Regina v Bata [1998] SBHC 75; HCSI-CRC 26 of 1997 (12 March 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 26 of 1997

REGINA

-v-

HENRY BATA & KEN ARASI

HIGH COURT OF SOLOMON ISLANDS
(Palmer J.)
Criminal Case No. 26 of 1997

Hearing: 9th - 12th Feb., 17th-19th, 2nd March 1998
Judgment: 12th March, 1998

Director of Public Prosecutions for Prosecution
M. Samuels (Mrs.) for the First Defendant
J. Gordon (Mrs.) for the Second Defendant

PALMER J.: The two accused have been charged with the offence of murder contrary to section 193 of the Penal Code, that on or about 3rd May, 1997 at Gwaunasu’u, Malaita Province, murdered Jeffrey To’ona.

It is for prosecution to prove that the two accused with malice aforethought caused the death of the deceased by an unlawful act. The unlawful act alleged is the act of drowning which according to the post-mortem report of the Doctor caused the death of the deceased. Malice aforethought is demonstrated by the assault outside the petrol shed at Daolusu and the carrying away and subsequent drowning of the deceased among the mangroves outside Gwaunasu’u. The Defence do not dispute this line of argument. If accepted, that would be correct.

The case for prosecution can be summarised as follows. That the deceased was seen at Auki earlier in the day on 3rd May, 1997, then taken to M.V. Living anchored off-shore at Talakali. From there he took a canoe tied to the ship and went ashore to Talakali. He called into one of the houses before travelling to Daolusu later that evening in a paddle canoe. Prosecution claims he arrived safely at his home at Daolusu on the evening of the 3rd May, 1997 and seen by his daughter, May To’ona (PW12).

The accuseds on the other hand were seen together at Kwaimela on the same evening of the said date. One of the accuseds, Henry Bata (D1) had been dropped off at Kwaimela at about 7.30 pm. Both accuseds were then seen together later that evening floating outside Kwaimela passage. From there they travelled to Daolusu met up with the deceased who had just arrived and assaulted him outside his petrol shed. They then carried the deceased into the fibre glass canoe and drove off towing his paddle canoe behind them. They drove towards Gwaunasu’u where he was drowned and his body hidden under the mangroves there. At the same time, he was drowned, it is alleged the deceased must have tried to shout for help three times, and this was what was heard by one of the witnesses at Foulifilu Village opposite Gwaunasu’u that night. The two accused then called in to Gwalaga, Busu, Lalana before returning to Kwaimela in the early hours of the morning.

Evidence adduced in support was as follows. That on Saturday, 3rd May, 1997, during the day, the deceased was seen by PW1, Robert Gafutu at Auki. He was drinking beer with him behind Ta’as Store. With them was Henry Bata, the first accused (D1). This witness spoke of an argument over unpaid petrol debts between the deceased and D1 and says at some stage he had to intervene to stop them from developing the argument further. D1 however denies that there was an argument over unpaid petrol debts claimed owed by him to the deceased.

This witness also says that in the heat of the argument, D1 stated something to the effect that people like the deceased should be killed.

Prosecution alleges that the events which eventually led to the killing of the deceased should be traced back to these initial happenings as they help to show the sort of mind that D1 had towards the deceased and the motive for the killing which took place later that evening as partly witnessed by PW12. D1 however denies ever saying those things in his evidence under oath.

It is not in dispute therefore that the deceased was seen at Auki earlier that day. I am prepared to accept that some sort of argument may have arisen during that drinking session.

PW2, Braddley Faeni was the next prosecution witness, who describes taking the deceased in his canoe at his request and dropping him off at a boat, M.V. Living anchored off shore at Talakali. He estimates the time to be between 6.00 p.m. to 7.00 p.m. in the evening. He says the deceased went into the ship.

PW3 (Harry Noda) confirms the arrival of the deceased at the boat at about the same time but denies the deceased climbed into the ship. He says he hopped into a canoe beside the ship straight away and paddled away; where he did not know. All he said was to his house. This meant he assumed his fathers house at Talakali. Note, the deceased is from Talakali whilst his wife is from Daolusu. His house however is located at Daolusu, at his wife’s place.

The next pertinent witness as to the movements of the deceased that evening is PW7, Miriam Inomae. She describes seeing the deceased coming to their house that evening. He sat down at the house and asked her to roll a smoke for him. She estimates the time the deceased arrived at about 8.00 o’clock in the evening. In chief she explained why she thought it was 8 o’clock. The SIBC programme “custom story” was on at the said time. She states the deceased then went to see his mother at her house not far off before leaving. In chief she also estimates the time the deceased left. She puts it as only a short time after the custom story programme had ended.

Judicial notice can be taken of the fact that the “custom story” programme usually comes on at 8 o’clock in the evening on Saturdays and can go on for some 15 or 30 minutes depending on the length of the story. The time allocated it appears is about 30 minutes.

Prosecution alleges that the deceased left for Daolusu that evening and arrived safely at his home as witnessed by PWI2, May To’ona. This witness is the daughter of the deceased and is a child of tender age; 9 years old. According to her crucial evidence, shortly after her dad had arrived at the house and was having his dinner, the accused (Dl), who was by the way her maternal uncle (brother of her mother), and D2, Ken Arasi arrived at the house.

D1 and D2’s movements as described by prosecution witnesses were as follows.

PW4, (Paul Tata) states that between about 6.00 p.m. - 6.30 p.m., he was approached by D1 to take him to his home at Daolusu. He states he had a 25 h.p. Suzuki and a 21 feet long fibre glass canoe. D1 gave him $20.00 for petrol and he agreed to take him. They went first to Auki Island to get some petrol before returning to Auki to drop off a Bougainvillean who accompanied D1. From Auki they drove towards Daolusu. D1 however changed his mind and told him to drop him off at Kwaimela where D2 was. He said they arrived when it was already getting dark. He estimated the time as about 7.30 p.m. They waited for sometime for D2 to arrive with a torch before they left. In cross-examination he estimates the length of time waiting as 15-20 minutes.

D1 in his oral evidence before this Court, confirms that he arrived at Kwaimela Village at around the same time driven by PW4. Waiting time he says also was about the same time before D2 arrived with his son and carrying a torch to escort him back to the house. It is not in dispute therefore that at about 7.30 p.m., both accused were seen at Kwaimela Village.

The next crucial prosecution evidence came from PW5 (John Oli). He states that he saw both accused at the entrance to the passage to Kwaimela Village on his way back from Daolusu that evening. He lives at Kukuli and to get there he had to pass by Kwaimela passage. He says it was getting dark when he saw them. He did not recognise them by appearance, but knew who they were, when they said good night to him. He recognised their voices. Both accused are related to him and also known to him. He estimates the distance they were floating in their canoe from him as the width of the court room (about 15 metres or so). In cross-examination he stated that shortly after he left them he heard them starting their engine and driving in the direction towards Daolusu. This witness states that on arrival he turned on the radio to listen to the “custom story” programme and discovered that it had just started. It can be safely assumed therefore that he saw the two accused at roughly 8.45 - 8.00 pm if his story is accepted as true. Note however that D1 in his evidence denies this meeting at sea, whilst D2 had elected to remain silent.

It is pertinent to note also that this witness denied seeing any other canoe going past him that night. According to prosecution’s case, the deceased would have been on his way to Daolusu at about the same time this witness left Daolusu.

Prosecution submits that this sighting of the two accused is crucial to the version of events which they allege occurred that night. It is alleged that the direction of travel heard by PW5 going towards Daolusu is consistent with the sequence of events as described by their second crucial witness, PW12. It will be recalled that PW12 had stated that her father (the deceased) was having dinner at their house when these two accused arrived and requested petrol to be given to them. After striking and immobilising the deceased, prosecution alleges that the two accused drove off with the deceased and drowned him in the mangroves at Gwaunasu’u. Prosecution submits that the sequence of events is consistent with what PW 6, Mata Angeli heard between the hours of 9 o’clock and 10 o’clock that evening. This witness states that she heard the voice of someone shouting as if crying out for help three times coming from the vicinity where the dead body of the deceased was later discovered. They allege this would be about the time the accuseds left Daolusu with the body and disposed of it at the said mangroves. From there the two accused then travelled to Gwalaga. This was when PW15, George Morris saw D1 at his house.

PW15 states that D1 came to his house roughly between 10 o’clock and 11 o’clock at night. After feeding him, D1 told him that he was going back to see D2 in the canoe. In his evidence under oath, D1 confirms travelling to Gwalaga and calling alone at PW15’s residence whilst D2 waited at the canoe. It is not in dispute therefore that both accused were seen at Gwalaga between 10.00 - 11.00 pm.

From Gwalaga they went to Busu. This is not in dispute. PW9, Martin Ainawale and PW10, Peter Sanisi both confirms seeing the accuseds at Busu. When PW9 was asked about the time the accuseds came to his store, he could only say that it was already quite late at night. PW10 states that the SIBC radio station had already closed at the said time. Both accused therefore arrived after 10.30 pm.

Whilst their presence at the said place is not disputed, both denied what PW9 and PW10 said they heard was spoken that night. PW9 states he overheard D2 saying to D1, in language “E uta wale ba”. In pidgin “how nao man ia”. In response, D1 replied: “You quiet nomoa man, for what you talk about ia.”

PW10 also claims to have heard something similar between the accuseds. What he heard was as follows:

“Man ia nomoa me worry, by hem life or nomoa.” (D2 speaking)

In response, D1 told him not to talk about those things but only those things which they will buy and take home.

Another conversation which D1 denies took place was the conversation between D2 and PW10, concerning a pig that had been drowned at Gwaunasu’u. PW10 states that when he questioned D2 about the canoe not having a rope, D2 replied that they had used it to tie a pig which they had stolen at Gwaunasu’u and placed it under the mangroves. He states that when it is dead, he will bring it to him. In his evidence D1 denies saying any such things to PW10. PW10 however did not say that it was D1 but D2 who had spoken those words to him.

From Busu, the accuseds went on to Lalana Village, to PW11, Michael Sifoni’s house. PW11 states that he was already asleep when woken up by the two accused. He estimates the time at about 3.00 am. He worked this out on the basis that the tide had already come in. High tide he claims is usually at 2.00 - 3.00 am.

The accuseds do not dispute this visit. The only difference is in the time estimate given by D1 in oral evidence. He puts the time at between 1.00 - 2.00 am.

The next important prosecution witness is PW14, Moses Tutu. He gave evidence of conversations he had with D1 on two separate occasions. The first one was in the evening of Monday 5th May, 1997 between 6.00 - 7.00 pm. He states he questioned D1 about a strange sound which was heard at the entrance to Kukuli passage out at sea. He described the sound as someone struggling or fighting in a fibre glass canoe. He estimates the time this occurred as between 7.00 - 8.00 pm. He states he questioned D1 about that sound and the possibility that someone might have had a fight with the deceased. In response D1 explained that the sound was caused by him and D2 when they were out test driving D2’s outboard motor engine and nearly capsized at sea. PW14 then says he asked D1 about what he might have thought about the deceased’s disappearance. In response, D1 suggested to him that the deceased might have drowned at the entrance to Gwaunasu’u and that a crocodile may have dragged his body to the entrance of Gwaunasu’u.

The second conversation PW14 says took place near the primary school at Talakali the next day, after the body of the deceased had been found. He says D1 told him not to tell anyone and leak out information about what he had said about a crocodile taking the body of the deceased to Gwaunasu’u entrance and that he was the one who had killed the deceased. PW14 says this was volunteered by D1 without any promptings or suggestions from him whatsoever. Prosecution relies on this as a voluntary admission of guilt by D1 of the killing of the deceased

D1 in his oral evidence however denies not only the admission but the circumstances in which it was alleged to have taken place. He denies seeing PW14 at Talakali at the said time it was alleged to have been spoken. One of his witnesses, Philip Maelalo (DW3) states that at the said time he saw PW14 travelling in his canoe to Kukuli instead of to Talakali as claimed. Thereby supporting D1’s evidence that the said evidence could not possibly have taken place.

From the evidence adduced, the following facts can be accepted as undisputed.

That the deceased was seen at Auki in the afternoon of 3rd May, 1997. That towards the evening or late afternoon, he was picked up in a canoe by PW2 and dropped off at M.V. Living anchored off-shore at Talakali. PW2 and PW3 estimates the time of arrival at about 6.00 - 7.00 pm. It could be later. From there the deceased paddled to Talakali and went ashore. He was seen by PW7.

PW7’s evidence is crucial to this case. Apart from the evidence of PW12, PW7 was one of the last persons to see the deceased alive that evening. She estimated the time the deceased arrived at about 8.00 pm. I will say more on this time estimate because it is one of the crucial matters in understanding the events which prosecution alleges occurred that night.

What happened thereafter to the deceased and the corresponding movements of the two accused between the said time (8.00pm to 10.00 pm) is in dispute. But first, I must rule on the time the deceased arrived at Talakali at the house of PW7.

According to the evidence of PW2 and PW3, they estimate the time of arrival at the ship as between 6.00 - 7.00 pm. Compare this with the more accurate time estimate of PW7 as to the time the deceased arrived at her house. She bases her time estimate on the timing of the “custom story” programme broadcasted over SIBC that night. She states in chief that the programme was on when the deceased arrived at her house. No evidence has been adduced to say that the said programme had come on at a different time.

Under cross-examination she states the time was exactly 8 o’clock when the deceased arrived at her house. She was quite firm about this. It is more likely therefore that the deceased had arrived at the ship much later than what PW2 and PW3 may have thought. If not, then the deceased may have gone somewhere else before calling in at PW7’s residence at Talakali and arriving there when the “custom story” programme was on at 8 o’clock. Under re-examination, this witness also stated that the deceased left her house and paddled off in their canoe shortly after the “custom story” programme had ended. I find this witness to be quite sure of herself as to the time the deceased was seen at her place that evening. I accept her time estimate on the arrival and departure of the deceased as accurate and reliable. The deceased therefore left Talakali either shortly after 8.15 pm or about 8.30 pm when the “custom story” programme had ended. Between 8.00 - 8.30 pm, the deceased was at Talakali or had just left Talakali in his paddle canoe.

Keeping this vital information in mind, what prosecution alleges subsequently occurred now appear to be in conflict.

First, the sound which PW14 alleges to have heard outside Kukuli passage that evening between 7.00 - 8.00 pm. Even if it was true what D1 had told him (though denied by D1 in oral evidence), that it was him and D2, it could not have been or most likely not involved the deceased, because at the said time, according to PW7’s evidence the deceased was still at Talakali.

Secondly, the timing of events relied on by prosecution at the time the accuseds were seen outside Kwaimela passage and the time it is alleged the deceased would have arrived at Daolusu also do not correspond. According to the allegation of prosecution, the deceased would have arrived at Daolusu around 8 o’clock or shortly thereafter that night. This meant, he would have left Talakali around 7 o’clock or 7.30.pm that night, bearing in mind the distance to be covered and also the weather conditions prevailing that night. This had been described by a number of witnesses as being windy with rough seas. It would have taken longer therefore than normal, for someone paddling to cover the same distance.

Thirdly, the evidence of PW6, Mata Angeli, who claimed that she heard what sounded like someone being drowned coming from Gwaunasu’u between the hours of 9.00 - 10.00 pm that night. If the accuseds arrived at Daolusu shortly after 8 o’clock then the assault would have occurred around that time, say between 8.15 and 8.30 pm. They would have then arrived at Gwaunasu’u shortly after and if any sound was to be heard coming from that area as alleged then it would have been much earlier; between 8.30 - 9.00 pm. Between 8.00 - 8.30 pm, the deceased would still have been at Talakali, and between 8.30 - 9.00 pm most likely he would still have been paddling on the sea to Daolusu.

The Prosecution case that the deceased must have arrived at Daolusu at 8.00 o’clock or thereabouts, prior to the arrival of the accuseds is a vital link to the evidence of PW5, who testified that he saw both accused outside Kwaimela passage shortly before 8.00 o’clock that night, and then heard them travelling in the direction to Daolusu shortly after. The prosecution case is that the two accused were headed for Daolusu at the said time and arrived shortly after the deceased had arrived.

The timing of events here is again vital due to the undisputed evidence of this witness (PW5), that on arrival at his house not long after, he turned on the radio to hear the “custom story” programme had just come on that evening. Bearing in mind the observations of this witness that at the time he saw them it was just getting dark (disputed), and bearing in mind the fact that D1 was dropped off at Talakali at about 7.30 pm that same night (not disputed), the most likely time he saw the accuseds would have been between 7.45 -8.00 pm.

Assuming for one moment that his evidence is true, and noting that the distance from Kwaimela to Daolusu is some 700 metres, it should take the two accused travelling in their powered canoe only about 5 - 10 minutes to reach Daolusu. Their arrival at Daolusu therefore should be around 8.00 - 8.15 pm. The Prosecution case is that the deceased was already at Daolusu having his dinner when this two arrived according to the evidence of PW12.

Unfortunately, according to the virtually undisputed evidence of PW7, the deceased was still at Talakali between 8.00 - 8.30 pm. This presents a major discrepancy in the timing of events as sought to be presented by Prosecution. According to the crucial prosecution witness, PW12, the sequence of events would be that the deceased arrives first, then the two accused shortly thereafter. The timing of events however simply do not correspond. This directly impinges upon the prosecution case.

It is possible some of the witnesses may be mistaken. That when the deceased was seen at PW7’s place, it was at 7 o’clock instead of 8 o’clock and that when the two accused were seen outside Kukuli passage, it was around the same time, or that it was PW5 who was mistaken about the timing, that it was around 9 o’clock when he saw these two accused outside Kukuli passage and not around 8 o’clock. Unfortunately, the evidence as adduced before this Court do not allow room for any such changes. This Court does not have power to change and adjust the evidence to suit prosecutions case. The onus of proof must be kept at the forefront of this Court; that it is for prosecution to prove its case beyond reasonable doubt.

PW12’s evidence therefore as to the arrival of the deceased followed by the accuseds has not been corroborated by PW5’s evidence. According to submissions of the learned Director of Public Prosecutions, the deceased would have arrived at Daolusu between the hours of 8.00 - 9.00 pm. The evidence of PW7 however simply do not allow that. The earliest time of arrival would be 9.00 pm assuming the deceased left Talakali at 8.30 pm sharp and that it only took him thirty minutes to paddle to Daolusu. The latest, would be about 9.30 pm. The evidence as adduced unfortunately simply do not match with the allegations.

Where does this leave the evidence of PW12. Apart from the evidence of the Doctor who carried out the post mortem on the body of the deceased, the corroborative material before this Court is sketchy and imprecise.

The evidence of PW12 although sworn, must be corroborated in the circumstances of this case, before any conviction should be entered. Under English law, where a child gives unsworn evidence, it must be corroborated (section 38(1) of the Children and Young Persons Act 1933). Where the evidence is given under oath, it is not a requirement under English law that the child’s evidence should be corroborated. However, the jury should be warned of the danger of acting on the uncorroborated evidence of the child. If they are nonetheless convinced that the witness is telling the truth, they may act on such evidence bearing that warning in mind (see R v Campbell (1956) 40 Cr. App. R. 95).

In the peculiar circumstances of this witness (PW12), having heard and observed her in evidence and bearing in mind the small test carried out by the court before she was sworn, it is my respectful view that not only must I bear this warning in mind but that if I do not find corroborative material then little reliance should be placed on her evidence.

This brings me to consider the next vital question, whether there is corroborative material in support of the evidence of PW12.

There are a number of matters which prosecution seeks to rely on as corroborative evidence.

First the admission made by Dl to PW14. The general rule is that any relevant statement made by a party is evidence against himself. The weight to be attached however is a matter for this Court to consider in line with the circumstances prevailing at the said time.

Should this Court rely on that admission as proof of guilt? The hesitancy this court faces answering this question in the affirmative lies on the glaring discrepancies which remain unsatisfactorily accounted for. Even if the Court were to accept that admission as proof of what it says, the glaring discrepancy in the facts as adduced in the evidence remains; bearing in mind the prosecution case that the admission should be viewed in the context of all other evidence adduced by prosecution, in particular that of PW12.

This in a way does affect the question whether this admission amounts to corroborative material. Whilst on one hand, I am prepared to find that there is some corroboration, it still does not account for the major discrepancies in other prosecution witnesses evidence. The same applies to the conversation overhead by PW9 and PW10 and what PW10 alleges D2 told him about the stolen pig drowned at Gwaunasu’u.

Also the medical report of the Doctor who carried out the post mortem on the deceased does not adequately address the glaring discrepancies in the chain of events as described by other prosecution witnesses. The most that can be drawn from that report is that it confirms the existence of a bruise at the back of the neck of the deceased consistent with having been struck with a stick as described by PW12. It does not confirm that the assault was committed by D1. To confirm that, we have to look to evidence of other witnesses. Unfortunately, this is where the lack of corroborative material detrimental to prosecution’s case. The arrival and presence of the deceased and accuseds at Daolusu has not been corroborated. And even more serious, there is a major conflict in the evidence of prosecution witnesses as to the movements of the deceased and accuseds in that crucial period between 8.00 pm and 9.00 pm.

As to the reliability of PW12’s evidence, there were also a number of pertinent discrepancies which this court cannot overlook. One of these was her evidence on oath that she was standing outside DW2’s residence when the assault was committed. In her statement to Police dated 13th October, 1997 however, she states that she was standing beside their house. The difference in the distances from the deceased’s house to the scene of the assault and from DW2’s house to scene of the assault is quite significant. From the deceased’s house to the scene of assault is about 30 metres and from DW2’s house to scene of assault is only about 16 metres (note measurements were taken when a locus in quo was taken at the scene). Bearing in mind that the only lighting was at DW2’s house (DW2’s house is located about half-way between the deceased’s house and the petrol shed and the lighting came from a hurricane lamp), if she was standing at her parent’s house, the likelihood of her being able to see the assault quite clearly is much less than if she was standing beside DW2’s house. The distance from DW2’s house to the petrol shed is about 16 metres.

Another discrepancy relates to her evidence about the stick that D1 used. In chief, she states that the stick used to assault the deceased with was taken from the canoe the deceased came in. In cross-examination she states it was removed when the deceased was having his dinner. She states she saw D1 removing the stick from the window of their house. But according to her evidence in chief, when her dad came in and had his dinner, she was still lying in her bed. She only came out when the deceased went out to get petrol for the accuseds. She could not have seen D1 taking that stick therefore. But even if she had gotten up and was sitting at the window as claimed (this spot was shown at the locus in quo), it would have been near impossible for her to see D1 taking that stick from that canoe if that canoe was “parked” at the spot shown to the court when the “locus in quo” was taken. She states that the canoe was “parked” outside her Grandfather’s house. Not only would her Grandfather’s house block her view, but the lighting from John’s house would have been blocked by her Grandfather’s house as well and so would make it even more difficult for her to have a clear view of that canoe and to see D1 removing that stick.

Further, it should also be noted that in her unsworn statement to police recorded on 13th October, 1997, she stated very clearly that the canoe was “parked” outside their house and not at the house of her Grandfather. At page (2) paragraph (1) she states:

“Stick ia uncle Henny tekem inside long canoe wea hemi stap mamana house blong me fala long sea.”

And at paragraph (3), she states:

“Arasi then pulum go small stick canoe, wea hem anchored long front house blong me fala.”

Another issue which does not seem to fit, is the undisputed [act that the key for the petrol shed is kept by DW2. PW12 also acknowledges this fact. DW2 stated in his evidence under oath that the key was held by him that night. In order for the deceased therefore to have access to the petrol shed, he would have to wake up DW2 if he was asleep, as earlier alleged by this witness under cross-examination, but then later said that he was awake and lying in bed, but refused to come out when asked by the deceased to give petrol to the accused. If the key was held by DW2, then it only seems logical that the deceased would first have to collect the key from DW2 who was awake anyway, but refused to come out, and then walk across to the petrol shed to serve the accuseds. It just doesn’t make sense that the deceased would walk straight to the petrol shed without first collecting the key from DW2.

Another discrepancy relates to her description of the lighting at the said place. In chief, she states it was under the house. In cross-examination, she states that there was a light at the side and under the house. When the locus in quo was taken, she only pointed to a spot at the side of DW2’s house.

There is also a contradiction to her estimation of the time she went to bed, which was about the time the deceased and the accuseds arrived. In cross-examination she states that she went to bed when it was just getting dark. When she was asked about those in DW2’s house, she stated they had gone to sleep at the said time. This would put the time around 7.00 - 8.00 pm when she retired and when DW2 and his family would have been asleep by. According to DW2’s evidence however, his family did not retire until about 8.00 - 9.00 pm, after they had completed baking their fish in the stone oven (motu). PW12 did acknowledge that DW2 and his family baked fish that evening.

In assessing their evidence, I prefer the evidence of DW2 as more reliable than that of PW12. This simply meant that if PW12 retired at around 7.00 - 8.00 pm, it was not correct that DW2 and his family had all retired in bed at the said time. They were still definitely awake at that crucial time, but did not see the deceased or the accuseds arriving at the said time. It is pertinent to note that PW12 eventually conceded in cross-examination that DW2 was awake at the said time the accuseds came and asked for petrol but refused to come out and that was why the deceased came out instead. DW2 however denies having been called as alleged. He states he was awake in any event at that crucial time, but did not see the accuseds or the deceased.

Finally I turn to the evidence of Defence witnesses. DW2 was awake at the crucial time it was alleged the deceased and the accuseds arrived at Daolusu. He was later joined by his brother sometime in the later evening. DW3 states he joined his brother sometime after 8.00 pm and stayed with him throughout that evening right up to about 1.30 am before returning to his house some fifty metres or so way. DW2 however states that his brother joined him after returning from some activity which he had attended that evening. Whatever it is, the crucial fact remains unaffected that DW2 was at his place at the crucial time and did not see the accuseds or the deceased or hear anyone shouting out to him for petrol. I do bear in mind that he is the brother of Dl, and may have reason to lie about the whereabouts of the accuseds and the deceased that night. In spite of that, I find his evidence more reliable than that of PW12 as to his movements and whether he was awake at that crucial time.

When all of the evidence is put together, shifted, assessed and weighed, I find that the major discrepancy referred to in this judgment, has not been satisfactorily accounted for and explained away, such that I can say that I am sure about these two accuseds involvement. There is a real doubt in my mind whether the deceased did reach Daolusu safely, and if he did, the timing and sequence of events simply do not correspond with the alleged time the accuseds were alleged to have also reached Daolusu. I find there is an unbridgeable gap, a missing link in Prosecution’s case which raises a doubt, and that doubt must go in favour of these accuseds. This is not to say that Prosecution have not presented a strong case. They have done so, they have amassed evidence which points to a strong suspicious case against these two accused. Unfortunately, when all the evidence has been weighed and assessed at the end of the day, it did not go far enough to convince me so that I am sure that these two accused were responsible for the death of the deceased. I bear in mind the standard of proof, which is tilted towards Prosecutions side, reminding me that the onus in criminal cases in our jurisdiction and all other countries which cherish the rule of law, lies with prosecution. That onus in this case has not been discharged and I must acquit these two accused of the offence of murder. Order: Accuseds acquitted of murder.

ALBERT R. PALMER
THE COURT.