Regina v Oeta [2004] SBHC 42; HC-CRC 173 of 2003 (17 May 2004)

HIGH COURT OF SOLOMON ISLANDS
CRIMINAL CASE NO. 173 OF 2003

REGINA

-V-

RONNY OETA AND ALLEN MAELALIA

HIGH COURT OF SOLOMON ISLANDS
(PALMER C.J.)

RULING: 17^TH MAY 2004

Director of Public Prosecutions (F. Mwanesalua) for the Crown
Public Solicitor (K. Averre) for the First Defendant
D. Evans for the Second Defendant

Palmer CJ: The accuseds, Ronny Oeta (“A1”) and Allen Maelalia (“A2”) (hereinafter referred to together as “the Accuseds”); both police officers in the Royal Solomon Islands Police Force have been charged with the murder of Sir Frederick Soaki, former Commissioner of the Police (hereinafter referred to as “the Deceased”) on 10^th February 2003. The third accused, Edmond Sae (“the Suspect”), also a police officer is still on the run.

The Deceased was shot at point blank range while having dinner with other members of the Delegation on the Demobilisation of Special Constables (“the Delegation”) at Auki Motel. The killer was identified as the Suspect.

Prosecution has closed their case and the Accuseds have submitted a no case to answer.

The brief facts as alleged by Prosecution are as follows. Sometime around 7.30 p.m. to about 8 o’clock in the evening of the 10^th February 2003, a group of men were having some drinks at the Police Barracks at Auki, in the room of one David Olomea. Those present included these two Accuseds and two special constables, Hickson Maelofa (“Hickson”) and Justin Ma’asia (“Justin”). At some point of time, the Suspect arrived and was offered some beers. They then left and went to a spot outside the CID Office and sat down. At some stage the Suspect disclosed his plans to shoot someone from the Delegation. Apart from the Deceased the Suspect had also included Ronald Fugui as his target. He however changed his mind and selected the Deceased as his target. A1 was then asked to go and check for the Delegation at Auki Motel accompanied by Justin. They went to a shop below the Motel and bought some cigarettes. They met a member of the Delegation at the shop and ascertained from him that he lived upstairs. They then returned to the rest of the group and the plan or mission led by the Suspect was launched. They walked behind the Police Barracks, followed the road which went past St. Paul’s Anglican Church Building past the Development Bank of Solomon Islands (“DBSI”) building and stood opposite the Auki Clinic. A1 walked down and stood at a spot near a water tank to check for the Deceased in the Motel. He was followed by A2. Hickson and Justin were told to wait beside the Auki Primary School playing field. They were later met there by A1 and A2 and they all walked down the path between the Auki Lodge and Telekom, across the road past the Auki Hot Bread Kitchen. The Suspect in the meantime went into the Motel and after identifying his victim, shot the Deceased at point blank range, killing him instantly. He escaped and some distance from the Motel he discharged a second shot.

That first shot was heard by the Accuseds, Justin and Hickson as they walked past the Auki Hot Bread Kitchen. They walked around Auki Market and returned back along the main road. The second shot was heard as they went past Solomon Quan Store. They then ran towards the Police Station; two later ran up to the Motel whilst the other two continued on and met up with the Suspect at a spot opposite St. Pauls Church and walked back with him to the Police Station.

The thrust of Prosecution’s case is three fold. First that these Accuseds aided and abetted the Suspect in killing the Deceased under section 21 of the Penal Code (cap. 26) by their constructive presence throughout. Secondly, that the Accuseds by their omission, by failing to arrest or stop the Suspect from committing the offence, aided and abetted the Suspect in the commission of the offence pursuant to section 21 of the Police Act (cap. 110). Thirdly, that there was a common purpose in the commission of the offence under section 22 of the Penal Code.

Defence argues in this submission of no case to answer that there is no evidence of aiding and abetting or of a common intention to prosecute an unlawful purpose. They submit there was unwillingness on the part of the Accuseds throughout, that the plan/mission was primarily that of the Suspect and that much of the planning and talking was done by him and that the involvement of the Accuseds throughout was motivated by fear.

The law

The relevant law in a submission of no case to answer is that contained in section 269 of the Criminal Procedure Code (Cap. 7) (“CPC”):

Subsection (2): “When the evidence of the witnesses for the prosecution has been concluded, and the statement or evidence (if any) of the accused person before committing court has been given in evidence, the court, if it considers that there is evidence that the accused person, or any one or more of several accused persons, committed the offence, shall inform each such accused person of his right to address the court, ....”

All that is required of this court to find at this point of time is that there is evidence that supports the allegations of Prosecution that the Accuseds aided and abetted and/or participated in a common purpose in the killing of the Deceased.

The equivalent of section 269 is section 197 of the CPC, which sets out in more specific language the requirements of a submission of a no case to answer.

“If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith acquit the accused.”

The test of sufficiency has been adequately canvassed in this jurisdiction in numerous cases – see Regina v. Maenadi Watson, Smith Pitapio, Youngston Watson and Saro Norman^[1] where his Lordship Muria CJ quoted with approval the words of Ward CJ in R v. Lutu [1985/1986] SILR 249:

“Thus if at the close of the prosecution case I, as judge of fact, do not feel that there is sufficient evidence even at that stage on which I could convict, I should stop the case.”

See also the case of Regina v. Philip Tahea and Others^[2].

The elements for proof.

In order for a conviction to be sustained, prosecution is obliged to prove beyond reasonable doubt that the Accuseds with malice aforethought caused the death of the Deceased by a bullet, shot at point blank range from a pistol held by the Suspect.

The offence of murder requires that mens rea or a specific intent must be established. The word “malice aforethought” is defined in section 202 as “(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 therefore required to prove either, that the Accuseds intended to cause the death of the Deceased or, knew that the Deceased would be killed and caused or were responsible for his death.

The Issue

The Defence does not take issue with the allegation that they knew that the Suspect intended to cause the death of the Deceased or that the Accuseds knew that the Deceased would be shot. They deny that the Accuseds had or possessed the necessary intention to cause the death of the Deceased or being responsible for his death. They say the shooting and killing of the Deceased from beginning to end was the sole work of the Suspect. He hatched the idea, planned it, and executed it. They were mere bystanders, spectators, non-participants on the side and if took part as unwilling participants motivated by fear.

The crucial issue for Prosecution therefore to establish is proving that the Accuseds were parties to this killing; that they were involved and aided and abetted the Suspect in the killing of the Deceased.

Parties to Offences Generally

Section 21 of the Penal Code sets out a description of parties to offences:

“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;....”.

Prosecution primarily relies on paragraphs 21(b) and (c) of the Penal Code to sheet home criminal responsibility of the Accuseds.

In determining the issue of parties, that of a principal offender and the secondary party, the court is required to “look at the totality of the acts where it could be inferred that they acted in concert, one doing the one thing and others doing other things, all leading to the completion of the incident which constituted the offence. In such cases each of the perpetrators was held to be liable as a principle. He was treated as if he had actually committed the offence.” – see R v. Wyles; Ex parte Attorney General^[3].

In R. v. Alfred Maetia & Newton Misi^[4] Muria ACJ as he then was said:

“The general principle of law is that a criminal offence may be the subject of aiding and abetting provided the person accused of aiding and abetting knows the facts constituting the principal offence and actively assists and encourages the principal offender.”

His Lordship then quoted with approval Johnson v. Youden [1950] 1 KB 544 at pages 546 – 547:

“Before a person can be convicted of aiding and abetting the commission of an offence he must at least know the essential matters which constitute that offence. He need not actually know that an offence has been committed, because he may not know that the facts constitute an offence and ignorance of the law is not a defence. If a person knows all the facts and is assisting another person to do certain things, and it turns out that the doing of those things constitutes an offence, the person who is assisting is guilty of aiding and abetting that offence, because to allow him to say, I knew of all those facts but I did not know that an offence was committed, would be allowing him to set up ignorance of the law as a defence.”

His Lordship Muria ACJ then concludes:

“The authorities clearly show that for a person to have aided and abetting the commission of an offence there must be established that he is present (actual or constructive); that he knows the facts necessary to constitute the offence, and that he is actively encouraging or in some way assisting the other person in the commission of the offence.”

In R. v. Allan, Ballantyne & Mooney^[5], Edmund Davies J delivering the judgment of the Court said at pages 246 – 250:

“Now it is a general rule in the case of principals in the second degree that there must be participation in the act, and that, although a man is present whilst a felony is being committed, if he takes no part in it, and does not act in concert with those who commit it, he will not be a principal in the second degree merely because he does not endeavour to prevent the felony, or apprehend the felon.”

Note those words were expressed in the context of spectators at a prize fight who had been also charged as aiders and abettors.

The court then continued:

“In our judgment, encouragement in one form or another is a minimal requirement before an accused person may properly be regarded as a principal in the second degree to any crime.”

Application

Prosecution relies on the provisions of section 21 of the Police Act which impose a duty on the Accuseds to inter alia “...collect and communicate intelligence affecting the public peace, to prevent the commission of offences and public nuisances, to detect and bring offenders to justice, and to apprehend all persons whom he is legally authorized to apprehend and for whose apprehension sufficient ground exists.” They say that the failure of the Accuseds to apprehend the Suspect and effect an arrest, or to communicate intelligence, enabled or aided the Suspect to kill the Deceased.

Under paragraph 21(c) they allege that the Accuseds aided and abetted the Suspect in the murder of the Deceased.

In Sinnasamy Selvanayagam v. R^[6] it was held that intention which is a state of mind can never be proved as a fact, it can only be inferred from other facts which are proved. The thrust of Prosecution’s case is based on the submission that when the evidence is considered as a whole the court is entitled to infer or draw inferences from the actions or inactions of the Accuseds that there is no reasonable explanation save that the Accuseds were in concert with the Suspect throughout.

Has Prosecution demonstrated that there is evidence capable of entitling a reasonable tribunal of fact of convicting the Accuseds of the offence of murder?

There is evidence that the Accuseds were seen together with the Suspect in the evening of the 10^th February 2003. That the Suspect met them in the Police Barracks and then told them to accompany him to a spot outside the CID Office. At some point in time he discussed with them, if not told them, of his intentions to kill one of the members of the Delegation. That he told A1 to go and check for the Delegation at the Auki Motel; that A1 obliged and was accompanied by Justin. On their return they immediately set off to the Auki Motel. I am satisfied it is open to inference by the Court that A1 must have confirmed with the Suspect the location of the Delegation before they left for the Motel on the mission to kill the Deceased. The question whether the court should make that inference or not can wait until after trial. It is sufficient if there is evidence on which the court can make that inference at this point of time.

There is evidence that before walking into the Motel, the Suspect also told A1, later followed by A2, to go and check for the Deceased to confirm where he was sitting in the Motel. A1 and A2 obliged and did as told.

There is evidence that these Accuseds together with the other two special constables, Hickson and Justin virtually carried out the instructions of the Suspect to the letter. Even the route they followed when they left the Suspect at the Motel was taken at the instruction of the Suspect. This is evidence consistent with the actions of persons in concert with the Suspect and it is open to the court to make such conclusion.

There is evidence which implicates these Accuseds not merely as spectators or bystanders but actual participants in the commission of the crime, giving encouragement and support even right up to the events after the commission of the crime which can be interpreted as assisting the Suspect to escape detection. The actions of A1, A2 and the two special constables were consistent with that of persons who were intent on concealing or assisting the concealment of what had happened. They all acted as if they did not know anything about the shooting. After the shooting, A1 and Justin met the Suspect at a particular spot and walked back with him to the Police Station. All pretended to be innocent and did not know about what had happened; actions consistent with persons acting together on a particular crime.

There is evidence that they were in consort together; confederates. They started off together, walked together with the Suspect and after leaving him to shoot the Deceased re-joined or linked up with him again after the shooting. From beginning to end they were together.

There is evidence that they could have warned the Delegation of the plans/mission of the Suspect, if that was the case, to kill one of them. At a particular point of time, at the shop below the Motel, A1 spoke with one of the members from the Delegation; this appears to be the expatriate member, a Dr. Ismael representing the UNDP, who were responsible for funding the Demobilisation Programme. They could have warned him that there was a madman or a crazy man with them, who was intent on killing one of their members, (at that time they already knew who was going to be the victim), they could have told him to tell the Deceased to hide or run away, they did not. They could have raised alarm with the shop keepers; they could have absconded and warned the Delegation, they did not. At that opportune moment, when they were separated from the Suspect, they could have raised the alarm, they did not.

It has been submitted that they were unwilling participants and motivated by fear. Those with respect are matters which can be assessed at the end of trial. It is sufficient if I find at this stage that there is evidence which supports the allegation of Prosecution of the involvement or participation of the Accuseds in that offence.

It has been submitted as well that there is no evidence that A1 and Justin did communicate with the Suspect regarding the whereabouts of the Delegation. In spite of that it is also equally open to the court to infer that a communication or confirmation must have been made because shortly or immediately after their arrival, the plan to kill was set in motion.

It was also suggested that there was no evidence that A1 went to spy out the Deceased near the water-tank overlooking the Motel and that the Court should not rely on the evidence of Prosecution Witness Foufaka. To the contrary however, there is evidence that A1 did walk to a certain spot to look into the Motel and check for the location of the Deceased. The question whether the evidence of Foufaka can be relied on or not must wait until end of trial. I am not satisfied his evidence at this point of time has been discredited regarding the admission by A1 as to where he stood and checked for the Deceased.

In R. v. Gray^[7] Lord Reading CJ delivering the judgment of the Court said:

“It is not necessary that a man, to be guilty of murder, should actually have taken part in a physical act in connection with the crime. If he has participated in the crime – that is to say, if he is a confederate – he is guilty, although he has no hand in striking the fatal blow. Equally it must be borne in mind that the mere fact of standing by when the act is committed is not sufficient. A man, to become amenable to the law, must take such part in the commission of the crime as must be the result of a concerted design to commit the offence.”

In R v. Betts & Ridley^[8] at page 154 Avory J. delivering the judgment of the Court said:

“It is clear law that it is not necessary that the party, to constitute him a principal in the second degree, should be actually present, an eye-witness or ear-witness, of the transaction. He is, in construction of law, present aiding and abetting if with the intention of giving assistance, he is near enough to afford it, should occasion arise. Thus, if he be outside the house, watching to prevent surprise, whilst his companions are in the house committing a felony, such constructive presence is sufficient to make him a principal in the second degree.”

See also Russell Criminal Law 12^th Edition at page 139 where the learned Author points out that some form of participation, by rendering aid, assistance or even mere encouragement to the actual perpetrator at the very time the latter is effecting the criminal purpose amounts to aiding and abetting and is a principal in the second degree.

When one looks at the totality of the acts committed, it is open to the court to infer that the Accuseds were in concert with the Suspect and that this was why they did not apprehend him at any stage before the crime was committed, raise the alarm and warn the Deceased or any member of the Delegation, or take such action as within their power to prevent the commission of the offence. Knowledge of the express and specific intention of the Suspect at an early stage of the whole incident is a relevant factor to consider when assessing the actions or inaction of the Accuseds as Police Officers. The fact that at some point of time a legal duty arose would be a relevant consideration. It is open to the court to infer that the lack of action or inaction can only be explained by the fact that they were in concert together and that therefore they must be put to their defence as parties in the second degree.

I am satisfied there is evidence which establishes that the Accuseds were parties to the killing of the Deceased and therefore be given opportunity to address the court on their defence.

The submission of a no case to answer is over-ruled.

THE COURT.

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^[1] (unreported) HCSI-CRC No. 16 of 1997, at pages 3-6
^[2] (unreported) HCSI-CRC No. 14 of 1995 at pages 1-5
^[3] [1977] QdR 169 per Hoare J with Mathew J concurring at pages 179 - 180
^[4] (unreported) HCSI-CRC No. 42 of 1992 per Muria ACJ at pages 8-10
^[5] (1965) 47 Cr App R 243
^[6] [1951] AC 83 at 87
^[7] (1917) 12 Cr App R 244 at 246
^[8] (1930) 22 Cr App R 148 Avory J.