Regina v Tahea [1996] SBHC 34; HC-CRC 014 of 1995 (28 June 1996)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 14 of 1995

p align="center">ter">REGINA

v

PHILIP TAHEA & OTHERS

&n

<

Before: Palmer lmer J

Hearing : 20 February 1996, 27-29 February 1996, 1 March 1996, 4-5 March 1996, 15 March 1996, 25-29 Ma 1996, 1-4 April 1996; 15-19 April 1996; 26-30 AprilApril, 1-10 May 1996 - Judgment: 28 June 1996

Counsel: Mrs. M. Samuels for Philip Tahea, Mr. T. Kama for Amos Teikagei, Mr. P. Lavery for Damaris Teikagei

PALMER J:

On the 10th of February 1995, between the hours of 5.00 p.m. to 6.00 p.m., an incident occurred at a remote settlement, at Tingoa, on the island of Pavuvu in the Russell Islands group, which resulted in the death of Wesley Tenoiaka (the deceased) and very serious injuries caused to Constance Tehavinu (also known as 'Concey' and will be referred to in this judgment as 'PW1'). Three accuseds were implicated and subsequently charged by the Police. Philip Tahea (D 1) and Amos Teikagei (D 2) were charged initially for the murder of the deceased, but after a submission of a no case to answer in respect of Amos was heard and ruled upon by this Court, the murder charge against him was reduced to a lesser charge of grievous harm contrary to section 219 of the Penal Code. Philip Tahea also has a second count of causing grievous harm to PW1 contrary to section 219 of the Penal Code as well. The third accused, Damaris Teikagei (wife of D2), has also been charged with grievous harm for the injury caused to the forehead of PW1.

The prosecution case can be summarised as follows. The deceased and PW1 paddled across to Tingoa from Newland to collect their belongings which had been taken by D2 and D3 when they went over to stay at Tingoa. They were not armed and did not go with any intention to fight or kill D1. Unawares, news had preceded them to the accuseds that they were going to fight. The accuseds therefore were waiting for them, armed. On arrival at the site, there was no one in sight; the accuseds apparently were hiding behind some coconut trees. The deceased remained behind in the canoe baling out water, whilst PW1 walked up to the house to check for their things. D2 then came out from behind one coconut tree and enquired after her. She told him that she had come to collect their things as they were going to spend the week-end at Newland. At this point, D3 intervened and started an argument with PW1. The deceased then came into the scene, and some argument over the sale of some plantation ensued between D1 and the deceased. The deceased was then attacked by D1 and D2. D2 stabbed the deceased on the back of his neck, whilst D1 cut the face of the deceased with his bush-knife; once on the cheek and the other on the forehead. They then made the deceased to fall down on his face, before continuing to cut him up on the backside. The deceased was unarmed at the time of the attack. D1 and D3 then turned on PW1 and pushed her to the ground. D3 cut the forehead of PW1 . She fell down. D3 then walked back to where D2 was and gave him the knife that she was holding. D2 then cut the right hand of the deceased off and threw the severed part at PW1. D1 then went towards PW1 again and cut her on the left hand, her right fingers and thumb, and leg. The last cut delivered by D1 on the deceased was when the deceased tried to get up when he heard that D1 and D2 were intending to leave. D2 delivered the fatal blow on the neck of the deceased. That killed him. The accuseds with their children then escaped from the scene in their respective canoes.

The Defence Case

In contrast, the defence version of what occurred that fateful day is sharply different. They assert that it was the deceased who was the aggressor and attacker right from the beginning, and terrorised everyone at Tingoa with the bush-knife that he had got from D2, on arrival. He attacked D1 at the ladder of his house first, then chased him around the house towards the church building. He also chased Doreen Tahea (wife of D1 and was about eight months pregnant at that time), and D3. He attempted to cut D3 thrice, but was prevented by D2. As a result, he turned on D2, and after punching him, he cut him on his toes. It was at this point of time that D1 approached the deceased and spoke to him with the intention of getting his attention to reason things out amongst themselves. Instead, the deceased turned on him and attacked him with his bush-knife. A fight broke out between them and ended with the death of the deceased. When D1 approached the deceased at that time, he was already holding a knife. During that struggle, D1 alleges that he was attacked on the back by PW1, and fearing again for his life from that direction, he turned on PW1 and inflicted the injuries on her body and head. The defendants deny that D1 and D2 were ever involved in anyway in the attacks on the deceased and PW1.

The burden of proof

The burden of proof in criminal cases is slightly weighted in favour of the defendants; that is, prosecution must prove beyond reasonable doubt that the accused committed the offences they had been charged with. If a reasonable doubt exists in the mind of the court, then the accuseds must be acquitted.

The oath to speak the truth in court

I feel compelled at this juncture to express my deep displeasure, at the way the Oath that a witness takes to tell the truth, the whole truth in court, and that includes answering questions, has been blatantly abused and taken for granted by witnesses who come before this Honourable Court. Taking the oath is a solemn act in itself, and directly invokes the Authority of God Almighty, recognising His Omnipresence and Omniscience, as the Witness to the testimony of the witness. All witnesses therefore who take the oath must take it seriously, and seek actively at all times, to speak the truth according to the best of their ability, knowledge and understanding, instead of deliberately lying in court. I raise this concern now because it is clear to me that there are some witnesses who do not appreciate the value and significance of the oath and the assistance that it provides to the Courts in the due administration of justice. I think we should remind ourselves, not to use the oath as a mere human tool which can be abused at will but also a solemn act, in which we make ourselves accountable not only to men, but also to God Almighty. It is my hope that we will have fewer cases where witnesses come to this courts and deliberately lie through their teeth.

Turning back to this case, it is clear that someone or some witnesses have deliberately lied in court, and thereby sought to mislead the court and to obstruct the course of justice. That is objectionable and most unfortunate.

The issues before this court

The charges on which the accuseds have been charged with, will turn on the evidence before this Court. The crucial issues in turn before this Court, will depend on whether the Court accepts the Prosecution version of event that the deceased and PW1 were not armed, and were suddenly attacked by the accuseds with knives, or the defence version, that the deceased was armed with a knife and was the aggressor and attacker. In order to make a determination of which version to accept, the evidence adduced before the Court will have to be assessed.

The Evidence

1. Constance/Tehavinu (also known as 'Concey')/PW1. The whole prosecution case hinges on the sole crucial evidence of this witness; the wife of the deceased. It is extremely important therefore for this Court to consider here evidence with the utmost care and caution.

(I) Evidence in chief of PW1. PW1 and the deceased and their two children, Raymond Tekiou and Alex Nika, left Yandina in a dug out canoe that Friday evening at around 4.30 p.m. 10th February, 1995, to go to their settlement at Newland, on Pavuvu Island for that week-end. They had a small house there with some of their belongings left in it. On arrival, they went to check for their things but could not find them. They then decided to go across to Tingoa Settlement, and ask D2 and D3 for their things. It appears not disputed that D1 and D2 had been living in their house at Newland, but hen moved across to Tingoa Settlement taking with them the things belonging to PW1 and the deceased. The two children were told by PW1 and the deceased to look for bait so that they could go fishing later that night, whilst PW1 and the deceased paddled across to Tingoa Settlement to check for their things. Tingoa Settlement is some 400 feet or so away, and quicker to reach by canoe. It could be accessed by foot but would entail an inland route as the shore is covered with swamp and mangroves, making it difficult to walk along the shoreline.

On arrival at Tingoa, PW1 states that no one was in sight. Her husband remained behind in the canoe baling out water whilst she went on shore to find D2 and D3. When she walked up the shore, she did not see anyone. She only saw D2 when he showed his head from behind a coconut tree that he was hiding behind. He then asked her 'You how', which means what do you want? She explained to him what they had come for. At that point of time, D3 also appeared at the scene and told PW1 off for telling her husband to collect their things for them, and swore at PW1. D1 then also appeared at the scene. PW1 states that D3 and D1 also came from hiding behind some coconut tress around that same place where D2 had emerged from. D1 came and stood at the same place where D2 was. At that point of time, here husband came up from the canoe to where they were. He then asked D1 whether it was true that he had sold a coconut plantation at New Mugava. PW1 states that when the deceased came to where they were, he was not armed with anything. She also stated that her husband spoke normally to D1. Her husband wanted them to go to New Mugava and find out the truth about the sale and if need be to refund the money of the purchaser. At the same time, D3 was swearing at her. The deceased then spoke to D3 cording her for talking to PW1 in a manner unbecoming to her especially when PW1 had looked after her and her husband for sometime. (D2 is a nephew of PW1, born from PWl's elder sister). D3 responded by swearing at him and saying words to the effect that "we will kill the two of you now". At that point of time, she described D1 as standing quite close to the deceased right in front of him with a bush-knife in his hand, and D2 standing towards the back of the deceased. D3 then said to D2, that he was a man who could kill a man or who could fight. At that instant, on hearing those words, she saw D2 jumping from behind the deceased and pushing his knife at the back neck of the deceased. She also saw D1 cut the forehead of the deceased. She identified the knife that D2 used as a small carving knife. This was a knife used for carving. She also pointed out that D2 had two knives at that time: a small carving knife and a bush-knife. D1 delivered a second blow to the cheeks of the deceased, before they pushed the deceased to fall down face wards. The two accused then went ahead and cut here husband up on the backside. She was about five to six metres away when all this was done.

After the deceased up, D1 and D3 then turned on her and chased her. She described them both as holding bush-knives. As regarding D3, she described here as already holding a bush-knife when she swore at her. She was pushed to the ground and when she fell down, D3 cut her on the forehead. D3 then ran back to where D1 and D2 were. PW1 stated that he was not knocked unconscious when cut by D3, though she did use the term 'woke up" to describe getting up again after being cut, and walking over to where her husband was. D1 then came towards here and cut her left hand. It was held together only by the skin. She said that at that time, the accuseds were still cutting up her husband. D1 then came towards her again and cut her leg. She held out her hand to block the blow and was cut on her two front fingers and leg. D1 again cut towards here leg, and when she turned sideways to avoid the blow her thumb was cut together with her leg again. The spots cut were physically shown to the court. I accept there is no dispute in respect of the injuries on PW1 other than the one on the forehead. After being cut by D1, PW1 went to the sea side to wash her injuries. While there, she said that D1 further sought to attack her, but his wife, Doreen held him back. She then walked along the shoreline and then fell down, but she turned herself towards her husband.

PW1 also sated that after D1 had cut her on her hand, D3 went towards where D2 was and gave him the bush-knife. D2 then cut off the right hand of the deceased and threw it at her. She stated that when D2 cut off the right hand of the deceased, he was still shaking. It was after this that she went to the sea side to wash her injuries. After she had fallen down towards where her husband was, she heard D1 telling D2 that they should run away. She said that the deceased must have heard D1 because she saw him getting up from where he had fallen down. On seeing him getting up, D1 went to him and cut him on the neck at his back. This she said was the fatal blow which killed the deceased. Prior to that, he was still alive and shaking. Both D1 and D2 then ran towards her, but she pretended to be dead, and so they left her alone. She then describes/being woken up by witness Eddie Namege (PW3). She could see PW3 coming and could hear him when he said after looking at the deceased, that both the deceased and his wife were dead. She however spoke out to him that she was not dead. PW3 then came and made her to wear her cloth, which had fallen done. Not long after, her son PW2 arrived at the scene. D1 and her family at that time had gotten into their canoe and paddled away. D2 and D3 had also gotten into their canoe, but were floating out at sea. Their children were covered in the canoe

PW1 also stated that he saw one of the children of D1 and D2 at the scene and so she asked him to go and pick up his two children but D3 told her off. She also stated that she asked D2 to take here and her two children, but instead he just pushed her head into the sea and told her to wait there for D1 so that he can come back and "finish off her life". She said that D1 did come back and so she told PW3 to take his younger brother and run away. She also stated that her son (PW3) went to D2 to ask him to take them to Yandina, but instead he pushed her son back into the sea and told him to go in his own canoe. She also said that she asked D2 to take them to Yandina, but instead he just pushed her head back. She was then carried to their cause by her son. She said that D2 told them to wait there so that D1 can come back and kill them all off. D1 did come back but by then they had paddled away in their canoe.

Evidence of PW1 Under Cross-Examination

1. By Mrs. Samuels (on behalf of D1)

Under cross-examination, this witness (PW1) stated that she and her husband were not aware about the sale of the barrack by D1 until they had arrived at Tigoa. She also pointed out that when they went to Tingoa the accused were waiting ready for them. She says that they were not aware that the accused were actually waiting for them. Later on in her evidence however, this witness stated that she and her husband were aware about the sale of the barracks and that they wanted to know why it had been sold. She also stated that D1 came back to attack her and her sons but was held by PW3.

2. By Mr. T. Kama (on behalf of D2)

Under cross-examination by Mr. Kama, apart from the many denials made by PW1, of matters put to her, like we a number of thins on which she made some positive answers to one of these was that when she went to ask D2 for their things. She stated that she asked for their sings like, mats, light (lamp), but not knife. She said that after talking to D2, he however did not go and get those sings because, D3 then came and swore at her. She also stressed when later asked again by Mr. Kama. that they did not want to get a knife, only their mat and lamp.

Another matter which she made clear was that when they arrived in their canoe at D2's place, there was not one around. She stated that everyone was hiding amongst the coconut trees at Tingoa.

Also under cross-examination, PW1 stated that she was lying on the ground near D1's kitchen when she heard D1 and D2 talking about the deceased and PW1 coming to fight them.

She also stated that D2 and D3's children were already covered inside their canoe at that time, although one child did come out. She said that she noticed these things after the fight and reiterated that only one child of D2 and D3 was seen after the fight. The others were covered inside their canoe.

Under cross-examination by Mr. Kama, there was a reference by this witness to someone running away. When pressed as to the identity of that person, one could not answer.

Also under cross-examination she explained that D2 used a small carving knife to stab the back neck of the deceased and then used a big knife to cut the back side of the deceased when he had fallen down.

As regarding the knife which PW1 said D3 was holding, she stated that D3 got it from the place D1 and D2 had killed her husband. She added that D3 held a bush-knife, D1 also held a bush-knife and D2 held a carving knife

Later in cross-examination, she said that D3 held a knife when she came out from amongst the coconut trees. She also explained that after D3 had cut her forehead, she ran to her husband and gave the bush-knife to him (D2). D2 then cut off the right hand of the deceased and threw it at her.

When PW1 was asked as to the reason why D2 should be cross against the deceased, she explained that D2 was cross against her about something that she had told them they should not do. This related to an incident, in which she alleged that D3 had asked for clothes from some woman. She had mentioned this matter to D2 telling him that his wife (D3) should not go asking for clothes from a different person. She explained that in their custom this was a shameful thing to do. She pointed out that they had attempted a reconciliation and had prayed about the incident but she noticed that D2 and D3 had not really forgotten about the incident and since then had not been on exactly the same free and relaxed terms with her. She explained that this was the reason why D2 was cross against them. When it was put to her however, that such a matter was not sufficient for a person like D2 to kill someone for, she could not answer. When she was asked if D2 and D3 were involved in the row between D1 and the deceased concerning the sale of the plantation, she replied in the negative. She affirmed that D2 was not cross about the land but added that he was cross about what she had said about his wife (D3).

Cross-examination by P. Lavery.

On cross-examination by Mr. Lavery, PW1 further explained that whilst D2 and D3 were arguing with her, D1 and her husband were talking about the purported sale of the coconut plantation by D1. She explained that her husband was talking normally with D1 when he was attacked and killed. Also she repeated what she had said when cross-examined by Mrs. Samuels, that she and her husband were not aware of the sale of the coconut plantation until that day at Tingoa. When pressed by Mr. Lavery to explain how they became aware of the sale, she stated that D2 and D3 told them about the sale when they were arguing that day. She was then asked about a previous statement made to police on 23rd March, 1995, in which she had stated that her husband had prior knowledge of the sale. When asked to explain the inconsistency, she refused to answer. There were a number of other inconsistencies raised in cross-examination by Mr. Lavery as follows.

In PWl's statement, she stated that after telling D2 what they had come for, he went and collected their properties from the house he was sleeping in and then placed them for her to collect. When asked about this inconsistency, PW1 started to cry. No satisfactory explanation was provided.

The third inconsistency raised in cross-examination related to the question as to the first sighting of PW3 and PW4. In her statement, she stated that they were all staying together with the accuseds. Under cross-examination, she denied having said those things in her statement. One of her common explanations was that she was under hospital (medical) treatment at that time and so was not sure if she said those things or not.

One of the matters raised in cross-examination by Mr. Lavery as relating to his client was whether D3 was holding any bush-knife when she first approached PW1 and swore at her. In response, PW1 stated that D3 was not holding any knife at that time. PW1 was then asked as to where D3 got the knife that she cut PW1 with. Her reply was that she only saw D3 with the knife when she cut her.

Re-Examination

One of the matters clarified under re-examination was that after asking D2 to go and collect their things, he walked towards the house, but then did not reach the house because D3 had come into the scene and argued with her.

She also clarified that D1 and D3 both pushed her backwards and then she fell down. D1 then went back to where the deceased was. When she got up D3 came at her and then cut her forehead. D3 then ran back to her husband D2. It was at this point that D1 approached her again and then cut her hand and the other parts of her body.

Evidence in Chief of ALEX TEKIOU PW3

This witnesses evidence confirmed the reason for PW1 and deceased to go to Tingoa to collect their things. He however specifically mentioned that one of the items they went to collect included a bush-knife. The crucial parts of his evidence related to the sound of children crying in the earlier part of the incident and then being called by D2 telling him that his dad had died. He says that when he got to the scene, D2 held his head and then pushed him so that he fell down. He also said that when D2 spoke to him, he did so roughly. He said that he was carrying his brother on his back at that time and so when D2 pushed him, both of them fell down on the ground and stones.

On standing up he saw his dad lying face up. He was already dead then. He went and cried. His mother then shouted out to him that D1 was coming with a knife. He could see D1 coming at Eddie Namege's house with a bush-knife in his hand. So he took his brother and asked D2 to take them in his outboard motor and canoe to Yandina, but instead D2 just pushed him and his brother back into the sea and told them to wait for D1 to come and kill them. This witness said that he actually swam towards D2's canoe with his brother on his backside, but he was pushed back into the sea by D2. So he went back, got his mother into their canoe with his small brother and then paddled away.

As for the things that they went to collect, he says that he did not see them at the scene or in their canoe.

This witness also pointed out that when he reached the body of his dad, he saw his hand had been cut off and lying some three metres away from his body. He went and took the hand and placed it beside his dad's body.

This witness also stated that when he arrived at the scene, there was no one staying with the body of his dad.

Cross-examination

Under cross-examination by Mrs. Samuels, this witness stated that on arrival at Tingoa, D2's canoe was already floating out at sea ready to go off. Under cross-examination from Mr. Kama, this witness however pointed out that when he arrived at Tingoa, he saw D2 and D3 and their children ready to go inside their canoe. He also confirmed hearing children crying when he was still at Newland. He also reiterated that when he came ashore, he saw D2 standing behind his house and then held his head and pushed him towards the stones. He also explained further that by the time he arrived there, D2 and D3 had put all their things inside the canoe. Only their children were still waiting at the shore. This witness also confirmed that when D1 came back to the scene of the murder, he swam to D2 and asked him for his help, but D2 refused. Instead, he started his engine and went off in the direction of New Mugava Settlement.

This witness also reiterated that on his arrival he did not see PW3 and PW4. He only saw them later when they bought a mat to cover his dad's body with.

In cross-examination by Mr. Lavery, it was put to this witness that in his earlier statement to the police, he had stated that while they were at Yandina, his dad and mum had told them that they would be going over to Tingoa to collect some of their belongings with D2 and D3. In court however, he appeared to change his story. This witnesses response was that he was not sure about what exactly he told the police two days after the incident.

Also he was asked concerning the time period between the time he heard the children crying and the time he heard D2 shouting. His response was different somewhat from an earlier answer given to the same question put to him by Mr. Kama. This witness stated that he heard D2 shouting for him almost about the same time that he had heard the children crying.

This witness also clarified that PW3 and PW4 were not at the scene when he arrived. They had gone to their house. It was put to him however, that he had stated in his statement to the police that he saw PW3 and PW4 staring at them, but did not do anything to help . In his response, he stated that he could not re-call what he had earlier stated.

Re-examination.

On re-examination, this witness confirmed that he was aware that his dad and mum would be going to Tingoa to collect their things that day, whilst he was still at Yandina. He also pointed out that he saw one of D2's girls crying as she walked to the sea-side to get into their canoe.

The evidence of Eddie Namege - PW3

His evidence in chief was that after returning from Lavagu, he and his brother - in law, Henry Tangosia (PW4), did some carving under his house at Tingoa. He said that he saw D 1, his wife (Doreen Tahea), D2 and D3 also doing some carving under D2's house. His children and D2's children meanwhile were playing together around that place. After doing some carving, he went diving for fish along the reef opposite his house, (some 20 or so metres away). It was while he was still diving that he heard noises coming from Tingoa Settlement; from the area of D1 and D2. He therefore took out his glasses to look and saw people carrying things into their canoes, so he decided to come out of the water to check. When he came ashore, he saw his in-law still working on his carving under his house. He told his in-law about what he had seen and then they all went across together followed by his children. On reaching the scene, Doreen Tahea spoke to him he asking him to take out the knife that D1 was holding. While she was talking to him, she was also busy carrying their things into their canoe. He responded by saying that it was already too late to do anything as two persons had already been killed. PW1 at that time was sitting beside the sea-side. but then lie down because of the pain from her injuries.

He also said that D2 and D3 were at the side of their house carrying their things into their canoe. The deceased was already dead on arrival. He says that the two children of the deceased had not arrived yet when we got there. He stayed with the dead body until about mid-night, before leaving.

Examination

Under examination, this witness gave the time estimate when the fight occurred as between 4.00 p.m. to 5.00 p.m. This witness denied being present at the scene and knowing about the fight.

He said that he was there when D1 came back and wanted to get his passbook so he went with him to get his passbook. This witness denied that there was my dog at the settlement. He confirmed that the deceased's right hand was taken back and placed beside the body by PW2.

Under examination from Mr. Kama, this witness stated that he as alerted by what was happening whilst diving when he heard a child crying. So when he looked back he saw people moving around and loading things in their canoe.

This witness also pointed out that he was already at the scene when the two children of the deceased arrived. He also said that when D1 came back, he went out to meet him. By then, the two brothers had run away to where D2 and D3 were.

This witness also explained under examination from Mr. Lavery that when he saw the deceased's body, he did not see the part of the right hand that had been cut off. He saw it only when PW2 took it and placed it beside the dead body.

Also this witness stated that Doreen was seen arriving at her place before 3.00 p.m. He then stated that she went past him whilst he was still diving and then went & did her carving.

One of the matters put to this witness was as to how he knew that a fight had occurred when he claim on one hand not to have seen the fight. His response was that he could from the way people moved around.

Under re-examination, this witness … that he did not actually see Doreen go past whilst 4 was diving. He heard this only from Henry Tangosia what he did see before he went diving was that he saw Doreen under their carving with the others.

Evidence of Henry Tangosia

This witness stated that after they had arrived at Tingoa Settlement from Uvea he and PW3 worked on their carvings. Not long after, PW3 decided to go diving for fish. He said that he remained behind doing his carving when PW3 was out diving. Sometime later, PW3 came back and asked him why the people at Tingoa Settlement were carrying their goods around into their canoe. They then went together to see what was going on. On reaching that place they saw D1 carrying his things into his canoe. He confirmed that the children of the deceased came later. This witness also confirmed that he saw D2 and D3 loading their things into the canoe. Afterwards they left in the direction towards New Mugava. He also stated that they stayed with the dead body until it was about mid-night and left because the children of PW3 became hungry and cried.

Cross-examination.

This witness was asked under cross-examination if he heard anything while he was doing his carving under PW3's house that evening, but this witness denied hearing anything. He stated that he was carving and so did not hear anything. When it was put to him that it was very unreasonable to say that he could not hear anything, he explained that he was very busy at that time doing his carving and so was making a lot of noise. He denied hearing any children cry or anyone shouting.

One of the matters raised in cross-examination related to the prior statement made to Police by this witness, in which he had stated that he heard PW3 talking to D1 and that D1 explained to PW3 why he had come back. In his response this witness seemed somewhat confused and incoherent.

Another matter put to him under cross-examination related to whether PW3 and her children had left the scene the time he and PW3 arrived. In his statement to Police, it seems that what he had told them was that PW1 and her children had left, but in court he stated that they were still there. In his explanation, he stated that it was clearly a mistake as they were still there when he arrived at the scene.

This witness also stated that they left the scene together. However, when he was asked if they left at midnight he responded by saying that he did not have a watch on him at that time. When it was put to him that he had stated in his statement and put the time they left as at 7.00 p.m., this witness eventually stated that he could only guess the time as he did not have a watch on at that time.

One of the matters persistently raised with this witness was the question as to how he could say that he did not hear anything, not even children crying when PW3 who was diving further away than where he was, could hear and he could not. His consistent answer was that the distances between the places was far and that he was busy with his carving.

Another matter raised with this witness related to the question whether he could see clearly from where he was under PW3 's house to the scene of the murder. This witnesses answer was that there were a number of things that blocked his view. He mentioned the tank, an elite tree and some coconut trees. The court had actually taken a view of the scene and so was able to see for itself what the view possibly was like from under PW3's house.

This witness was also grilled by Mr. Lavery how unreasonable it was that he could not have heard anything from the distance that he was staying, but this witness remained firm that he could not hear because he was not expecting or anticipating any fight to take place that day and therefore he was taken up by his carving that he just did not hear anything.

The Defence Evidence

Evidence of Philip Tahea, D1

The evidence in chief of D1 was that on the morning of the 10th February, 1995, he decided to go to the garden and so sharpened his knife before setting off He says that the others were at the house doing carving when he left. He returned to his house at about 4.30 p.m. in the afternoon. When he got back, his wife and children were not at the place. They had gone he was told to New Mugava. He then joined D2 doing some carving under his house. Henry Tangosia (PW4) then joined them and sat with them for some twenty five minutes. He came and asked for smoke and betel nut. He gave these to him and he sat with them smoking and chewing betel nut. Not long after, his wife arrived back. PW3 at that time he says was under his house, but he could see that he was getting ready to go diving. His wife then arrived back and started to tell them about a story that she had heard whilst at New Mugava. When his wife was telling them about what she had heard, he was then sitting on the steps of his ladder with PW4. He specified that he was sitting at the last step of the ladder. At the same time as his wife was telling them about her story, he saw the deceased and PW1 paddling towards their village. At that moment, the persons present at his house or around his house were his wife, Doreen and their two children, D2 and D3 and their four children, and PW4. He says that he noticed that the deceased and PW1 were paddling their canoe in what he described as an aggressive manner. He saw the deceased scooping up water with his paddle into the air as he paddled. This action is normally done when someone is excited or simply putting on a show. They were paddling fast and on arrival, hit one of the canoes which belonged to D2. They then both jumped into the sea and came up together to the shore. The deceased went around the back of D2's house, whilst PW1 came around the front to where they were sitting. As soon as she arrived, she swore at Doreen and D3 and started to argue with them. The deceased then came around D2's house and then called for D2 and asked for their properties. D2 was sitting below his house at that time. D2 got up and went to his house to get the things for them. The deceased then followed behind. D2 went into his house and got those things out. These included a mat, pillow, lamp and basin. When these were handed to the deceased, he grabbed hold of them and then threw them down on the ground. He then asked for his knife. D2 held the sharp end of his knife and gave it to the deceased. On receipt of the knife, the deceased hit the walling at the side door of D2's house with his knife. On observing this, this witness said that he became frightened. He stated that he had heard stories about the deceased before that he could fight and also he knew that he was a tough man, simply by his size. More so, he had just heard from his wife that the deceased and PW1 were coming to kill him that day. The deceased then came towards him, took off his spectacles (glasses) and then pointed the knife at him and said to him why he had sold the plantation. He says that at that time, PW4 left and went away. When the deceased spoke to him, he did so in a very loud voice. His appearance too, he says was very serious. He says that he became very frightened when confronted by the deceased. He nevertheless replied that it was his plantation and that he had all the right to sell it if he wanted. The deceased then swung the knife at him. He jumped out from the ladder towards his right in the direction of the kitchen and missed the blow. He says that he heard the knife hitting the ladder but did not see where it landed.

The deceased then chased hum with the knife and cut at him again. Whilst this was going on, PW1 was still arguing with the others. The children were also running around at that time. At that moment, PW3 ran out and held the deceased. PW3 was wearing a towel when he came out. PW3 tried to pull back the deceased but wasn't successful. Both the deceased and PW3 fell down. The deceased then spoke to PW3 words to the effect that he was also his enemy. He then turned towards the walling of D1's house and cut it two times. The wall he cut was the side facing towards the sea. After cutting the wall, the deceased came towards him again, so he moved back towards the sea. He stood in the sea where the water reached towards his ankles. He then ran towards the church house before running back towards where his kitchen was. In the sketch plan submitted to court as an exhibit, he described his movements as shown by the red letters from "A" to "B" to "C" to "D" to "E" to "F". When he reached point "F", which is his kitchen, he picked up his bush-knife. The deceased continued to follow him with his knife. He described the appearance of the deceased as very serious. The others he said were still arguing with PW1. He described his feelings at that time as being extremely frightened, and not knowing what to do. He then went and stood behind PW1. The deceased was about 5-6 metres away then. The deceased then approached his wife and wanted to cut her as well so she ran away. She ran under the ladder of the house. The deceased then turned on D3 and told her that he would cut her as well. He told her that it was her brother who had led his son to get involved in a fight and where he was badly beaten up. D3 then ran to her husband and stood behind him for protection. The deceased then sought to cut D3 over the head of D2 but was prevented by D2. D2 then asked the deceased why he wanted to kill his wife. In response, the deceased hit D2 on the right side of his eye. D2 fell down . The deceased then swung his knife at D2 and cut him on his right toes. D1 then says that he moved towards the deceased at that point and spoke to him with the intention of reasoning with him. Instead, the deceased swung his knife at him in a side-ways motion. He avoided this blow by jumping below the arm of the deceased. He described the blow by the deceased as intended for his neck. At the same time, he says that he swung his knife towards the face of the deceased. PW1 also came towards him to fight him. He says that she hit him on his left arm with something. He did not see what it was, but believed it could be a basket that she had at that time. The deceased then swung his knife at him again, forcing him to duck again. At that time, the motion of the deceased's action carried his body through causing his backside to be exposed towards him. D1 says that he then cut the back and shoulder of the deceased.

He also explained that after he had been hit on the left arm by PW1, she held his right hand, so he turned around and cut towards PW1. She defended herself with both hands and so the knife cut her fingers and her left hand. He also explained that he cut her because he was very frightened of her as well. as he knew that she could also fight.

By the time he had delivered the blows on the backside and shoulder of the deceased, he was moving around like a drunken man. The last cut that he inflicted on the deceased was the cut on his right arm. D1 explained that he continued to cut the deceased because he was very frightened of the deceased and secondly, because despite having been cut, the deceased continued to cut towards him with his knife. When asked as to how long the fight took, he answered that it took about twenty seconds. This defendant stated that he became aware of his family again when he had cut PW1 on the forehead. It was at that time that she heard his wife shouting but it was too late because he had already delivered the blow on PW1's head. His wife then came and held him.

This witness also stated that the issue about the sale of the plantation was first raised by the deceased. It was the deceased who first raised the matter when he spoke to him.

The defendant also stated that when he returned to Tingoa after the incident, it was to get his passbook. He also stated that the hand of the deceased that had been cut off was lying next to his body, when he saw PW3 arriving at the scene. He says that he then heard D2 telling PW3 to go and bring back the hand of the deceased which had been bitten and taken away by a dog. This defendant also stated that there were dogs at the place. He says he had three dogs whilst PW3 had two

Cross-examination.

Under cross-examination, one of the matters raised with the defendant pertained to what he had earlier said in his statement to the Police that D2's canoe was anchored at sea and not pushed up on land. In his evidence however before this court, this defendant stated that the canoe was partly pushed up on the shore.

The defendant also stated that when the women were arguing, they were doing so very loudly. He pointed out that he could not make out clearly what they were saying as all three women were talking at the same time.

He also pointed out that when the deceased cut him at the ladder and he jumped out, he heard a loud noise where the knife hit the ladder. However, he did not see where the knife landed.

This witness also stated that the deceased had cut at him three times before PW3 came and held him.

When cross-examined about the cuts on the walls, this witness stated that the cuts were made on both sides of the window facing the sea.

One of the matters also put to this accused under cross-examination was that in his statement to Police he did not state that after he had ran back and had collected his knife that he stood behind PW1. It was only in court that he mentioned that. In his response this accused stated that he did tell the Police about it but that it appears that they did not record it. Also it was put to him by Mr. Mwanesalua that he did not mention in his statement to Police that PW4 was sitting with him at the ladder eating betel nut and smoking. In his response, the accused again stated that he did tell the Police about it but that they never recorded it. He also pointed out that he was very frightened at that and so his statement to Police was not clear.

Another matter put to the accused was to describe which part of D2's face did the deceased hit . In his response, the accused declined to specify on which side of D2's face did the deceased hit. He just simply stated that it was wherever the punch landed, and according to him, it was on the right side of the face and eye of D2. This witness also stated that the deceased punched D2 with his right hand which was still holding his knife. This caused D2 to fall down. After he was cut, D2 rolled away onto his side and escaped from the deceased. Both he and his wife escaped towards their house.

This witness described under cross-examination, the sequence of blows which he made onto the body of the deceased The first blow he delivered was on the face of the deceased. The second blow was on the side of his stomach, and the third was on the backside. The deceased then cut at him again, and after avoiding that blow again, he cut the forehead of the deceased. The fifth cut was on the neck, then the shoulder and finally the right arm of the deceased. After cutting the right arm off, the deceased then fell down.

This accused also stated that he did not see the two children of the deceased when they arrived. He only saw them when he returned to collect his passbook.

As regarding the blow on the head of PW1, the accused stated that when he struck her with the knife, she moved her head downwards in anticipation of the blow and it hit her on the forehead. It was put to him that in his statement to Police he had stated that he did not see how he had cut the head of PW1. His response was that he had admitted to Police that it was him who had caused the cuts on the body of PW1, and in fact all the cuts as well on the deceased.

Under cross-examination by Mr. Kama this accused was asked whether there was any discussions between him and D2 about what Doreen had told him when she arrived back from New Mugava. His response was that there was no discussion between him and D2. He said that he was not particularly worried about that story as he felt that he had all the right in the world to do what he wanted with that land.

Also under cross-examination by Mr. Kama, this accused explained in some more detail how the deceased tried to cut D3. He said that the deceased tried to cut D3 over the head of D2 but he pushed up his hands to block the blow and so the deceased pulled back his hand. He said he did this three times. On the third time, the deceased then punched D2 with his right hand.

This witness denied seeing D2 holding any knife whatsoever; whether a bush-knife or a carving knife.

He also stated that after the fight, he heard PW1 talking with D2 and so he told his wife to pack up their things and to go away. He said that he was frightened at that time because he feared that D2 might take revenge for the killing of the deceased and turn on him and attack him. He explained that D2 was the nephew of PW1 and he was concerned that PW1 may be able to convince D2 to turn on him and attack him. After loading all their things in the canoe, they left straight away.

Under cross-examination by Mr. Lavery, the accused explained in detail what actually happened with the purported sale of the plantation. The accused explained that the sale was more of a charge on the plantation because he had merely borrowed the sum of $200.00 to help him with his wife's needs who was getting on in her pregnancy. The money was borrowed on the Wednesday of the same week.

This accused also pointed out that both D1 and D2 do not have any rights on or over that plantation and so would have no reason to get involved in any fight or quarrel with the deceased over that plantation.

This witness also confirmed under cross-examination that he did not see any child of D2 around when D2 was hit by the deceased. He also stated that he did not see at any time D3 holding any knife or cutting PW1 with any knife.

Evidence of Doreen Tahea

This witness confirmed that on the 10th February 1995, she went to New Mugava in the morning to get her child. She arrived back between 5.00 p.m. and 6.00 p.m. When she arrived back, PW3 was diving at sea. PW4 was under PW3's house, whilst D2 and his children were at their house. D1 was sitting on the ladder at their house. She then saw PW4 going across to their house, and joining D1 at the ladder. On arrival, she went up to where they were and enquired about the people who said that they would come and kill D1 . While she was still talking to them about what she had heard, they saw the deceased and PW1 paddling across in their canoe from New Land to Tingoa Settlement. She stated that they were paddling very fast and on arrival collided with the back of D2's canoe. They both jumped out of the canoe and the deceased went around D2's house whilst PW1 came around on the other side to them. D1 was sitting on the ladder; D3 was making coconut in the kitchen; whilst D2 and his son were standing beside the house. Two of her children were also there. She said that she was frightened at that time, because of what she had heard. They just sat there when the deceased and PW1 arrived. She stated that PW1 spoke first and swore at them. An argument then broke out between PW1 and D3. When the deceased arrived, he asked for his knife but in an angry voice. D2 went and collected the knife from his house and gave it to the deceased. On receipt of the knife, the deceased cut the side door of the house, then came towards them and pointed the knife at D1. When asked if there were other things which D2 gave to the deceased, this witness stated that she didn't see anything else. This witness stated that she joined in the argument with PW1 because she had said something bad about her children as being ugly and rubbish, and that she was going to have another rubbish baby as well. This witness also stated that PW4 was there but then left and went back to PW3's house. She also stated that the deceased swung his knife at D1 at the ladder, but he jumped out and ran around towards the church area. At that time, PW3 came and held the deceased and tried to stop him, but the deceased pushed PW3 away and he fell on the ground. The deceased then cut the wall of the house and swore. She said that she heard the deceased say that he had come to slice D1 with his knife but he kept running away. D1 then responded that he was not a frog. This witness identified the spot where the deceased cut on the wall as the eastern end of the house facing the sea. The deceased then spoke to them and said words to the effect that he would "brush" them with his knife (meaning that he would cut them with his knife) . On hearing this, she shouted and ran under the house. PW3 then disappeared from the scene but she did not know where he had zone.

The deceased then, turned on D3 and chased her, so she ran to her husband (D2). The deceased then sought to cut D3, and so D2 held his hand and asked him what he wanted to do with his wife. At this, the deceased punched D2 on the face with his clenched right fist which was still holding his bush-knife. At that time, D2 she says was still holding his child, and so when he was punched in the face by the deceased, he fell down with his child. D2 then sought to stand up but he was cut by the deceased. She described the cut of the deceased at D2 as being intended for his neck, but when D2 moved to avoid the blow it cut his toes on his right foot instead. D2 then stood up with his child and went away.

This witness also stated that when she saw her husband holding a bush-knife as well she got her children and ran away. She said that she was extremely frightened as she thought that her husband would be killed. Her fear was that if her husband was killed, then the deceased might seek to kill them as well, and so she went and stood far away from them at the church. She also said that it was her first time to see this kind of fight. She said that she did not see D2 and D3 around that place at that time. PW4 was also nowhere to be seen around that place, neither PW3. She estimated the fight to have lasted some twenty seconds or so. She said she got the courage to return to the scene of the fight only when she saw the hand of the deceased being cut by D1. As she returned she then saw D1 cutting the forehead of PW1 and her leg. She then went and held her husband and everything was stopped at that point of time. She said that she held him at his back and then shouted into his ears before he responded by remaining calm. After that, D1 spoke to her to go and get their things ready to leave the place and so she went and collected all their things together. She stated that at that time, she did not see anyone else holding any knife other than the deceased and D1.

Cross-examination of Doreen Tahea

Under cross-examination, this witness stated that she left for New Mugava between l 1.00 p.m. and 12.00 noon. When she left, her husband was still at their house. On her return, this witness stated that she saw PW3 diving for fish in the sea opposite his house, whilst PW4 was doing carving under PW3's house. On her arrival at the village, she saw PW4 coming across to them. Her husband then came out from below or under the house, and sat at their ladder. He and PW4 then shared betel nut and smoke together. She stated that D1 sat at the bottom or last rung of the ladder, whilst PW4 came and stood to his side (sea-ward side) and smoked and chewed betel nut with her husband.

She stated that she was still telling the story she had heard from Uvea when the deceased and PW1 arrived at the village.

In her evidence, this witness also stated that after the deceased had cut at D1 at the ladder, he then chased him around the house towards the road leading to PW3's house and on towards a coconut tree near the church building. It was at that point of time that PW3 came into the scene and attempted to hold down the deceased but failed. She also stated that after the deceased had cut the wall of the house on the eastern end, he then turned on them. She stated that she was extremely frightened at that time and so cried and then ran under their house. This witness also stated that at that time their children just cried and ran around after them

This witness also stated that the deceased sought to cut D3 at least three times, but this was blocked by D2, with his hands. The deceased then punched D2 on the face. She also stated that D2 and the deceased were not wearing any shirt at that time. When the deceased punched D2, only D2 fell and not both of them. At that point of time, the deceased cut at D2 with a forward blow of his hand, intending it for the neck of D2, but when D2 moved backwards, it landed on his toes and cut them. .D2 then got up and picked up his son and ran away.

This witness also stated that she saw the first part of the fight between the deceased and D1 when the deceased swung the first blow at D1 and D1 going under the arm of the deceased to avoid the blow. She says that she did not stand to watch what was going on as she had become very frightened and wanted to escape from the scene with her children. By the time she looked back, she says she saw the right hand of the deceased being cut off. She also explained that the time period of the fight which she described as lasting some twenty seconds was that fight between D1 and the deceased.

She also stated that at that time she was standing at the church building and bent down to look under their house, to see what was going on. It was at that position that she says she saw D1 cutting off the right hand of the deceased. This witness also describes how the blow to the forehead of PW1 was delivered. She described it as a sideways blow.

One of the matters put to this witness by Mr. Mwanesalua was that in her earlier statement to the Police she had stated that the deceased had chased D1 around the house. In her explanation, this witness stated that what she meant was that the deceased chased D1 around the ladder to that place near the church. Another matter put to this witness to explain related to the struggle which she described occurred between D2 and the deceased in which they grabbed each other's collar and then both fell down together. In response, this witness stated that what she told the Police was not true. Another matter put to this witness related to how she described the deceased first got hold of the knife. In her statement to the Police, she had stated that D1 picked up the knife after he had avoided the blow directed at him by the deceased. In her statement however, she stated that D1 was already holding the knife when he was attacked by the deceased. She explained that the latter story was the correct one.

This witness also stated that she did tell the Police in her statement about the deceased's hand being cut off by D1. She also stated that she told the Police that the deceased had swung a blow with his knife at D1 when he was still sitting at the ladder. She also stated that she did tell the Police about PW3 intervening in the fight by holding the deceased at the far end of the house. She also said that she did tell the Police about the cut which the deceased made on the wall. Another thing which this witness said she mentioned to the Police in her statement was that she did see when D1 cut the forehead of PW1. She also claimed that she did tell the Police that when D1 swung the knife at PW1, she jumped up to avoid the blow.

Under cross-examination from Mr. Kama, this witness explained that she had not made mention of the other things which the deceased came to collect because the last thing which D2 gave to the deceased was the knife which he had asked for. This witness also stated that when D2 gave the things to the deceased. he held them and then threw them onto the ground.

This witness also stated that when the deceased was chasing D 1, D2 was still standing with the women. She stated that he did not run after the deceased or D1. When the deceased sought to cut D3, that was when D2 sought to intervene. This witness stated that at that time, she did not see D2 holding any knife whatsoever. Another question asked of this witness under cross-examination was whether after she had held D1 and saw D2 again, she saw D2 walking around holding any bush-knife or any carving knife. In her response, this witness stated that she did not see D2 with any bush-knife or carving knife after the fight.

Another clarification made by this witness under cross-examination related to the position where PW3 was diving. She indicated that place as between PW3's house and the church. This witness also stated that when the deceased had punched D2,D3 ran away. She stated that she did not see D3 holding anything at that time. By the time she saw D3 again, and this was after the fight, she also did not see her holding anything; like any knife. She also denied seeing D3 running to D2 and giving him a bush-knife.

This witness was also asked under cross-examination, if she saw D3 around where the deceased was and when D1 cut the forehead of PW1. In her response, this witness stated that she did not see D3 at all.

This witness also stated that there were children around the place at that time and they were running around scared and crying. This witness stated that from the noise that was caused during that fight, a person sitting under PW3's house would clearly be able to hear and thereby become aware as to what was going on.

Under re-examination, this witness stated that PW4 was standing beside D1 and smoking and chewing betel nut. As regarding the spot where the knife landed on the ladder, this witness stated that she did not see the exact spot where it landed.

One of the matters sought to be clarified in re-examination related to the statement made by this witness to the Police on 12 February, 1995, two days after the incident. There were clearly obvious discrepancies in what this witness stated to Police in her statement and what she told the court. Her explanations were that some of the things recorded in that statement she denied ever making to Police. Another explanation given was that the statement produced in court was only a copy, and not the real one. The reason offered by this witness as to why the Police may not have correctly recorded what she had said in that interview was that she believed the Police acted maliciously, with the intention to see her husband convicted by this court.

Evidence of Amos Teikagei - D2.

The evidence of this accused is very similar to the evidence of D1 and Doreen and therefore I do not need to repeat what he says in evidence on oath. This accused says that when D1 was being chased by the deceased he did not follow them to see what was going on as he had no business or concern with their argument. Instead, he sought to sort out the argument between his wife and PW1, his auntie. He says that PW3 did attempt to hold the deceased back and to stop him from chasing D1, but instead he was pushed down and caused to fall down on the ground. He says too that the deceased then cut the far end of the wall of D1's house facing the sea. It was at this point that PW3 and PW4 both left the scene.

This witness also explained in his evidence that when the deceased sought to cut D3 over his head, he blocked his blows with both of his hands. The deceased then punched him in the face. He wasn't sure however as to what exactly hit him in the face. He then fell down and the deceased cut towards him with his knife. The blow made was described as a sideways blow. The blow caused a cut on his toes before he managed to roll away and escape. His son at that time was standing beside him. He then ran away to his house. He also says that he did not see D3 around the place at that time. By the time he looked back, he saw the deceased fall down and D1 delivering a blow at the forehead of PW1. He says that he was able to see clearly the blows delivered by D1 also at the leg of PW1. He then left his son there and walked over to D1 and spoke to him about what he had done. D1 then walked over to his house and lied down under his house. He then walked over to where his auntie was, where she was sitting beside the sea-side, and spoke to her words to the effect that what had happened to her husband was what she was looking for . He says that at that time, he was also frightened of D1

PW1 responded by saying that she was going to die, but he told her that that wasn't going to happen. He then walked over to the end of his house and called for PW2, Raymond Tekiou, the son of PW1. By then, D1 and his wife and children had left. He says that he wanted to Stay and for his wife to take the engine and canoe and go off, but his wife wanted him to drop them off first and then come back for the others. He did not return however. Instead, he got another group to go over and pick them up. He says that at that time, his leg had become very sore.

This witness denied cutting off the right hand of the deceased, and or using any carving knife to stab him with it. He says that when the deceased fen down, his knife was lying beside his body. He also says that he saw dogs pulling away the hand of the deceased and so he told PW3 to bring it back, but instead he kicked it back.

One of the matters this witness sought to explain in his evidence in chief was as to how or why PW1 should seek to state on oath that he was actually involved in the killing of her husband. His explanation was that may be she was cross against his wife for what her brother had done to his son at an earlier incident in which his son was badly injured in a fight Another matter which this accused sought to explain also related to the reason why he refused to assist PW1 after the fight, despite the fact that she was badly injured. His response was that according to his custom, it was not proper for him to render any assistance to her as the cause of the fight and death of her husband was solely to be placed on her and he 'rubbish ways'. She needed to be taught a lesson and he was not prepared to let her off the hook so easily.

Another matter which this accused also sought to explain related to the question as to why PW4 would ever deny that he was present at the scene just before the fight occurred. His explanation was that may be PW4 wanted to take sides against D1. The same explanation he says also applies to PW3.

Cross-examination of D2.

Under cross-examination, this accused confirmed that he did see PW3 and PW4 arriving at their place at about 3.00 p.m. that afternoon, and subsequently saw them working on their carvings under their house.

He was also asked about his prior statement to the Police in which he never mentioned that when he gave the things to the deceased he threw them down on the ground. In his explanation in court, he stated that he did tell the Police about it, but that it appears that they never recorded it.

He was also asked about what happened at the ladder, because in his statement he did not mention anything about that incident. In his response, this accused again stated that he did mention it to the Police.

He was also asked about the incident with PW3 in which it was stated in court that PW3 sought to hold back the deceased. His response again was that he did mention to the Police that PW3 did try to stop the deceased by grabbing him. This accused also said that he did tell the Police to go and see the wall at which the deceased had cut.

Another matter which was raised in cross-examination related to the cut made on the ladder when the deceased had sought to cut the deceased but then missed and cut the ladder instead. This accused says that he did tell the Police about it. but doesn't know why it may have been missed out by the Police.

In his evidence in court, this accused stated that D1 ran and then went and stood behind PW1. In his statement to the Police, there was no mention of this. When asked to explain about this discrepancy, this accused again stated that he did tell the Police about it hut that they did not write it down. He further explained that in his view, this was done purposely by the Police because they wanted to spoil them.

He was also asked about why he did not mention in his statement that D1 had gone to the garden that morning. He was also asked about why he did not mention that he saw Doreen run under the house when she was chased by the deceased.

This accused also stated that after he had been punched in the face by the deceased, he incurred an injury on his face and it was actually swollen up the next day. He says that he did show this to the Police on the following day. He also says that he only put custom medicine on the sore. At the clinic at Yandina, only his leg was treated, but not his face. He says that he did show the injury to the nurse who was attending him, but the nurse did not do anything about his injury.

The accused was also asked about his explanation in court in which he said that the deceased had sought to cut D3 over his head at least three times but that he never mentioned this in his statement to the Police. His explanation again was that he did tell the Police about it.

The accused was also asked about the part in his statement in which he stated that whilst D1 was cutting the deceased on the ground, PW1 grabbed his hair. His response was that he did not say that to the Police and that it had been put there by the Police themselves. He denied seeing D1 cutting the deceased whilst he was on the ground.

D2 was also asked about the part in his statement in which he said that he shouted at D1 and then he stopped cutting the deceased. His response again was that he did not say that. What the Police wrote there he says was not correct. He also said that he thinks the Police wanted to spoil him and D1.

When the statement was shown to the accused, after looking carefully at it, he then says that his signature was a copy. He did not explain however what he meant when he said that his signature was a copy. When he was asked however, as to whether those signatures were his or not, he conceded that they were his. He admitted that he signed every page but then again said that they were copied. What he meant was never made clear.

Under cross-examination by Mrs. Samuels, this witness stated that their children were crying loudly as they were very frightened, and therefore in his opinion someone even as far away as Newland would be able to hear what was going on. A person sitting under the house of PW3 in his view would be able to hear clearly the crying of the children. This accused also stated that there were five dogs at Tingoa Settlement: two belonged to PW3 and three belonged to D1.

Under cross-examination by Mrs. Samuels, this accused stated that PW1 's calico did not fall off during the altercation as she had tied it strongly on the side of her body.

Under cross-examination by Mr. Lavery, this accused was asked what he thought of the Police evidence in court. His response was that he believed the Police merely wanted to spoil them, and that when they were being questioned during the investigations he was under the impression that the Police had made up their minds about their guilt. He also expressed the opinion that the medical report of the nurse who attended him on the morning of the 11th February 1995 appears to have been made with some influence or interference from the Police. This accused also stated that he formed the view that even the nurse appears to be prejudiced against him

ASSESSMENT OF THE EVIDENCE.

1. Reliability of evidence.

First, I will asses the reliability of the evidence of the prosecution witnesses and then that of the defence witnesses. But before that is done, some general observations should be made. The crucial and only eye witness account of the events of that fateful day produced by prosecution is contained in the evidence of PW1. She was the wife of the deceased, and was personally and directly involved in the events of that day. On the other comer are the three accused together with the wife of D1 who were present also at the scene of the alleged crimes. It is important to bear in mind that it is not disputed that all the above five persons; PW1, the three accused and Doreen Tahea were eye witnesses of the events of that day and that accordingly their accounts of what occurred should be construed very carefully. It should be noted right from the beginning that the version of events as recounted in the evidence of PW1 as compared with that of the accuseds and Doreen Tahea is different. The obvious conclusion is that either of the parties in this case has lied and thereby sought to mislead the court for their own ends and thereby to cause a miscarriage of justice. I will say more on the question of who may be lying when I come to address the question of credibility of the witnesses.

(i) The evidence of PW1.

The manner of arrival of PW1 and the deceased at Tingoa is a relevant matter because the accuseds and Doreen Tahea gave a different version as to how they arrived. PWl's version is that they arrived peacefully with no ill motives or intentions to come and fight the accuseds. They were completely ignorant of the story that had preceded them that they were going to attack D1 in particular. On their arrival, she says that there was no one in sight at the village. She did not realise that their arrival had been anticipated and that the accuseds were in hiding when they arrived. The first person that she saw when she came ashore was D2 who had apparently emerged from behind one of the coconut trees around that place, and asked her what she had come for. When she told him what they had come for and asked him to go and collect their things and bring them over, D3 also emerged from behind one of the coconut trees and immediately picked up an argument with her. Her husband during all this initial activities was at the sea-side baling out water from their canoe.

Now, if we stop and pause there, and asses her evidence to that point, there are a number of pertinent matters that can be noted. First, we are told that they arrived according to her evidence at between 5.00 p.m. to 6.00 p.m. The time of arrival appears not to be in much dispute between the parties. What is clear from the evidence is that in terms of lighting, it was still day light and so she could see clearly on arrival, what was going on. Whether she and her husband paddled fast or slowly, would make little difference as to her ability to observe what was going on, on arrival. If she says that there was no one in sight immediately on arrival, then the chances of her making an erroneous observation are very slim. Also, her chances of committing an error in picking out and recognising D2 as the first person to emerge from hiding and meet her, are very slim. The sequence of events up to that point of time, are few, slow and orderly. The movement of persons around at that time, and the number of persons involved, as described by this witness, is minimal such that it would not distract, confuse and affect, the level and degree of observation of this witness. No evidence was led as to the state of the weather that time, and so it can be safely presumed that the weather conditions whatever they might have been, was a non-issue in so far as what happened that day. Now, what all this boils down to, regarding the state of the evidence of PW1 up to that point of time is very simply, either what she has described is accurate and correct, or that she is lying.

On the same token, what D1, D2 and Doreen Tahea have said and described in their evidence as to the version of events in the initial stages of arrival of PW1 and the deceased is either correct and accurate, or that they are lying.

What subsequently occurred according to the evidence of PW1 is that whilst she was busy arguing with D3, D1 also emerged from hiding. At that point of time her husband came up and asked D1 about the sale of a coconut plantation at New Mugava. Whilst her husband was still talking with D1, D3 swore at her, and so on hearing this, her husband scolded D3 for swearing. One of the matters sought to be put to this witness under cross-examination was that because she was busy talking and arguing with D3, that it was possible that she did not hear what was being said between the deceased and D1. To this question she conceded, but never conceded the crucial question relating to the issue whether her husband was armed at that time or not. Her version of the attack on her husband is that of a concerted attack launched simultaneously by D1 and D2 upon an unarmed person

Now, in terms of what was happening up to that point of time, it is obvious that the sequence of events, the number of persons and movement involved, the level of noise (sound), speech (people talking at the same time), and the level of violence involved, were either occurring simultaneously or much more rapidly than the initial events on arrival. The likelihood of an error on observation being committed in those circumstances, would therefore be much higher. As to the question of lighting at that time, again no issue was raised on this and so it can be safely presumed that there was sufficient lighting for PW1 to observe clearly what was going on. One of the matters sought to be highlighted under cross-examination related to the question as to what D2 subsequently did after he had been asked by PW1 to collect their things and to return them. The response of this witness under strenuous cross-examination was that D2 did not manage to go and collect those things at all because by then he and D1 attacked her husband. The observations of this witness as to what occurred subsequently however, have been given in very clear terms. One of those clear matters referred to by this witness in her evidence was that the deceased was unarmed at the time of the attack. Now, the relevant question on this point is, could she have been mistaken? In the midst of the argument with D3 and her initial concern to collect their things from D2, and the subsequent argument between her husband and D1, could she at the same time be able to see what was happening to her husband. One of the matters sought to be put to this witness was that because she was busy arguing with D3, that she could not and in fact did not see when D2 went into his house and collected the things that they had come for, including the knife and gave it to the deceased. Thereafter, the deceased then sought to attack D1 with the knife. The evidence adduced in court however was that all these things were happening very close to her, and therefore she was able to see clearly what was happening. She denied vehemently under cross-examination that D2 actually went into his house and collected their things for them and then gave them to the deceased. She pointed out that it was her who had gone to collect their things and that the deceased was still at their canoe at that time. When he did come up, it was when D2 and D3 had started up an argument with her. At the same time however, D1 appeared on the scene, and that's when the deceased asked him about the sale of the coconut plantation. She stated that when D1 appeared on the scene, he came and stood at the same place where D2 and D3 were. When her husband came up, he came to where they were and then spoke to D1 about the sale of the coconut plantation. From her perspective therefore, they would all be standing quite close to her and most likely, right in front of her, or where she could have a clear view of everyone and what was going on. In her evidence in chief, this witness estimated the distance between her and D1 and D2 when they attacked her husband. to be the distance from the witness dock to the Bar Table (approximately 5-6 metres).

This witness also stated that she was able to hear very clearly when her husband scolded D3 for swearing at her, and when in response, D3 said words to the effect that they would kill them, and then called on her husband, D2, inciting him to fight. It was at that point of time that D2 attacked the deceased, followed closely by D1. Now, these observations are quite consistent with that of a person who is quite close to what was going on and therefore not only was able to see what was going on but to hear clearly what was being said. In terms of accuracy and correctness therefore, this witness falls within the category where her evidence can be relied on if what she had said is the truth. The ultimate determining factor in this case therefore will be the question of credibility of these witnesses statements in court; but that will be addressed later.

This witness then describes in detail how the attack on the deceased was effected by D1 and D2. Bearing in mind, that according to this witness, everything was occurring right before her eyes, the possibility of there being errors in her observation is minimal. Briefly, her evidence is that D2 stabbed the back of the neck of her husband, whilst D1 struck him with the knife on his cheek and forehead, and then both accused made the deceased to fall down on his face and continued to cut him on his backside. It was at this point of time, that D1 and D3 fumed on her and pushed her to fall down, before she was cut on the forehead by D3 with a bush-knife. One of the suggestions sought to be put to this witness under cross-examination, was that because she had suffered a severe blow to the head, that the possibility of her seeing or observing things clearly thereafter had been impaired. Her descriptions therefore of what transpired thereafter may have been flawed and inaccurate. This witness however remained very firm as to her subsequent observations of what happened. She denied that she was struck unconscious by the blow on the head, though she did use the word 'wake up' to describe when she got up and opened her eyes again after. She conceded that her face was covered with blood, but that she could still see clearly what was happening thereafter. She says that she was then attacked by D1 and which resulted in further injuries to her left hand, right thumb and fingers and right leg. At the same time, she says that after D3 had cut her on the forehead, she saw her run to her husband (D2), who was standing beside where her husband had fallen, and give him the bush-knife that she was holding. D2 then cut off the right hand of the deceased, and threw it at her.

The medical evidence given by Dr. Raymond Oberli, Consultant Surgeon at the Central Hospital, does support in some way the evidence of PW1 that she was not unconscious after she had been struck on the forehead. Although he described the wound as a complicated fracture, cutting through the three tables of the skull right down to the level of the eyes, including the dura, and exposing the brain, he did not think that it would necessarily cause unconsciousness. He stated that the patient could still be fully conscious despite such a serious injury. When asked under cross-examination if the victim of such a wound would still be able to see clearly, he stated that it was possible. When asked if it was possible that the victim could forget what had happened, he stated that it was very hard to tell. He said that despite such a blow, the victim could still remember what had happened. He pointed out that the victim was conscious when she was attended to at the hospital.

Dr. Oberli was also asked if she would have lost a lot of blood from the injury and therefore affected her mind. The learned Doctor however was non-committal about that question, and commented that it would also be dependent on the mental state of the victim. He was also asked if extreme pain from the injury would have affected her vision, but he stated that it was possible that she could still see clearly and recognise what was happening.

One of the matters put to this witness under cross-examination related to the use of the words 'wake up' by the victim, and whether it was possible that it may mean that she had fainted and then revived again. In his response, this witness stated that it was possible. He was then further asked whether a person with a hysterical personality would be more prone to such symptoms. To this suggestion, he also answered in the affirmative. Under re-examination, Dr. Oberli explained that it was possible for the victim to faint and not realise for a few minutes what was happening around her. The overall effects however he described to be quite distinctive. If she had become unconscious, then she would not have been able to remember what had happened, whereas if she had only fainted, then she would still be able to remember what had happened.

After PW1 had been attacked and had gone down to the sea-side to wash her injuries, she then lied down on the ground, with her face towards her husband. She says that she was able to see very clearly, the final and fatal blow which D1 delivered on the neck of her husband when he tried to get up later. She explained that she could hear D I talking to D2 and telling him that they should run away. She thinks that the deceased must have heard them and so attempted to get up. On seeing him get up, D1 then went and cut him on the neck and killed him. After this, D1 and D2 got their things ready into their canoes and prepared to leave the scene of the fight.

In terms of lighting again, it was getting dark by this time, but they could still make out what was happening around them. She says that D1 left the scene first with his family but then later came back. D2 had a motorised canoe and left later. She says that her son Raymond asked for help from 1)2 but he responded by pushing his head into the sea, and told him to wait for D1 to come back and kill them.

One of the matters sought to be suggested to her by Defence Counsels was that the deceased was in fact armed at that time, and that this was with the knife that had been given to him amongst other things by D2. It was also suggested to this witness that she had gone to Tingoa with 'cross' (anger) in her mind, and that therefore it was possible that she couldn't remember things clearly. In her response however, this witness reiterated that she and her husband had come to Tingoa peacefully with the sole purpose of collecting their things. She denied vehemently that they had come with angry minds and with any intentions to cause a fight. If what she says therefore is true, then her mind would be clear enough to see and remember clearly what was happening around her at that time.

(ii) The defence evidence.

The evidence of the defendants relating to their observations as to what occurred on that day, as has been pointed out, take a very different course from that of the prosecution version. Both D1 and D2 were present at the scene, as well as defence witness, Doreen Tahea. The possibility of there being errors committed in their observations of the events on that fateful day is also most unlikely. Either they are reporting the events of that day correctly or are simply lying, in exactly the same way that PW1 may either be reporting correctly and accurately what happened, or is lying.

(iii) The evidence of PW2.

Raymond Tekiou was alerted about the death of his father by D2 who stood at the stone wall outside his house and shouted to him. This witness states that he had heard the sound of children crying, but could not be clear as to when exactly this was heard. His evidence as to what D2 did to him could not have arisen from any errors of observation as he was directly involved in the interaction with D2. The only simple explanation is that either he was lying about what D2 did to him, or he was describing correctly and accurately, the attitude and approach of D2 to him. Also his statement of finding the hand of the deceased some distance from his body, is either true or not.

(iv) The evidence of PW3 and PW4.

The evidence of PW3 and PW4 insofar as they are concerned, related exclusively to the after events of the fight. They denied being present during the fight, and denied knowledge of the fight itself, until after it was over. This is to be contrasted with the evidence of the defendants in which they stated that at the start of the fight, or just before it started, PW4 was with the defendants chewing betel nut and smoking and therefore saw the arrival of the deceased and PW1. Also it is to be contrasted with the evidence that PW3 did arrive in the middle of the fight and attempted to hold down the deceased, but was pushed away and fell down.

One of the matters sought to be put to PW4 under cross-examination was that even if he had been sitting under PW3's house, busy carving and hammering away at his 'eagle', he would not have failed to hear and see what was happening because there would have been a lot of noise from the loud arguments that were going on, and when the deceased chased D1 around the house towards the church building. There was also the sound of children crying and the sound of the deceased's knife hitting the copper walls of the house, at least twice. The deceased was also talking very loudly at D1, obviously angry, and therefore a reasonable person would have noticed something was amiss and gone over to investigate. Again the issue of facts concerning the evidence of this witness will depend so much on whether the court will accept his evidence as being truthful or that he was lying, in contrast to whether the court will also accept the evidence of the defendants as truthful or not. If the version of the defendants is correct, that there was a lot of arguing among the women, (that is three of them) and that they were shouting and swearing at each other, whilst on the other hand, there was also a lot of noise coming from the deceased and D1 and a lot of movement (running around), going on, then it seems most unlikely that PW4 would not have heard or be aware of what was going on, and be able to even see what was happening. There were some coconut trees and an alite tree, plus the posts of the house itself and the posts of the water tank, which could interfere with the view from PW3's house depending on where PW4 was sitting under the house. The obstruction however would only be partial and a clearer view could be obtained by moving oneself around. Of course, if there was nothing to attract the attention of PW4 to the scene of the fight, then he would have no reason to look towards the scene. The view to the bottom of the house of D1 is fairly clear as well, with only the above things mentioned as posing a partial and limited obstruction. The court had taken a locus in quo and observed the view from that spot. There is also a photograph taken of a possible view from under PW3's house and shows fairly accurately what is meant by the partial obstruction from the things referred to above.

(v) Evidence of Police Witnesses.

The first police witness who gave evidence was Chief Inspector Haniel Hicks Honitele, the Officer Commanding at Yandina Police Station. On receipt of the report in the early part of that evening, he made the necessary arrangements to go to the scene of the crime. He left Yandina at about 12 midnight and arrived at the scene at about 1.00 am the following morning. He recalls seeing Warren Teho and Eddie Namege (PW3) on arrival at the scene, among others. He says that they did a general search of the area but did not see anything of significance such as any possible murder weapons or other items. This witness also gave evidence of the general appearance of the village and that he took various measurements of the distances around the scene. These are contained in a sketch map that he has drawn of the place and is one of the exhibits before this court.

Another police officer who gave evidence was Station Sergeant Kofana, who gave evidence as to the recovery of the weapon used by D1. He described the condition of that bush-knife as being very sharp, and the sharpened edge as if it had been recently filed, because the colour of the blade was silver. He said that there were spots of blood still on the knife. That knife has been produced in court as one of the exhibits.

Police Officer Charles Fox Lemoa was the police photographer who took photographs of the scene on the following day of the incident. These have been submitted to court as exhibits as well.

Sergeant Gabriel Manelusi was one of the recording officers who took one of the statements of one of the accused, D I, on the 11th February, 1995, and also attended the scene on the 12th February. He says that he carried out a thorough inspection of the walls of the houses to check for any cuts which had been referred to in the statement of D1, but could not identify any fresh cuts. This witness also gave evidence of an exercise done by the police officers to test whether it was possible for someone sitting under PW3's house to see and hear anything that was going on at the scene and around the church building. He says that the results of the exercise showed very clearly that if there had been an argument going on at the scene of the murder, with shouting and children crying and walls being cut, and people running around that a person sitting under the house of PW3 would not have failed to notice, see or hear what was going on.

Staff Sergeant Walter Kola was the Officer in Charge of the investigation. He also took part in the recording of the statement of D2 at Yandina on 11th February 1996. He was also involved in attending at the scene and carrying out inspections on the walls and the ladder of D1's house for any possible signs of fresh cuts made by a knife. He was also involved in the search for the missing hand, and organised the exercises to see whether it was possible for someone sitting at PW3's house to see and hear what was going on if there were people shouting and arguing and moving around at the scene of the killing. He also organised the exercise to see whether it was possible for someone sitting under D1's house to see the canoe coming from Newland. This witness also stated that they even checked for any disturbances on the ground such as overturned rocks or stones or depressions on the sand or ground which may indicate the movement of people or of any struggle having taken place, but there was none.

The medical evidence

Two medical reports have been submitted to court as evidence on the wounds inflicted on the deceased and on PW1. The doctors who prepared those reports have also given oral evidence.

The evidence of Dr. Carl Suiga Susuairara.

The post mortem on the deceased was carried out on the afternoon of the 11th February 1995, after which a report was drawn up and submitted to court as an exhibit. A total of eight wounds with clean cut edges were identified by the learned doctor. These wounds he described as consistent with having been caused by a sharp instrument like a knife. The wound described as a ' slash wound just below the base of the skull at the back of the neck ' was in his opinion the most serious and fatal of all the wounds. Such a wound in his view would have resulted in the collapse of the victim quickly. One of the more pertinent questions posed in cross-examination was whether a separate stab wound consistent with the use of a small carving knife seen and identified around the neck region of the deceased, but this was answered in the negative by the learned doctor. Under re-examination however, he did not rule out the possibility that such a stab wound could have been inflicted on the very same spot that the slash wound was inflicted later by D1. It would have to be on exactly the same spot.

The evidence of Dr. H Oberli

The medical report on the injuries of PW1 are contained in his report dated 28 February, 1995. The evidence of Dr. Oberli has been referred to in some length under the evidence of PW1, and therefore need not be repeated here.

(2) THE CREDIBILITY OF EVIDENCE

I have already pointed out earlier that the determining factor in this case is the question of credibility of evidence; that IS the extent to which this court will accept evidence as truthful. From the outset, two divergent versions have been presented to the court as the truth. Obviously, that cannot be so. Either one version is false, or that both versions contain some false elements in them.

In assessing the credibility of evidence, two matters must be considered by the court. First, can the witness be trusted?, and secondly, is the evidence itself acceptable?

1. CAN THE WITNESS BE TRUSTED?

(A) Personality- (i) Concey Tehavinu.

The Defence has sought to paint a picture of this witness as someone who has a personality problem. Someone who does one thing and then would say another thing to her husband. A number of instances were referred to in the evidence of D2 in which he alleges that PW1 had gotten her husband into fights with other men through her lies; he described it as her ‘fashion’. D2 also sought to portray in his evidence that the death of the deceased resulting from the fight with D1 was an indirect consequence of the sort of personality of PW1. D2 also referred to a row between D1 and PW3, caused by PW1 lying to PW3 that D1's group would take over their plantation. Another incident referred to related to the injury caused to the left eye of the deceased in a fight which Defence witnesses say was caused again by the 'fashion ' of PW1. To a certain extent, it could be argued that the personality of this witness had been reflected in some way by her demeanour in the witness box, in that while she did compose herself during her examination in chief, she didn't do so well under cross-examination and in re-examination. She broke down crying a lot during cross-examination, and especially when it seemed as if she was being put on the spot on certain matters that she had said in chief and in her previous statement to Police.

It is hard to say whether such a personality as depicted by this witness is more prone to the likelihood of telling lies in court or not. When compared with others however, if there is to be any assessment then it could go against her credibility, and especially when all other factors are assessed at the end of the day.

Personality - (ii) The defence witnesses- D1, D2 and Doreen Tahea.

The picture sought to be painted by the Defence of D1 was that he was an innocent villager living peacefully in his village with his family, and D2 and his family, when suddenly, and for no logical reason at all, he was attacked by a knife wielding angry man and his wife. Despite being terrified by the size and build of the deceased, and especially when the deceased was a well known person to him and notorious as a violent man, he did what any normal person would do in such circumstances in the defence of his person, family and friends, and property. In contrast, prosecution sought to paint the picture of a cool and calculating man, who on hearing that he was going to be attacked (this was the story told by his wife when she came back from Uvea), got his bush-knife and had it sharpened ready for a fight. When the deceased therefore sought to argue with him about the sale of the coconut plantation, he wasted no time in attacking mercilessly, the deceased and killing him outright.

As regarding D2, he sought to portray himself as an innocent bystander caught up very unfortunately, in the land wrangles between D1 and the deceased, and the petty quarrels and bickering of house-wives. He saw himself as a neutral person, also because of his religious background as a Youth Leader, and seeking to act as a peace-maker between the women who were arguing, and not taking any sides at all, whilst at the same time taking a hands off position regarding the argument between the deceased and D1. In contrast however, prosecution sought to paint the picture of a man who held grudges, despite his claim that he was a religious man. It was sought to be portrayed by prosecution that despite settling their argument concerning the borrowing of some clothes by the wife of D2 in church and by prayer, their relationship did not return to normal, as expected by PW1; instead they seemed to have drifted apart until the happenings of that day at Tingoa, which only confirmed the existence of the hatred and contempt bottled up in the minds of those two persons.

The same thing can be said of D3, which prosecution sought to portray as well. That she did not take too well any advice sought to be given by PW1 to her and her husband as to their conduct and manner of living in custom. She and her husband held grudges against PW1 and her husband, despite the fact that she and her husband had lived with PW1 and her husband for sometime. and had been fed and looked after by them.

(iii) Doreen Tahea.

This witness was also depicted as an innocent bystander caught up in a fight which involved her husband and the deceased, and unwittingly drawn into a quarrel with PW1, through some things which she had said against her. She was heavily pregnant too during that time and so took a low key role in the happenings of that evening, apart from being terrified by what was happening.

(B) CHARACTER- (i) Concey Tehavinu.

The character of this witness has been described and conceded by D2, as a kind person. He concedes that he and his wife and children were looked after by PW1 and her husband when they came to Yandina from Rennell Island on a Youth Mission Outreach trip led by D2 from their local church group. When the mission trip was over, he sent the rest of the members back but decided to stay awhile in Yandina. D2 and his wife stayed at the settlement of PW1 and her husband at Newland. They were allowed to use their facilities. PW1 also took D2's children to stay with her at Yandina, but claims that they were taken back by D2 without any explanation. D2 concedes that throughout their stay together, PW1 did not have any fights with his wife (that is D3), apart from the row they had over the asking of some clothes by D3 from another woman, which PW1 claims was a shameful thing to do and so told D2 to tell his wife not to do it again but that instead, they had a row over that.

Defence witnesses however have also sought to suggest that this witness does have a violent trait to her and that this was manifested when she stabbed some boys from Bellona in a fight at White River, sometime earlier. This however was not put to her in cross-examination to explain or refute. I have also referred to the description by Defence of the 'fashion' of this witness under personality' which could also come under her character.

(ii) The character of D1.

D1 has sought to be depicted by the defence as a kind person. In his evidence D1 states that he asked D2 and his family to come over and stay with him at Tingoa in that he could see that they did not have food by way of gardens to live on at Newland. D1 also stated in his evidence that he did on certain occasions allow the use of his coconut plantation to make copra for the deceased to assist him with the payment of his children's school fees. On such occasions, he says that he gave everything to the deceased.

(iii) The character of D2.

The character of D2 has in some ways been described under the heading 'personality'. However, D2 did seek to show that as far as he was concerned, whatever they had argued about, had been dealt with and forgotten, and that there was no animosity between them. Everything had returned to normal and there was no reason to quarrel. He states that he had been asked at some stage to cut some timber for the deceased, and at another time had killed a cow and included them in the distribution of the meat. He also explained that he took the children back at the request of PW1, because one was crying a lot, whilst the other was using the opportunity to wander around and did not remain quiet at the house. He denied taking the children without informing PW1.

(C) Motive- (i) Concey Tehavinu.

Perhaps the more compelling reason why a witness would lie is if there is a motive to do so. This is where the key prosecution witness (PW1), and the defence witnesses, all fall squarely within the category of persons who have strong motives to lie. On one hand, PW1 would be keen to see the killers of her husband and those who had attacked her to be convicted and punished. On the other hand, the accused would be primarily concerned to escape conviction and punishment. The defence witness Doreen Tahea. who is the wife of D1, would naturally be concerned to ensure that her husband is not convicted.

According to the evidence of PW1, the killing of her husband was pre-planned and a merciless attack on an unarmed person. Naturally, if it had been otherwise, that there had indeed been a fight as claimed by the defendants in their evidence, then she would have to lie in order to get back on the defendants for the killing of her husband, and for the attack on her. She would seek to paint an innocent and peaceful trip to the settlement, for nothing other than to collect their properties from D2 and D3.

One of the matters sought to be put to this witness was that she had a reason to lie because she was personally involved in what was going on right from the beginning and that their going to Tingoa Settlement was not really to collect their property but to go and fight the defendants. Under cross-examination by Mrs. Samuels, this witness stated that she and her husband were not aware of the sale of the coconut plantation when they left Yandina. They only became aware of the sale when they were told about it at Tingoa Settlement. This witness denied any suggestions sought to be put to her that the reason they had gone to Tingoa was because they were cross about the sale of that coconut plantation, and about some family argument between them. This suggestion was strenuously and persistently put to this witness in that if it was true, then it would go to support the version of the defendants as to why the deceased and PW1 were cross when they went to Tingoa and acted in the manner that they did. It would also go to show or indicate the motives of PW1 in lying about their going and what happened subsequently. In her explanation however, this witness stated that she was told about the sale by D2 and D3 at the scene of the crime, when they were arguing with her. It was when they had mentioned it to her, that her husband heard it and came up to ask D1 about it.

Under cross-examination from Mr. Kama it was also suggested to PW1 that she was cross about not being allowed by D2 to adopt two of his sons, but this was denied. It was also suggested to this witness that she and her husband were cross

when they discovered that D2 and D3 had left Newland with their things and gone to Tingoa. Another matter put to this witness concerned a fight in which D3's brother had led the son of PW1 and the deceased to a fight with some Tikopians and in which their son was injured. As a result of that, it was suggested to this witness that they were also angry about that. PW1 however explained that that had already been settled and had nothing to do with the two accused. Another matter which was suggested to this witness was that she was also angry about the fact that D2 had a canoe and an engine. Other matters raised included the moneys received from the chain-saw which D2 used, and PW1 was cross about it because she wanted the money received to stay within the family. It was also sought to be suggested to this witness that when she and her husband went to Newland on the 10th February and did not see D2 on arrival, that they were cross and hit the house, because D2 could hear a big bang, like someone hitting the door or wall of the house. Again the purpose in which those questions were asked along those lines was to bring out to the forefront that when the deceased and PW1 went to Tingoa that day, they went with such an angry mind and with the clear intention to fight. By this they sought to bring out in turn that PW1 was lying about having gone peacefully to Tingoa.

Under cross-examination from Mr. Lavery, it was also sought to be suggested to this witness that if her version was correct, that there was no 'row' and 'cross', and that the deceased was calm and spoke in a normal tone to D1, that it was very unlikely that D1 would have acted in the manner he did, and cut up the deceased in such a bizarre manner for no apparent reason. But if they had come with 'cross' in their minds and had sought to fight D1 with a knife, then naturally, D1 would have been terrified, and where there was a fight, would have been in such a state of mind to have been able to inflict the wounds on the body of the deceased. Again what seeks to be achieved by this line of questioning was that, if the defendants version was correct, then PW1 would have a very strong motive for wanting to lie and thereby deceive the court.

Now a specific question arises as to her motivation to lie in respect of D2. Bearing in mind that D2 is the nephew of PW1, and assuming that the Defence version is the correct and true account of what occurred that day, it will be noted that D2 was neither involved in any argument with the deceased, nor PW1. It was D3 and Doreen Tahea who were arguing with PW1, but not D2. D2's role was to try and settle the argument going on between the women. If what the defendants say is the truth, then a relevant question to ask is what would be the motivation of PW1 to lie about the involvement of D2 and to include him in the attack on the deceased? She may have a motivation to lie about the involvement of D3 in the attack on her in that she was arguing with D3 at the scene. As against D1, obviously he had attacked and inflicted not only the wounds on her body but had killed her husband, and therefore she would be sufficiently motivated to lie about his involvement with the intention of getting a conviction entered against him. To this, D2's response was that he was unfortunately lumped together with his wife for their row over the clothes, which he thought had been solved.

(ii) D1 and D2

D1 and D2 would also have strong motives for wanting to lie and thereby mislead the court. As depicted in the evidence of PW I, the attack on the deceased appears to be a concerted attack and on an unarmed person. It was done without any warning and opportunity on the deceased to defend himself. If what PW1 says is correct, then naturally, they would have to lie about how the killing was done in order to exculpate themselves from the crime committed against the deceased. What better way to do it than to say that there was a fight in which the deceased was armed and was the aggressor. Also they would wish to bring in PW3 and PW4 into the scenario to give it legitimacy. The absence of knowledge by PW3 and PW4 would obviously make it look bad for the defendants. However, when all the relevant matters are compared and assessed, such suggestions do not take on the form of reality. Especially when the question of credibility of those two witnesses is assessed, their evidence does not take on the value that may be expected to be put on them that would assist and take the prosecution case further.

(iii) The witness Doreen Tahea

The witness Doreen Tahea is the wife of D1 and was also present at the scene. She therefore knew what was going on; especially in relation to the question whether the deceased was armed or not, and as to which version is true. As the wife of D1, she would be primarily concerned about getting an acquittal for her husband. In so doing she would be motivated enough to adjust her version of the events to fall in line with that of her husband.

(iv) Prosecution witness PW2

PW2 is the son of PW1 and the deceased. He too would have a strong motivation to lie in that his dad was killed that day, and his mother badly injured. He was not present at the scene to see what was going on. He only arrived after everything had been completed. He was told by his mother as to what happened that day, and accordingly he would have been aware of the version that his mother would want him to give or support, when giving his evidence in court. Take for instance, his admission in court that he had been told by his mother that the right hand of his dad had been cut by D2 and that he threw it at his mother.

(v) Prosecution witnesses PW3 and PW4.

Both witnesses are related to the deceased and the defendants and PW1. It has been persistently put to both witnesses that because they were related to the parties in this case, that they would not want to be seen to be taking sides in the case. If they were seen to be taking sides then they would lie to cover up any involvement which would directly have any bearing on them. To the question of not wanting to take sides, both witnesses answered in the affirmative. However, when it was put to them that they may have lied about not being present at the scene and not have seen what was going on, these two witnesses denied that they had lied. They also denied any suggestions that they were present at the scene prior to the fight, and that they may have been embarrassed about not having taken any actions to try and stop the fight. Unfortunately, I have had the opportunity to observe these two witnesses carefully in the witness box, and from the way they had been giving their answers, I am not satisfied that these two witnesses fall within the category of someone who is being objective and honest. They try to say that they could not take sides in the dispute because they were not present at the scene and so did not hear or see what happened that day. Unfortunately, they did not do this well enough.

(D) Demeanour - (i) Concey Tehavinu.

The demeanour of this witness can best be described as complex. When she took up the stand in the witness box, she stared furiously at the three accused in the dock. It was obvious right from the beginning that there was a lot of venom and spite bottled up within this witness, and was later to burst out during the trial in much loud crying and weeping, with elements of hysterical conduct. At one stage in the trial, when under a lot of pressure through persistent cross-examination by Defence Counsels, she couldn't control herself and so was asked to go out to calm herself down, but could not even comply. She evenly went out with the assistance of some police officers. There were many stops in the trial to allow this witness to compose herself before the trial could go on.

There is no clear cut explanation for this conduct. On one hand, it can be the result of a combination of factors in having to re-call and re-live in her mind the events of that fateful day. It could also be frustration arising from so much questioning done by Defence Counsels, and being put on the spot on a number of matters even to the extent of suggesting to her that she may have been lying. It is difficult to say whether she was crying to cover up her lies or whether the tears shed showed genuineness and sincerity, and thereby truthfulness on her part. As already commented upon, when taken together with other relevant matters in the assessment of this witness, her behaviour and conduct in court do not assist the prosecution case.

(ii) The demeanour of D1, D2 and witness Doreen Tahea.

The accused D1 sought to give his evidence in a calm and collected manner, though at one stage he did interject in open court when his wife was giving evidence, and had to be directed to speak to his solicitor about his concerns. On one hand, this could be reflective of some element of anxiety and nervousness on his part, and one could even go to the extent of suggesting that it may suggest guilt on his part. As regarding D2 and Doreen Tahea, they were calm and collected and quite clear when giving their evidence.

(E) Reluctance and evasiveness - (i) Concey Tehavinu

I note that on certain occasions PW1 would become reluctant to answer questions and at times actually refused to answer any questions. On certain occasions when answering questions she would not answer them directly especially when asked to explain inconsistencies in her previous statement to the police. Also as earlier alluded to, this witness would burst into tears when under pressure in cross-examination. On such occasions it was difficult to get an intelligible response until he had calmed down several minutes later.

(ii) Prosecution witnesses PW3 and PW4.

Both witnesses were also noted to have been reluctant at times to give direct and clear answers to questions put to them under cross-examination by Defence Counsels. At times they gave the impression that they were hard of hearing and required Counsels to repeat their questions. On other occasions they required Counsels to repeat their questions as they claimed not to have understood the question when first asked. They were also evasive in their answers, not directly answering, questions. On this issue, this two witnesses were clearly not impressive.

(iii) Defence witnesses

There were elements of evasiveness in the answers of defence witnesses, though not to the same extent and frequency as prosecution witnesses.

2. THE EVIDENCE - Is the evidence itself acceptable?

I now come to one of the more crucial parts in the assessment of this case; that of the state of the evidence before this court.

(A) Inconsistency.

First I will asses the evidence of PW1.

This witness was hospitalized at the Central Hospital for a considerable length of time after she had been injured in the fight at Tingoa Settlement. On 23 March 1995, the Police were able to get a statement from her while convalescing in hospital. I will go through her statement carefully because Defence had picked on certain parts of that statement to cast doubt on the credibility of her evidence in court.

(i) At paragraph 3 of page I of the unsworn statement of PW1, she described the cause of the fight as two-fold. The first reason given relates to the ' gossip behaviour ' of D3 against PW1, and the second reason given was the sale of land by

l D1. In her evidence in court she did not mention about any gossip behaviour of D3. Instead she stated that D3 swore at her when she asked D2 to go and collect their things that they had come for. The argument then flared up from there. She says that it was D3 who swore at her, but denies starting any argument with D3 and Doreen. She also said in her evidence that she argued with D2 and D3. not with Doreen and D3. The impression sought to be given in paragraph 3 of the said statement is that, she possibly may have been 'cross' because of the gossip behaviour of D3 and that it was her who had started the argument with D3. In her evidence in court however, this was not what was stated. If what she says in court is the truth, then I would expect her description of the cause of the fight to go something like, that it was caused by D3 swearing at her for no apparent reason at all. The reason given in the unsworn statement however is quite different; that she had an argument with D3 because of her gossip behaviour against her. I am satisfied the difference in the two statements is quite distinct and separate and can only be accurately described as a significant inconsistency. She was present at the scene and heard and saw what went on. Ultimately, it does not assist in the assessment of her credibility.

(ii) At paragraph two of page 2 of the same statement, PW1 stated that her husband had prior knowledge of the sale of the plantation when they went over to Tingoa, and he was talking it over with D1 when he was killed. When cross-examined by Mrs. Samuels however, this witness stated that she and her husband were not aware of the sale of the plantation when they were still at Yandina. She says that they only became aware of this at Tingoa Settlement on that day. Under further cross-examination from Mr. Lavery, to explain how she and her husband were informed or became aware of that sale that day, she stated that it was when she was arguing with D2 and D3, that they were told about the sale of the plantation. She said that D2 and D3 told them about it because they were 'cross'. When further asked why D2 and D3 would suddenly start talking about the sale of the plantation, she could only reply that they were told about it because they had an argument. She was then asked to explain the inconsistency about having prior knowledge in her unsworn statement. At first, her response to this question was that it was not true that they knew about the sale of that plantation when they were still at Yandina. She was then asked, if that was the case, why she had told police that they had prior knowledge. To this question, she did not respond. After some insistence from Mr. Lavery to answer, she then said that it was not clear to her. After the question was put to her again, she however remained quiet and in fact refused to answer. It was then suggested to this witness that what she had told the court was not true. To this, she only replied that she did not tell the police that story. When it was suggested to her that the police then may have made up that story, she burst out into tears.

It is interesting to compare what this witness said in examination in chief, because I think it is quite revealing in itself. In chief, she stated that when her husband heard them talking (that is, D2 and D3 arguing with her), he came up from the canoe to where they were, and then asked D1 if it was true that he had sold the coconut plantation. She never mentioned what D2 and D3 were talking about; but from her evidence in chief, it could only have been about their argument (that is between D2, D3, and PW1). There was no indication whatsoever in her evidence in chief, that D2 and D3 were talking to her about the sale of the coconut plantation. This was only brought out under cross-examination when Mr. Lavery asked her to explain how they were informed about the sale of the plantation on that day. And it was only in reexamination that she explained that D1 came out from hiding when he had heard D2 and D3 made mention about the sale of the plantation to her. Also, it was only under re-examination that she further explained that it was D2 and D3 who suggested to them that they had come to fight them because they were cross about the sale of that plantation.

It is also pertinent to note that under cross-examination on the same point by Mrs. Samuels, this witness contradicted herself in her own evidence by saying that they were aware about the sale of the plantation and so wanted to find out why D1 had sold it.

The inconsistency here in my view is a significant one. She had personal knowledge of what went on that day, and therefore and therefore can only be lying, in the absence of any convincing explanation. The ultimate effect on her evidence of such inconsistency is to reduce the value that this court can place on it.

(iii) The third inconsistency in her statement related to her observation as to what she saw on their arrival at Tingoa. She stated at the first paragraph, of page 3 of her unsworn statement that the people she saw staying together at Tingoa were, D1 and his wife, D2, D3, PW4 and PW3. In her evidence in chief however, she stated that when they arrived at Tingoa, there was no one around. This with respect is also a significant inconsistency. Closely related to this too was, what she had also stated in her statement that PW3 and PW4 were present at the scene on their arrival and then later disappeared from the scene during the fight itself. When asked to explain this, she stated that she was under medical treatment in hospital at that time and so did not know if she said it or not. An unsatisfactory explanation with respect.

(iv) The next inconsistency raised, referred to the collection of the properties claimed by PW1 that they had gone to get from D2. She stated in her unsworn statement that she called aside D2, and then told him that they had come to spend the week-end at Newland and that they would need their hurricane lamp and any other property that may be with them She states that D2 then went off to collect their things at the house that he was sleeping in. After he had collected those things from the house he placed them for her to collect. In her evidence before the court however, she stated that D2 never went to collect those things, because D3 then came out and started to argue with her. D2 therefore did not go to collect those things but stood around where they were arguing. When she was asked under cross-examination to explain this inconsistency, this witness started sobbing again. After a while she answered that D2 did not give the property to them, and did not go inside the house as well. When she was asked as to why she did not tell the police about that, she stated that she did not understand, and then gave the usual response, that she was under treatment at the hospital and that was why she did not remember what she had said. Again, a most unsatisfactory explanation. She would have been in a better position then, to remember clearly what had transpired some weeks earlier than say one year later; unless of course she had decided to change her story to suit the charges that have been laid against these defendants. The effect of such inconsistency is to reduce further any value that this court may place on her evidence in court.

One of the items included in the list of things which it seems PW1 and the deceased went to collect at Tingoa was their bush-knife. In her unsworn statement, she stated that D2 did get the knife out of the house, but did not give it to her She stated that it was she, who was supposed to go and collect it . In her evidence in court however, it seems as if there was a deliberate attempt, not to include that knife in the things that they had gone to collect. She would mention the lamp and mat and other things, but would omit referring to a knife, and in fact denied, when cross-examined directly about it. It is interesting to compare her evidence here with that of her son, PW2, who frankly admitted in court that one of the things., which his parents said they were going to collect, included a knife. Again, this inconsistency, in her own evidence and a direct contradiction by PW2, does not assist to sustain the issue of credibility of her evidence.

(v) In her unsworn statement, PW1 also stated that while she was waiting for D2 to go and collect their things, she talked to D3 about the things she (that is D3), had gossiped about her. She stated that she argued with D3 and accused her of spreading false rumours about her, that she had said that Doreen Tahea would give birth to an ugly baby. This again is inconsistent with what she had stated in her evidence on oath. She had stated that it was D3 who swore at her and told her not to 'order' her husband around, when she asked him to go and collect the things that they would need. She denied going with any intention to argue with the defendants and starting any arguments. The inconsistency here with respect is relevant in that, the former would support the version of the defendants that the deceased and PW1 had gone to Tingoa with 'cross' in their minds and therefore went with the purpose to fight them. The latter of course supports or conforms with her evidence that they went merely to collect their things for the week-end, and nothing more. Again, the value to be placed on her evidence is further whirled down by such an inconsistency.

(vi) Another matter raised in her unsworn statement was that she had stated that both D1 and D2 had made the first cuts at the neck of her husband, but in her evidence in court she stated that D2 first stabbed the neck of the deceased at the back with a small carving knife, before D1 cut him on the side of his cheek, and the forehead. When asked to specify which side D2 had stabbed her husband, she was not able to say which side, but attempted to point at a spot at the back of her neck below the ear.

The evidence given by this witness of a stab wound on the neck of the deceased caused by D2 was not supported by the medical evidence given by the learned doctor carrying out the post-mortem on the body of the deceased. He did not identify any separate stab wounds on the neck of the deceased, though he did say that it was possible that it could have been covered over by the big wound also at the neck area caused by D1 with a bush-knife. He stated that if the slash wound was over the exact area where the stab wound was, then it would not be possible to see a separate stab wound. I can accept that there may have been a failure in her memory to distinguish sufficiently who made the first blow on the neck of the deceased, and therefore not significant. However, when considered in the light of the learned Doctor's observations, that there was no separate stab wound seen on the neck area apart from the slash wound described in his report, then the possibility of such an injury actually existing becomes quite remote. The learned doctor did describe the edges of the wounds as clean and consistent with that of a sharp instrument. Whilst both weapons used were extremely sharp, it is to be noted that one was by way of a stabbing motion whereas the other was by way of a slashing motion. It is more likely than not that the differences would have been noticeable. This also does not assist the case of the prosecution and the question of ultimate credibility of her evidence.

(vii) Another inconsistency raised in the statement made to police related to the description of this witness as to how she had been attacked by D3. She says that D3 attacked her with a short bush-knife and cut her on the forehead. She then advanced towards her and ran after her, but fortunately for her she ran to her husband and gave the bush-knife to him. In her evidence in court, she stated that D1 and D3 both turned towards her and pushed her, causing her to fall down. D3 then cut her on the forehead whilst D1 ran back to where the deceased was. She says that she then fell down on the ground. When she got up again, D1 then attacked her with a bush-knife. I do note here that the inconsistency in this particular instance is not as significant in terms of identifying who cut her on the forehead. However, it is of significance when considered in the light as to how it was done. In her unsworn statement, there was no mention of being attacked by both D1 and D3 and pushed by them so that she fell down. The inconsistency is quite distinct and again goes against the credibility of this witness.

(viii) The next inconsistency related to the description on how D3 came to be holding a bush-knife and attacked PW1 with it . In her evidence in chief, this witness stated that when D3 swore at her, she was holding a bush-knife. This as I understand her evidence to be, was a reference to the time when D3 came out from hiding behind the coconut trees and swore at her. When D1 and D2 had attacked the deceased and made him to fall down, D1 and D3 then turned on her and attacked her. When they did, both were holding bush-knives. Under cross-examination from Mr. Kama on the same point, this witness stated that D3 got that knife from the place that they killed her husband. She then further clarified that D3 was already holding a bush-knife when she came out. This, again in my understanding of her evidence refers to the moment when she came out from hiding. When she was cross-examined however, by Mr. Lavery, on the same point, she stated the opposite. She stated that when D3 swore at her, she did not hold any knife at that time. She was then asked where D3 may have gotten the knife that was used to cut her with. In response she stated that D3 herself would know where she kept it in the first place. She also clarified that she saw the knife only when D3 cut her head.

With respect, her inconsistencies in her evidence, I must find to be significant, especially when it was through her allegations that D3 had been charged with the offence of grievous harm. She was present at the scene, and if it was true as alleged by her that she had gone with no 'cross' in her mind, then she would have been able to see very clearly whether D3 was holding a knife with her when she came out of hiding or not. D3 was right in front of her, arguing with her, and of course if D3 was 'cross' and PW1 not 'cross', then PW1 would surely have not missed observing whether D3 was holding a knife at that point of time or not. And if D3 was armed by then as initially alleged by PW1, then it couldn't have been with the knife of the deceased, which was described to be much longer. No evidence however, had been led as to the possible existence of a third knife. It is to be noted that in her unsworn statement she described the knife used by D3 as a short bush-knife. That would be more consistent with the possibility of the existence of a third bush-knife However, when cross-examined about the use of her description of a short bush-knife, she denied using those words. The result again can only be to tarnish the credibility of her evidence.

(ix) Another inconsistency raised, and this has been alluded to above, related to the description of the bush-knife used by D3 in the statement of PW1. She described that bush-knife as a ' short bush-knife'. In her evidence in court, she described it as a long bush-knife. Again the inconsistency is significant in that the only long bush-knife which had been referred to clearly in the evidence belonged to the deceased. Either he was holding and using that knife that day, or it was the same knife that D3 used. There has been no evidence led to show that there possibly was a third bush-knife in the vicinity. That reference was only made in the unsworn statement of PW1. There was no clear explanation as well as to how D3 may have been able to come into possession of such a knife when she was standing there talking with her or if it had been obtained just prior to the supposed attack on her, then how or where she may have gotten it from.

This brings me to consider some of the inconsistencies in the evidence of the prosecution witnesses with the evidence of PW1. First, the evidence of PW2. This witness states that when his parents went across to Tingoa to collect their properties, this included their big bush-knife. PW1 however never admitted in her evidence in chief or under cross-examination that she and her husband had gone to Tingoa to collect their bush-knife as well. This raises the question as to why she would not want to admit openly that they had also gone to collect their bush-knife. If what she says in her evidence was the truth, then there was no need to deny or try and hide the fact that it also included a bush-knife, because it was never given to either of them anyway, unless of-course she may have been trying to hide something, like possibly, the knife may have indeed gotten into the hands of her husband!

Another inconsistency in their evidence relates to the sound of children crying heard by PW2 when he was still at Newland. PW1 denies vehemently the presence of any children at the scene. She in fact went on to say that D2 and D3's children had been covered up inside the canoe of D2 and D3 during the fight, save for one child who came out. PW2 however says, that he saw the children inside the canoe of D2 and D3. When further cross-examined by Mr. Kama on this point, he stated that when he arrived at Tingoa after having been called by D2, he says that he saw D2 and D3 with their children there. They were standing around on the shore ready to be put inside their canoe by D2 and D3. This point was repeated by this witness in answer to a different question, that the children were still at the shore before they were put inside the canoe. This is clearly inconsistent with what PW1 would want the court to believe that the children were already covered inside the canoe of both defendants, and so that it could give impression that there was indeed a pre-planned killing of her husband and attack on her.

2. The evidence of PW2- Inconsistency.

The inconsistencies in the prior statement to police as compared with his evidence in court are few. One of these related to the question of his observation of PW3 and PW4 at the scene on his arrival. His evidence in court was that he did not see them at the scene on arrival. When he went and cried at the body of his dad, no one was there. In his statement to the police however, he stated that PW3 and PW4 were at PW3's house, and they just stared at him. They did not do anything to help. Under cross-examination by Mr. Kama, this witness stated that he saw PW3 and PW4 turn up later at the scene where his dad was and cover his body with a mat. This occurred when they were about to leave and was by then, getting dark. When asked if they were there when he first arrived at the scene, he denied seeing them there. Also under cross-examination by Mr. Lavery, this witness stated that both persons were not at the scene when he arrived and went on to explain that they had gone to their house. When asked to explain why he had stated in his unsworn statement that they merely looked at him and did not do anything to help them, he could only answer that he had forgotten that he had made such a statement. The inconsistency sought to be raised with respect is minor, and did not affect the gist of his evidence in court that PW3 and PW4 were not at the scene of the crime on his arrival, but possibly were at PW3's house at that particular time.

Another inconsistency in the evidence of this witness related to his description as to when he heard the children cry to the time he heard D2 shouting for him. In chief, he stated that it was much later that he heard 1)2 shouting for him. Under cross-examination however, he changed this to a very short time; in fact almost done at the same time. The inconsistency here can be relevant in that if it was sometime before he heard D2 shouting then it would be consistent with the version of the defendants that there was a fight with children crying and running around, whereas if it was almost simultaneously then it could be consistent with what PW1 was saying. It is interesting to compare this evidence of hearing the sound of children crying, with the similar sound that PW3 claims to have heard whilst he was out diving at sea, and as a result of which he came ashore and came to the scene. It could very well be the same sound that both of them had heard at opposite ends of the scene of the crime. However, that does not necessarily confirm or show that the latter version of PW2's evidence is the correct and true version because it must be borne in mind that PW3's credibility on this particular piece of evidence had been questioned and attacked in terms of the inconsistency made in his unsworn statement, as compared to what he had said in court on the same topic. Also it should be borne in mind that according to the version of PW1, there were supposed to be no children around at the scene at that particular time, but that this had clearly been contradicted by the evidence of PW2 and PW3.

(iii) The evidence of PW3 and PW4 - INCONSISTENCY.

One of the inconsistencies referred to in the unsworn statement of PW3 related to his description as to what he heard when he was still diving out at - sea. He stated that he heard a noise of shouting coming from the village, so he got out of the water and took off his glasses to see. He says that he saw children running away, and crying and people moving everywhere in the village. In his evidence in court, the details given were fewer. He stated that he heard noise coming from the place and so got out of the water to take a look. What he saw were people taking their things into their canoes Under cross-examination from Mrs. Samuels he clarified that he heard the noise of children crying, but no other noise What was sought to be put to this witness was that when he heard the noise and got out of-the water, it was at the beginning of the fight, and so he was able to see what was happening. However, this witness denied seeing the fight when it took place; only the scene after. The relevance of this inconsistency is that what this witness described in his unsworn statement is more consistent with the description of events by the defence witnesses that there was a fight and with children and the people (D2, D3, and their children and Doreen and her children) running away from the area where the fight was taking place. This is to be contrasted with his description in his evidence in court of seeing people carrying their things into their canoe.

Another inconsistency put to this witness related to what he had said in his statement that he did not go out that morning anywhere, whereas in his evidence in court, he stated that he went in the morning to a place called Lavagu at New Mugava. It was sought to be suggested to this witness that the reason why he introduced the above evidence in court was to hide his involvement and presence at the scene, but this was denied by this witness.

Another matter put to him to explain, related to his evidence in which he stated that he saw Doreen Tahea with the others carving under the house when he went diving. Later under cross-examination, he stated that Doreen arrived back at about 3.00 p.m. before he went diving, and that was when he saw her doing her carving. When it was put to him about having seen her go past in her canoe when he was diving, he changed his story further and said that she went past him and then went and did her carving. If that was so, then she could not have possibly been doing any carving under their house at about 3.00 p.m. when he went diving. Under re-examination, he further changed his story and said that actually he did not see Doreen going past when he was diving. It was PW4 who told him that she had gone past him when he was diving and so he chose to adopt it as his own evidence. With respect, his explanations were not only unsatisfactory and adapted only to try and suit his story, but it is significant that this witness was prepared to lie and thereby seek to deceive the court about his purported observations. That can only tarnish his credibility and reduce the value that this court could place on his evidence. The possibility that this witness could also lie about the rest of his evidence is no longer far and remote, but a real possibility, and so his evidence must be scrutinised with extra caution.

With regards to PW4, there were also a number of inconsistencies relating to his statement to police and what he said in court. For instance, he denied in court that he told police that he heard D1 telling PW3 that he had come back to get his passbook. He stated in court that he did not hear what they said whereas in his unsworn statement he had specifically stated that he did hear what they were saying. Another inconsistency related to what he told the police that when D1 came back to the scene, PW1 and her two sons had already left the scene. In court, he denied this saying that PW1 and the two sons were still there. These specific inconsistencies can be viewed as significant when considered in the context of what PW1 and PW2 had sought to paint in their evidence that D1 did come back to Tingoa with his knife with the intention of attacking them. This however was denied by D1 saying that his return was only to collect his passbook. This was confirmed by PW3, who did say that D1 told him that he had come to collect his passbook.

THE EVIDENCE OF DEFENCE WITNESSES - INCONSISTENCIES.

This brings me to deal very briefly with the question of inconsistency m the evidence of the defendants. First the evidence of D1. The following were not mentioned in the statement of D1:

1. that when the deceased and his wife arrived at Tingoa they paddled vigorously and splashed water into the air with their paddles;
2. that at that time he was sitting on the ladder of his house with PW4 chewing betel nut and smoking, with his wife (Doreen Tahea) standing next to him, and the others under the house doing carving;
3. that the deceased sought to cut him whilst he was sitting at the ladder with the knife that he had got from D2 but missed because he had jumped out;
4. that PW3 attempted to hold the deceased to stop him from chasing 1)1, but couldn't and was pushed aside by the deceased causing him to fall down;
5. that the deceased then cut the wall of his house twice;
6. that after chasing him, the deceased also chased his wife but she ran under their house and escaped;
7. that although he admitted to causing the injuries on PW1, he did not go into detail as to how they were caused.

As for D2, the following can briefly be noted:

1. no mention was made in the statement concerning the attack made by the deceased at the ladder where D1 was sitting. This was first mentioned in the evidence of D2 and D1 and also Doreen Tahea;
2. no mention was made concerning what PW3 did in trying to hold and stop the deceased from chasing D1. This was first mentioned by the defendants in court;
3. no mention was made of the deceased cutting the wall of the house of D1, this was first mentioned in court;
4. in the statement of D2, he stated that when the deceased was chasing D1, both were already holding bush knives at that time. This was contrary to what D2 said in evidence before this court, that at that time, D1 had not yet taken his knife at the kitchen;
5. No mention was made in the statement that the deceased chased Doreen Tahea after chasing D1, and that she ran under the house. This was first mentioned in court;
6. In caution statement, this defendant stated that when he tried to defend his wife from being cut by the deceased, he punched him on his face with his right folded fist in which he was still holding his knife. In court, he counted the number of times the deceased had tried to cut his wife first before punching him, as three times;
7. In his statement, he described how PW1 grabbed the hair of D1 when he was cutting the deceased after he had fallen down on the ground and how D1 then turned on PW1 and cut her on the forehead. In court, D2 did not say that PW1 grabbed the hair or the back of the hair of D 1, and that D1 was cutting the deceased at this time. All that he said was that by the time he looked back, the deceased had fallen down, and he saw D1 attacking PW1 with his knife cutting her on the forehead.

The evidence of Doreen Tahea - INCONSISTENCY.

In the statement of Doreen Tahea there are a number of inconsistencies also which should be mentioned. First, in her statement, she did not describe how the deceased and PW1 arrived at Tingoa. She also did not mention what the deceased supposedly did with the knife on receipt. In evidence before this court however, she stated that the deceased cut the wall of D2's house after he had received the knife. Thirdly, there was no mention of the attack made at D1 when he was supposedly sitting at the ladder. There was also no mention about him sitting at the ladder. Fourthly, there was no mention about PW3 having sought to intervene in the fight by trying to hold and stop the deceased. There was also no mention about any cut made by the deceased on the wall of the house facing the sea. Sixthly, she stated that the deceased changed the knife from his right hand to his left before punching D2 in the face. In evidence before the court, she stated that he punched him with the same hand that he was holding the knife with. Seventhly, she stated in her statement that when the deceased threw the punch, D2 avoided it by bending over on his right side and then put his small boy on the ground. Both the deceased and D2 then grabbed each others clothes and as a result they both fell to the ground. In evidence before this court, she stated that D2 was still carrying his child when he was punched in the face causing him and his child to fall down together. Eighthly, this witness stated that she ran away and did not see what happened after her husband had avoided the blow made by the deceased with his knife and when he picked up his knife to fight the deceased. In her evidence in court however, she described looking back and seeing her husband cutting the hand of the deceased. It was at this juncture that she says she gathered enough courage to go back and hold her husband. She also described seeing her husband cutting the forehead of PW1 at that same instant as she was going back.

THE FINDINGS AND CONCLUSIONS OF THE COURT.

From all that has been canvassed in this judgment, and after careful and painstaking consideration of those matters this court comes to the conclusion that the truth lies somewhere in between the versions given by the two opposing parties in this case. I point out humbly that it is the truth as deduced from a consideration of all that has been presented before this court. It could be erroneous, but it is the best truth or the better truth that has emerged. The pure truth lies locked up in the hearts and minds of the key prosecution witnesses, PW1, PW2, PW3 and PW4, on one hand, and these defendants and Doreen Tahea on the other. The pure truth may in fact be contained in either of the versions given before this court, and the deductions and conclusions reached by this court may have indeed been erroneous. Whatever it is, I am satisfied with the following findings and conclusions made. I must point out also, that the defendants do not have to prove anything. They could have elected to remain silent. I note this is what D3 had done. It is for the prosecution to prove beyond reasonable doubt, the guilt of these three accuseds.

(i) I am not satisfied so that I am sure, that what PW1 had said in her evidence on oath, that she and her husband, the late Wesley Tenoiaka had gone to Tingoa Settlement without any 'cross' or preconceived plans to fight the defendants, true. It may be correct and true to say that they did not go with any intentions to fight the defendants concerning the sale of the coconut plantation by D1. and the gossip and rumours spread by D3. I am not satisfied however, that they went with peace in their hearts and no ' cross' or anger. Doubts arise primarily from the fact that the credibility of this crucial prosecution witness, PW1, had been so severely attacked and sufficiently discredited, to the point that it would be plainly unjust to place reliance on her evidence without more. Without seeking to recount the evidence in its entirety, it can be observed that there were crucial inconsistencies in her statement to the police about their arrival at the scene as compared with what she stated in court. I say crucial inconsistencies because either the defendants were staying together at the house of D1, when they arrived as stated in her statement, or they were nowhere in sight and were in fact hiding, as claimed in her evidence on oath. As pointed out earlier, she was present at the scene, and therefore saw and heard and knew first hand what went on. She couldn't have been mistaken or the inconsistency attributed to the fallibility of her faculties. No rational or convincing explanation too has been provided for that inconsistency. The only conclusion that can be reached, is that she was lying. I have had the opportunity to observe carefully this witness in court and the manner in which she had given her evidence, and have already commented under the various heads in this judgment as to those observations. I am not satisfied with her credibility so that I am sure, that I can rely on her evidence, that the defendants were waiting for her and her husband, with knives in their hands already sharpened, and that her husband was mercilessly attacked by D1 and D2, not long after they had arrived and without any arguing or 'row' or 'cross' or anything being done by these two. When contrasted also with the credibility issue, in the evidence of D1 and D2 and Doreen Tahea, the issue of credibility of her evidence suffers from the fatal blow of a reasonable doubt. Again without seeking to recount what has already been canvassed on this point, it is sufficient to point out that what D1, D2 and Doreen Tahea stated in their unsworn statement to the police describing the arrival of the deceased and PW1 at Tingoa does not differ in essence to what they described in their evidence on oath before this court. There was a marked consistency, although I do note that their descriptions were lacking in detail at various places. This however, did not detract from their essential evidence that they were present at the scene, at the house of D1, when PW1 and the deceased arrived.

This then raises m turn the question why PW1 should then seek to lie about their arrival and her observations as to what occurred subsequently. This brings up again the issue of motive which has already been covered separately in this judgment. Without seeking to repeat what has been said, briefly, in order to get her back on D1, D2 and D3, for what had happened, she would need to invent or concoct a plausible story as to what happened, which would place all three accuseds within the vicinity of the crime and as participants. A conspiracy or pre-planned killing, with her and her husband as the innocent victims would do the job well. As against D1, he was the one who killed her husband. As against D2, he was in it together with his wife, D3, and from the evidence, it is clear that they were not in very good terms together, despite the fact that D2 is the nephew of PW1. The evidence on the state of their relationship is conflicting to some extent with each blaming each other as the cause of their sour relationship. Again I do not need to go into detail as to the allegations made against each other. They are contained in detail in the records of evidence of this court.

(ii) The next crucial issue on which I am not satisfied so that I am sure, relates to the evidence of PW1 that the deceased was not armed with any knife at all. The credibility of PW1 on this issue had also been heavily attacked by the defence and worn thin. In her unsworn statement, she referred to the properties being collected by D2 and placed for her to collect. In court, she denied that D2 even entered his house to collect their properties. She also denied that one of the items included in her list to collect was their bush-knife. This however was clearly contradicted by her own son, PW2, in his evidence that one of the things which his parents went to collect that day, included their knife which they would need for their garden. From the way she was responding to Defence Counsel's questions on this issue, it seems to me that she was trying to evade answering their questions deliberately. This could possibly point to some cover up or an attempt to hide something. PW1 would know that the issue on whether the deceased was armed would have been a crucial issue and therefore it would be in her interest to steer away all possible references or links to or access to such a weapon by the deceased. All that the defence need to show is that there is a reasonable doubt that he was unarmed, and that would destroy her case.

This brings up the question of the evidence of the police witnesses who investigated the scene of the crime not long after, and their observations on what they saw at the scene. One of the details usefully provided to the investigators in the caution statements of D1 and D2 was a reference to the cut on the wall of a house made by the deceased on receipt of the knife from D2. Unfortunately, it seems that there was no specific follow-up, as to which particular wall and the specific area, on which the cut was supposed to have been made. Instead, the evidence sought to be given in court referred to a general inspection of all the walls of the two houses at the scene. This could have been avoided if the investigators could have taken the time to probe a little deeper and ascertain the specific details. This is not a criticism, but an observation which I think should be noted and to learn from for future investigative work, that sometimes it may be possible, in the course of investigative work, for the police to be able to extract and obtain a lot of detail, whether it be from the defendants themselves or witnesses, or even the scene of the crime itself. Where that is possible, then that should be done because it could assist a lot in ultimately resolving conflicting issues in court. Where possible, within the four corners of the law of course, investigators should not be merely contented with general statements. They should probe a little bit deeper. This will entail extra hard work, but the benefits in the interest of justice will be more.

The specific area referred to by the defence witnesses in their caution statements and evidence in court, was at the side of the wall near the door of the house of D2. Initially, it was thought by police witnesses that the wall that had been cut, was made of bush materials, and so a lot of evidence was adduced towards that end. However, it eventually transpired and was agreed upon towards the end of the trial, that the specific wall referred to was made of corrugated iron. A clear picture of the wall of that house can be seen in photograph no. 3 in the Album of Photographs submitted to the court as an exhibit. It is also significant, that D2 describes in his caution statement the action of the deceased in hitting the wall of that house as "whipping", rather than "cutting", whereas D1 describes his action as cutting. If it was a cut, then one would expect to see a clear cut into the iron walling, but if it was a whipping motion, then again depending on how that was done, whether it was by the flat blade of the knife rather than its sharp end, then one may expect to see only a scratch, or a dent, or may even be no mark at all. Then again it also depends on what one is looking for. If one is looking for a cut on the wall, then it is possible that he would be oblivious to any scratches or dents on the wall. With respect to the evidence of police witnesses on this particular point, it is not conclusive. The same goes to the evidence given by police witnesses that they did not see any cuts on the ladder in front of the house of D1. It must be noted that this evidence was first raised in court, and not in the caution statement of the defendants, and so police investigators did not have or were given the opportunity to check this out carefully. Again the evidence led was that they did check everything, even the coconut trees surrounding the scene for any fresh cuts, but did not see any. On hindsight of-course, and again I make this observation not as a criticism, but may be if specific questions had been directed to the defendants whether any other cuts on the wall or anywhere else had been made, that may be it could have saved a lot of unnecessary search for them. It should also be pointed out that the court inspect the ladder, but no conclusive observation could be made, especially when the second rung of the ladder from the ground was missing. It should be noted that the evidence of D1 was that he was sitting on the first rung of the ladder from the ground, when the deceased swung the knife at him. It is possible that the knife may have hit the second rung of the ladder. With respect, the state of the prosecution evidence in disproving what the defendants had described in their evidence, hardly conclusive, and the benefit of the doubt must without reservation be accorded in favour of the defendants.

There is also a cutting on the wall of the house of D1 facing the sea referred to in the evidence of the two defendants and Doreen Tahea, which the court did have the opportunity to inspect when a locus in quo was taken at the scene. D2 and Doreen Tahea described a cut made by the deceased, which was slanted upwards or diagonally, at the far end of that wall. Note a photograph was taken of that cut by the court and is available in the court file for inspection. This cut is consistent with the evidence of D2 and Doreen Tahea. D1's evidence on this is that there were two cuts made by the deceased on either side of the window facing the sea. When this discrepancy is considered however, in the light of his evidence that at that time he was being chased by the deceased, after having already been attacked once at the ladder, and therefore terrified, it is possible for a mistake to have been made as to his observation about there being two cuts made on the wall rather than one.

On the other extreme, it is also possible that that cut on the wall may have been made by an agent of the defendants who may have been privately instructed to make a cut on that side of the wall prior to the locus in quo. That doubt however, in the absence of any rational and convincing explanation, must go in favour of the defendants. The police evidence on this with respect, is inadequate, in that it was too general with no specific reference to that particular spot on the wall.

Closely related to this is the question as to what became of that bush-knife? According to the defence evidence, the deceased was still holding onto that bush-knife when his hand was cut off by D1. In contrast, according to the evidence of PW1, that knife was never taken out by D2 and given to them. It is not clear in her evidence whether she was alleging that it was their knife that was used to cut the hand of the deceased and also used to cut her on the forehead. Again her credibility on the description of that knife as allegedly used on the attack on her and later by D2, to cut the hand of the deceased, had also suffered a devastating blow under cross-examination. Without seeking to recount everything that had been said on this point, it is significant that in her unsworn voluntary statement to police she described that bush-knife that was allegedly used by D3 on her, as a short bush-knife. The evidence as adduced showed that the knife of the deceased was a long bush-knife; and when compared with the knife used by D1 as exhibited in court, it was much longer. Her evidence in court too as to how D3 came into possession of that knife was conflicting. On one hand, she stated that D3 was already holding a knife when she allegedly emerged from behind some coconut trees. On the other hand, she stated that she only became aware, that D3 held a knife in her hand when she attacked her, and did not know or explain, where she could have obtained that knife, despite the fact that she was there right in front of her arguing with her. It was never suggested that D3 may have used the same knife that D1 was using.

It is also significant, that when PW3 and PW4 arrived at the scene soon after the fight, there was no mention in their evidence of seeing D2 or D3 holding any bush-knife. At the same time, there is no mention of any bush-knife seen next to the body of the deceased where he had fallen. If what was alleged by the defence is true, that the deceased was armed, then the knife should still be lying next to the deceased, and would be seen by PW2, PW3 and PW4. D2 and D3 would have no reason to pick up that knife and hide it. On the other hand, PW1 - PW4 would have a reason to hide that knife, and deny any sighting of that knife beside the body of the deceased, if they were intending to cover up the fact that the deceased was armed. The other possibility of course, is that there was in fact no weapon used by the deceased and that he had been mercilessly attacked by D1 and D2 as described by PW1, and that whatever knife was used by D2 had been conveniently removed and disposed of by them. In the light of all that has been canvassed on this issue, again the doubt as to what possibly happened to that knife must go in favour of the defendants.

(iii) Another issue connected with the knife relates to the question as to what happened to the hand of the deceased that had been cut off? PW1 states that after D2 had cut off the hand of the deceased, he threw it at her. PW2 states that when he arrived at the scene, he saw his dad's right hand some distance from his body at the bottom of a coconut tree. He says that he took it and placed it beside his dad's body. In contrast, the evidence of the defendants was that the hand had been taken away by dogs. In his evidence, D2 states that he saw dogs licking the hand of the deceased and then carrying it away, so he spoke to PW3 to take it back. This was put to PW3 under cross-examination but he denied seeing any dogs and also explained that it was PW2 who took the hand back. PW1 denied that there were any dogs at Tingoa, so as PW2 and PW3. D1 however stated in court that he had some dogs, as well as PW3. The evidence as to the presence of dogs at Tingoa was actually confirmed by a prosecution witness, Mr. Walter Kola, the Officer in Charge of the investigations, who stated that he did see a dog at the scene when he went to investigate. When asked as to the possible explanation for the disappearance of the hand, he did not think it was caused by dogs, but possibly by a crocodile.

The evidence of PW2 that it was him who took the hand of his father and placed it beside his body, would be consistent with what PW1 had said that the hand had been thrown at her by D2. This is in contrast to the version of the Defendants that it had been dragged away by dogs and that it was PW3 who carried it back. I note that PW2 had admitted openly in court that he had been told by his mother (PW1), that the hand had been cut off end thrown at her by D2. In terms of motive, it is quite possible that he may have sought to adapt his evidence to fit in with what his mother had said, and thereby may not be telling the truth. The denial also by PW3 that he did not carry that hand, and that he did not see any dog, may also have been coloured with the same intention, to fit in with the story of PW1. The witness PW3 had demonstrated in court that he is not to be trusted, by the way he had conducted himself in court when answering questions, in being evasive, inconsistent and reluctant to answer questions directly. The specific question asked of him in court for instance, was whether he had dogs. His answer however was that he did not see any dogs at that time. That in my respectful view could be construed as being evasive, in that the impression which would have been given, was that there were no dogs and so it would not have been possible, that a dog would have taken that hand. That however, was not the complete and true picture, because from the evidence of D1 and D2 and confirmed by the evidence of Mr. Walter Kola, there were dogs around that place. According to the evidence of D1, there would at least be some four to five dogs. On a holistic assessment of the evidence and witnesses on this particular issue, it is quite possible that the hand was indeed removed by dogs before being put back beside the body of the deceased, and that the final disappearance most likely, was caused by dogs. It is also possible that the hand may have been deliberately disposed off, if it had been bitten by dogs, to hide that fact. Again the benefit of the doubt must be given in favour of the defendants.

(iv) Another issue which would seem to implicate D2 and D3, relates to their conduct in running away from the scene of the fight after. Their conduct as described by PW1 and PW2 is inconsistent with those of innocent persons. On the other hand, what transpired before they left, appears conflicting. First, the children of the deceased were alerted to what had happened, by none other than D2. If he had participated in the killing of the deceased and his wife in cutting the forehead of PW1, then obviously they would have tainted their hands, and it seems quite unnatural, for such a person, to then have the concern to inform the two boys about the death of their dad, wait for them to arrive and then go off. It is also significant that even PW1 admitted that she asked for help, from D2. If D2 had been the one who had attacked her husband with D1, stabbed the neck of her husband, and then when her husband had fallen down, continued to cut up his backside, and then cut his right hand off end throw it at her, and D3 the one who had also attacked her on the forehead, then it seems most illogical, that she would approach them for help, not only for herself but also for her children. The more likely reaction, I dare say she would have of them, would be fear; extreme fear. Having just witnessed before her very eyes, as alleged by her, what D2 and D3 have done a couple of minutes earlier, how does she know that they would not turn on her and attack her as well? Her actions however show an element of trust on D2 and D3, which is inconsistent with her allegations, even to the extent of being prepared to trust her children in their care. The person rather, that she was terrified of, was D1. Isn't this reflective of something different to what this witness would want this court to believe? Could it be that it was in fact D I, who had inflicted all the injuries on PW1 and the one who had killed the deceased, without D2 and D3 being involved?

Also it should be noted that in the evidence of D2, he stated that he was going to return and pick them after dropping off his family at New Mugava. He however explained that he did not return as his leg was very painful and so instructed others to go and pick them up. This would be consistent with the evidence in court that another group did follow up PW1 and her children, and picked them up at sea and take them to Yandina.

Also a significant factor to consider is the motive for D2's attack on the deceased if what PW1 says is true. Why would he join D1 and attack the deceased, when it had been conceded that the row or quarrel between the deceased and D1, related to the sale of a coconut plantation which D2 had no interest in whatsoever? He also did not have any quarrels with the deceased. If there was any row, it was with his auntie, PW1, but those arguments may be brushed aside easily as mere family disputes which would not warrant a man to attack another person (the deceased) who was not directly involved in them. It is interesting to note that D1 expressed in court that he was actually frightened of D2 after the fight, as he feared a possible revenge attack on him by D2, especially when he had also injured PW1 (D2's auntie), and because he feared that PW1 may have been inciting D2 to attack him.

The apparent motive for the killing of the deceased by both D1 and D2, if the deceased had indeed come peacefully, is also lacking. It seems unrealistic that both defendants, one who had no interest on the coconut plantation, to suddenly turn on the deceased and cut him up in such a frenzied manner, if he was merely talking nominally to them, as sought to be described by PW1. It is also significant in my view, that the description by PW1, of D2 also cutting up the deceased on the backside, is not corroborated in any way by the medical evidence. PW1 also did not make clear, as to which wounds on the backside of the deceased were caused by D2. It must be borne in mind that according to the evidence of PW1, D2 was holding a small carving knife in his hand; some six inches in length. The medical evidence however on those injuries, were more consistent with having been caused by a bush-knife. No evidence was led to say that any of them could have been caused by a small carving knife. Also, it was never mentioned by this witness as to which particular wound was caused by D2. She merely described him as cutting up the deceased, together with D1, after they had both made the deceased to fall down. There was no suggestion that he held any bush-knife at that time.

There is also another matter relating to the children of D2 and D3. In the evidence of PW1, she stated that the four children of D2 and D3 were already covered up in a canvass inside the canoe of D2 and D3 even before and throughout the fight. She emphasised that there was no children around the place at that time. This piece of evidence if accepted as true would do much damage to the evidence of the defendants, in that it would be consistent with her version that the attack had been pre-planned, and so even the children were nowhere to be seen around that place at that time: that is, that they had also hidden their children.

Unfortunately, her evidence had been contradicted by none other than the prosecution witnesses themselves, PW2 and PW3. In his evidence, PW3 stated that his children were playing with the children of the defendants at the village at that time. Also, under cross-examination by Mrs. Samuels, he stated that when he arrived at the scene of the killing, he saw the children of D2 and D3 there. Under cross-examination by Mr. Kama, this witness stated that when he was diving, he was alerted by the sound of children crying at the Settlement. What this meant is that there must have been children around the scene of the killing for them to be crying. Also the clear evidence of PW2 on this same issue, was that he did hear children crying before he heard D2 calling for him and telling him that his father had died. On his arrival as well, he saw the children of D2 and D3 there. They were waiting to go into their canoe when he arrived at the scene. This clear inconsistency again reduces any weight or value that may be placed on the evidence of PW1.

(v) The allegation by prosecution of a pre-planned killing that was done stealthily and quietly, would have gamed much support, by the evidence of PW3 and PW4, that they did not see or hear anything, until the job had been done. Unfortunately, the credibility of these two witnesses had been so severely attacked by the defence, that little value can be placed on their evidence in support of the prosecution case. I have already commented on their demeanour and their reluctance to answer questions. and evasiveness and do not need to repeat what has been said. They all equally apply

As regarding PW4, the evidence as adduced showed that there was at least sufficient noise to alert PW3, who was diving out at sea, to come out of the water and check what was going on, and yet PW4 maintained, that he did not hear nor see, anything that would have drawn his attention to the scene of the crime. PW1 herself stated that D1 and D2 and D3, were moving around the place, and that D3 was talking loudly enough for her husband who was supposedly at the sea-side, to be able to hear what she was talking about, and yet PW4, who was sitting under the house of PW3, did not hear anything. That would have been the very bare minimum in the evidence of PW1, and yet there would have been sufficient noise created, that would have alerted any normal person sitting under the house of PW3. In spite of this, PW4 maintained that he did not hear anything. With respect, that is stretching the imagination a bit too far. However, that minimum evidence of PW1 has not been accepted as proven beyond reasonable doubt in my findings. This means that the level of noise, disturbance, movement (running around), arguments, shouting and children crying would have been double that of the bare minimum described above. Surely, PW4's attention would have been alerted, to go and investigate or inquire. The explanation sought to be given by PW4, that he was so engrossed in cutting and hammering away at his carving, and was not able, or may not have been able to hear or see anything, in my respectful view, had been over-emphasised and over-stressed by this witness to the point of un-realism. The effect on the evidence of PW4, again with respect, is simply to reduce its value in favour of the prosecution case.

Finally, from all that has been said above and from all that has been canvassed in this judgment, I am not satisfied so that I am sure that it has been proven, that D1 has been guilty of the offence of murder under section 193 of the Penal Code and for a conviction to be entered against him in respect of his first count. However, I am satisfied on the evidence that he should be convicted of the offence of manslaughter pursuant to section l 97(b) of the Penal Code. The charge of murder is accordingly reduced to manslaughter, and he is convicted of the same.

I have also considered the evidence carefully against him as to the charge of causing grievous harm to Concey Tehavinu, and satisfied that there is overwhelming evidence on which to convict him of it. In his admissions before this court and his confessional statements, he clearly admitted causing the injuries on the forehead, hand and fingers, and leg of Concey Tehavinu. and he is convicted of the same.

As regarding D2 and D3, I am satisfied that prosecution had not been able to discharge the onus placed on it to my satisfaction, which is none other than proof beyond reasonable doubt, and accordingly, both accused must be acquitted forthwith, and I so order.

A.R. PALMER,
JUDGE