At the same time, an application was by the learned Director ofor of Pubic
Prosecutions to have the charge of Attempted
Murder against the Accused
withdrawn on the basis of lack of sufficient evidence. This was accepted by
the Court and
the Accused acquitted of that offence under section 190(2)(b)(i)
of the Criminal Procedure Code (Cap. 7).
Trial therefore only continued in respect of the charges rges of being in
possession of firearms and ammunition contrary
to section 5(2)(a) of the
Firearms and Ammunition Act (Cap. 80) as read with section 22 of the Penal
Code. The particulars of those offences pertained to the possession of four
firearms; a pump action shotgun, a 303 rifle, one .22
rifle, and one shotgun
(see Exhibits 1, 2, 3, and 4 respectively). Two of the firearms, the 303 and
.22 rifles were found
inside the Ski Boat by the accuseds during the shoot
out, whilst the pump action shotgun was found beside the accused Harold
Keke
and the other shotgun was found on the beach (see unchallenged evidence of
witness John Oso PW3).
“If any person -
purchases acquiresuires or has in his possession any firearm or ammunition
without holding a firearm licence in force
at the time, or otherwise than as
authorised by such a licence, or in the case of ammunition, in quantities in
excess
of those so authorised; or
…he shall, subject to the provisions of this Act, be guilty of an offence
and liable-
(i)">(i) if the offence was tommi
ed
in a prohibited area to a fine of five thousand dollars or to imprisonment
for ten year to such and smprist;
(ii) e thencffwas ommitted
ed
elsewhere to a fine of three thousand dollars or to imprisonment for five
years
or to buch fnd supriso.”
The crucial el of the offence envisaged by section 5(2)(a) of the Penal
nal
Code as it applied to this case is possession of firearms or ammunition
without a firearm licence in force at the said time. There is no dispute
this Accused does not have firearm licence (see unchallenged evidence of
Firearm Licensing Officer
Robert Alufurai PW1). What Prosecution is required
to prove beyond reasonable doubt is that Accused had in his possession the
said firearms, and ammunition used in those firearms.
Prosecution’s caseremised on the provisions of section 22 and or
sectioection 21 of the Penal Code. Section 22 states:
“When two or more persons form a common intention to prosecute an unlawful
purpose in conjunction with one another, and
in the prosecution of such
purpose an offence is committed of such a nature that its commission was a
probable consequence
of the prosecution of such purpose, each of them is
deemed to have committed the offence.”
The crucial elements in section 22 are:
p>
(1) a common intention,
(2) to prosecute an unlawful purpose,
(3) an offence is committed,n>
ass="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
(4) it is a pre consequence arising from from prosecution of such purpose.
Those elements will be addressed in detail later in this judgment.
Prosecution’s case is based primarily on the submission that possession is
to be inferred from the fact Accused was together
with others who has
possession of the firearms and ammunition from beginning to end pursuant to
section 22 of the Penal Code. In the alternative, he aided and abetted the
commission of the said offence by his conduct in giving approval to the
activities of Sangu and the others that night and was in a position to give
assistance if needed at the said time.
FACTS NOT IN DISPUTE
It was not in dispute the Accused accompanied others to rob Tambea Beach
Resort of the Ski Boat and that this same
boat was used by him and four
others to travel to
Gavutu
Island then to Bugana Island where they were arrested. It is not disputed
there were four rifles collected by Police
at various locations after the
shoot out with the accuseds. It has never been contended those rifles were
in the boat
with the accuseds prior to the shoot out with Police.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
FACTS IN DISPUTE
What is disputed by this Accused is how those rifles came into their
p possession. This Accused denies any knowledge
in the possession of those
rifles or that he was involved in any way in having them brought to the
boat. He also denies
ever handling those weapons or using them during the
shoot out with Police at Bungana Island or at any time before that. In
essence, his defence was that he had no prior knowledge that firearms were
going to be taken on board the boat that night
and whilst in the boat he had
no control or use over them. At no time therefore can it be said he ever
asserted control
or possession over any of those rifles.
p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
THE EVIDENCE AND FINDINGS OF THIS COURT
The evidence relied on by Prosecution in support of t of their case that this
Accused must be deemed to be in possession
of firearms and ammunition is
contained in his Statement made to Police under caution. There were actually
two statements
obtained by Police from this Accused; one dated 31st
December 1998 and the second one dated
3rd January 1999.
At the beginning of trial the voluntariness of the first statement was
objected to by the Accused and challenged. As trial
proceeded, this was
withdrawn save for certain inaccuracies and matters which his Counsel
submitted on. Those statements
have been submitted and admitted as part of
the Prosecution evidence before this Court. Their veracity and accuracy
however
have been challenged in this Court in particular when Accused had
elected to give evidence on oath before this Court and which
is different in
certain parts to what he told Police in his statements.
So what was the Prosen case? Prosecution’s case case hinges on this Court
accepting that, what was told to Police in his
statements contained the
truth as opposed to what he had sought to say on oath before this Court. The
question as to
what weight to attach to those statements will depend on all
the circumstances in which they were taken and is a matter for
this Court to
determine as tribunal of fact and law (see Burgess [1968] 2 QB 112; Chan
Wei Keung v. The Queen [1967] 2 AC 16; and Sharp [1988] 1 WLR 7).
e crucial parts which differ pertained to the activities whes which occurred on
the evening of the 29th December 1998. In his statement of
31 December 1998, Accused states he boarded a pick up
truck from his village Tamboko and went to Tambea to see Joseph Sangu and
talk to
him about certain rumours he had heard. At Tambea he was instructed
together with other boys to steal a boat from Tambea Beach
Resort. He
obliged. This theft is the subject of the separate robbery charge on which a
guilty plea had been entered.
The Accused also states he was told at that
point of time when he enquired that the purpose of the boat was to go to an
island at Tulagi to dig for some guns (purpose was identified at that point
of time). From Tambea they headed directly to
an
Island off Tulagi called
Gavutu
Island. It is not in dispute this was where they arrived at about 6 o’clock in the morning of
the 30th December 1998. In both statements, references were made
about the rifles being taken into the Ski Boat at Tambea However, according
to his statement, he could only identify or was aware of the presence of
three rifles in the boat during that time; the
303 and pump action shotgun,
these he identified as belonging to Joseph Sangu, and the .22 rifle. He
identified as belonging
to the slain man, Ishmael Panda. He denied knowledge
of the other firearm, the shotgun in his statements.
In contrast, in sworn evidence before this Courtstates he was picked up
p
at his village on the evening of 29th by three of the accuseds,
Joe Sangu, Harold Keke and Ishmael Panda in a Suzuki and driven to Tambea.
On their way they
stopped at
Tamale
Village where a torch was picked up by Joe Sangu from a house belonging to
his uncle. At Tambea the fifth accused Henry
Rokomane was picked up with the
Ski Boat and came to Tamale Village. They floated outside the village whilst
Joe Sangu
sent a signal to those ashore. The guns were then brought in a
fibreglass canoe and loaded into the boat. This Accused denied
knowledge of
the plans, purposes and objectives of the trip that night or where they
might be going. All he knew was
that they went in the direction of Savo
first before heading for Gavutu Island. From Gavutu three of them went to
Tulagi
for petrol and some mixed goods. He states one of the firearms was
taken with them to Tulagi whilst the others were left with
the other two on
Gavutu
Island. Even at this point of time, the Accused denies any knowledge of what
was the purpose of the trip. During the
shoot out with Police, he denies
holding any of the firearms or using them. In fact he states he was the
first one to
jump out of the Ski Boat when Police returned fire.
CREDIBILITY OF ACCUSED
The credibility of this Accused in his defence to this Chis Court is at stake. He
had told Police something quite different
concerning his involvement with
the other accuseds, whilst before this Court he seeks to paint the picture
of an innocent
young man who joins up out of fear for his life and his
family. He refers to an earlier incident in which he says Joseph Sangu
had
pointed a rifle at his head in one of the meetings on 17th
December 1998 because he had declined to follow what Sangu had
said at that meeting. He also referred to Sangu as a violent man and a man
to be feared. He also made mention of the threats made by Sangu to have
their families kidnapped if they did not do what
he said. What he says
however in his statement to Police about the activities of the “GRA” as it
was known then and his
conduct as admitted to Police, compared to his
evidence before this Court unfortunately do not match. They paint a very
confusing picture of himself. On one hand he seeks to claim he was never
involved with the group in their unlawful activities
and did not know what
was going on until that night of the 29th (in fact he could be described as
an unwilling participant)
he was picked up by Sangu and two others in their
suzuki vehicle. On the other hand, if that was so, why of all persons was
he
singled out by Sangu and picked up that night in the suzuki. According to
his statements made to Police, there were
many others who had joined up with
the group and could have gone with them. Further, if what he says in his
evidence
on oath is true, that he had indicated an unwillingness in the
meeting of 17 December to follow Sangu’s plans, it was most
unlikely and
unreasonable, in fact incredible, that this Accused would have been chosen
that particular night to accompany
Sangu and his group to carry out their
unlawful purpose. In abnormal operations of the type conducted that night,
one
would expect only the trusted few, the cream of the of group to be hand
picked for such dangerous and unlawful activity. It
must be borne in mind
what was planned that night was not some lawful picnic trip out to in island
but a trip which would
involve unlawful activities from the beginning and to
be embarked on under cover of the night. The success of such plan or
scheme
would have depended a lot on the co-operation and willingness of the members
of the group that night. Picking
someone who had indicated previously he did
not agree with ones plans would have been a foolish thing to do and could
cause real problems. But that was not so. This Accused states when he was
asked, he simply accompanied them that night. This
Accused has also not
denied he was a member of the “GRA”. In his statements to Police, this
Accused gave quite a lot
of details concerning the “GRA”; including the
number of camps they had, their leaders and I might add, expressly admitting
in his statement that he was one of the leaders. That was a statement
against his interest and I have no hesitation in
finding that that was a
true statement. He was the leader for the group at Tamboko. In the light of
that evidence, the
Picture this Accused seeks to paint of himself takes on a
different meaning. It is my view it was as leader of the group at
Tamboko
and a prominent member in that group, he was chosen by Sangu to accompany
them to Tulagi that night; not someone
picked at random or by coincidence,
and happened to be with the wrong group at the wrong time at the wrong
places.
I find on the evidence, contrary to what he seeks to suggest to this CourtCourt,
that he was not and unwilling innocent
lamb led by the nose by Sangu. To the
contrary, I find he was a willing participant all throughout from beginning
to
end. He knew what the movement was about in its demands. He was present
at a meeting of
the 17th December 1998
held by Sangu He had stated in his statements he made efforts to find out.
That indicates interest. Of course, as leader
of the group at Tamboko it was
important he be fully versed with current events and be in the frontline of
what was happening.
His denial of the events and knowledge of the purpose of
the trip that night of the 29th, with respect, I find to be so
unrealistic to be reasonable and credible. Why would he be not told about
what was going
to happen or the plans that night? No satisfactory or logical
reason has been given or could be identified. Secondly why didn’t
he ask?
There is no evidence to suggest that he ever asked Sangu or any members in
the group what was happening or where
they were going? Any normal person
would have asked. There has been no suggestion this Accused was abnormal to
the extent
he did not understand or appreciate what was happening that
night. Again I find this to be so unrealistic to be credible. Rather
what
this Accused stated in his statement was the truth, that he was told and
knew what were the plans that night; they
needed a boat to go and dig for
guns at an island off Tulagi. This Accused then when instructed to go get a
boat, obliged.
He was a willing participant all the way. He could have
refused to go with Sangu and his group when he was asked at Tamboko
if that
was the truth; he did not. He could have refused to go get the boat when
told at Tambea if that was the truth;
he did not. He pleaded guilty to
robbery of that Ski Boat. By his actions he was agreeing to and with the
plan, to go
across to Tulagi to get guns. He actively participated in the
commission of the offences planned that night. In his statement
he states
when the boat was ready he told the boys he was with to go and tell Sangu
and party that the boat was ready.
That is hardly the talk and actions of a
person not willing and actively involved in the plans that night. He could
have
run away that night, but he did not, because he was committed to the
task ahead of them. So when the “guns” were brought in
to the boat, he was
one in accord with his comrades. He cannot now turn around and say I did not
agree with the possession
of firearms but admitting the other offences
committed that night. It was not surprising or unexpected, that firearms
were in the Ski Boat that night, irrespective of how they were brought into
the boat; whether they were brought in by Sangu
and the others at Tambea or
by boat outside Tamale Village. In my respectful view, the correct version
was that they
were brought into the boat at Tambea and that they left for
Tulagi from Tambea without stopping at Tamale Village. I find his
explanations as to the discrepancies unconvincing and this Accused himself
in evidence unconvincing. He was prepared
to change his answers in evidence
under oath to suit his purposes in an attempt to exculpate himself or to
make things
look good or in his favour where it mattered. But even if the
weapons were loaded into their boat outside
Tamale
Village, it would have made little difference to the fact of possession of
those firearms and his role or part in relation
to that. What is clear in my
mind is that this Accused knew what was going on despite what he had sought
to suggest in
his evidence under oath before this Court. Throughout his
examination in chief, his Counsel asked him if he knew at any time
what was
going on. Each time he would answer in the negative. At no time however any
satisfactory explanation was given
as to why he was never told anything or
that if he ever asked (there is no evidence to suggest he ever asked which
is
unusual) why he was never told. There was no reason whatsoever suggested,
why he was kept in the dark all that time. The only
reason it would seem was
to cut his story so it fell in line with his defence that he was ignorant
and was never aware
what was going on concerning the possession and use of
the firearms.
Unfortunately the fact he might have never used or handled the firearms
w whilst in the boat is immaterial to the fact
he was one in accord and
agreement with the other accuseds in the possession and use of those
weapons. It is not open
to him to say he never agreed or did not know that
firearms were going to be acquired and taken into the boat.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
The evidence before this Court isistent with that of a groupgroup of persons
who form a common intention to prosecute
an unlawful purpose and in the
course of prosecution of that purpose and offence is committed which is a
probable consequence
of the prosecution of that purpose.
I do not believe the Accusen he says he was “forced” ted” to go with Sangu
and party on the night of the 30th. I do not
believe the Accused he did not
know what was going on or planned that night. To the contrary I find he knew
what was
going on and what was going to be done and that he was willing,
active participant in the criminal operation planned that night.
As a member
of GRA he would have been told what was planned that night. As leader of the
GRA group at Tamboko he surely
must have been told what was going on. I find
it so unrealistic to be so improbable he would not have been told or have
known what was planned. His knowledge of the groups already set up and their
leaders, and the activities of the illegal
group, show him up as a person in
the know. His attempts to explain why he did not tell truth to the Police in
his statements
I find to be without basis and unsatisfactory. In fact, no
satisfactory explanation could be given other than that he made
those
stories up. What for? Why not come out with the truth there and then rather
than wait until later to tell the court?
It was suggested by learned Counsel
how terrifying it might have been for someone so young to find themselves
suddenly
faced with having live bullets flying around and at them and to be
locked up in custody in a cell at Rove, that that might
have contributed to
his state of mind in not revealing the truth then. Unfortunately this
overlooks the simple fact that
nobody forced this young man into those
criminal acts which he had been charged with. Nobody forced him to join GRA.
Nobody forced him to go with Sangu and party that night of the 29th. Nobody
forced him to rob Tambea Beach Resort that night
so that the boat could be
used for an unlawful purpose. Nowhere during trial had it ever been
suggested the purpose might
he lawful or for good cause. Nobody forced him
to jump into the boat with Sangu and party in which firearms were being
taken. Any person who deliberately sets out to break the law and plan an
unlawful purpose must know what consequences he
will face. If caught, he
faces arrest by Police and if firearms are involved he faces the risk that
the Police might
have to resort to the use of firearms to effect that arrest
and have him apprehended. Of - course that does not excuse the
Police from
unreasonable use of force, but Police are entitled to use reasonable force
in apprehending him. Those are
some of the risks he faces and there is no
guarantee life might not be unnecessarily lost in such unusual
circumstances.
Of-course once he is apprehended what does he expect? He will
be remanded in custody and brought to court either for further
remand or be
released on bail. These are the normal procedures set out under our laws for
dealing with such persons as
the Accused when caught. If the Accused was
shocked by what transpired and being locked up in a cell pending his
appearance
in court so much so his mind was affected he could not speak the
truth to Police when giving a statement voluntarily, he should
be given
opportunity to explain to this Court why that was so. In this instance, his
explanation I find to be basically
unconvincing and unsatisfactory.
THE LAW
p class="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1">
The crucial element in section 5(2)(a) of ) of the Firearms and Ammunition Act
for our purposes are the words:
“If any person ... has >has in his
possession any firearm or ammunition without holding a firearm licence
in force at the time…”
If Prosecution proves the Accused knowingly had in his possession a firearm
or any ammunition then the offence is committed
(see Warner v.
Metropolitan Police Commissioner (1968) 52 Cr. App. R. 373, H.L.;
applied in R. v. Hussain (1) (1981) 72 Cr. App. R. 143, C.A.).
ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
The purpose of section 5 is to regulate and license not only those who keep
firearms where they live but also those who
have them under their control.
It is not in dispute in this case the rifles were not directly brought into
the boat by
the Accused. Prosecution in fact had not proven on evidence that
this Accused brought the firearms into the boat at Tambea
or at Tamale
village if his evidence under oath is to be accepted. Either way, the only
evidence before this Court points
to the firearms being brought into the
boat and were under the control of others in the group; those identified
were
Sangu and Panda. If that were all there is to this case, then the
charges against this Accused would not have been proven.
Prosecution however
does not rely on section 5(2)(a) alone but on section 22 of the Penal Code,
which deals with offences committed by joint offenders in prosecution of a
common purpose. This case therefore must
turn on whether the elements of
section 22 had been proven. I had listed those elements in this judgement.
The issue
now is whether those elements had been proven to the required
standard.
The first two elements to be proven are er a common intention had bhad been
formed to prosecute an unlawful purpose. I
have already ruled on this in my
findings that in my respectful view this Accused knew what was being planned
that night,
that he voluntarily joined the group and that he knew it was
unlawful. If what he said on oath was the truth, the moment he
joined Sangu
and party that night at Tamboko he indicated a willingness to participate in
their plans that night. If
what he said under caution was the truth, the
moment he joined Sangu and party to carry out their plans that night
indicated
his willingness to participate in their plans. Either way I find
the actions of this Accused consistent with that of a person
who had formed
common intention with Sangu and others to prosecute an unlawful purpose.
After joining up, he did not
hesitate to go and rob Tambea Beach Resort of
the Ski Boat. I reject his evidence in which he claimed he was like a sheep
being led by the nose by Sangu and others.
The thiement for proof is that an offence had been committed in thin the
prosecution of that unlawful purpose. The unlawful
purpose as contained in
his statement of 31 December 1998 was to go across to Tulagi to dig for
“guns”. In the prosecution
of that unlawful purpose, firearms were carried
in the boat in which the Accused was also travelling in. None of those
accuseds had a valid firearm licence and thus were in breach of section
5(2)(a) of the Firearms and Ammunition Act. That an offence had been
committed is not in dispute. The issue before this Court is whether the
commission of that
offence should also be imputed to this Accused.
The final element is that the commission of the offence of p of possession of
firearms was a probable consequence of the
prosecution of their unlawful
purpose. Little or no evidence has been adduced to show otherwise that the
carrying of-
firearms in the boat was not and could not have been a probable
consequence of their plan that night to go across to Tulagi
to dig for guns.
To the contrary the evidence as adduced points strongly in favour of the
probability, taking into account
the criminal and unlawful activities this
unlawful group was prepared to go into, that in fact it was not surprising
and to be expected, firearms were taken in that boat that night. That
completes the requirements needed to be fulfilled before
a joint offender
can be held in law to be as guilty as the others of the possession of
firearms. I am satisfied beyond
reasonable doubt this Accused is as much
guilty of the possession of firearms as the others he had sought to
implicate
in his evidence as being solely responsible for bringing the
rifles into the boat. I had pointed out I find him to be a willing
participant, voluntarily joining the group and actively participating in
their criminal activities from beginning to
end. Before he went with Sangu
and party that night to steal the Ski Boat from Tambea Beach Resort he was
already a member
of GRA. And it was as a member and leader of one of the
groups of that unlawful society, he accompanied Sangu and party that
night.
The alternative argument is that he aided and abetted Sted Sangu and party in the
commission of said offences. In my respectful
view, again I find his actions
and conduct to be consistent with that of a person who aids and abets the
commission of
said offences. He was involved in their unlawful plans from
the beginning and actively participated in the carrying out of
their plans
that night. He was a party to those who robbed Tambea Beach Resort of the
Ski Boat. He also accompanied Sangu
and party in the boat and was in a
position to assist Sangu and party when the firearms were taken
possession of, whether it was at Tambea or outside
Tamale
Village. It should be obvious to any one that one of the reasons why he
accompanied Sangu and party, or was asked to
accompany them that night must
obviously be so that he could give assistance to them in the carrying
out of their unlawful purpose. His presence in the boat therefore was not by
accident or coincidence,
but because he was there to give a helping hand
when needed; that is very clear in evidence. I am satisfied the evidence
before this Court is more than sufficient to establish that he was also a
principal offender by virtue of section 21 of
the Penal Code.
I fin guilty of both offences of possession of firearms and ammu ammunition
and convict him accordingly of both offences.
>
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