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High Court of Solomon Islands |
HIGH COURT OF SOLOMON ISLANDS
Criminal Case No: 320 of 2004
R
-v-
RONNY CAWA, OWEN ISA AND JOSES KEJOA
(Naqiolevu, J)
Date of Hearing: 20th, 21st, 23rd July, 1st, 2nd, 3rd, 4th, 8th, 9th, 10th, 11th, 22nd, 24th, 25th, 30th, 31st August, 8th, 12th,
13th, 14th, 16th September 2005
Date of Judgment: 28th October 2005
Mr. S Cooper and Mr. P Bannister for the Crown
Mr. L Averre for First Accused
Ms. L Kershaw for Second Accused
Mr. H Barklay for Third Accused
JUDGMENT
Naqiolevu J. The three accused are charged with 6 counts of Murder, contrary to Section 200 of the Penal Code. The first accused is charged in count 1 and 2 for the murder of Br Reuben Lindsay and Br Francis Tofi and jointly charged with the second accused in count 3 for the murder of Br Alfred Hill. He is further charged with the third accused in count 4 for the Murder of Br. Ini Paratabatu. In count 5 he is charged with the Murder of Br Tony Sirihi and in count 6 charged with a Juvenile for the murder of Br Patterson Gatu.
The charges relate to the murder of the six Melanesian Brothers on the 24th & 25th of April 2003. Three of the Melanesian Brothers, Brother Reuben Lindsay, Brother Francis Tofi and Brother Alfred Hill were executed on the day they arrived on the Weathercoast and the other three brothers Brother Tony Sirihi, Brother Ini Paratabatu and Brother Patterson Gatu were executed the following day after being held captive overnight.
THE CROWN’S CASE
The crown’s case is that in February 2003 the Archbishop of the Church of Melanesia Sir Ellison Pogo received a two page letter signed by Dyell Tati who had written a letter on behalf of Harold Keke to the effect that a Brother Nathaniel Sado had been taken captive and was being questioned by the GLF. Brother Sado had travelled to the Weathercoast in February and had not returned. This information and subsequent information received by the Melanesian Brotherhood led them to hold grave fears for the safety and life of Brother Sado. As later eventuated Brother Sado was killed after he arrived on the Weathercoast in February 2003.
Brother Paratabatu one of the victims had conveyed to the Archbishop, Sir Ellison Pogo his concerns about Brother Sado. At 7pm. on the 23rd of April 2003 Brother Francis Tofi also went to see the Archbishop at his house at Bishop’s Dale. Brother Tofi along with Brothers Paratabatu, Gatu, Sirihi and the other brothers had been staying at Bishop’s Dale as part of the gun retrieval mission.
Brother Tofi told the Archbishop that he and Assistant Head Brother Reuben Lindsay and some other Brothers were going to travel to the Weathercoast to gather information about what happened to Brother Sado.
The six Brothers left Honiara the following morning to journey to the Weathercoast and they arrived there on the 24th of April 2003. After a short rest the brothers set off in search of the grave of Brother Sado and that was the last that was seen of them. What happened to the Brothers is amply disclosed in the Record of Interview that was subsequently carried out with the accused when they were questioned by the police after the arrival of RAMSI.
DEFENCE CASE
1. FIRST ACCUSED
The first accused in his record of interview and dock statement admitted the offence of murder but raised the defence of self-Defence to the charges. The accused had not sought to shift responsibility for the deaths of the 6 Melanesian Brothers and has accepted that he shot some of them and ordered the shooting of the others. The accused did not give evidence but gave a dock statement which raises a defence on the evidence of his taped record of interview.
The accused ask the court to consider, the defence of self-Defence as prescribed under Section 4 of the Constitution and Section 204 of the Penal Code.
The defence submit that the test for self-defence is therefore whether (on a subjective test) the accused was defending himself from violence, and then whether (on an objective test) the force used was in all circumstance reasonable. Once a defence of self-defence is raised it is for the prosecutions to disprove it beyond reasonable doubt.
2. SECOND ACCUSED
The Second accused whilst accepting that he played an active part in the death of Brother Hill through beating him. The prosecution has not disproved beyond reasonable doubt that the accused acted as he did under compulsion. Compulsion or Duress provides a complete defence to the offence of murder, as such the accused is entitled to be acquitted of the charge of murder.
3. THIRD ACCUSED
The Third accused submit that there is no issue in this trial that he shot and killed Brother Ini Paratabatu. However the reason he
killed the brother was that he was ordered to do so and that if he didn’t he would be killed himself. The issue therefore is
duress, and the main issue “is”, has the Crown proved beyond reasonable doubt, that the accused not act as a result of duress.
ISSUE FOR DETERMINATION
The issue for determination by the court is:
LAW
1. The offence of Murder is defined under section 200 of the Penal Code.
Section 200
“Any person who of malice aforethought caused the death of another person by an unlawful act or omission is guilty of murder and shall be sentenced to imprisonment for life.”
Section 202 of the Penal Code – defines malice aforethought 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 proceeding or co-existing with the act or omission by which death is caused, and it may exist where that act is premeditated –
(a) An intention to cause the death of our grievous bodily harm to any person, whether such person is the person killed or not; or
(b) knowledge that the act which caused death will probably cause 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.”
EVIDENCE
The evidence in this trial to a large extent has come from the accused in their record of interview taken at the Weathercoast and in Honiara. In relation to the first accused part of the interview took place aboard the HMS Manoora and the Second and the Third accused at the Central Police Station. The First accused in the course of the trial gave a dock statement and did not call any witnesses. The Second and Third accused gave evidence on oath.
1. FIRST ACCUSED – RONNY CAWA
The accused Record of Interview conducted on board the Manoora on the 13th of April 2003, (exhibit 12) clearly reveal his participation in the killing of the 6 Melanesian Brothers. In response to the question he was asked he responded with “yes” he had shot the first three brothers on the day of their arrival at the Weathercoast and ordered the killing of the 3 remaining brothers on the second day. The accused in his statement continue that he had to execute the brothers as they had come to the Weathercoast without obtaining permission and they were government spies. Upon arrival they were asked to be searched and refused and the 3 brothers, Brother Sirihi, Brother Tofi and Brother Hill had tried to retaliate and advanced towards them with their religious sticks, which prompted him to shoot them. Two of the brothers died instantly and the other brother, Brother Hill after being wounded in the forearm fell on the ground wherein Cawa subsequently ordered the second accused to kill him which he proceeded to do.
The First accused then ordered the three remaining brothers to be tied and kept over night and the next morning were interrogated. Before he ordered that they be executed by the third accused and the Juvenile “K”. The first accused was interviewed and subsequently charged for the murder of the 6 Melanesian Brothers. The accused in his statement explained the conflict and the causes of the conflict, the Townsville Peace Agreement and the continuing conflict between the GLF and the Government.
The First accused as revealed in his record of interview and his Statement had executed the two Melanesian Brothers and ordered the murder of the third brother on the day of arrival and ordered the killing of the 3 remaining brothers the following day. In this regard he is jointly charged with the Second and third accused for counselling and procuring them and another in the murder of the Brothers.
COUNSEL AND PROCURE
The law on whether a person counselled or procured another to commit an offence is defined under Section 23 of the Penal Code.
Section 23
“When a person counsels another to commit an offence, and offence is actually committed after such counsel by the person to whom it is given, it is immaterial whether the offence actually committed is the same as that counselled or a different one or whether the offence is committed in the way counselled or in a different one provided in either case that the facts constituting the offence actually committed are a probable consequence of carrying out the counsel.”
“In either case the person who gave the Counsel is deemed to have counselled the other person to commit the offence actually committed by him.”
The law is quite clear and I am fortified by the decision of the Court of Appeal in the case of R-v- Calhaem[1], where the court stated,
“The offence is made out if applying a natural meaning to the word counsel, i.e. to advise or solicit, it is proved that there was counselling, that the principal offence was committed by the person counselled and that the person counselled was acting within the scope of his authority and not accidentally when his mind did not go with his action. Clearly one who counsels and commits is liable, and by implication liable only for an offence committed in consequence of such counselling.”
Clearly the accused in his evidence and the record of interview admitted that he ordered the other members of the GLF to kill the Brothers. I find he is a Counsellor and Procurer of others in order to effect the murders.
DEFENCE
The First accused in response to the charges against him outlined the background to the conflict, the area of the Weathercoast which he described as a war zone. The area was under attack from government forces that burnt houses and churches and committed atrocities in the villages. The GLF had its stronghold on the Weathercoast and the government was unable to get into the area to break the stronghold. It was the advent of RAMSI that gave these people hope and there was a peaceful Surrender and the laying down of arms as outlined in the Statement that were handed to the court and that formed the record of interview with the accused on the HMAS Manoora.
Counsel for the accused explained how the court has heard the story of the death of the Melanesian Brothers through the accounts of the three accused and without these accounts there would be no evidence. The story is a tragic one of death in the time of conflict. It is an unfortunate consequence of those fighting for rights coming into conflict with those perceived as being out to get them. It is not an unusual tale from conflict situation, nor is it something which can be seen in a vacuum. It has to be seen in all prevailing circumstance.
SELF-DEFENCE
Counsel for the accused has raised the defence of Self-Defence against the charges against him and submit the court ought to consider, and can consider this as a defence.
The defence of Self-Defence is prescribed under Section 4 of the Constitution and Section 204 of the Penal Code.
Constitution – Section 4
“A person shall not be regarded as having been deprived of his life in contravention of this section if he dies as the result of the use to such extent and in such circumstances as are permitted by law, of such force as is reasonably justifiable:-
(a) for the defence of any person from violence or for the defence of properly.”
Penal Code – Section 204
“Where a person by an intentional and unlawful act causes the death of another person the offence committed shall not be of murder but only manslaughter if any of the following matters of extenuation are proved on his behalf, namely: –
(a) that he was deprived of the power of self-control by such extreme provocation given by the person killed as is mentioned in the next succeeding section; or
(b) that he was justified in causing some harm to the other person, and that, in causing harm in excess of the harm which he was justified in causing, he acted from such terror of immediate death or grievous harm as is in fact deprive him for the time being of the power of self control.”
The accused in his record of interview said that he was fearful of the holy stick the brothers carried with them. The stick he claims has some magic power. The defence submit the perception by the people is that the stick holds some power that may kill. This was borne out by Brother Gereniu when he was cross-examined by Counsel. The defence of self-defence is therefore whether (on subjective test) the accused was defending himself from violence and then whether on (an objective test) the force used in all circumstances, was reasonable. If the force used was excessive then the verdict is one of manslaughter but if it was reasonable then the result is an acquittal.
The defence maintained once the defence is raised then it is for the Crown to disprove it beyond reasonable doubt. The defence does not have to prove the defence on a balance of probabilities, but the onus of disproving the defence rests upon the prosecution. Should the court accept that the accused acted in Self-Defence then it must consider whether the accused’s action were excessive in all of the circumstances. If not excessive the court must acquit and if they were excessive the accused is guilty of manslaughter.
ISSUE OF SELF-DEFENCE
The defence in response to the Crowns contention the issue of self-defence must be properly raised on an evidentiary basis to enable the crown to prove it beyond reasonable doubt. The recent court of Appeal cases of R-v-Somae[2] where the court considered the issue that defence arose even on the prosecution case. I accept that as the defence has been raised the court must consider it and give weight to the evidence presented.
Counsel for the First Accused raised several questions and answers in the record of interview which entitle him to the defence. The answers are as enumerated in the 13th August Record of Interview and the 10th of September 2003 Record of Interview.
I accept the defence submission supported by the authorities cited (ibid) that I am entitled to take into consideration the statement by the accused and will give it proper weight in the deliberation.
COMMON LAW TEST
The Common Law Test on the defence of self-defence is succinctly stated in the case of –
Zecevic v DPP (Vic)[3] Wilson, Dawson and Toohey JJ said (at 661; 652, 174):
“The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal. Stated in that form, the question is one of general application and is not limited to cases of homicide. Where homicide is involved some elaboration may be necessary.”
The accused in his statement and interview said that he gave immediate action because of their (Brothers retaliation). The accused did not indicate to the court what the retaliation was. He further could not be tested about what the perceived threat was, if any. It seems to me that the accused is trying to put the blame on the brothers for their death.
The accused in his second interview of the 10th of September outline in factual circumstance the use of the holy sticks in more depth. He talks in terms of the power of the stick. Brother Gereniu in his evidence explained the purpose of the stick, which is provided to the brothers when they are ordained. They are physical visible support of the presence of Christ and which is connected to the Ministry of Christ and indeed the teachings of the Gospel. It seems to me the accused was aware of the misconception widely held in the community about the power of the sticks. This was clearly evident in the letter (exhibit 9) which was dictated by him to Dyell Tati. In the letter the accused had said,
“the brothers with the sticks trying to make power so that the miracle happen which they believe their walking sticks have power can stop the gun to be fired.”
In my view while the accused had raised doubt in the supposed power of the stick he now wish to raise it in defence for his shooting the brothers. The stick could have simply been taking out of the brothers hands, given they were outnumbered by the members of the GLF who were armed. In my view the accused response to the brother’s use of the stick was totally out of proportion to the circumstance and can truly reveal his intention of executing them. I am of the opinion applying the Common Law Test, the accused could not have believed upon any reasonable grounds that it was necessary in self-defence to execute the brothers, and Counsel and procured the second and third accused to execute the other two brothers. I find the prosecution has disproved beyond reasonable doubt that the accused was acting in self-defence in the murder of the six Melanesian brothers.
2. SECOND ACCUSED - OWEN ISA
The case against the second accused is that he was an active participant in the beating that led to the death of Brother Hill. The accused in his evidence admits his responsibility in the death of the brother, however claim he participated because he was ordered to do so by Cawa. This is clear from his record of interview and his evidence on oath. He was present on the scene on the day in question when he was ordered to kill Brother Hill by the First Accused. The accused therefore claims that whilst his intention to murder Brother Hill is in no doubt he relies on compulsion as a complete defence to the charge of murder.
LAW COMPULSION
The accused through his counsel raised the defence of Compulsion/Duress, to entitle him not be criminally responsible for the murder of Brother Hill. The law on the availability of compulsion as a defence is defined under Section 16 of the Penal Code.
Section 16
“A person is not criminally responsible on an offence if it is committed by two or more offenders, and if the act is done or omitted only because during the whole of the time in which it is being done or omitted the person is compelled to do or omit to do the act by threats on the part of the other offender of offenders instantly to kill him or do him grievous bodily harm if he refuses, but threats of future Injury does not excuse any offence.”
Clearly when the defence of compulsion is raised, the onus lies on the prosecution to prove beyond reasonable doubt that the accused did not act under compulsion. The accused does not have to prove beyond reasonable doubt that he acted by reason of compulsion. Where the prosecution is unable to prove this beyond reasonable doubt, the accused is entitled to be acquitted of the charge.
The accused submit that the evidence before the court raise the defence of compulsion. The evidence of compulsion comes principally from the accused. In the course of examination in chief the accused in his sworn evidence outlined the circumstances that surround the day in question. The evidence involved where he was at the time, who was present at the scene of the incident and his participation in the beating of Brother Ini. He said he kicked and punched him on the head and leg. He kicked and punched the brother because he was ordered by the First accused. The First accused was armed with a high powered weapon when he ordered the accused to kick the victim, and at the time he was surrounded by at least 30 or 50 members of the GLF who were armed. These factors would clearly give rise to a threat of being killed or seriously harmed if did not follow order.
I propose to address the defence of Compulsion after dealing with the evidence of the third accused as it involves the same principles of law.
3. THIRD ACCUSED - JOSES KEJOA
The accused is charged with the Murder of Brother Ini Paratabatu.
The evidence against Kejoa consists of his own admission of the role he played in the death of Brother Paratabatu. These are contained in his interview conducted on September 25th, 2003 at Kolina and later at CPS in Honiara. In the Kolina interview the accused in the various questions asked and his responses admitted to shooting the brother, and how he shot him, and that he know it was brother Ini he had killed, and he helped bury him at Pite (Question & Answer 3-13, 87-89.)
In the Honiara interview the accused indicate how he was ordered to shoot the brother by the First accused, his response to why the brother was shot, he said, “came to take a mission and trespassed.” He shot the brother with one shot from a close distance, and that he was in the GLF and Harold was the Top Commander and Ronny Cawa was boss Commander.
In his evidence under oath the accused did not tell the court of any direct threat, or that he would be killed, or have Grievous Harm inflicted upon him.
It seems to me there is no background as to any reason why the accused should have the fear. There has been no evidence of anyone in the GLF being harmed or killed as a result of not following orders from the first accused and he did not indicate if he had seen this occur.
The accused is raising the same issue as the second accused in that whilst there is no issue that he shot and killed Brother Ini Paratabatu. The reason he killed the brother is because he was ordered to do so by the First Accused. Clearly his intention to kill Brother Ini Paratabatu is in no doubt, however he claimed compulsion as a complete defence as he was acting under a direct order and fear of his life. The Law on compulsion or duress is as I have stated is defined under the provisions of Section 16 of the Penal Code, and I will not outline it again.
In R-v- Martin[4] Mantell LJ delivering the judgment of the Court of Appeal, stated at pages 47-48:
“The classic definition of duress is to be found in the speech of Lord Simon of Glaisdale in Director of Public Prosecution for Northern Ireland –v- Lynch[5]”
“I take it for present purposes to denote such [well – grounded ] fear, produced by threats, of deaths or grievous bodily harm [or unjustified imprisonment ] if a certain act is not done, as overbears the actor’s wish not to perform the act, and is effective, at the time of the act, in constraining him to perform it. I am quite uncertain whether the words which I have put in square brackets should be included in any such definition. It is arguable that test should be purely subjective, and that it is contrary to principle to require the fear to be a reasonable one”.
The definition was approved in R-v- Howe[6]. In the same case Lord Mackay of Clashfern cited with approval the judgment of Lord Lane CJ in Graham[7].
“As a matter of public policy, it seems to us essential to limit the defence of duress by means of an objective criterion formulated in terms of reasonableness. Consistency of approach in defences to criminal liability is obviously desirable. Provocation and duress are analogous. In provocation the words and action of one person breaks the self-control of another. In duress the words or action of one person break the will of another .The law requires a defendant to have the self-control reasonable to be expected of an ordinary citizen in his situation. So too with self-defence, in which the law permits the use of no more force than is reasonable in the circumstances. And, in general, if a mistake is to excuse what would otherwise be criminal, the mistake must be a reasonable one”
COMPULSION DURESS AS DEFENCE
It is clear that the defence of Compulsion/Duress maybe available to an accused who has voluntarily joined a criminal organization. The defence is not available however if the accused raising the defence fails to take the opportunity to escape the compulsion/duress, or had joined a group known to use violence, such as an illegal paramilitary organization or a gang or armed robbers. See Court of Appeal in R-v-Martin Brian Shepherd[8].
In R-v-David Bruce Sharp[9], The Court of Appeal stated,
”where a person has voluntarily, and with knowledge of its nature, joined a criminal organization or gang which he knew might bring pressure on him to commit an offence and was an active member when he was put under pressure, he cannot avail himself of the defence of duress.”
VIOLENT GANG VOLUNTARILY JOINED
The defence of compulsion is also not available to persons who commit crimes as a consequences of threats from members of violent gang which they have voluntarily joined. Clearly a defendant who associate with or joins a criminal organisation which could force him to commit crimes can be blamed for his actions. In joining such an organization, fault can be laid at his door and his subsequent actions described as in excusable.
In R–v-Sharp (ibid), The defendant was a party to a conspiracy to commit robberies who said that he wanted to pull out when he saw his companions equipped with guns, where upon one of the robbers threatened to blow his head off if he did not carry on with the plan. In the course of the robbery, the robber killed a person. The defendant was convicted of manslaughter and appealed. In dismissing the appeal, the Court of Appeal held that a man must not voluntarily put himself in a position where he is likely to be subjected to such compulsion, Lord Lane CJ.
The defence however is not inevitably; barred because the duress comes from a criminal organization which the defendant has joined. It depends on the nature of the organization and the defendant’s knowledge of it. If he was unaware of any propensity to violence, the defence may be available. The court so held in:
R-v-Shepherd (ibid), The defendant joined a group of thieves. They would enter retail premises and while one of them distracted the shopkeeper, others would carry away boxes of goods, usually cigarettes. The defendant claimed that after the first burglary he wanted to give up, but had been threatened with violence to himself and his family if he did not carry on with the thefts. He was convicted of burglary and appealed against conviction. In allowing the appeal, the Court of Appeal held that the question should have been laid to the jury to decide whether he could be said to have taken the risk of violence from a member of the gang, simply by joining its activities.
MEMBERSHIP OF GLF
Both the second accused and third accused as clear from the evidence are members of the organization the (GLF) or Guadalcanal Liberation Front. The organization is an unlawful organization which conducted criminal activities throughout the Guadalcanal Province. I take judicial notice of its criminal activities and the atrocities it committed on innocent members of the community. Both accused have been associated with the organization and have taken part in various activity. They should know and must have known the sort of activities the organization is involved in, and the ruthless execution it committed on anyone they consider an enemy. The second and third accused are clearly aware of the violent nature of the organization and did not leave but continue to associate with the membership and choose to remain and continue to be part of the illegal activity. They therefore cannot claim duress as a defence. I adopt the case of R-v-Hasan[10] in the recent House of LORDS decision where the court restated the Principles of law, that where an accused person has voluntarily joined an organisation that commit violent offence or involved in criminal activity and participate in such activity he cannot avail himself of the defence of duress.
I find the prosecution has negatived beyond reasonable doubt the defence of compulsion.
I find the first accused guilty of the offence of murder of the six Melanesian brothers and the second accused guilty of the murder of Father Tofi and the third accused guilty of the murder of Father Ini Paratabatu.
SENTENCE
You have all been found guilty and convicted of the Charge of murder. The offence cannot be condoned by any civilized society. It is serious and you have caused great pain to the family of these man of God who came to the Weathercoast in search of their brother who had suffered the same fate. The court accept the situation existing at the time. However there cannot be any excuse for the senseless killing of the six Melanesian brothers. Conflict will always exist in our world as history has proven and will continue in the future. We must learn that killing to achieve our aims however one seek to justify it will not solve any problem. It will only exacerbate the problem without achieving any useful purpose.
The court has taken all these factors into consideration and must send a clear message to the community that taking innocent lives will result in punishment and those found guilty must be prepared to face the full brunt of the law.
The Accused are sentenced accordingly:
FIRST ACCUSED
First Count: Life Imprisonment
Count 2: Life Imprisonment
Count 3: Life Imprisonment
Count 4: Life Imprisonment
Count 5: Life Imprisonment
Count 6: Life Imprisonment.
SECOND ACCUSED
Count 3: Life Imprisonment.
THIRD ACCUSED
Count 4: Life Imprisonment.
All sentence to commence from day taken into custody.
THE COURT
[1] [1985] QB 808
[2] Criminal Appeal Case No. 003 of 2004
[3] (1987) 162 CLR 645; 71 ALR 641; 25 A Crim R 163
[4] [2000] 2 Crim App R.42
[5] (1975) 61 Cr App R.6
[6] (1987) 85 Cr App R32
[7] (1982) 74 Cr App R235
[8] (1988) 86 Cr App R47
[9] (1987) 3 WLR 1.
[10] (2005) UKHL 22
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