Regina v Foster [1994] SBHC 26; HC-CRC 040 of 1992 (26 August 1994)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 40 of 1992

REGINA

-v-

R. FOSTER, A. ARUAFU and SAEFAFIA DUSU

High Court of Solomon Islands
(Muria CJ.)

Hearing: 5, 6, 7, 8 April, 24, 25, 26, 27 May; 27, 28, 30 June, 13, 15 July
Judgement: 26 of August 1994

J. Faga for Crown
C. Taga for R. Foster
B. Titiulu for Ambrose Aruafu
MB Samuel for Saefafia Dusu

MURIA CJ: The three accused, Robert Foster, Ambrose Aruafu and Saefafia Dusu have been jointly charged for the crime of murder. It was alleged that on 1 august 1992, the three accused murdered one Nelson Nisa at Vura III, Honiara. In addition, two of the accused, Ambrose Aruafu and Saefafia Dusu have also been charged for common assault. All the accused have pleaded not Guilty to all the charges.

I remind myself that the accused having pleaded Not Guilty, it is for the prosecution to prove the guilt of each of the accused beyond reasonable doubt. That must be done on the evidence as presented to and accepted by the Court. If the Court has any doubt, the accused must be given the benefit of that doubt.

The prosecution called 18 witnesses. The accused did not give evidence on the charges brought against them although they gave evidence during the vior dire. At the end of the voir dire the court found the Cautioned Statements given by the accused to be voluntary and admitted them as evidence against the accused. I must point out that the fact that the accused chose not to give evidence is not something that should be held against them.

The case for the prosecution is that in the evening of 1 August 1992 the accused attended a fundraising dance at Vura III. On arrival the accused went to buy beer at the entrance to the dance. One of the accused, described as the "light-skin" man and identified as the accused Ambrose Aruafu, was said to have attempted to enter the gate with only $1.00 when the entrance fee was $4.00 per person. He was cross because he was refused entrance by the gate-keepers one of whom was the deceased.

Having refused entrance into the dance with only $1.00, the accused Ambrose Aruafu went to where the other two accused and one Henry Maefiku (PW4) were standing and reported that the gate-keepers did not allow him to enter with only $1.00. Robert Foster then said that they should return to the gate and deal with the Reef Islanders. Saefafia Dusu took off his shirt and gave it to PW4. Then two of the accused proceeded together to the gate where the "light-skin" man (Ambrose Aruafu) started the fight while Robert Foster went and stood under a tree close-by.

It was Ambrose Aruafu who was said to have pulled the deceased out from the gate and started fighting with him. Saefafia Dusu joined in the fight and together the two accused were forcing the deceased further out from the gate toward where Robert Foster was standing. Having reached the tree where Robert Foster was standing, Robert Foster joined in the fight and stabbed the deceased who fell to the ground and never stood up again. As soon as the deceased fell, the three accused fled.

It is also part of the prosecution case that the accused had carried out the attack on the deceased in a joint enterprise. They had planned to attack the deceased at the gate and to have the fight moved to where Robert Foster was standing so that he (Foster) could stab the deceased, the two accused having known that Foster had a knife with him.

The prosecution evidence on what happened at the gate on the evening in question comes from Milton Vasula (PW1), Allen Fiku (PW2), Buga Diau(PW3), Henry Maefiku (PW4), James Tata (PW5) and Henry Palusi (PW6). The evidence of PW1 is that he had been with Robert Foster and Saefafia Dusu earlier in the day on 1 august 1992 drinking at Naha. During that drinking, an argument took place at which Robert Foster pulled out a knife from the inside of his boot and wanted to attack one Subu with it. After that argument, PW1 took Subu to Vura III and then proceeded to the place where the dancing was. On arrival, PW1 saw Saefafia Dusu and Robert Foster were already there at the dancing place and with them was PW4.

PW2 was also with the accused Robert Foster and Saefafia Dusu earlier on that day of 1 august 1992 drinking. He found the knife which he gave to Robert Foster who put it inside his boot. PW2 also accompanied the accused to the dance. He was with the accused Robert Foster when they first went to the gate to ask for the entrance fee and they were told it was $4.00 per head.

PW3 went to the place for dancing after attending a movie show. He saw a group of boys arriving from Naha and he recognised two of them, namely, Robert Foster and Mae (PW4). They came and stood beside him before proceeding to the entrance gate to the dance. From where he stood PW3 could see clearly the entrance to the dance place. He also clearly saw the two gate-keepers who were from the Reef Islands. Then he saw something happened. It was people fighting. He clearly saw a man wearing long trousers and boots but without a shirt punching the gate-keeper. He also clearly saw the gate-keeper punching the man without a shirt. He saw the fight moving away from the gate and moving toward the main road.

There were lights shinning out from the dancing place onto the area of the gate and there were street lights from the main road which also provided light to the area. With these lights PW3 could clearly see the fight. He then saw the man without a shirt fell after the gate-keeper punched him. It was then that PW3 saw Robert Foster took over the fight with the gate-keeper. PW3 then saw Robert Foster came in contact with the gate-keeper with his body and right hand. He saw Robert Foster pushed his right hand forward toward the Reef Islander's (deceased's) body. It was a quick action and then he saw the deceased fell backward on his back. PW3 saw Robert Foster then kicked the gate-keeper's (deceased's) head.

PW3 then saw other Reef Islanders came and attacked Robert Foster and when he (Robert Foster) said that it was not him that "killed" the deceased, they let him go. It was then that Robert Foster came to where PW3 and PW4 were standing and told them that they should run away. Later a boy came to them and informed them that the gate-keeper was stabbed. It was then that Robert Foster told PW3 and PW4 that he was the one who stabbed the deceased and warned them not to tell anyone.

PW4 gave evidence that he was with two of the accused, namely Robert Foster and Saefafia Dusu the evening of 1 August 1992. He earlier witnessed an incident during which Robert Foster threatened John Subu, No. 1 with a knife which Robert Foster hid in his boot. Saefafia Dusu also kicked John Subu No. 1 and his shoe on his right foot flew away. After that incident, PW4 and PW1 together with the two accused, Robert Foster and Saefafia Dusu, went to the dance organised by the Reef Islanders. Saefafia Dusu only had one side shoe on his left foot.

On arrival they asked about the entrance fee to the dance and they were told that it was $4.00 per head. Robert Foster was drinking his beer.

PW4 further stated that while they were standing beside the road, a light-skin man carrying a home made basket around his neck came to them and informed them that he was refused entry into the dance with only $1.00. PW4 then heard Robert Foster saying that they should go back to the gate and see the Reef Islanders. Saefafia Dusu then took off his shirt and handed it to PW4. Saefafia Dusu, Robert Foster and the light-skin man proceeded to the gate while PW4 remained beside the main road.

Not long after that a fight broke out. PW4 saw the light-skin man pulled the gate-keeper (deceased) outside the gate followed by a kick from Saefafia Dusu. A retaliatory kick by the deceased caused Saefafia Dusu to fall to the ground.

It was then that Robert Foster jumped toward the deceased. PW4 then saw the deceased delivered a kick at Robert Foster but the kick did not connect. It was then that PW4 also saw Robert Foster took the knife and stabbed the right chest of the deceased who fell to he ground. When the deceased was on the ground, Robert Foster delivered a kick to the deceased's head.

Having seen that, PW4 and PW3 ran away. Shortly after that Robert Foster came to PW4 and PW3 and told them that he killed he deceased.

PW4 stated that the light was bright and he could clearly see the knife which Robert Foster used to stab the deceased with. PW4, in court identified the light-skin man as the accused sitting on the dock between Robert Foster and Saefafia Dusu.

In cross-examination, PW4 repeated that the lighting was bright and that he could see clearly what was happening. He stood watching only about 4 metres away. He clearly saw Robert Foster plunging the knife into the deceased's chest.

James Tata (PW5) also gave evidence that the lights in the area were bright and that Saefafia Dusu still had only one side shoe on his left foot. When PW5 asked why he had a shoe only on his left foot, Saefafia Dusu said that he was involved in a fight at the Honiara Hotel and that was where he lost his right side shoe.

PW5 also stated that it was the light-skin man who went to the gate and was refused entry by the gate-keepers. He also stated that it was Saefafia Dusu, the man with a one side shoe, who accompanied the light-skin man when they returned to the gate and argued with the deceased. He also confirmed that the fight with the deceased started at the gate and moved toward the tree where the other man was standing. That man then joined the fight. It was then that PW5 saw the deceased fell. From where he was standing he could not see what happened immediately before the deceased fell. But PW5 saw the deceased fell.

PW5 identified both the light-skin man and the one with a one-side shoe in court. He identified them respectively as Ambrose and Saefafia.

Henry Palusi (PW6) was the other gate-keeper who was with the deceased that night of 1 August 1992. He gave evidence that three boys came to the gate that evening and asked to go inside to see a friend of theirs by the name of Ata. PW6 and the deceased refused to allow them to go into the dancing area unless they paid the entrance fee of $4.00. The three boys then bought a can of beer and then went toward the main road.

Not long after that, one of the three boys who was light-skin and had a custom basket hanging around his neck, came back to the gate and wanted to go into the dance area with only $1.00. PW6 and the deceased refused to let him in. He then returned to the other two boys.

The light-skin man again came back to the gate and started arguing with PW6 and the deceased. The light-skin man was accompanied by one of the other boys. As a result, a fight broke out.

The fight proceeded toward a big tree where one of the three boys was standing. At that place, PW6 saw the man coming out from under that big tree and advanced toward the deceased. As soon as the man came in contract with the deceased, PW6 saw the deceased fell to the ground. PW6 described the timing from the time the man came out from under the tree to the time the deceased fell as only about six to seven seconds.

PW6 also described the kicking of the deceased's head by the man who made him fell. That man was the same man who asked to pay beer earlier at the gate and wore jeans, shoes and black shirt and had short hair.

Later on at an identification parade, PW6 identified the three men. He identified the three men also in Court. The man who wore jeans, shoes and black shirt was Robert Foster. The man who pulled the deceased out from the gate and had a custom basket around his neck was Ambrose Aruafu who also had beard. The man who wore jeans and a one-side shoe was Saefafia Dusu.

Each of the accused gave caution statements to the police. Those statements had been admitted in evidence following a voir dire and are now part of the evidence against the accused in this trial.

As far as the accused Robert Foster is concerned he, described how PW1, PW2 and himself had been drinking during the afternoon of 1 August 1992 at Naha. Then in the later part of that afternoon, the three of them proceeded to Vura III. He stated that it was PW2 who found the knife which he (Robert Foster) described it as a 'butcher knife'. That knife was later taken by Robert Foster and placed it inside his socks and covered it with his long pant.

The accused confirmed the earlier incident during which he threatened John Subu No.1 with the knife. He then went on to say that himself, PW4, Saefafia and John Subu No.2 went to the dance.

The accused Robert Foster described how he and the others went to the gate and that he bought a can of beer. He went and stood under a tree when Saefafia and the other man who wanted to enter into the dance with $1.00 went back to the gate and argued with the gate-keepers.

PW4's story of Saefafia taking off his shirt and giving it to him and joining the other accused to the gate was confirmed by Robert Foster. As to the knife, Robert Foster confirmed that he hid the knife inside his boot.

When asked how the fight started, Robert Foster described it in some details in his answer to Question 86 during his interview on 3rd and 4th August 1992. His answer is as follows (in the English translation):

"Q86 How did the fight start?

A86. When the fight started I was at the bottom of the mango tree. I have finished my can of beer. I heard Sae called out to me in our language saying Foster I am dying I ran to them and pulled him out. I tried to lift Sae but another man punched me I stood up and kicked him and the knife fell to the ground on my right leg. I picked the knife up at that time this man was on top of me and he punched me I tried to defend myself with the hand I was holding the knife at the same time I gave the knife to the man who died. At that time I did not know where the knife is. The man fell to the ground I tried to kick him but my legs missed him and my shoe flew out. I came back on the road and said to go back and search for my shoe. I met a man from Tobaita and he asked me where I'm going and I told him that I am going back to find my shoe which flew out. When I returned for my show that they covered me on the road. Another man kicked my back and told me that I am one of Reef's I told him that I am a Malaitan I have no place to escape they have covered me I tried to escape but I crashed on the fence I turned back and saw a drum. I took the drum and shoot them with when they tried to escape the drum that ran down to the bus stop, there I met Sae, Mae and Subu with other people more who ran away. It was at this time I admitted to Sae, Subu and Mae that I will be in trouble I butcher a man with the knife. It was during this time I realised and regretted. They then told me to go back to the house".

When asked if he stabbed the deceased, Robert Foster admitted he stabbed the deceased but that it was an accident. He admitted using the 'butcher knife' which they found earlier in the day. The Answers to Question 90, 95, 96, 97, 98 and 99 are clear evidence of the admissions. Those questions and answers are as follows:

"Q90. It means that you did butcher this man?

A90. Yes its true I butchered the man who died. It was an accident.

Q95. What type of knife you are using?

A95. A type of butcher knife which can be made by those people who worked in the workshop.

Q96. Refer to Q29 is it this same knife that you and the others found, you used to stabbed the man who died?

Q96. Yes.

Q97 If the Police showed you the knife can you identify it?

A97 Yes.

Q98 Is this is the knife you are talking about?

(EX CER NO. 40 shown to suspect)

A98 Yes this is the same knife.

Q99 And this is the true knife you used to stabbed the man who died?

A99. Yes."

PW6 described that from the time Robert Foster came out from under the tree to the time the deceased fell as only between six to seven seconds. Robert Foster's answer to Q103 clearly supports PW6 evidence on this.

"Q103. According to Police evidence the fight did not take too long. The only fight is the fight you fought. What you gong to say?

A.103. Yes the fight does not take too long. When I came in and tried to pull Sae out this man hit and kicked me I stood up and gave the knife to him. "

As the end of the police interview, Robert Foster was asked if he wanted to say anything else. He stated in his answer to Question 106 as follows:

"A106. Yes. I was sorry indeed when I heard the death of this man. It is true that I killed him, but it was an accident I did not mean it or planned to kill him. After I gave him the knife I met my friends and told them that I'm in trouble. That's all."

According to the accused, Robert Foster, the other two accused knew that he had the knife with him as shown by his Answers to Questions 16, 17 and 18 of his additional interview on 5 August 1992.

As to the accused, Ambrose Aruafu, he also gave his statement under caution to the police and his story has confirmed that he tried to go into the dance with $1.00 instead of $4.00. When he was refused, he started arguing with the deceased and the other gate-keeper. He was the one who pulled he deceased outside the gate. He fought the deceased making sure that they were moving toward the other accused Robert Foster who was standing under a tree.

Ambrose Aruafu stated that it was Robert Foster who told him to pull the deceased toward Robert Foster. Ambrose Aruafu described that as soon as he and the deceased came to where Robert Foster was standing, he (Robert Foster) jumped toward the deceased and stabbed the deceased on his right chest.

When asked if he wished to say anything else to the police, Ambrose Aruafu said during his interview on 3rd August 1992 (From English translation):

"Yes, I have no intention to kill this boy but the boys who told me to go back, told me to start a fight. When the fight broke out they came and killed the boy. I don't know if they got angry with him or any problem between them before. But for me, I have no intention to kill the boy."

Ambrose Aruafu has confirmed in his statements that he knew Robert Foster had a knife and that he helped in pulling the deceased toward Robert Foster who stabbed the deceased to death.

When further asked if he wanted to say anything during the additional interview on 5th August 1992, the accused Ambrose Aruafu said in his answer to Question 42 as follows:

"Q42. You have already heard Police reading over to you your statement. Do you like to change or add any thing to your statement.

A42. Yes! I would like to say one thing. If the two boys might forced me for the doing the trouble. Honestly I did not do anything, to pull the man was true. The other man was first to pull I only assist him. That's all I would like to say."

The accused Saefafia Dusu also gave his statements under caution to the police. He described his association with the accused Robert Foster, PW1, PW4, John Subu No. 1 and John Subu No. 2, that day and how they went to the dance at Vura III. However he said that only himself, PW1 and Robert Foster went as far as the place where the dance was taking place.

Saefafia Dusu also confirmed in his caution statement that they went to the gate and were told that the entrance fee was $4.00.

He further confirmed that Robert Foster bought a beer and they went and stood beside the main road. While they were standing there, Saefafia Dusu saw the other accused (Ambrose Aruafu) who was light-skin, with beard, with a home basket hanging around his neck and not wearing any shirt approached the gate-keepers. He also confirmed that Ambrose Aruafu came and told them that the gate-keepers refused to let him in with only $1.00.

He further confirmed the having been told that the gate-keepers refused to let Ambrose Aruafu into the dance, he took off his shirt and gave it to PW4. He went and Ambrose Aruafu then proceeded to the gate and started the fight.

It can also be seen in Saefafia Dusu's statement that he knew Robert Foster had a knife with him at the time. His answers to the following questions during his additional interview on 6th August 1992 clearly show this:

"Q.22 At that time when the fair skin man came and have conversation with you and Foster, you and the fair skin man knew that Foster had in his possession a knife, what will you say?

A22. Yes I knew that Foster was impossession of a knife that he showed me at Naha.

Q24. According to Police evidence that three of you have conversation about the fight and you said that Foster was impossessioned of a knife before you and the fair skin man proceed to the gate and Foster proceed and stood under the tree. What will you say about this?

A24. Yes I told the person fair skin, hanged a basket at his neck that Foster has a knife. But for Foster to stand under the tree I did not know.

Q27. When both of you stand near the entrance to the dance, who of you did possessed the knife?

A27. Foster who was imposessioned of the knife.

Q30. During the time you and other were at the dance, do you know that Foster had a knife with, it is true?

A.30. Yes its true.

He, however, stated that although he took off his shirt to go and join the fight, he said he did so because he was forced by Robert Foster and the light-skin man. This can be seen from his answers to Questions 4 to 7 in his additional interview of 6th August, 1992.

"Q4. Before you proceed to the gate you took off your shirt and you give it to Mae. This means that you have in your knowledge to go and do something. What will you say about?

A4. Yes I have knowledge that we will fight because both Foster and the fair skin person forced me

Q5. So it means that before you go to the gate, you have knowledge to fight?

A5. Yes, because both of them forced me that's why I went and fight the gate keeper.

Q6. What do you mean by Force?

A6. Because both of them told me to do the act or to punch the person. That's why I mean by force.

Q7. When both of them told you to go and cause the fight didn't you refuse it?

A.7 I think that is alright.

The evidence given by each of the accused as contained in their caution statements have clearly put each of the accused at the scene of the commission of the offence. On the evidence of the accused themselves as well as from the prosecution, I found it as conclusively proved, as a matter of fact, that each of the accused was at the scene of the crime at the material time.

Having thus found, the court will then have to consider whether each of the accused had committed the crime of murder as alleged by prosecution, contrary to section 193 of the Penal code. That section provides:

"193. Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder and shall be sentenced to imprisonment for life."

It must be proved by the prosecution that each of the accused caused the death of the deceased by an unlawful act in this case and the he did so with malice aforethought. This malice aforethought or mens rea had been considered in a number of cases in this jurisdiction. See Joel Aosi -v- R [1988/1989] SILR 1.

When ones turns to the evidence of PW3, PW4, PW5 and PW6 together with the evidence as contained in the caution statements given by each of the accused, it is beyond all doubt that the deceased died following a stabbing on his chest; that stabbing was with a knife and that the stabbing was done by Robert Foster who had the knife with him at the time.

The defence never challenged the evidence that Robert Foster had a knife with him throughout the time hidden away in his boot. In fact, it was conceded that Robert Foster had the knife with him. His counsel, however, submitted that although his client had the knife, he never intended to use it.

Again it was not disputed that Robert Foster used the knife on the deceased. The suggestion put to the court by Mr. Tagaraniana on behalf of the accused was that the stabbing of the deceased was an accident. In support of that suggestion counsel referred to the accused's answers to Questions 86 and 90 which I have earlier set out.

The accused's answer to Question 106 also makes mention of the suggestion of an accident. On the evidence there can be no other conclusion but that Robert Foster stabbed the deceased with the knife which he had in his possession at the time. I am satisfied of that beyond reasonable doubt.

Before I turn to the defence raised by the accused, it is necessary to consider whether the death of the deceased resulted from the stabbing by the accused. The evidence here can be found on the evidence of PW7 and PW6. The other prosecution witnesses said they saw the deceased fell.

Dr. Lester Ross (PW7) who examined the deceased's body confirmed that the deceased was already death by the time he examined the deceased. Nevertheless the doctor found the deceased to have a wound on the right which he described as a:

"stabbed type wound on the right chest just 2 cm at the right side of the sternum measuring 4 cm x 1 cm."

His conclusion was:

"The wound on his chest most likely is a stabbed wound which will cause injury to major blood vessels or the heart."

In court the doctor described the wound on the chest of the deceased as a "knife-like" stab wound.

Henry Palusi (PW6) who was close to the deceased at the time saw the deceased fell immediately as Robert Foster attacked him. PW6 was there when the accused having stabbed the deceased ran away and the deceased's uncle came and shone a torch at the body of the deceased who was lying down motionless. He described how the deceased's uncle called his (deceased's) name but the deceased never responded and that a knife wound was found on the right chest of the deceased.

There was no other suggestion (and none from the evidence) that the deceased might have died from some other causes. Although there had been no internal examination of the deceased's body to confirm that the stabbed wound would actually cause injuries to the major blood vessels or the heart, the only plausible conclusion that his court can come to on the evidence is that the deceased died as a result of the stabbed would on his right chest as described by the doctor. I am satisfied so that I am sure of this also.

At the beginning of the trial, there was no indication that a defence of accident would be raised by the accused Robert Foster. The only challenge mounted by the defence at the beginning was that of the admissibility of the Caution Statements. However that is not to say that the court will not deal with any defence that may be raised in the course of the trial, as we now have, being raised through the admitted caution statements of the accused. In any case, the accused are entitled to have the case proved against them by the prosecution.

The defence of accident is available to a charge such as murder under section 9 of the Penal Code. That section provides:

"9. Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident

Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.

Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act or to form an intention is immaterial so far as regards criminal responsibility."

Although the accused did not give evidence at the trial, I accept that he raised the defence in his interview with the police. Having done so, it is now for the prosecution to disprove it.

The evidence in this case clearly shows that the accused Robert Foster knew that there was a possibility that a fight between his two co-accused and the gate-keepers one of whom as the deceased would take place. He also knew the possibility that his two co-accused would instigate the fight. He went and stood under a tree which was about seven to eight metres from where the fight started. He still had the knife tucked inside his boot. When the fight progressed toward where he was standing, he was called by one of his co-accused Saefaifa Dusu to go and help him. He immediately ran to help. In the process of attempting to pick up his co-accused, he was punched. He retaliated by kicking the man (deceased) and that caused the knife to fall out from his boot. He bent down to pick the knife when the deceased was on him and punching him. He then tried to defend himself with his hand in which he was holding the knife. Then as he said:

"At the same time I gave the knife to the man who died. The man fell to the ground, I tried to kick him but my legs missed and my shoe flew out." (see A.86)

The evidence of PW4 and PW6 when considered along with that of the accused makes the picture more clearer. PW4 saw Saefafia fell when the deceased hit him and it was then that PW4 saw Foster jumped toward the Reef Islander (deceased). He saw the deceased kicked Foster but missed. He went on to described what happened next as follows:

"Then I saw Foster took the knife and stabbed the right chest of the Reef Islander. The Reef Islander fell down.

Foster then kicked the Reef Islander's head when he was on the ground. The Reef Islander never got up again."

I do not accept the suggestion made by the accused that the knife fell to the ground and that he picked it up and then "gave it" to the deceased. I am satisfied so that I am sure that when the deceased kicked him and missed, he then bent down to take the knife out from his boot where he hid it and to stab the deceased with it.

PW6 saw Foster came out from under the tree where he was standing. He saw Foster advanced toward the deceased and attacked him. Within a period of six to seven seconds, the deceased fell. This was followed by a kick from Foster to the deceased's body.

When one puts those evidence together, the compelling conclusion must be that the act of stabbing the deceased by the accused Robert Foster is far from being accidental. It was a willed act. The accused clearly intended to do the physical act of "giving the knife to the man who died" (to use his own words) in this case and I am satisfied beyond reasonable doubt that he did have that intention.

The direct result of the accused's willed act was the death of the deceased.

The prosecution has satisfied me beyond reasonable doubt that the defence of accident cannot succeed here nor on the evidence can there be any room for any suggested defence of self-defence.

I turn now to consider whether the accused had the necessary mens rea as required under section 193, of the Penal code. The mens rea in murder cases can be either expressed or implied as provided in section 195 of the Penal Code. Expressed malice can be established in either of the situations described in paragraphs (a) or (b) of the section which I set out hereunder:

"195. Malice aforethought may be expressed or implied and expressed malice shall be deemed to be established by evidence proving either of the following states of mind proceeding or co-existing with the act or omission by which death is caused, and it may exist where that act is unpremeditated -

(a) an intention to cause the death of or grievous bodily harm to any person, whether such person is the person actually killed or not; or

(b) knowledge that the act which caused death will probably cause the death or, or grievous bodily harm to, some person whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is cause or not, or by a wish that it may not be caused."

The accused stated that he did not intend to kill the deceased and that he was sorry after he heard that the deceased was dead. I am not satisfied that he accused intended to cause the death of the deceased in this case. However as we have seen the mens rea required to be proved in murder cases can be proved in either of the situations mentioned in section 195. On the evidence before the court there clearly was an intention on the part of the accused to use the knife on the deceased and he did use it on the deceased. The result of that must undoubtedly be the grievous harm suffered by the deceased. I am more than satisfied that the accused in this case intended that result, that is, to cause serious injury to the deceased. This is murder.

Even if I were not to come to that conclusion, I should still conclude without any shadow of doubt whatsoever that the accused, when he plunged the knife into the chest of the deceased, could not have failed to realise the result would probably be to cause serious injury to the deceased, serious injury of the type referred to in the definition of 'grievous harm.'

On the evidence before the Court I am satisfied beyond reasonable doubt that the accused Robert Foster is guilty as charged and I so convict him of the crime of murder.

As to the other two accused Saefafia Dusu and Ambrose Aruafu, the prosecution must prove that they were parties to the crime charged against them. This the prosecution must do so on the evidence before the court.

Before I proceed to consider the question as to whether these two co-accused are parties to the offence, let me say something on the question raised by Mr. Titiulu that his client was at first not identified by PW6 but that he (PW6) identified one Solo who is the brother of the accused. PW6 however explained in cross examination that the reason for the mistake was because the accused's brother who was at the line-up looked just like the accused. But on the second occasion at the ID Parade, PW6 identified the accused who was at the line-up. The accused whom PW6 saw on the night of 1 August 1992 had beard on and it was him who was identified by PW6 on that second occasion. I bear in mind the danger associated with identification of an accused person and in particular the guidelines in Turnbull [1976] 3 WLR 445; (1976) 63 Cr. App. R. 132. However in the present case, when PW6 identified the accused on the second occasion, there was no dispute to that identification. Further, the Crown case here is not depended wholly or substantially upon identification.

Thus despite the mistake on the first occasion of the ID Parade, I am satisfied that there had been no unsatisfactory features about the identification of the accused subsequently on the second occasion.

I now consider the parties to the offence in this case. Parties to Offences are set out in section 21 (a)-(d) of Penal Code. For our purposes paragraphs (b) and (c) are relevant. These are:

"(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 to commit the offence"

It is also the prosecution case that there was a common purpose existed among the accused in this case. On that, section 22 of Penal Code is also relevant. That section provides:

"22. When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence."

The evidence here shows, and there can be no doubt at all, that the three accused had, after they were refused entry into the dance and where standing beside the main road, talked about going back to the dance entrance gate and causing some sort of trouble or fight. It was following that discussion that the two accused Saefafia Dusu and Ambrose Araufu proceeded to the gate and caused the fight with the deceased and PW6 while the accused Robert Foster went and stood under a nearby tree.

It was submitted, however, by Mr. Titiulu and Mrs Samuel that their clients were only parties to the common purpose of assaulting the gate keepers, one of whom was the deceased and that the act of stabbing the deceased by Robert Foster was outside that joint enterprise. They further submitted that their clients could not have foreseen that Robert Foster would use the knife. Counsel for Ambrose Aruafu cited R -v- Reed (1970) 62 Cr. App. R 109 and R -v- Ward (1987) 85 Cr. App. R. 71.

One only needs to look at the caution statements of each of these accused to see that both Saefafia Dusu and Ambrose Aruafu knew that Robert Foster had a knife with him while waiting under the tree. In the course of the fight with the deceased, Saefafia and Aruafu received instructions from Foster to pull the deceased toward where he was standing saying also that there with him was the knife. Saefafia and Aruafu did exactly that. They drove or forced the deceased toward Foster who then used the knife on the deceased or to use his expression, "gave the knife to the man who died."

The case of R -v- Anderson & Morris (1966) 50 Cr. App. R 216 has stated the principle involved in such a case where a common purpose is alleged to exist between the parties. At page 221, Lord Parker CJ stated:

"Where two persons embark on a joint enterprise, each is liable for the acts done in pursuance of that joint enterprise, that that includes liability for usual consequences if they arise from the execution of the agreed joint enterprise; but (and this is the crux of the matter) that if one of the adventurers goes beyond what has been tacitly agreed as part of the common enterprise, his co-adventurer is not liable for the consequences of that unauthorised act. Finally, he says it is for the jury in every case to decide whether what was done was part of the joint enterprise, or went beyond it and was in fact an act unauthorised by that joint enterprise."

The principle stated in R -v- Anderson & Morris was accepted in R -v- Ward (1987) 85 Cr. App. R 71 where Lord Lane stated that:

"... if it is proved .... that the second man, whose act did not directly kill, but nevertheless acting with the first man in pursuance of an unlawful joint enterprise, in which the second man, must have contemplated or foreseen that the other man might possibly kill or cause grievous bodily harm as part of the joint enterprise, then, of course, the second man is also guilty of murder."

Those two cases were applied in R -v- Alick Wale Tabeu & Kalisto Geniufaria (1990) Crim. Cas. 6 of 1990 where the common purpose to rob was established and that the use of weapons was within the scope of that common purpose and as such the infliction of grievous bodily harm was a probable and foreseeable consequence of the use of the weapons.

Applying the principle stated in the cases mentioned, I am satisfied so that I am sure that the prosecution have proved a common purpose to assault the deceased in this case. I am equally satisfied that the two accused Saefafia Dusu and Ambrose Aruafu knew that the accused Robert Foster had a knife with him and I am satisfied also beyond reasonable doubt that when they heard Foster called out:

"pullim come olsem, knife long here,"

they could not have failed to foresee the probability of Foster using the knife on the deceased and that the infliction of grievous bodily harm was a probable and foreseeable consequence of the use of that knife.

Both accused, on the evidence, were willing to participate and to help in the prosecution of an unlawful purpose, in the course of which a crime had been committed. In law, they are all principal offenders.

On the evidence before the court, I must also find Saefafia Dusu and Ambrose Aruafu each guilty as charged and I convict both of them of the crime of murder.

On the evidence I also convict Saefafia Dusu and Ambrose Aruafu of Common Assault.

(G.J.B. Muria)
CHIEF JUSTICE