Robu v Regina [2005] SBHC 111; HC-CRC 028 of 1998 (20 July 2005)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 28 of 1998.

JOHN ROBU, HENRY FARAMASI, LENCY MAENU'U
AND PETER KA’ABE

v

REGINA

HIGH COURT OF SOLOMON ISLANDS.
(KABUI, J.).

Dates of Hearing: 11^th, 12^th, 13^th, 14^th, 15^th, 18^th, 19^th, 20^th, 21^st, 22^nd, 26^th October and 8^th November, 1999, 10^th and 12^th April, 21^st , August, 31^st October, 2000 and 16^th , July 2004 and 30^th, 31^st May 1^st, 2^nd, 3^rd, 4^t , 27^th, 29^th, 30^th, June 2005.

Date of judgment: 20^th July 2005.

R. B. Talasasa for the Crown
P. Lavery for the Accused

JUDGMENT

Kabui J. The hearing dates of this case clearly show the history of the trial of the accused. The trial has taken more than five years to complete. All the accused had been released on bail since 14^th June 2000 as a result of the coup that took place on 5th June 2000 and the subsequent taking over of the Rove Prison by the Malaita Eagle Force resulting in the walkout of all the inmates therein including the accused. The bail had lapsed and had not been renewed until recently when Counsel, Mr. Lavery, told me in court on 16^th July 2004 that two of the accused, John Robu and Peter Ka'abe were on bail. The other two Henry Faramasi and Lency Maenu'u, were still at large but fortunately attended at the trial when it recommenced. The trial had been adjourned since 1999 to allow the Prosecution to call the last Crown witness, the doctor, who examined the deceased. The doctor then was in Australia and was not available to give evidence in Honiara. Counsel for the defence, Mr. Lavery, had insisted that he wanted to cross-examine this witness. The breakdown of law and order in the country was the main contributory factor in the delay in the completion of the trial. Government finance was also a problem. The trial resumed only after the intervention of RAMSI in 2003 and the return of law and order that followed. This is most unfortunate but that is the truth. None of the accused objected to my continuing with trial after the long adjournment. In other jurisdictions where there is trial by jury, this situation may well qualify for a mistrial, which calls for a fresh trial. This is not the case here because I sit as the trial judge as well as the jury so I have not forgotten the evidence already given by the Crown witnesses whose evidence had been heard by the accused and cross-examined by them through their Counsel, Mr. Lavery. The Prosecution had not yet closed its case when the trial recommenced.

The case for the Crown.

The Crown case is that Dumen Maetala, (the deceased), met his death in the early hours of Saturday 20^th June 1998 at the Bushman Club east of Honiara. The cause of death was severe brain damage. This is the conclusion of the doctor who examined the deceased on 20^th June 1998 at the Central Hospital in Honiara. The deceased died following a fight that took place on 20^th June 1998 as stated above. The Prosecution says that each of the accused had unlawfully caused the death of the deceased. The Crown had called seventeen Crown witnesses to prove its case against the accused that each intended to cause death and did cause the death of the deceased.

The Defence case.

All the four accused pleaded not guilty to the charge of murder laid against them. Each of them gave evidence on oath in their own defence, denying having done anything to the deceased at the Bushman Club. The Defence had also called four witnesses. Henry Faramasi had put forward an alibi as his defence.

The Burden of Proof.

The burden of proving the guilt of each of the accused is the responsibility of the Prosecution, the Crown. This means that the Crown must produce evidence to prove beyond reasonable doubt that each of the accused, with intent, unlawfully caused the death of the deceased on 20^th June 1998 at the Bushman Club in the early hours of the morning. I remind myself of this burden of proof which the Crown must discharge beyond reasonable doubt in this case.

The Bushman Club Building.

This is a building that has a flat and horizontal concrete ground floor from end to end. The roof of the building is of sago palm leaf sewn together and tied to the rafters with rope as is common of all local houses in Solomon Islands. The roof structure is held up firmly by a number of wooden posts firmly embedded in the ground and secured by concrete mix and the concrete floor slab. From the bar to the end of the building is the dance floor being an open space. The building has no walls around it. It is an open building. Outside are sitting benches and tables for the use of customers. The tables are firmly fixed to the ground. The benches are either firmly fixed to the ground or are movable.

The Lights.

Lights above the bar are coloured lights. Right above the dancing floor is a silver ball which rotates and emits light over the dancing floor. Along the top-plates and under the eaves of the building are a number of bare long fluorescent single tubes (side light bulbs). Outside the building itself are a number of security lights. These security lights are big round bulbs slightly bigger than and of the same kind hanging over the bar table and dock in this Court No.1. They are firmly fixed at the end of standing galvanized posts firmly embedded in the ground by concrete mix.

The Fence.

There is a wooden fence enclosing the Bushman Club compound which was incomplete at the time the deceased met his death. There is a front-gate exit. There is another gate which opens out into the road that leads to the residence of the owner of the Bushman Club. The wooden fence is of wooden posts strutted with horizontal wooden battens all along the length of the fence. The gap or space between the wooden battens is about one inch wide. The fence is about five feet to six feet or a little less than two metres high.

Details of Eye Witnesses' Evidence.

The deceased had been in the Freeway Club in town on 19^th June 1998 until closing time at 2am in the morning of 20^th June 1998. The deceased then went to the Bushman Club. It is not known whether he got there by taxi or by other form of transportation and either alone or in the company of others. The other person, James Moa, (CW8), who also had been in the Freeway Club, before closing time, also went to the Bushman Club by taxi. James Moa (CW8) is from Rennell Island. He said he was with the deceased in the Bushman Club. He drank two VB beers but was not drunk. He danced and then sat down. He then stood up with the deceased as some people were arguing and something like fire-cracker went off. It sounded like an explosion or a shot-gun. He and the deceased went to find out what was going on and then a can of beer flew past them as though thrown at them by someone but missed them. A group of men then moved towards them and they ran, the deceased saying someone in that group had a knife. He and the deceased headed for the rear exit of the Bushman Club. They did not reach the rear exit because a group of men shouting in Malaita language was blocking them. They turned and ran back in the opposite direction heading for the front-gate exit. They did not reach there either as another group of men again blocked them. They turned and ran back to the bar again but by this time the other group of men from the rear was also closing in on them. He ran behind the bar and looked back and saw the deceased fall to the ground between the front-gate exit and where he was and opposite the dance floor. He ran back to the deceased but was immediately attacked. John Robu hit him twice with something that looked like a button before he fell to the ground. Before he fell, he saw and recognized John Robu who had hit him. He also saw Henry Faramasi, Lency Meanu'u and Peter Ka'abe, all of whom he knew well. He was able to recognize them because the security lights were on at that time. Ramsy Tuhaika was (CW9). He is from Bellona Island. He only saw part of the fight from where he was. He had been sleeping on an iron bench firmly fixed to the ground between the front-gate exit and one of the security light posts. When he woke up, he saw the deceased already on the ground. He saw a man hit the deceased with a piece of timber. He saw John Robu hit the deceased's head with a stool. He saw Lency Maenu'u hit the deceased's head with the same stool. He saw Peter Ka'abe did the same with the same stool. They also kicked the deceased's head and body. He recognized the accused because he knew them well. Nothing was blocking his view when seeing what was happening to the deceased whilst on the ground. Eric Tee (CW6) is from Rennell Island. He was in the dance hall when the deceased was attacked. He ran out from the dancing hall and through the front-gate exit. He stood outside the fence and looked back through the gaps between the battens. He saw John Robu hit the deceased face with an object that looked like a knife. He saw Faramasi hit the deceased with a piece of timber. He saw Lency Maenu'u hit the deceased with an object that looked like a button yellow in colour. They also kicked the deceased's head and body. He did not see Ka'abe that time. He knew John Robu, Henry Faramasi and Lency Maenu'u very well. David Tuhaika (CW7) is from Bellona. He too saw the deceased on the ground. He was looking through the gaps or spaces between the battens from outside the fence. He saw the deceased being kicked by John Robu and Lency Maenu'u whilst the deceased was already on the ground. He saw John Robu sat on the deceased, drank his beer and hit the deceased with it. He knew both John Robu and Lency Maenu'u well. Tangia Manguputu, (CW10), is from Bellona. He was at the bar when he saw John Robu hit the deceased with a knife. He also saw Lency Maenu'u hit the deceased's head with a stool. He knew John Robu and Lency Maenu'u well. John Kwaeota was (CW11). He saw the deceased and James Moa, (CW8), ran. He saw the deceased fell to the ground. He saw John Robu kicked the deceased, sat on him and drank his beer. He saw Lency Maenu'u shouting. He knew John Robu and Lency Maenu'u very well as they were blood related. He was able to see clearly because of the security lights being on and lighting the area where the deceased fell to the ground.

Attacking the credibility of the eye witnesses.

Defence Counsel, in his final address, attacked the credibility of all the eye witnesses to the murder of the deceased. He said that the evidence that each of them gave was riddled with internal inconsistencies and inconsistencies with each other's evidence. He gave examples of inconsistencies in Eric Te'e's, evidence, (CW5). Counsel said that in his evidence in chief, Eric Te'e, (CW5), said the lighting on the dancing floor was not bright; only the disco lights were shining. However, on being cross-examined, he said the dancing floor was dark but being lighted by other security lights. If this was a contradiction, it is of no significance because the dancing floor was not totally dark. On being cross-examined, he said the fighting was not taking place on the dance floor when he saw it but outside of the dancing floor. Nothing of significance took place on the dancing floor so that lighting on the dance floor was an important issue. As regards lighting, Counsel said Eric Te'e's, (CW6), evidence should not be believed. Counsel said the most reliable evidence on the issue of lighting came from John Tua, (CW5). As a matter of fact, there is inconsistency in his evidence but can be explained. John Tua's, (CW5), evidence was that coloured lights were used when playing music and outside lights were put on outside the dancing area. I take this to mean that this was the practice. However, on that night he was not sure whether the security lights were shining. He concluded that they were not shining. He was probably right because he was busy packing his things when the fight broke out. Not only that, he was about ten to fifteen feet above the dancing floor and would not have seen the lights outside. His view would have been blocked by the eaves of the building. However, on being cross-examined, Eric Te'e said that he did not agree with John Tua's (CW5), evidence. It is not surprising for Eric Te'e to disagree because he was outside of the building and John Tua, (CW5), was inside the building on a raised platform. Eric Te'e, (CW6), was able to see the security lights shining outside which John Tua, (CW5) was not able to see because of where was standing inside the building at the relevant time. On being cross-examined, John Tua, (CW5), did say that the cracker went off after the fight ended. Indeed, that is a contradiction to the evidence given by James Moa, (CW8). It is of no consequence because of lapse of time after the event or simply he was mistaken on that fact. Eric Te'e, (CW6), said he was drunk but not very drunk so as to be unable to see anything. Eric Te'e, (CW6), insisted under cross-examination that despite omissions that might have appeared in his Police statement, his sworn evidence was the truth. Counsel also said similar remarks about the evidence given by David Tuhaika, (CW7). Counsel said he was a liar. As regards lighting, David Tuhanuku, (CW7), said there were bright lights shining where the deceased was lying on the ground. On being cross-examined, he said that when the fight happened, the coloured lights were off. This is of course, a contradiction of the evidence given by John Tua, (CW5), and Eric Te'e, (CW6), but is of no consequence because it is irrelevant evidence as to the spot where the deceased met his death. There was light outside where the deceased was attacked and fell to the ground. Counsel said James Moa, (CW8), was a liar. This witness' evidence speaks for itself. Counsel also said Ramsay Tuhaika, (CW9), was a liar. Again, the evidence of this witness speaks for itself. Counsel also said Fox Tango, (CW4), was the greatest liar of them all. Similarly, the evidence of this witness speaks for itself. What Counsel did not say was why these eye witnesses were lying to the Court? And why Fox Tango, (CW4), was the greatest liar? What did they stand to gain by lying in Court? Why should they not tell the truth in Court? These are the questions the defence has not answered other than citing inconsistencies in evidence about the lighting in the main in the hope to discredit them and the evidence each had given in Court.

Is the evidence of the eye witnesses credible?

The deceased was part Malaita and part Polynesian. The accused are all Malaitans. The eye witnesses are all Polynesian but for John Kwaeota, (CW11), who is Malaitan. It is remarkable to note that each eye witness only identified who he saw attacked the deceased. For example, Eric Te'e, (CW 6), saw five persons standing over the deceased but could only identify three of them as being John Robu, Henry Faramasi and Lency Maenu'u. He did not see Peter Ka'abe and another person. He did not identify Peter Ka'abe in the dock other than the first three accused he saw that night. He said he knew John Robu very well because they were neighbours in the White River area. He used to meet and talk with them on many previous occasions in the Heron Club and in town. He said he also knew Lency Maenu'u for they both lived in White River and used to see and speak to him in White River and Kakabona. He also knew Henry Faramasi because he used to see him in the Heron Club but he forgot his last name. On being cross-examined by Mr. Lavery, he described Henry Faramasi as having a brown red hair and looked like an albino. He said he had known him for at least three years. He had met him several times at the Heron Club acting as gate keeper and had spoken to him also. Similarly, David Tuhaika, (CW7), only saw and identified John Robu and Henry Faramasi and not the other two accused, Lency Maenu'u and Peter Ka'abe. He knew John Robu by his Christian name. He used to meet him many times before and spoken to him casually but he also knew John's wife and he used to speak to her. He also knew Lency Maenu'u well. James Moa, (CW8), saw and identified all the accused but only John Robu attacked him. He had seen John Robu at Kakabona and had seen him at the Heron Club as well. He had spoken to him also on previous occasions. He had known John Robu for about three to four years. He knew Lency Maenu'u very well. He used to meet him at Kakabona, at the Heron Club and at the Honiara Casino. He knew Peter Ka'abe. He used to meet him at the Honiara Casino, at the Heron Club and sometimes on the street in Honiara. He had met Henry Faramasi in Kakabona. On being cross-examined by Mr. Lavery, he said he knew Henry Faramasi because he used to talk and joke with him. He knew Peter Ka'abe because Peter Ka'abe used to play rugby. He used to watch rugby. Peter Ka'abe was married to a girl from Rennell. Ramsy Tuhaika, (CW9) saw and identified John Robu, Lency Maenu'u and Peter Ka'abe but saw another man holding a piece of timber striking down with it. He used to be a beer deliveryman at the Heron Club and knew John Robu from that time. Kelesi, the brother of John Robu was his friend as they used to play for Rangers Soccer Club. He knew Lency Maenu'u as well. Lency Meanu'u used to live in White River with his father Paul Maenu'u. He knew Peter Ka'abe because he used to play against Peter Ka'abe's rugby team in Honiara. He used to speak to him. He once met him on a ship in Rennell. Tangia Manguputu, (CW 10), saw and identified John Robu and Lency Maenu'u. They looked familiar to him though he had never spoken to them before the incident at the Bushman club. John Kwaeota, (CW (11), saw and identified John Robu and Lency Maenu'u. John Robu is a relative of his father so he knew John Robu very well. He knew Lency Maenu'u very well. In fact, he regarded Lency Maenu'u as a brother. Each eye witness gave his evidence confirming what he saw. There is no suspicion in my mind that they were adding on to what they actually saw. I saw each of them in the witness-box giving his evidence. They gave straight answers to the questions asked of them by Counsel and the Court. They gave their evidence to the point of being almost impartial. I think the reason for this is that they had no connection whatever with the fight that resulted in the death of the deceased. They went to the Bushman Club to dance and enjoy on the dance floor. They had had no previous dealings of any kind with the accused so as to place them in a position to be biased against the accused. There were of course a number of boys from Bellona and Rennell at the Bushman Club but none of them other the deceased, Tangia and James Moa, (CW8), had taken part in the fight at the Bushman Club that night. A boy by the name of Tom might have been involved also. Trevor Palmer, (CW16), was the independent witness who confirmed that lights were on during the fight. He and his friends were sitting at the tables by the side of the dance floor. He sat there during the fight until it stopped. It was him who went out to check the deceased on the ground. He noticed a cut below the deceased's left eye brow. This cut was described in the doctor's report as a laceration to the left eye lid. I am sure in my mind that each eye witness was a credible witness.

The weapons used and by whom.

According to James Moa, (CW8), the first missile was a can of beer that flew past him and the deceased which missed them, assuming that they were the target or at least the deceased for that matter. Then he saw the deceased being attacked and fell to the ground. He did not see who attacked the deceased and with what than by the group of men who blocked their exit. He was however attacked by John Robu with something that looked like a police button. John Robu hit him twice before he fell to the ground. He saw no more of the fight after that.

Eric Te'e, (CW6), saw John Robu hit the deceased with something that looked like a knife. He also saw Henry Faramasi hit the deceased with a piece of timber and Lency Maenu'u doing the same with something that resembled a baseball bat. He describes the piece of timber as being like a 4 x 2 or 3 x 2 in size. He also saw Henry Faramasi and Lency Maenu'u kicked the deceased. David Tuhanuku, (CW 7), confirms John Kwaeota's, (CW11), evidence that John Robu sat on the deceased and drank his beer. He confirms seeing Lency Maenu'u kicked the deceased. Tangia Manguputu, (CW 10), confirms seeing John Robu hitting the deceased with what looked like a knife and Lency Maenu'u doing the same with a stool. Ramsy Tuhaika, (CW 9), confirms seeing John Robu and Lency Maenu'u hitting the deceased's head with a wooden stool. Peter Ka'abe also did the same. The weapons used against the body of the deceased were kicks, an object resembling a sharp instrument like a knife, a button or baseball bat resembling the one used by the Police, a wooden stool, a piece of timber and a can of beer. Each accused used at least one or more of these weapons against the deceased once or more times. The evidence suggests that John Robu had something that looked like a knife, Lency Maenu'u had something that resembled a button or baseball bat, Henry Faramasi had a piece of timber. The evidence also suggests that John Robu, Lency Maenu'u and Peter Ka'abe used a stool at some point in the attack against the deceased. There were of course the kicks from each of the accused. The button was recovered by the Police but went missing in the custody of the Police before the trial commenced. Counsel for the defence argued that the injury to the head of the deceased was not consistent with the number of strikes of weapons delivered to the head as described by the eye witnesses. According to the doctor's explanation finder cross-examination, he argued, the injury was consistent with a single blow to the head. It must be remembered that the fight was a running one. Some of the strikes might have missed or blocked but some would have found their mark. If the weapons were blunt objects, their impact on the head would have not left much laceration but would have caused damage to the skull receiving a single hard blow or a succession of hard blows. If indeed, a knife had been used by John Robu, it would not have left a mark if it had been blocked by the deceased. The same can be said about the button that went missing. Clearly, the deceased was outnumbered by his attackers. It seemed that he was a good fighter as well. It is therefore inaccurate to say that the final injury must be consistent with the number of weapons used and how many times those weapons were used and by how many persons. Criminal liability does not depend on these niceties.

The visual identification evidence.

A sketch plan was drawn up by Sergeant, Gerry Muaki, (CW 12) the next day following the death of the deceased. It is a plan not according to scale. It shows the Bushman Club building with its dance floor and the bar. It also shows the positions of the security lights outside of the dance floor and the position of the deceased lying on the ground. The wooden fence and the positions of the gates exits are also shown plus a toilet building facing the western end of the Bushman Club building. The sketch plan is in evidence as Exhibit 5. I visited the scene of the killing with both Counsel and a number of Crown witnesses in the presence of all the accused. The sketch plan does not show the presence of over-head coloured lights in the bar. It also does not show the presence of a rotating sliver ball hanging up high over the dance floor and bare long fluorescence bulbs being security lights fixed along the top-plates of the Bushman Club building. All the security lights were out of order at the time of my visit to the scene. There is no dispute about the location of the deceased's body when he fell to the ground following the attack on him. The deceased was lying on the ground five metres to the western edge of the dancing floor. The nearest security light is seven metres away from the body. The furthest security light is twelve point five metres away from the body. These two security lights are positioned along the same line to the south. Further south and across the road going to the residence of the owner of the Bushman Club is the toilet hut. The toilet hut has a long fluorescence bulb capable of shining across the road to where the deceased was lying on the ground. There is also a long fluorescence bulb fixed under the eave of the Bushman Club building only five to six metres away from the body of the deceased capable of shining over to where the deceased was lying down. There are therefore four sources of light, the furthest being the toilet security light and the nearest, the other three. If they had all been shining at the time of the killing, there would be no doubt in my mind that there would have been bright light over the spot where the deceased had fallen to the ground. There is evidence that the side lights were shining at the time of the fight that resulted in the death of the deceased. In evidence in chief, Eric Te'e, (CW 6), said,

"...Dumen was on the ground. Light was bright where Dumen was. Light from the house and fence shining into that place. Light was the same in the dancing place. Lights were put on when fight was on plus security lights outside the house..."

Light from the house must necessarily mean the side lights around the Bushman Club building itself and security lights E1 and E2 shown on the sketch plan which are positioned close to the fence. Eric Te'e, (CW 6), was on the dance floor at the start of the fight and then ran outside and looked back through the gaps in the fence and saw the deceased on the ground. On being crossed-examined by defence counsel, Mr. Lavery, he said it was rather dark on the dance floor, however there were lights outside which enabled him to see. David Tuhanuku, (CW 7), confirmed that there was bright light. The other lights not shown on the sketch plan must be the side lights and the lights inside the Bushman Club building itself. James Moa, (CW 8), confirms that there was bright light. It would appear to be the case that even if there were no lights coming from the Bushman Club building itself, the outside security lights would have provided sufficient light. The nearest person to the group of men who attacked the deceased was James Moa, (CW 8). He was able to identify John Robu, Lency Maenu'u, Henry Faramasi and Peter Ka'abe before he fell to the ground. On being cross-examined by defence counsel, Mr. Lavery, he said-

"...it was not difficult to recognize the accused because I knew them before and there was bright light at that time..."

On being invited by Mr. Talasasa to indicate on the sketch plan where he was attacked, he marked a spot close to the security light marked E1. Obviously, light was coming from E1 and nothing would have blocked his view of the group of men coming towards him from the direction of the main gate exit. The next nearest person to the spot where the deceased was lying on the ground was Ramsy Tuhaika, (CW 9), who was only nine metres away. He was sitting on an iron bench facing the spot where the deceased had fallen on the ground with his back to the fence. In fact, he was near to the security light marked E2 on the sketch plan. He would have had a clear view of where the deceased was lying on the ground. There was nothing to obstruct his view of what was taking place. The next person, David Tuhaika, (CW 7), was ten metres away from the deceased. He was also looking back through the gaps in the fence. There was nothing obstructing his view at the crucial time. The next person was Eric Te'e, (CW 6), who was twelve metres away. He too, like David Tuhaika, (CW 7), was looking back through the gaps in the fence. Also, nothing was obstructing his view. The area of ground across which (CWs 6, 7 and 9) were looking or at least within their view would have been lighted by security light El on the sketch plan. The next person, Tangia Manguputu, (CW10), was at the left end of the bar when he saw John Robu hit the deceased with what looked like a knife and Lency Maenu'u with a stool. The distance could well be thirty metres, and yet he said he could see the toilet but from where he stood at that distance. The toilet but of course has its own security lights. John Kwaeota, (CW 11), was only twelve metres away from the deceased when he saw the deceased being attacked. He too had a clear view of the spot where the deceased was attacked and fell to the ground.

The quality of the visual identification evidence.

Of the Crown witnesses called, six were eye witnesses. They were CWs, 6, 7, 8, 9, 10 and 11. Although there was light at the time the fight began and ended, it was dark and visual identification of the accused could have been inaccurate. The duration of the fight was also short. John Tua, (CW 5), put the time as about 3 minutes. So the question is asked as to how much the Crown witnesses could have seen accurately in such a short time. CWs 6, 7, 8, 9, 10 and 11, all confirm that the lighting at the relevant time was good so as to enable them to see what they saw independently of each other from different positions. The other factor was their previous familiarity with each of the accused. There is overwhelming evidence on this point. The reason is that it is almost a matter of judicial notice that the accused and CWs 6, 7, 8, 9, 10 and 11 and others from Bellona or Rennell were either residents of White River or Kakabona settlements, west of Honiara, the same settlements in which the accused either lived or frequented for years. The accused and the people of Bellona and Rennell would have known each other by sight or personally as residents of the same area well before the killing at the Bushman Club. However, the rule in R. v. Turnbull [1976] 3 W.L.R. 445 as affirmed in Junior Reid. v. The Queen [1989] 3 W.L.R. 771 at 775, Scott v. The Queen (1993) 97 Cr. App. R. 409 at 415, Freemantle v. The Queen [1994] 1 W.L.R. 1437 at 1439 and Karl Shand v. The Queen [1996] 1 W.L.R. at 72, should be borne in mind. That is, there is an inherent danger of relying on visual identification evidence in criminal cases. The current practice is that where the quality of visual evidence is good, the court can rely on it without further supporting evidence. However, adequate warning would still be necessary on the side of caution. Where, however, the quality of identification evidence is poor, the court should acquit unless there is some evidence to support the quality of the identification evidence. Such supporting evidence must be identified by the judge.

Is the quality of visual identification good in this case?

I think it is good. There is overwhelming evidence that there was sufficient light at the time of the fight. The eye witnesses who identified the accused had known the accused previously for reasonable lengths of time so that the danger of inaccurate identification does not arise in this case regardless of the fact that the fight was a fast moving one. Only the deceased was being attacked and so the scope of focus of attention was narrowed down to one person being the deceased. There is no doubt in my mind that each of the accused did attack the deceased on the morning of his death as identified by the eye witnesses.

John Robu's evidence.

John Robu admitted in his caution statement and in evidence that he was at the Bushman Club on the right the deceased died. Ben Maenu'u and Kelesi had also been at the Bushman Club that night. He said that he got to the Bushman Club by taxi. He said he danced twice. He saw when he was on the dance floor, one young man from Bellona who said to him, "you no any kaeni" but took no notice of that remark. When Lency Maenu'u arrived with others, he told them about the remark made to him by the boy from Bellona. He then went to dance near the bar and Tom from Bellona held his collar and pulled him. He told Tom to release him but Tom did not let go and so he hit Tom on his face and Tom released him. He saw the deceased and others were facing him from the bar probably wanting to fight him. Tuita Balou held a galvanized pipe and shouted, "cover" and people started to throw bottles. The boys who wanted to fight him then ran away towards the back of the bar. He wanted to escape and ran to the gate but returned to the Leaf Hut. From there he went to the dance floor and James punched him. He whipped James with a button but James blocked it and it flew off his hand. James released his grip on him because Tuita Balou had kicked James. James was on the ground and the fight finished when the lights came on. He went outside and saw Lency Maenu'u with George Maenu'u. He then accompanied Lency Maenu'u, George Maenu'u to the Central Hospital by bus. George Maenu'u had been stabbed by someone. He said he never came into contact with the deceased at all at the Bushman Club that night. When James Moa, (CW8), was being cross-examined, Mr. Lavery suggested to him on the instruction of John Robu that it was Tom who went up to John Robu and slapped John Robu. Also, it was James Moa who challenged John Robu and threw a bottle at John Robu. It was also suggested that James Moa also fought with Tuita and Gwali. James Moa, (CW8), denied these suggestions as being true. In fact, his answer was that John Robu had lied to his Counsel to put those suggestions to him in cross-examination.

Henry Faramasi's evidence.

Henry Faramasi said that he never went to the Bushman Club in the first place. He finished work at 3am and went home at about 3:30am. He slept in his house until the next morning. His wife confirmed his evidence (DW3).

Lency Maenu'u's evidence.

Lency Maenu'u got to the Bushman Club by bus. He went and sat inside a Leaf Hut. He then saw some boys from Bellona approached John Robu and fearing that they might attack John Robu, he threw a bottle at them, whereupon they ran away. There was already fighting on the dance floor. He ran out to locate his brother, George Maenu'u. He then saw John Robu and James fighting and pulled John Robu away. He saw Ben Maenu'u and George Maenu'u. He took George Maenu'u to the hospital because he had been stabbed and had blood on his shirt. He did not see the deceased at the Bushman Club.

Peter Ka'abe's evidence.

He said he finished work at 3am and then went to Leggakiki with others and from there, he went to the Bushman Club with John Robu, Mevalyn Atu and the taxi driver. He bought beer and drank it. He danced. There was a fight. He stood with Mevalyn Atu because she was frightened. After the fight finished, he and others returned to town. Mevalyn Atu (DW1) confirmed his evidence.

The combined evidence in the defence case.

The evidence of Henry Faramasi is that he was sleeping in his house that night the deceased met his death at the Bushman Club. He has an alibi which had been disclosed to the Crown during the trial. The evidence of the rest of the accused is that although each of them was present at the Bushman Club at the relevant time, none of them ever came into contact with the deceased until they returned to town. Each of the accused denied categorically the evidence given on oath by the eye witnesses being CWS 6, 7, 8, 9, 10 and 11. Each of them only heard about the death of the deceased later in town.

The credibility of the evidence given on behalf of the defence.

Henry Faramasi had been seen and identified at the Bushman Club by CW 6, 7, 8 and 9 fighting the deceased. Ramsy Tuhaika, (CW9), saw a man holding a piece of timber and striking downwards with it but did not recognize who that person was at that time. Eric Te'e, (CW6), confirmed that person being Henry Faramasi. When cross-examined by Mr. Lavery, Ramsy Tuhaika, (CW9), said he saw Henry Faramasi going out of the gate and leaving the Bushman Club premises. Tangia Manguputu, (CW10) saw John Robu and Lency Maenu'u and recognized them. He said he grew up with them at White River settlement. Fox Tango, (CW4), later saw Henry Faramasi outside of the Bushman Club premises after the fight was over standing beside a blue three ton truck parked on the main road some distance away from the Bushman Club. Fox Tango, (CW4), said the truck belonged to Paul Maenu'u used to be driven by the Maenu'u boys in town. He said he saw Henry Faramasi by the headlights of his taxi. He said he recognized Henry Faramasi immediately. He said he made no mistake because he used to be employed by Paul Maenu'u in 1984 to 1985 as a truck driver and Henry Faramasi used to be a member of the crew on the truck. He said Henry Faramasi then was a small boy. So he said he had known Henry Faramasi for many years. The identification evidence against him is overwhelming and convincing indeed. I observed him in the witness-box. He was not telling me the truth. His alibi was a made up story to escape the charge against him. His alibi is rejected. It could well be the case that John Robu and Peter Ka'abe got to the Bushman Club by taxi and Lency Maenu'u by bus. But no one has explained the presence of Paul Meanu'u's three ton truck, Paul Maenu'u Hilux and Mostyn Maenu'u's Land Cruiser being parked along the main road some distance away from the Bushman Club premises. PXV4 said he saw these vehicles there when he got there after the fight was over that morning. He saw Paul Maenu'u in that Hilux and his brother, Mostyn Maenu'u, in the Land Cruiser. Were these vehicles the transport means by which those who were described by PW8 "as groups of men" who attacked and blocked him and the deceased from escaping got to the Bushman Club? The men were shouting in the Lau language of Malaita. This may well be the clue to the understanding the presence of the Paul Maenu'u's group at the Bushman Club and their reason for being there, apart from John Robu, Peter Ka'abe and Lency Maenu'u who got there on their own, separately.

Conclusion on the evidence.

The evidence is overwhelmingly against the accused in terms of their being identified as the persons who attacked the deceased and caused his death. This conclusion is inevitable on the evidence. What needs to be stated now is whether the accused could be found guilty of murder or manslaughter in terms of section 159(2) of the Criminal Procedure Code Act, (Cap. 7) (the CPC). That is a legal issue to which I now turn.

The cause of death.

The deceased was brought to the Central Hospital on that same day morning he was attacked and killed. Doctor Carl Susuairara, (CW17), attended him in the Emergency room. The doctor wrote up a report of his findings on 30^th June 1998 for Police investigation. The doctor stated severe brain injury as being the cause of death. According to the report, the deceased was already unconscious and not responding to painful stimuli on arrival at the Hospital. Breathing was gurgled and he was not moving at all. He was put at glascow coma scale 3, meaning that he was deeply unconscious. There was a laceration and bruising on the left eye lid. Blood and cerebro-spinal fluid was coming out of his left ear. There was blood at the back of the throat. X-ray showed a lineal fracture of the skull. The pupils of the eyes were larger and did not respond to light. Although the blood was drawn out and he was kept on oxygen, he died at 3.20pm of that same day. In his evidence, the doctor said the deceased must have suffered a severe blow to his head. The evidence clearly shows that the accused had administered kicks, a button, a stool and a piece of timber to the head of the deceased during the fight rather repeatedly in quick succession. They caused severe brain damage that caused his death to occur on that day he died. Counsel for the defence sought to dispute this conclusion by saying that the doctor on being cross-examined said the injury to the deceased's head was consistent with a single blow to the head. It might have been the case if the attack on the deceased had been carried out by one person using one blunt object of some sort with one single blow. It is also possible that the same effect could have been caused by one person using one blunt object of some sort with more than one blow. Similarly, the same effect could be achieved by more than one person using kicks and other objects more than once upon the deceased. It all depends upon the force applied .to the skull so as to cause it to crack. In Regina v. Richard Gerea, David Faiga and Ben Ratu Karai, Criminal Case No. 2 of 1984, the cause of death were kicks and hits by the prisoners to the head of the deceased. The argument by Counsel is therefore not conclusive on this point.

The law.

Section 193 (now section 200) of the Code says that for any act to amount to murder, the killing must be committed with malice aforethought. Section 202 of the Code defines the term "malice aforethought." This term does not always mean "pre-meditation" (planned in advance) in terms of expressed intention because it can also mean "foresight" in terms of implied intention that death will or may be caused by the act that caused death. Where the act is not a pre-meditated act, express malice exists if the evidence proves that the "intention" to cause death of or grievous bodily harm to any person, whether such person is actually killed or not if that state of mind precedes or co-exists with the act or omission by which death is caused. Express malice may also be implied and does exist by implication if the evidence proves 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. The mode of intent in murder cases can only be detected in the evidence so that it varies from case to case, depending on the facts of the case.

Evidence of intent of the attackers.

Mr. Paul Maenu'u was a businessman in Honiara, once operating a trucking business, called "Adamasia." He also owned and operated a night club, called the Heron Night Club. In 1997 a dispute arose between Mr. Maenu'u's boys and John Maetala, (CW3) the deceased's younger brother, over the damage of a vehicle, owned by one of Mr. Maenu'u's boys. As a result, John Maetala, (CW3) was attacked twice in the Heron Club by the Club's security boys who were Paul Maenu'u's boys. The deceased's elder brother, Paul Saukiu, (CW2), tried to effect a settlement with Paul Maenu'u and his boys but his effort was not successful with Paul Maenu'u. The dispute ended up in the Central Police Station on 22^nd February 1998, where according to the deceased's side, a settlement was reached and the matter was closed. Both sides agreed that cases for malicious damage should be opened for each side by the Police. Police investigation was expected to begin into the cases of malicious damage as agreed by the parties. Sometime in April, 1998, Kelesi, one of Paul Maenu'u's boys again threatened to fight the deceased when John Maetala met Kelesi and others near the Multi-Purpose Hall near Lawson Tama. There was also allegation that the deceased's group had thrown stones at Mostyn Maenu'u's truck. All the accused are related to Paul Maenu'u. John Robu regards Paul Maenu'u as his uncle. Henry Faramasi also regards Paul Maenu'u as his uncle. Lency Maenu'u is the son of Paul Maenu'u. Peter Ka'abe is also related to Paul Maenu'u. All of them had worked for Paul Maenu'u in the Heron Club as security boys. They all lived together around White River and Kakabona settlements, west of Honiara. Ben Maenu'u and George Maenu'u, the sons of Paul Meanu'u, were also at the Bushman Club that night. Kelesi, the younger brother of John Robu, was also at the Club and said to have taken part in the fight as well. There were altogether seven of the Paul Maenu'u boys at the Club. There could have been others in the Paul Maenu'u group. James Moa, (CW8) estimated that there were about four or five men moving towards him and the deceased towards the rear of the Bushman Club and about ten men were blocking the front exit. PW6 described the fight as being a fight between Paul Maenu'u's group and his one-talks. His one-talks were said to be the deceased, James Moa, (CW8) and Tangei. In fact, James and Tangi had fallen down as well during the fight but away from where the deceased fell to the ground. Fox Tango, (CW4), had been to North Malaita many years ago as a primary school student. He was therefore able to speak and understand the language of the accused. In 1984/1985, he was an employee of Paul Maenu'u in ADAMASIA, a trucking business owned and operated by Paul Maenu'u, the father of LencyMaenu'u. He knows the Maenu'u family fairly well. Fox Tango, (CW4), was a taxi driver at the time the deceased met his death. He reached the Bushman Club in the early hours of 20^th June 1998 but after the fight was over. He did not go into the Bushman Club. It was still dark. He parked his taxi along the main road. He also saw a white Hilux and a Land Cruiser. He saw Mostyn Maenu'u inside a Land Cruiser and Paul Maenu'u in a Hilux. He said there was another Hilux as well. He recalled the registration number of one of the Hilux vehicles as being 3981. Eric Tee, (CW6), also saw a Hilux owned by Paul Maenu'u on the main road after the fight was over that morning. It was packed with people. He described the Hilux on the main road having red stripes on its body that he often saw parked at Paul Maenu'u's residence at White River. He said he saw this after the fight was over when he was at the main gate before he returned to check on the deceased who was lying on the ground. Some weeks after the death of the deceased, the Maenu'u boys attacked Fox Tango. They were travelling in a hilux. He did not know why he was so attacked. According to James Moa, (CW 8), following the throwing of the can of beer which missed him and the deceased, they ran towards the back of the Bushman Club. They were blocked by a group of men, shouting in Malaita language. They ran back towards the front exit gate but were blocked by another group of men. Clearly, he and the deceased were trapped by the attackers. There is no direct evidence as to how many attackers there were at the Bushman Club that night. A number of vehicles belonging to Paul Maenu'u had parked on the main road, a short distance away from the Bushman Club. There is no explanation why those vehicles were there and why Mostyn Maenu'u and Paul Maenu'u were there also. One explanation was that the men at the Bushman Club who attacked the deceased had arrived on those vehicles. They were taken there under the direction of Paul Maenu'u and his brother, Mostyn Maenu'u. The other explanation is that Paul Maenu'u and Mostyn Maenu'u went there to stop the fight but when they got there, the fight was over. Yet, another explanation was that they had gone there to dance but when they got there, the dance was over due to the fight. But the number of vehicles, including a three ton truck would suggest that a number of persons had been transported to the Bushman Club after the closure of the Heron Club at 3am that same morning.

Was the attack on the deceased planned?

John Tua, (CW5), said he stopped the music when the fight started. He said he saw Ben Maenu'u and Lency Maenu'u standing near the bar looking at two boys from Bellona lying on the floor. He said people were running about. James Moa, (CW8) said he believed the attackers had planned to attack because they had blocked both the rear and front exits to the Bushman Club. He said he did not know how the attackers were able to know that the deceased and his one-talks were at the Bushman Club. Tangia Manguputu, (CW10) said the attackers were Paul Maenu'u boys. He said they were attacking the deceased, James Moa, (CW8), and Tangei. He saw James Moa, (PW8) and Tangei lying outside of the dancing floor. John Kwaeota, (CW11) said he saw Lency Meanu'u shouting. He heard John Robu shouting and saying, "Au", "anyone hem Au, killem hem, " meaning, "kill anyone from the Islands of Bellona or Rennell for they are all from there". Why was Paul Maenu'u waiting on the main road? 'Why was Mostyn Maenu'u doing the same? Why was the three ton truck belonging to Paul Maenu'u there that night? Whose idea it was to attack the deceased at the Bushman Club? How did the men who blocked both the rear and front exits of the Bushman Club got there from Honiara to attack the deceased? How did they know that the deceased was there at the Bushman Club? These questions can only be answered by looking at the evidence. The deceased obviously was the intended victim of the attack for all the blows were aimed at him and concentrated on him. James Moa, (PW8) and Tangei could have been killed also but were spared by the attackers. James Moa, (PW8) was attacked because he ran back to the deceased being attacked. The presence of Paul Maenu'u and his brother Mostyn Maenu'u sitting inside their trucks must necessarily have a connection with the attack on the deceased for the attackers, including the accused, were his boys. There can be no other conclusion beyond reasonable doubt. According to Paul Saukiu's, (CW2), evidence, it was Paul Meanu'u's aggressive attitude which ruled out the fast attempt to settle the dispute in the first place. At the Central Police Station, it was Paul Maenu'u who spoke for his group whilst the deceased spoke for his group. Paul Saukiu, (PW2), said that the death of the deceased showed that Paul Maenu'u's group did not agree with the settlement reached at the Central Police Station in February, 1998. According to Fox Tango's evidence, it was Paul Maenu'u who had earlier told his security boys to attack the deceased's brother at the Heron Club. Kelesi who threatened to fight the deceased earlier when he expressed a threatening attitude to John Maetala near the Multi-Purpose Hall in April, 1998. John Maetala, (CW3), said he was apprehensive that Paul Maenu'u's boys might hurt his brother, the deceased. There had been a fight between the two groups at the Bushman Club on a previous occasion. As a result of that fight the deceased damaged Kelesi' vehicle thereby becoming a possible reason for Kelesi wanting to fight the deceased. John Maetala (PW3) was aware of the damage done to Kelesi's vehicle but thought the matter had been settled. The dispute somehow had not been settled from the viewpoint of Paul Maenu'u's group. Somehow, as apparent by their conduct, the need to even the score was still outstanding and the opportunity had come to do that at the Bushman Club. There is therefore strong circumstantial evidence of common intention to prosecute an unlawful purpose by the accused under section 22 of the Code which resulted in the death of the deceased. (See The Queen v. Peter Loumia and Others, Criminal Case No. 7 of 1984 (unreported), R v. Ronny Oeta and Allen Maelalia, Criminal Case No. 173 of 2003, (unreported) and R v. Harold Keke, Ronnie Cawa and Francis Lela, Criminal Case No. 254 of 2004). Common intention can be inferred from the evidence. After the fight was over, the three ton truck, the Hilux and the Land Cruiser left the Bushman Club with the attackers. Eric Te'e, (PW6), said he saw people crowding up in the back of Paul Maenu'u's Hilux after the fight was over at the Bushman Club. He said that Hilux had stripes on its body. He said after that he went to where the deceased was lying and saw a wound on the left eye of the deceased at Point C.

The law on the question as to who delivered the fatal blow or blows.

This question was discussed in R v. Hyde and Others [1990] 3 All E.R. 892. At page 895, Lord Lane, C.J. said-

"...There are, broadly speaking, two main types of joint enterprise cases where death results to the victim. The first is where the primary object of the participants is to do some kind of physical injury to the victim. The second is where the primary object is not to cause physical injury to any victim but, for example, to commit burglary. The victim is assaulted and killed as an (possibly unwelcome) incident of the burglary. The latter type of case may pose more complicated questions than the former, but the principle in each case is the same. A must be proved to have intended to kill or to do serious bodily harm at the time he killed. As was pointed out in R v. Slack [1989] 3 All ER. 90 at 94 [1989] QB 775 at 781, B, to be guilty, must be proved to have lent himself to a criminal enterprise involving the infliction of serious harm or death, or to have had an express or tacit understanding with A that such harm or death, should, if necessary, be inflicted...".

Similar statements were also made by the High Court of Australia in McAuliffe v. The Queen [1995] HCA 37; (1994-95) 183 CLR 108. Clearly, each of the accused in this case had lent himself to a criminal enterprise involving the attack upon the deceased resulting in his death. Counsel for the defence had raised the conflicting evidence about who had a knife and who had a button during the attack. John Robu was said to have used a knife, a button and a stool, apart from kicks. Lency Maenu'u was said to have used a button and a stool, apart from kicks. Henry Faramasi used a piece of timber and kicks. Peter Ka'abe used the same stool plus kicks. It does not matter who used which weapon and what types of weapon so long as any of those weapons had been used against the deceased and by whom which caused his death. There is no doubt in this case as to who attacked the deceased, causing the death of the deceased. In the event that I am wrong on this point of there being evidence of joint enterprise, there is sufficient evidence to enable me to convict each of the accused of being aiding and abetting each other in the commission of the offence of murder.

The Court's verdict.

I find that the Crown has proved its case against each accused beyond reasonable doubt and I find each of them guilty of murder and convict each of them accordingly. The verdict is that each of the accused is guilty of murder. I sentence each of them to imprisonment for life and order accordingly. This sentence is mandatory and an allocutus presentation would serve no useful purpose. Each accused is entitled to appeal his conviction.

F.O. Kabui
Puisne Judge