Regina v Malaketa [2003] SBHC 81; HC-CRC 082 of 2003 (4 December 2003)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case Number 82 of 2003

REGINA

V.

WILLIAM MALAKETA, CLEMENT SISIFIU,
PETER DAEFA AND REDLEY CLEMENT SISIFIU

HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)

Date of Hearing: 10^th – 14^th November, 17^th – 19^th November 2003
Date of Judgement: 4^th December 2003

F. Mwanesalua (Director of Public Prosecutions) for the Crown
D. Tigulu for the first Defendant
K. Averre (Public Solicitor) for the second and fourth Defendants
M. Ipo for the second Defendant

PALMER J.: The four accused, William Malaketa (“D1”), Clement Sisifiu (“D2”), Peter Daefa (“D3”), and Redley Clement Sisifiu (“D4”) have been jointly charged with the offence of murder contrary to section 200 of the Penal Code, that on the 1^st day of January 2003 at Sun Valley, East Honiara they murdered Richard Ramo (“the Deceased”).

The offence of murder is defined as follows:

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

The offence of murder requires the proof of a specific intent, that of malice aforethought. Prosecution must prove beyond reasonable doubt that each of the accuseds had the necessary intent (malice aforethought) to commit murder. If Prosecution fails then they must be acquitted.

Malice aforethought is defined in section 202 as:

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

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

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

Prosecution is required to prove beyond reasonable doubt:

(a) that the accuseds intended to kill (cause death) or intended really serious harm (grievous bodily harm); or

(b) that they felt (knew) that death was a probable result or knew that grievous bodily harm will likely result.

The case for Prosecution

Prosecution’s case is that when the accuseds went to the house of Rilen Sesi (“PW1”) it was with the clear intention to kill the Deceased nothing more, nothing less. This intention was vividly depicted in their manner of approach, their conduct, the words uttered, that they were armed and that they did not listen to any pleas either from the Deceased or from others around at that time especially PW1 to have the matter sorted out peacefully or to allow any compensation to be paid. Instead they attacked the Deceased and killed him by stabbing him with a knife.

The case for the Defence

D1’s defence essentially is that he did not have the intent to kill the Deceased. What happened was an unfortunate turn of events which had arisen on the spur of the moment. They had gone to demand compensation initially but that when the Deceased denied the swearing, an argument instead ensued resulting in a fight in which the Deceased was unfortunately fatally stabbed. Blame appears to have been laid on the Deceased for refusing to pay compensation there and then.

D2 and D3 deny any direct involvement in the fatal stabbing of the Deceased and the immediate events leading to it. They seek to isolate the actions of D1 in particular the act of stabbing as his own independent act and that they had no or little connection to it. They had gone primarily to demand or ask compensation from the Deceased but that when he denied the swearing and refused to pay compensation, what was a peaceful request initially turned out into an argument in which D1 personally took matters into his own hands and attacked the Deceased. They did not anticipate his actions, did not know and did not agree with what he did. It was an unfortunate incident, which had gone out of hand unfortunately through the actions of D1.

D4’s defence is quite distinct from the others; he denies he was even at the scene of the crime at that crucial time. He says he was at his house with his family at the time of the incident. He relies on two alibi witnesses and the evidence of the other three accused in support of his defence.

Facts not in dispute

I find the following facts as not in dispute. That in the early hours of 1^st January 2003 at around 5.30 am the Deceased had gone to the house of D4 and uttered some swearing or abusive words which had caused offence to D4. As a result of that, D4 went to the house of PW1 at around 6.00 – 6.30 am where the Deceased resided and demanded compensation to be paid for that swearing before or by twelve noon that day.

Before the 12 noon deadline was reached however, a group of men led by D2 arrived at PW1’s residence at around 9.00 - 9.30 am. These included D1 and D3. There were others present, those identified included Paul Goreta and Abraham Fa’alu but were not directly implicated as being with the group of men led by D2.

They had come for the compensation which D4 had earlier demanded to be paid by 12.00 noon. The Deceased was sleeping in his shed not far from PW1’ s residence (he had been drinking during the night and gone to sleep on his arrival at his shed). He was woken up from sleep, some sort of confrontation occurred at which he was attacked by D1 with a knife. That first knife attack was deliberately aimed at the Deceased but missed and struck D2 on his left thigh and injured him. This first attack occurred at a spot marked “1” in photograph “B” which formed part of the Album of Photographs submitted as “Exhibit 2”. There was some movement to a spot marked “2” in photo “D” where the second and fatal attack occurred which resulted in the fatal stabbing of the Deceased by D1. The Deceased died shortly thereafter from that injury.

Findings on disputed facts

1. What was said by D4 when he arrived at the residence of PW1 between 6.15 – 6.30 am to demand compensation as recounted by prosecution witnesses PW1, Brian Aluga (“PW2”) and Leden Aluta (“PW3”), differs from what D4 says he went and told them. D4 says in his evidence under oath that he went peacefully, spoke calmly and told them to have something or pay something for the swearing which the Deceased had uttered against them, that if he did not hear anything from them by 12 noon he will check again.

I have considered carefully what was said by the witnesses and prefer the version of PW1, PW2 and PW3 as being more credible in regards to what was said at that encounter. Their evidence has been consistent throughout, that if the Deceased did not pay anything by 12 noon something different was bound to happen.

2. At around 9.00 – 9.30 am a group of men arrived at the residence of PW1 led by D2. Prosecution’s version was that these four accused arrived together at the scene of the crime led by D2, that they were armed with knives and were aggressive from the outset. Defence version on the other hand was that D1and D3 accompanied D2 to the scene but that they did not follow him all the way to the scene of the crime. They stood some 20 metres or so away from PW1’s house whilst D2 went on to talk with the Deceased. They denied being aggressive, unreasonable or armed and that D4 was not with them at that time.

D1’s version was that he only joined D2 under the house at spot “1” (photo “B”) when he heard the Deceased denying the swearing and refusing to pay compensation. When asked in cross examination by Mr. Mwanesalua if he could hear what was being said from where he was standing (some 20 metres away) he said that he did not hear what was said. And yet when later asked how he could have heard what was said under the house if he was about 20 metres away he contradicted himself and said that he could hear what they were saying.

All witnesses described the events which took place that day as happening very quickly. I accept Prosecution witnesses’ evidence that D1 was not some 20 metres away but quite close behind D2. Their evidence during examination in chief and cross examination on this matter has been consistent throughout. It was obvious either the prosecution witnesses were lying about the arrival of D1 or that he was the one who had lied under oath about his movements. I prefer the evidence of the prosecution witnesses in this matter as being more credible and to be relied on. They had no reason to lie about what had happened, their description of the participation of D1 was consistent with the whole tenor of their evidence.

D1’s evidence that he stood from a distance initially was an attempt to soften or lessen his direct involvement in the argument and attack which occurred on the Deceased. I do not accept his evidence that he stood at a distance before coming closer to the scene of the crime later. Both defence witnesses Paul Goreta (“PG”) and Abraham Fa’alu (“AF”) clearly identified him as being part of the group that went right up to the house of PW1.

3. D3 also sought to portray in his evidence that he did not take any active part in the incident which occurred that day, that when they arrived he was with D1 standing at a distance from PW1’s house and that D1 later moved closer to spot “1” and got entangled up in argument with the Deceased. He remained behind.

Unfortunately the evidence adduced and which I accept does not support his version regarding his level of participation. Defence witness PG during cross examination by Mr. Mwanesalua conceded that he saw them all standing together close to the Deceased during the confrontation. He re-affirmed this view when asked in re-examination by Mr. Averre. Defence witness AF also during cross examination by Mr. Mwanesalua confirmed that D3 was with the others during the confrontation with the Deceased. It is interesting to note that this witness (“AF”) also said that he was standing at a distance from the house but did not mention at any time seeing D3 at any other spot other than right close with the others under the house of PW1! AF reiterated during cross examination by Mr. Ipo that he saw D3 with the others when they were arguing with the Deceased.

Prosecution witnesses’ evidence on his involvement was also quite clear and specific, that he was together with them on arrival and throughout. I am satisfied the evidence adduced directly implicated and placed him right at the scene of the crime with the others. I do not accept his evidence that he stood at a distance throughout and was not involved in what transpired.

4. Were they armed? Prosecution witnesses say the accuseds were armed with bush knives, small knives and an axe which had been wielded together with a piece of iron. D1 in his evidence denies carrying any weapon to the scene of the crime. He stated in his evidence under oath that the knife he used to stab the Deceased with was found at the scene of the crime. His “caution statement” made to the Police on 20^th February 2003 however contains an inconsistent statement to the effect that the knife used in the stabbing belonged to him. It is significant also that during cross examination of the prosecution witnesses it was never put to them that the knife used was found at the crime scene. It was only mentioned for the first time in his (D1’s) evidence. These in my respectful view must be construed against his credibility. I do not accept his version that he did not come with the knife and that he found it only at the crime scene.

5. D2 and D3 denied being armed. The prosecution witnesses however say they were armed. AF when cross examined by Mr. Ipo initially did say that D3 was armed, when pressed further he recanted and said he did not know. I do not believe the accuseds when they said that they were not armed. I accept the evidence of prosecution witnesses that they saw these accused armed with knives, whether bush knives or small knives when they went to PW1’s house. I find no reason to doubt what they had testified on this matter. They were obviously scared by the whole incident and found themselves powerless to assist the Deceased in the midst of persons that were armed.

6. Did D2 block the knife attack by D1 which resulted in the injury caused to his left thigh? D2 says that he stood between the Deceased and D1 when the knife attack was made by D1 and attempted to block that attack. He denies holding the Deceased as alleged by prosecution witnesses. Unfortunately the prosecution witnesses were never given opportunity to explain or contradict the evidence by D2 that he blocked the knife attack. This should have been put during cross examination to the prosecution witnesses. Was this an oversight or was this piece of evidence given for the first time in court by D2? It doesn’t assist his case that this matter was never put in cross examination by his Counsel to prosecution witnesses to rebut or explain.

It is also pertinent to note that when D1 was giving his evidence in chief on this matter, there was no mention of any act by D2 that he tried to block his knife attack. During cross examination by Mr. Mwanesalua as well on this knife attack, there was opportunity for D1 to confirm whether what caused him to miss was because he was blocked by D2. Unfortunately there was no such mention or if there was, it was never made clear that that was what happened. Was this an oversight or is it because that version didn’t really happen.

In his cross examination of D2 Mr. Mwanesalua tried to point out that was almost impracticable that such a wound could have been effected on him if he had attempted to block the knife attack in the manner described by him. His explanation on the matter does not sound convincing and I do not believe his evidence on this matter. I do not believe D2 that he attempted to push the Deceased away and blocked D1. If that was the case, then it was most unlikely he could have been stabbed on his left thigh.

Again I prefer the evidence of prosecution witnesses on this matter as more credible and to be relied on, that the Deceased was held by D2 when he was attacked by D1 and that the knife attack meant for the Deceased struck D2 instead on his thighs. I do note that their description as to which thigh of D2 was struck was wrong, but I am not satisfied that this discrepancy is sufficient to impugn their credibility on their evidence as a whole. I accept they were mistaken about where the knife landed. PW3 did say that he was confused about where exactly the knife had landed because he also saw blood on the left thigh of D2.

7. The part played by D1. In his evidence in chief, D1 says that after he had slapped the Deceased, the Deceased held one bucket and tried to hit him with it. The Deceased then held two stones and threw them at him but he avoided these. The Deceased then saw him with a knife in his hands and told him to hit him with it. During cross examination by Mr. Mwanesalua however, he changed his version so that his first attack occurred after he had been attacked by the Deceased with a bucket. During further cross examination he changed his version further to say that the Deceased attempted to strike him with a bucket after the first knife attack. And later still he changed another part of his version to say that the Deceased threw two stones at him after the Deceased had been fatally stabbed (that is stabbed for the second time).

Respectfully if a witness changes his version so many times as has happened in this particular instance when it would have been but a simple matter for him to remember, it must manifest uncertainty on his part and must go against his credibility.

The prosecution witnesses on the other hand said that after the Deceased managed to escape from D1, D2 and D3 he ran behind the house to a spot marked “2” in photo “D” where he was further cornered by them and fatally stabbed by D1.

I note, on the issue of credibility, that the version of D1 was never put in cross examination by his Counsel or any of Defence Counsels to prosecution witnesses to contradict or explain. Was this again an oversight or was his version of being whipped by the Deceased with a bucket and shot with stones being raised for the first time in court. Again such oversight or omission does not assist his level of credibility and his case as a whole.

This accused also gave evidence under oath that the knife used was found at the scene of the crime. Its’ exact location, where at the bottom of that house it was picked up and description were never spelled out. What sort of knife was it, a bush knife or a small knife, these were never led in evidence by this accused to support his contention that the knife was only picked up under that house. The evidence on this has been quite vague and consistent with that of a person who had something to hide about the description or identity of the knife. If it had been picked up at the scene of the crime, the knife used would have been easily identified by PW1, PW2 and PW3. They were never given opportunity to contradict or explain the evidence of D1 on this matter. Was it an oversight or was it now being raised again for the first time in court? Again this must go against the credibility of this accused on this matter.

Further still, in his caution statement of 20^th February 2003 (“Exhibit 4”) it contained clear inconsistent statements to the effect that the knife belonged to him and that the knife was a small bayonet type knife. This inconsistency in my respectful view is significant and must be construed against his credibility. No opportunity was given to him to explain this contradiction either. I reject his version that he was unarmed when he arrived and that he only picked up the murder weapon at the scene of the crime. I prefer the prosecution witnesses account of what happened as being more credible than his version.

8. The part played by D2. D2 seeks to present minimal involvement throughout, that of a mediator in custom and especially after he had been accidentally stabbed by his own brother D1. This accused seeks to portray that throughout the whole incident he remained at the first spot marked “1” under the house and hardly moved anywhere else, especially as he was bleeding quite heavily from his injury and because it was quite sore. This accused told the court that he was able to see everything that transpired including the fatal stabbing. When it was put to him during cross examination by Mr. Mwanesalua that it would have been quite impossible for him to witness the stabbing if he remained in the same spot, he insisted that he did not move away from that spot. Eventually when cornered about it, he did say that he moved out a bit and watched them. I note his version again was never put to prosecution witnesses to rebut or explain. From his own words in evidence he also contradicted himself. He could not have witnessed what transpired after the initial stabbing attempt unless he had either followed D1 and chased the Deceased as described by the prosecution witnesses or he had moved out a fair way to be able to see what was happening. He has exposed himself to be an unreliable witness, his credibility tarnished by his own evidence. It is quite interesting to note that when asked about where he stood or to mark his position in the photographs, he was quite evasive. Initially he said he could not understand the photo then says he was unfamiliar with the house then says his eye sight was not good. I do not believe his version of events; I prefer the evidence of prosecution witnesses as being more credible.

9. The part played by D3. I have partly dealt with the involvement of D3 in paragraph 3 above. D3 had also sought to minimise his involvement to that of a bystander on the sides. The evidence against his involvement in the altercation however is overwhelming. He has been placed in the thick of the confrontation and participated in blocking the Deceased. I prefer the prosecution witnesses’ evidence on his involvement as more credible. I reject his assertions that he was only a bystander on the side.

Discrepancies in evidence of prosecution witnesses

PW1 and PW2 made references to the Deceased being punched. D1 however says that he slapped the Deceased. The Doctor who carried out a post mortem on the body of the Deceased did not record any trauma or bruises in the face of the Deceased consistent with any punch. It appears that what these two witnesses perceived to be a punch was a slap on the face of the Deceased. The discrepancy however has a satisfactory explanation and in not sufficient to impugn their credibility.

Defence also referred to a discrepancy in the evidence of PW2 and a prior statement made to Police regarding his description of the movements of D3 which were slightly different. In his statement under caution obtained on 27^th February 2003 PW2 stated that those responsible for blocking the Deceased were D4, PG and AF. D3 participated in chasing the Deceased together with D1 and D2. In his evidence on oath before this court however he said it was D3 and D4 who had blocked the Deceased when he attempted to escape from D1 and D2.

I have considered this submission carefully but unfortunately unable to accept that this impeaches the credibility of PW2. I accept there is an inconsistency in the prior statement made by PW2, however, whichever way his evidence is viewed, D3 has been linked directly to the events that happened under PW1’s residence.

The defence of Alibi raised by D4.

I have purposely left D4’s defence separate from the others as his case raises a direct contradiction to the evidence of prosecution witnesses. All relevant prosecution witnesses testified of personally seeing D4 together with the other three at the scene of the crime armed and just as aggressive as the others. When grilled under cross examination by Defence Counsels those witnesses remained firm and adamant. The three accused on the other hand together with the alibi witnesses all have insisted that D4 was not present at the scene of the crime. Either D4 and the other defendants and the alibi witnesses have lied on their oaths and perjured themselves or the prosecution witnesses may have lied on their oaths to implicate this accused, if not they have been genuinely mistaken that he was present with the others.

Notice of an alibi had been given in ample time to prosecution as required by the rules. It is for prosecution to negative the alibi evidence adduced by D4 in his defence for a conviction to be successful (see Killick v. The Queen [1981] HCA 63; (1981) 147 CLR 565; 37 ALR 407 Gibbs CJ, Murphy and Aickin JJ at 569-570). Prosecution has not called any other witnesses in rebuttal. They have relied solely on the evidence of prosecution witnesses and the credibility assessments that this court may make whether he was present at the crime scene or not.

The Defence evidence on the alibi put up by D4 has been virtually unchallenged that after D4 had returned from PW1’s residence he sent his brother D3 to go to Burns Creek and inform his father D2 about the swearing of the Deceased and to help sort out the matter.

There was suggestion from PW1 that when D4 left her residence she saw him heading towards Burns Creek straightaway. This was unsupported by PW2 who says that he saw D4 heading back in the direction of his home which lies in the opposite direction to Burns Creek. Later in cross examination PW1 conceded that D4 went back to his home from her residence, but that she saw him walking towards Burns Creek later. Could she have mistaken D3 for D4? With respect, that is not an unlikely possibility.

Defence case is that when D2, D1 and D3 came from the direction of Burns Creek, they did not go to see D4 whose house is located about another 300 metres or so away. Instead they came straight to PW1’s residence. D4 therefore could not have been with them.

It is interesting to note though that in his evidence D4 stated that he was informed of the incident at PW1’s residence by PG and AF. In his (PG’s) evidence before this court however, there was no suggestion by PG that when he left PW1’s residence, he first called in at D4’s house before going back to Burn’s Creek. Instead he stated quite emphatically that when he left he went straight back to Burns Creek. There was no suggestion that he went first to D4’s house before going back to Burns Creek. Only AF stated that they went first to see D4 before going back to Burns Creek.

In terms of the credibility of events and what most likely happened that day, it seems that the version given by D4 stands out as the more likely version of the two. His description of the events that occurred is quite logical and to that extent credible. His evidence has been quite consistent throughout. When the Deceased arrived at his place in the early hours of the morning and abused them, he could have attacked the Deceased there and then but he did not. Instead he chose to do it peacefully it seems and went to PW1’s residence later to request or demand compensation to be paid by 12 noon. His evidence is quite consistent with the events which occurred that day though the inherent possibility exists that he and all other defence witnesses who have spoken in support of his defence might have lied under their oaths, a very serious matter. What happened in the intervening period from about 9.00 – 9.30 am appears to be the work of the other three accused on their own initiative. Whether they knew about the demand already made by D4 or not, it appears that his advice for them to go to his house first to see him was not heeded. Those three accused instead opting to do it their own way.

The alibi evidence adduced in support of D4 with due respects have not been sufficiently impeached by the prosecution. Joseph Switi and Loveline Mamuri gave consistent evidence throughout that D4 was with them at the crucial time. Loveline Mamuri in particular had been singled out by Mr. Mwanesalua as a reliable and trustworthy witness who had come to court and sought to discharge her duty faithfully. If so then her evidence that her husband was with her throughout must also be given equal significance and emphasis. In spite therefore of the direct eye witness account of the prosecution witnesses that D4 may have been directly implicated in the events at PW1’s residence, I cannot be satisfied so that I am sure that this accused was there. His alibi evidence had not been sufficiently negatived so that I have the opportunity to consider any involvement in the matters connected with the death of the Deceased. A doubt exists sufficient to impugn the prosecution case that he was also present at the scene of the crime.

The Law, Submissions and Application to the facts.

All four accuseds have been charged with the offence of murder. Prosecution therefore is required to prove beyond reasonable doubt that each of the accused intended to kill (cause death) or felt (knew) that death was a probable result, or that they intended really serious harm (grievous bodily harm) or knew it was a likely result.

D1. The defence raised in the submissions made on behalf of D1 by Mr. Tigulu, Counsel for the accused focused primarily on part (i) of the definition of malice aforethought; that is the absence of any intention to kill or that he intended to cause grievous bodily harm. Learned Counsel sought to portray that D1 was not present when the swearing took place that he only accompanied D2 and D3 through his blood ties with them, and that he only participated when he observed that the Deceased had denied any swearing and refused to pay any compensation.

Unfortunately the evidence adduced and accepted by this court showed otherwise. Intention can be manifested through ones behaviour, conduct and actions or words. In the evidence sought to be adduced before this court it was sought to be highlighted that the attack on the Deceased occurred as a result of his denial of the swearing and refusal to pay compensation. It was also sought to be portrayed that there was no attempt by anyone to offer to pay compensation to them. Unfortunately, the evidence adduced does not support this contention. In her evidence, which was unchallenged, PW1 said that she had a “red money” (“tafuliae”) to give at the relevant time but that no opportunity was given to her to produce or give the custom money for compensation on behalf of his brother. She also testified that even when she called out and cried out to them not to attack her brother that she was willing to give compensation for what he had said they did not listen to her pleas. Her evidence is supported by PW2, PW3 and more importantly by Defence witnesses PG and AF. In his evidence PG confirms that PW1 told him that she had red money to give as compensation. He says he told the accuseds that red money for compensation was available but that they did not listen. Instead they continued to argue with the Deceased. He also confirmed that PW1 did tell them that red money was available but that they refused to listen. He also pointed out that they were quite drunk and so did not listen.

AF also confirms in his evidence that he heard PW1 telling the accuseds not to fight the Deceased but to have the matter sorted out peacefully. He says they did not listen because they were also too drunk.

I do not accept the Defence submission that there was no attempt or offer to have the dispute settled peacefully by anyone at PW1’s residence.

Further, the fact that the Deceased denied the swearing and as a result thereby refused to pay any compensation does not justify the attack on him by the accuseds, in particular D1. The Deceased had every right to deny and to dispute any allegations raised against him and to have the matter or dispute properly and amicably settled either in custom, with the assistance of the Police or before the courts. It is not wrong to demand/ask compensation to be paid for an alleged swearing, in custom. It is wrong to demand compensation to be paid with menaces or by force, threats of harm or injury to the life, liberty or property of another person. The law forbids that, section 295 of the Penal Code.

I am satisfied on the evidence before me that this accused intended to kill the Deceased, if not, to cause grievous bodily harm. When he missed at the first attempt, he did not stop but pursued the Deceased until he was cornered and attacked him again inflicting the fatal stab wound against the Deceased, thus fulfilling what he had set out to do. Even when the Deceased and others in particular PW1 pleaded with him to sort the matter out peacefully and that she was prepared to give red money for the alleged swearing, he did not listen.

But even, if intention somehow could be negatived, I am still not satisfied that he could not have failed to realize that the act of stabbing with a knife will most likely cause the death of or grievous bodily harm to the Deceased.

D2 and D3.

D2 and D3 have been jointly with murder pursuant to section 21 of the Penal Code (cap. 26).

“21. When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say –

(a) every person who actually does the act or makes the omission which constitutes the offence;

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c) every person who aids or abets another person in committing the offence;

(d) any person who counsels or procures any other person to commit the offence;”

In order for a successful conviction to be entered against D2 and D3 it has to be shown that they too had the necessary mens rea to kill or to cause grievous bodily harm to the Deceased. It is not enough to show that they aided or abetted D1 to commit the offence without also demonstrating that they too had the same intention as he had to kill or to cause grievous bodily harm to the Deceased.

I have carefully considered the evidence adduced against these two accused regarding the events which occurred that day. The evidence adduced did show that when they came to see the Deceased, it was in relation to the swearing alleged to have been made at D4’s residence earlier on in the morning that day. Note D3 was also present at that incident and so was a direct witness to that alleged swearing. In their evidence, it was sought to be portrayed that they had come peacefully to settle the offence in custom by demanding that compensation be paid. Whilst their intentions initially might have been to demand compensation to be paid for the swearing done by the Deceased, unfortunately, what transpired on the ground at the scene itself turned out otherwise, than to be any serious attempts at a peaceful settlement, as contained in the evidence adduced and accepted by this court. Had they come with any serious desire and intentions to settle peacefully, they would not have come armed, they would not have come in a group, they would not have come in an aggressive manner and they would not have insisted that the Deceased be woken up. They could as easily have discussed the matter with PW1, PW2 and PW3, told them about their grievances and demands and returned to D4’s residence quietly and peacefully. They did not. Instead they insisted that the Deceased be woken up. When the Deceased appeared and tried to explain or reason with them, they refused, they were being unreasonable and started arguing with him immediately resulting in a confrontation in which D2 and D3 held onto him. Such actions are inconsistent with that of persons who had come with sincere or genuine attempts to settle or discuss matters peacefully.

On the other hand, when they held onto the Deceased during the confrontation, did they have the necessary intent to kill or intended really serious harm to be caused to the Deceased at that particular point of time? It is my respectful view that their actions in holding onto the Deceased during the confrontation at that particular time does not necessarily infer that they did so with the intention to kill or cause grievous bodily harm. I reach this conclusion on the basis that although there was evidence that both were armed with knives at that time yet they chose not to use their knives on the Deceased or to join in the attack against him. They had opportunity to do so, instead of holding onto the Deceased around his waist, D2 could easily have stabbed him with his knife. Instead he merely held the Deceased around the waist with his knife in his hands; a very unusual posture for a man intent on killing or causing grievous harm to the Deceased. The same can also be said of D3. If he had intent to kill or intended really serious harm at that point of time, he could just as easily have stabbed the Deceased like D1, instead of holding onto his arms. He did not.

However, things changed rapidly or immediately after the knife attack on the Deceased by D1. When the Deceased managed to escape from their clutches and from the first attempt of D1 to stab him, D2 joined to chase him, whilst D3 participated in blocking his path of escape in the opposite direction. The question must be asked did they have the intention at that particular point of time, to kill or cause grievous bodily harm to the Deceased. Although their actions in chasing after him and blocking his path of escape may have contributed to and assisted or enabled D1 to kill the Deceased by stabbing him, Prosecution nevertheless still has to prove beyond reasonable doubt that they had the intention to kill or intended really serious harm to be caused. Just as it has to be proven beyond reasonable doubt that D1 had the requisite mens rea when he stabbed the Deceased, it also has to be proven to the required standard that these two accused had the requisite mens rea when they chased and blocked the Deceased. Intention can be shown by words or actions or conduct. In his unchallenged evidence in cross examination PW2 said that he heard the accuseds say “killem hem”. Such words uttered by the accuseds are consistent with an intention to kill. If D2 and D3 did not have intention to kill or cause grievous bodily harm why did they give chase? Why did they assist D1 by blocking the escape route of the Deceased? The evidence is clear that if he had not been chased and he had not been blocked, he would have made good his escape in particular from D1. Could they have acted in the way they did without forming any intention to kill or cause grievous bodily harm? They saw D1 stabbing the Deceased. Surely they must have known by then that D1 had intent to kill, if not intent to cause the Deceased grievous bodily harm. At that point of time they had a choice, to either let or assist the Deceased to escape or take part in what D1 wanted to do. Surely if they had no intention to kill or cause grievous bodily harm, if they had indeed come only with intent to settle the swearing in custom, they would either have made genuine attempts to stop D1 from carrying out his intention to stab the Deceased or they would have refused to participate in chasing after and blocking the Deceased. Their subsequent actions in my respectful view reflected their inner thoughts and mind as at that point of time. When they saw D1 attacking the Deceased with the knife, they got carried away with what he was doing and actively joined in by giving chase and helping to corner the Deceased so that there was no route of escape for him. It is my respectful view that they could not have done what they did without forming the requisite intention as well. They might have come to ask for compensation, but they were not prepared to negotiate, reason or argue with anyone about whether any swearing did take place or not, they came with a predetermined goal, or mindset. When that was not achieved, they set upon the Deceased and killed him. The fatal blow was struck by D1 but clearly D2 and D3 assisted and enabled him to deal that fatal blow by their actions knowing full well what was intended to be achieved in the circumstances. There subsequent active participation manifested their intentions.

But even if that might not be so, it is my respectful view that they could not have failed to realize that their actions would probably cause the death of or grievous bodily harm to the Deceased. The evidence is quite clear. The totality of the evidence and the circumstances which occurred that day, need to be taken into account in their proper context. They saw D1 attacking the Deceased and therefore must have known at that point of time, that he had the intention to kill or cause grievous bodily harm. To exculpate themselves from his intentions and actions, they should have taken appropriate evasive action. They should not have given chase; they should not have blocked the path of escape of the Deceased. They did not do that, instead they took active part with D1. In so doing it is my respectful view that they could not have failed to realize that such actions would clearly assist, aid or enable D1 to kill or inflict grievous bodily harm on the Deceased.

DECISION

D1, D2 and D3 are found guilty of the offence of murder and convicted accordingly.

I find D4 not guilty of murder and acquitted forthwith.

THE COURT.