car. LIANG said there was nothing inside the car. Myron said "You liar." Myron then started to bash him up again. As this happened the same Nauruan guy that stopped LIANG’s car was there too. He just stood there and watched. I tried to stop him bashing LIANG again. Myron asked the Nauruan guy to hold me back. Myron then say to me if you do that gain you’ll end up on the ground too. Myron kept on punching and kicking LIANG to all parts of his body, so many times I can’t remember. LIANG was saying "This has nothing to do with me."

Myron was saying "You telling liar." This was happening around 3.00 – 4.00 a.m. I again begged Myron to stop bashing LIANG. Myron said "Is this your business, it has nothing to do with you." He then told me to leave the place. I tried to take LIANG with me. Myron said "You say that once more I will punch you like I do LIANG. I don’t care if he related to you, just shut up." Myron said "I will take LIANG to Topside fill. If you tell anyone about this tonight I will kill you, your wife, your brother and all your family here." Myron then tell me to leave the place. I could see that LIANG was alive and he say to me can I drop him back at Buada. Myron stop me taking him and say "He’s a liar he still has cargo in his car." Myron then started bashing LIANG again. The Nauruan boy got a bucket of water and poured it on LIANG’s body. Myron kept asking LIANG "Anything inside your car." LIANG replied "No" . The Nauruan boy was strangling LIANG for a few seconds to get him to tell Myron the answer.

Myron bashed LIANG again. LIANG was lying on the ground and Myron kept punching and kicking him. I again tried to stop the bashing. The Nauruan boy kept pushing me away. I was very afraid. Myron and the Nauruan guy then put LIANG in the front of his own car next to the driver’s seat. Myron was driving LIANG’s car and the Nauruan guy inside my car. When LIANG was put in his car he was still alive. LIANG was making noises like screaming I knew he was still alive. He was also saying "Myron, Myron." The bashing lasted for about twenty minutes.

I went to drive my car home to location and I saw Myron drive LIANG’s car towards Cantilever 2. I followed in my car. Just as I was leaving the Nauruan guy hopped into my car with a hammer. He tell me to follow LIANG’s car. I then slowed almost to a stop just near the tennis courts near Cantilever 2. The man with the hammer is still sitting next to me. He is the same man that had the bucket of water to put on LIANG and that was present during the bashing.

Myron then stopped LIANG’s car underneath the Cantilever. He was underneath the Cantilever for about five minutes before he came out and began was walking over towards the engineering building and yelling out for me to follow. Myron then came to my car and go inside the back set and told me to drive around the island. I did and we went and dropped the boy with the hammer off somewhere near the asylum seekers camp. We went anti clockwise. The boy must have taken the hammer with him because it wasn’t left in my car. We did one lap of the island and I then took Myron back to his place and dropped him off. It would have been between 4.00 – 5.00 a.m.

As we were driving Myron didn’t say anything about what had happened. I knew that LIANG was in a very serious condition when he was taken to the Cantilever.

I then went straight home and knocked on the door until my wife answered. I then took a shower. LIANG’s couple relatives then came and saw me to say that LIANG was missing.

During Saturday night and Sunday morning I had two cups of vodka only. I was not drunk. Myron seemed okay and not drunk at all. I have never seen him drunk.The Nauruan boy seemed okay and did not seem like he had been drinking. I couldn’t smell any alcohol.

Myron was wearing a round neck t-shirt not sure of the colour, I’m not sure what colour shorts and slipper thongs.

I didn’t tell the police the truth earlier because I very scared of Myron and I think that if I say truth he will do to me like he did to LIANG."

Others of the many witness for the prosecution told of the discovery of the body and gave accounts (often confusing) of the movements of persons earlier in the night. They are not immediately relevant to the issue of culpability. I need refer only to two.

The first is Dennis Denitage who drove a white van which a Chinese couple had hired to move things out of the store owned by Michael Roland, the father of the accused. Dennis knew the deceased who had lived with him for nearly a year. His evidence supports that part of Archum’s statement (earlier than the quotations) about goods being loaded into the van and unloaded again.

The second is Nathan Gadaraoa. He is a "Nauruan guy" referred to by Archum in his statement. He is a cousin of the accused. Having been sworn he refused to give evidence repeating only, "I can’t remember." Mr. MacSporran put to Nathan a statement he had made to the Police in the presence of his father. He acknowledged his signature and his father’s: said when he made the statement he was "talking rubbish." Mr. MacSporran applied to tender the statement as he had Archum’s. I refused the tender.

Constable Clifford Eobob had been present at Nathan’s interview. My note of his cross examination:

"Told him we intended to charge him with murder as he was at the crime scene. Told to tell the truth. No threats."

That is a threat – "You are going to be charged with murder. You had better tell the truth."

When I pointed this out to Mr. MacSporran he did not go on with his application and closed the prosecution case.

The accused, as was his right, remained silent and called no evidence. He did not make an unsworn statement..

In this case, although they had been drinking there is no suggestion that any of those involved were affected: to the contrary from Archum’s statement. Intoxication is not a factor to be taken into account.

The onus is on the prosecution to prove beyond reasonable doubt every element of the charge of murder.

The Defence contested only to elements. The first, faintly, was cause of death: the deceased may have hit his head on the running board. If so, the accused may be guilty only of causing grievous bodily harm. I find proved beyond reasonable doubt that the cause of death was the injuries already inflicted on him. The precise moment of death is not known and does not matter, it may have been during the journey, it may have been as he was lying on the ground.

The second element is the identity of the person who inflicted the injuries which lead to Li’s death. The prosecution has proved beyond doubt that that person was the accused, Myron Roland. Li Dong Liang died as a result of being kicked and punched by Myron Roland.

Myron Roland is guilty of murder.

6 December 2007