Regina v Paul [1999] SBHC 48; HC-CC 027 of 1997 (7 May 1999)

HIGH COURT OF SOLOMON ISLANDS<

Civil Case No.27 of 1997

REGINA

v

ALWIN PAUL & PYE ROBERTS

p class="MsoNormal" style="yle="margin-top: 1; margin-bottom: 1"> Hight of Solomon Islands

Before: Muria, CJ.

Criminal Case No. 27 of 1997

Hearing: 15-19 February 6-9 29 April, 4-6 May 1999

Judgement: 7^th May 1999

Manesalua for Crown

A. Radclyffe for the 1^st Accused

P. Lavery for the 2^nd Accused

MURIA, CJ: These two accused, Aed, Alwyn Paul and Pye Roberts have been charged with the crime of murder. It is alleged that on or about 19 October 1994, the two accused killed the deceased, Eddie Reuben at or around the CDC area, at North Guadalcanal. Both accused pleaded Not Guilty to the charge

Case for the Prosecution

class=lass="MsoNormal" style="margin-top: 1; margin-bottom: 1"> The case for the prosecution in that at about 11.00 pm on 19^th October 1994, the deceased went into the Honiara Gaming Club, later known as the Honiara Casino. For the purpose of this judgment I shall refer to it as “the Casino”. The deceased went into the Casino and was playing Black Jack. Between 11.00 pm - 12.00 midnight, one of the accused, Pye Roberts, went into the Casino and took the deceased out. The two accused then took the deceased in their vehicle (Alwyn Paul’s car) all the way to CDC where they killed him. They then brought the deceased’s body back from CDC that night and dumped it on the main road at Ranadi, opposite the Telekom Building, and faking a road accident, making it appeared that they collided with the deceased while crossing the road. The accused deliberately caused damages to the car’s bonnet, windscreen, front bumper and roof of the car to make it appeared that these damages were caused at the time of the accidental collision with the deceased. The accused, at least one of them, Pye Roberts, was the last person to be with deceased alive. The next thing happened was that the deceased was found dead on the road at Ranadi in the early part of the morning of 20^th October 1994.

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The Defence Case

The case for the accused is that on the 19^th October 1994, they were at Yacht Club in the evening. It was a Members’ Draw evening at the Club and so they went to attend that together with other member friends. They left the Club after midnight, after an earthquake which occurred that night. The two accused together with, Audrey Rusa (DW3), Arthur Poloso (DW4) and Eddie Ngava (DW6) left the Yacht Club. They dropped off Rusa at the Casino and proceeded on to drop Poloso at Mbua Valley. From there they proceeded to Henderson where they dropped off Ngava. The accused then returned to town and at Ranadi, they had an accident in which they collided with the deceased who was drunk and staggering across the main road. As a result of the accident the car was badly damaged as described in court. In fear and panic they drove all the way to Alwyn Paul’s house, left the car there and walked to Super Club to look for Sergeant Liva whom they knew well to report the matter to him. They could not find him there; so they took a taxi to Solomon Islands Tourist Authority Office, where accused Pye Roberts worked, and rang the Casino for Sergeant Liva. They got in touch with Sergeant Liva to whom they reported what happened. In the morning, the accused and the deceased’s relatives in the presence of the police, met at the police station regarding what they did to the deceased.

The evidencan>

class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> The prosecution called eight (8) witnesses and the defence called six (6) witnesses, including one of the accused, Pye Roberts. The other accused, Alwyn Paul, did not give evidence but called witnesses. The alleged incident occurred about five years ago but nevertheless those who gave evidence did their best to recall what they said did happen at the time.

In so far as the prosecution is concerned, Heralyn Pita (PW1) was a crucial witness. She was the person who said that she saw the deceased and the accused, Pye Roberts, together. She said she saw Pye Roberts took the deceased out from the Casino between 11.00 pm and 12.00 midnight. As far as the prosecution case goes, PW1 was the last person to have seen the deceased alive when he left the Casino with the accused, Pye Roberts. The next thing she learned was that the deceased was found dead on the road at Ranadi. The conclusion which the prosecution seeks to draw from this, is that the deceased died at the hands of the accused. As the accused were the only last persons to be with the deceased, they must be responsible for his death, so the prosecution case goes.

However, upon PW1’sy the prosecution could not have built a case for murder. That is when we come to o Emily Hapa’s (PW2) evidence. It was the evidence of PW2 upon which the case for murder was brought against the accused. The evidence of PW2 was that the accused, Pye Roberts, confessed to her of his involvement with Alwyn Paul in the killing of the deceased at CDC. It was PW2’s evidence that she and Pye Roberts were close intimate friends and that he confided to her his story about the death of the deceased which story was said to be troubling him. The veracity of PW2’s claim on the intimate relationship between herself and the accused, Pye Roberts, depends on who the court believes, as the accused denied such relationship. I do not place much weight on this aspect of the evidence since whoever the court believes matters very little. But if it matters and the court has to choose believing PW2 or the accused on this aspect of the evidence, I would prefer that of the accused. But even if I accept that there was a close relationship between her and the accused, it would still surprise the court that having formed such a close friendship, for along time, PW2 did not even know who the accused’s wife was and whether he has children or not.

Be that as it may, I feel PW2’s evidence plays an iant part in the prosecution case. It forms the basis of the theory advanced by the prosecution that the deceased was last seen alive with the accused at the Casino and then taken by the accused to CDC, killed him there, brought the body back and dumped it on the road at Ranadi, faking an accident. That is the prosecution case which they must prove beyond a reasonable doubt. The problem with this theory is that, apart from the story retold by PW2, there is simply no evidence to support it.

There are also two reasons why the said theory constructed from the PW2 story would not stand up. Firstly, there is the uncontroverted evidence of defence witness, Wilson Kanapala (DW1) who was the last person to see the deceased alive after midnight, close to the scene where he was found dead on 19^th October 1994. That night, Kanapala took his driver back to Mbua Valley. With him in the car was his driver, his wife and son. He dropped his son first at Daido and then proceeded to drop off his driver at Mbua Valley. From there he and his wife went to the Hospital. By then it was already midnight. On the way, back from Hospital, opposite the Telekom building at Ranadi, he saw a man drunk, wearing long pant, half-wearing his shirt, holding something in his hands and was walking zigzagging eastward on the edge of the road. This was sometime between 1.00 am and 1.30 am. About fifteen minutes after he and his wife arrived back at the house, Kanapala was called again to pick up one Stanley Karoa at the Hospital. He drove from his house at KG VI to the Hospital. He did not see anybody on the road at that time. Having picked Stanley up and on their way back to the house, he saw in front of him lying on the road at Ranadi, the deceased. He did not stop but turned and drove to OBA Store where he contacted the police who came and took the body to the Hospital. The prosecution witness, police officer David Waura (PW4) confirmed this when he said in cross examination that someone who came across the body on the road reported it to the police. Kanapala identified the body as that of a person he saw walking on the side of the road at that place earlier. That person was the deceased.

Kanapala’s evidence clearly s not support the theory that the accused killed the deceaseceased at CDC and dumped the body at Ranadi. It clearly does not support the PW1’s story that the accused took the deceased out from the Casino between 11.00 pm and 12.00 midnight. The second reason why the prosecution theory would not stand up is because the story told by PW2 is not evidence of the truth of what happened in so far as Alwyn Paul is concerned. It was only evidence of the fact that the accused Pye Roberts told the story. The story itself finds no support from the evidence. It certainly is not evidence against the accused Alwyn Paul.

The second theory advanced by the prosecution in this case is based on the damage done to the accused Alwyn Paul’s car. It is the prosecution case that the damage to the car was deliberately done by the accused to make it appear as if the damage was the, result of the accident. In support of that theory, the prosecution relied on the evidence of James Lapoe (PW3) who said that he saw no broken glasses on the road and so was the evidence of PW4. Even Ataban Palusi (PW5) said that he saw no broken glass pieces at the scene. However he later changed his story and confirmed that he saw pieces of broken glasses at the scene. He even mentioned that at the Preliminary Inquiry before the Magistrates Court. There is therefore evidence to support the suggestion that the screen was damaged at the scene. PW 5’s evidence supported that. There is no evidence to support the suggestion that the damage to the car was deliberately done elsewhere. The prosecution theory as to how the damage to the vehicle was done could not stand in this case.

There is no evidence to support the prosecution suggestion that the two accused, together with a woman from Malaita and the deceased travelled to CDC that night. The evidence of the defence witnesses clearly outweighs the prosecution case on this aspect of this case. The defence witnesses gave clear consistent evidence as to the whereabouts of the accused that night and who they were with in the car. They all set out from Yacht Club and the first stop was at the Casino, to drop Rusa at the Casino. Nobody got into the car after dropping off Rusa. They proceeded to Mbua Valley to drop Poloso. They then proceeded to Henderson to drop off Ngava. From Henderson the accused returned to town. There is no evidence to even suggest that the accused travelled to CDC that night.

There has been criticism or suggestion that the defence witnesses have been good friends and therefore they wery were bound to help each other. I feel the same suggestion could easily be made by the defence against the prosecution witnesses in this case, particularly, with regard to PW1 and PW2. The defence witnesses had been subjected to a firm but fair cross examination and so were the prosecution witnesses. At the end of all those cross examination, the defence witnesses had emerged to be consistent and convincing.

As to the medical, evidence, I accept that the injuries found by the doctor, displayed three categories. He grouped them into categories according to the nature of the injuries. But it is significant in my view that the doctor said in evidence in court that all the injuries could have been caused immediately before, at or immediately after the death of the deceased. This is despite, his earlier evidence that injuries in category 2 were not consistent with traffic accident. Likewise there was no evidence to suggest any action on the part of the accused which caused those injuries. In other words to suggest that the injuries in category 2 in the medical report were the result of some unexplained actions on the part of the accused would be theorising those injuries without any evidential support. It is not for the accused to explain how those injuries could be caused. The prosecution bears the burden of doing so throughout the trial. If they failed to do so, they cannot expect the court to fill in the gap left by that failure with any omission on the part of the accused. It is important also to note the conclusion made by the doctor who said that the deceased was most likely hit on the right side of his body by a fast moving object while standing and subsequently fell, hitting the head, falling onto the left side and hitting the ground with it and also with both elbows. This would appear to be more in line with what the accused said had happened in this case.

Most telling about thtor’s additional Report is the fact that specimen of linoleum from the boot floor r and car upholstery were sent overseas for expert testing for blood sign. The tests revealed no sign of blood stains. Again that further destroys the prosecution case based on the theory advanced, that is, the accused took the deceased to CDC, killed him there, put the body in the car, brought it to town and dumped it on the road at Ranadi.

The evidence as to the of the earthquake is important in this case. The defence witness, Alison Kekera Papabatu (DW2) who is a seismologist at the Ministry of Natural Resources, gave evidence confirming that there were two earthquakes that occurred at 11.54 pm, on 19'^h October 1994 and the second one occurred at 01.21 am on 20^th October 1994. Seismographic recordings confirmed the occurrence of the earthquakes and the times at which they occurred. The strength of the tremors were 4 on the Richter Scale and their Epi-centres were below Russell Islands and Southwest Guadalcanal, respectively. He said that the tremors were felt in Honiara. Defence witnesses DW3, DW4, DW5 and DW6, all confirmed that they felt the earthquakes that night. They left the Yacht Club after the earthquakes occurred.

I accept the evi of DW2 and it must follow that I have no reason to doubt the evidence of the d defence witnesses regarding the occurrences of the earthquakes as they felt them. They all left the Yacht Club after the earthquakes occurred and this must undoubtedly be after 12.00 midnight. This evidence does not fit in with the suggestion by the prosecution that the accused took the deceased out from the Casino between 11.00pm and 12 midnight, drove him all the way to CDC, killed him there, drove all the way back to town and dumped the deceased’s body on the road at Ranadi.

Having considere evidence, can I be satisfied beyond reasonable doubt that the accused took the deceased to CDC that night, killed him and then drove back to town and dumped the body on the road at Ranadi and faked an accident resulting in the death of the deceased? In other word is the evidence such that I can be satisfied of the guilt of the accused? The prosecution case here is based on circumstantial evidence. I must therefore look at the whole of the evidence and before I can convict both accused, I must be satisfied that there is no other rational inference to draw from the whole of the evidence but that the accused were guilty (sic). In other words there is no reasonable hypothesis consistent with innocence as pointed out in Sutarake v R, Crim. App. No. 6 of 1994 (29 June 1994). See Also DPP v Togiabae Crim. App: 5 of 1986, (March 30, 1987).

The case for the prosecution, as I have said, is ban the theory that the accused took the deceased to CD CDC on the night of 19^th October 1994, murdered him there and took the body back in their vehicle and dumped the body on the main road at Ranadi, faking that it was an accident in which they collided with the deceased resulting in his death. That is the case which the prosecution have to prove in this case. Unfortunately the evidence before the court simply failed to establish such a case. To accept the prosecution case as put before the Court is to do so without evidence. That would be contrary to the rules pertaining to our criminal justice.

I have viewed the evidence carefully and most anxiously, and having considered all that had been submitted to the court, the only safe conclusion that the court can come to in this case is that the prosecution have failed to satisfy the court that the accused killed the deceased in the circumstances amounting to murder. The court is left with a lingering doubt in this case and the benefit of that doubt must be given to the accused.

I find both accused not guilty of murder and they are acquitted.

p class="Mso="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> Sir Muria

CHIEF JUSTICE