Regina v Miavana [2005] SBHC 25; HCSI-CRC 123 of 2004 (7 December 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 123 of 2004

REGINA

-V-

PAISI MIAVANA, JOSEPH MIAVANA, ROBOE LIGIBATU AND DAVID HICKS HONITELE

(Commissioner R D Chetwynd)

Dates of hearing at Gizo: 5th to 21st September 2005
Date of Judgment at Gizo: 7th December 2005

M McColm Esq for the Crown
C Baker Esq for Paisi Miavana
S Lawrence for Joseph Miavana
Ms E Garo for Roboe Ligibatu
Ms M Swift for David Hicks Honitele

JUDGMENT

Commissioner Chetwynd. On October 5th 2001 5 men arrived in a canoe at the village of Mbarabarakakasa in Choiseul. The five men were William Amalo and the four defendants Joseph Miavana, Paisi Miavana, Roboe Ligibatu and David Hicks Honitele. Amalo was armed with a rifle and at some point during the late afternoon or early evening of 5th October he shot Brian Majapeso who died shortly afterwards. William Amalo is not a party to these or any other legal proceedings because it seems that some months later he was shot and killed by members of the Royal Solomon Islands Police Force. Had he been alive today then no doubt he would be facing a charge of murder.

The four defendants are facing charges of murder, but not on the basis that any of them fired the fatal shot. They are charged on the basis that they aided and abetted William Amalo in the murder of Brian Majapeso. The prosecution also say that they shared a common purpose with Amalo to participate in some unlawful enterprise and that therefore they are as guilty of the murder of Brian Majapeso as Amalo because it occurred during or as a result of the unlawful enterprise and they knew or ought to have known it would.

There is no dispute that William Amalo fired the fatal shot that killed Brian Majapeso. No one has argued that Amalo’s act of shooting Brian Majapeso was anything other than murder. The issue then is did any of the defendants aid or abet him in that murder? Alternatively, the issue is did these defendants share a common purpose with William Amalo to pursue or prosecute an unlawful purpose and was Brian Majapeso’s murder a probable and foreseeable consequence of that common criminal design or purpose ?

There is no dispute that Joseph Miavana, Paisi Miavana, Roboe Ligibatu and David Hicks Honitele arrived at Mbarabarakakasa in the same canoe as William Amalo. However, much else of what did happen that day is disputed and the defendants all deny the charges. They deny aiding or abetting William Amalo in the murder of Brian Majapeso or acting with a common purpose which led to the murder.

At it’s most basic the Prosecution case is that all five men decided that they would go to Mbarabarakakasa to find and kill a person by the name of Lukeson. They travelled to Mbarabarakakasa by canoe. All five men arrived in the same canoe. On arrival shots were fired. Joseph Miavana and Paisi Miavana then accompanied William Amalo into the village. They were unable to find Lukeson but they did encounter a close relative of his, Paul Harry Pope. They were involved in a fight or struggle with Pope. That fight only came to an end when Amalo tried to shoot Pope in the leg, missed, fired another shot in the air and then apparently ran out of ammunition. Paul Harry Pope made good his escape at that time but he was pursued by Joseph Miavana and Paisi Miavana further up into the village.

William Amalo returned to the canoe. There it is said he was handed more ammunition by both Roboe Ligibatu and David Hicks Honitele. When they did so it also alleged that they urged or told Amalo to go and kill the villagers of Mbarabarakakasa.

William Amalo followed Joseph Miavana, Paisi Miavana and Paul Harry Pope up into the village. Joseph Miavana and Paisi Miavana had caught up with Pope and were holding on to him. Paul Harry Pope was warned by another villager or by other villagers that William Amalo was approaching and so he broke free and ran away again.

It was about this time that the late Brian Majapeso appeared on the scene. He came forward to speak to Joseph Miavana and Paisi Miavana. The Prosecution say that both Joseph Miavana and Paisi Miavana urged Amalo to shoot him and on being told to stand clear by Amalo they moved to one side and Amalo fired a shot. The bullet struck Brian Majapeso in his lower abdomen close to his left hip bone and then apparently travelled towards the right hip. Likely as not the bullet caused extensive internal injuries and Brian Majapeso died shortly afterwards.

The Prosecution say that after the shooting of Brian Majapeso, the two defendants Joseph Miavana and Paisi Miavana together with William Amalo walked around the village. Amalo was shooting in the air and all three men were swearing and making threats. Some of the rounds fired by William Amalo damaged property belonging to various people in the village. It is also said that two radio cassette machines were stolen. The four defendants and William Amalo then left in the canoe.

The defendants did not give evidence nor did they call any witnesses. They are perfectly entitled to take that stance. It is for the Prosecution to prove their case against the defendants to the required standard. The defendants do not have to prove anything.

As there is no dispute that William Amalo actually shot Brian Majapeso dead and that such action on his part would amount to murder it is for the Prosecution to prove, so far as these four defendants are concerned, that they by their actions or words or even their presence, aided or abetted Amalo in the murder of Brian Majapeso. If the Prosecution fail to do that, that is not an end to the matter. The complicity of these defendants in the murder of Brian Majapeso would be established if it is proved that they shared a common intention or purpose to carry out an unlawful act and that the murder of Brian Majapeso arose as a probable and foreseeable consequence of that common purpose. Of course the proof needed is proof beyond any reasonable doubt.

Aiding and abetting

“The words "aid, abet, counsel or procure" should be given their ordinary meaning, if possible; the use of four words suggests that there is a difference between the words, for, if there were none, Parliament would be wasting time in using four words where two or three would do” [1]

Whilst the above was said of English law it is just as relevant to the law of Solomon Islands. That is set out in section 21 of the Penal Code:-

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;

There is more to that section but it is not relevant for the purposes of this case.

What this means is that whilst there is one offence there may be several persons who are criminally liable for it. As Archbold says,

Those liable may be categorised as either principals or secondary parties. Secondary parties are those who either aid, abet, counsel or procure the party who most immediately causes the actus reus of the crime.[2]

How then does a secondary party aid and or abet?

The natural meaning of the word “aid” according to the Oxford Concise Dictionary (9th Edition) is to help promote or encourage. According to Macquarie Concise Dictionary (Revised 3rd edition) the meaning is to afford support, or relief; to help to promote the course of accomplishment, facilitate. “Abet” from the same sources is defined as to assist or encourage or to encourage or countenance by aid or approval.

On that basis, as Archbold says:-

.....an aider and abettor may be present giving active assistance to the principal; he may be some distance away (as in the case of a look-out who watches the householder whilst the principal, with whom he is in contact via a mobile telephone burgles the house); or his act of assistance could be far removed in time and place (as in the case of the supplier of a gun who knows that it is required for the purpose of committing murder).[3]

What the prosecution will have to prove in this case is that any one of the defendants or all of them provided some help or assistance, some support or encouragement to William Amalo. Of course, just because I am satisfied that one of the defendants did aid and abet Amalo in the murder of Brian Majapeso it does not mean all the defendants are guilty. Whilst I can look at the behaviour and actions of all of them together I must consider the evidence against each individually.

It may be thought a difficulty in this case that there has been no conviction, indeed not even any prosecution, of William Amalo. The logical question to ask is how can these defendants be convicted of aiding and abetting when there has been no conviction of Amalo for the murder of Brian Majapeso. There is a long line of authorities which clearly show that the lack of such a prosecution is no bar to a finding of guilt against the defendants. What is required in law is put this way:-

There can be no conviction for aiding, abetting, counselling or procuring an offence unless the actus reus of the substantive offence is shown to have occurred [4]

In other words, as long as the offence is proved to have taken place there need be no conviction or prosecution of the principal.

The references in Archbold further show that:-

The secondary party may be convicted and the "principal" acquitted where there is evidence against the secondary party that is not admissible against the "principal": see R. v. Humphreys and Turner [1965] 3 All E.R. 689, Liverpool Crown Court (H.H.J. Chapman); or where there is insufficient evidence that the person charged as principal was in fact involved in the offence: R. v. Davis [1977] Crim.L.R. 542, CA. See also R. v. Burton (1875) 13 Cox 71, CCR. The acquittal of the alleged principal at an earlier trial is not only no bar to the subsequent conviction of an accessory, but is inadmissible at the trial of the accessory, since it is irrelevant as being merely evidence of the opinion of the first jury: Hui Chi-Ming v. R. [1992] 1 A.C. 34, PC.[5]

What the Prosecution must prove in this case then is, as indicated earlier, that the four defendants provided help or assistance to Amalo in the murder of Brian Majapeso not that William Amalo is guilty of the murder. If the prosecution proof is not to the required standard then the defendants are entitled to an acquittal.

However, there is the additional component to the Prosecution case, the issue of common intention.

Common intention or purpose

Section 22 of the Penal Code [Cap 26] says:-

When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.

The High Court of Australia considered the meaning of the doctrine on which this section is founded in the case of McAuliffe v The Queen. The Court said:-

"The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be described as a joint criminal enterprise. Those terms – common purpose, common design, concert, joint criminal enterprise - are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime. The liability which attaches to the traditional classifications of accessory before the fact and principal in the second degree may be enough to establish the guilt of a secondary party: In the case of an accessory before the fact where that party counsels or procures the commission of the crime and in the case of a principal in the second degree where that party, being present at the scene, aids or abets its commission: see Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473. But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others. Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission: cf R v Lowery and King [No 2] [1972] VicRp 63; [1972] VR 560 at 560, per Smith J.

Not only that, but each of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose. Initially the test of what fell within the scope of the common purpose was determined objectively so that liability was imposed for other crimes committed as a consequence of the commission of the crime which was the primary object of the criminal venture, whether or not those other crimes were contemplated by the parties to that venture: Mansell and Herbert’s Case (1556) 2 Dyer 128b [73 ER 279]; Ashton’s Case (1698) 12 Mod 256 [88 ER 1304]; R v Radalyski [1899] ArgusLawRp 25; (1899) 24 VLR 687; R v Kalinowski [1930] NSWStRp 89; 1930) 31 SR (NSW) 377. See generally Smith, A Modern Treatise on the Law of Criminal Complicity (1991), pp 209-214. However, in accordance with the emphasis which the law now places upon the actual state of mind of an accused person, the test has become a subjective one and the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose: see R v Johns [1978] 1 NSWLR 282 at 287-290, per Street CJ.”

There is clearly a close link to the concept of aiding and abetting as set out in section 21 and the doctrine of common intention or purpose as set out in section 22. However, they are not one and the same thing. In fact their inclusion in the same case is not always desirable. In the New Zealand case of R v Curtis McCullin J had this to say:-[6]

Section 66(1) is concerned with intentional acts of aiding or abetting or encouraging given by one party to another in the commission of the very crime which the principal offender commits. On the other hand s66(2) [which is almost identical to section 22 of our Penal Code] contemplates a different situation. It is concerned, not with an act which is the very unlawful act to which an offender lends his and or his encouragement, but with any act done by the principal party, while not the result aimed at, was a probable consequence of the prosecution of the unlawful common purpose. As was said in the judgment of this Court in R v Hamilton [1985] 2 NZLR 245 at p 250 by Cooke J:

“Section 66(2) is the New Zealand statutory provision dealing with the class of case in which a conspirator is guilty as a secondary party because he foresees that the principal party in carrying out their unlawful plan may commit a crime of the type in question. Liability turns on the contemplated, albeit unwarranted, consequences of the criminal enterprise: see R v Gush [1980] 2 NZLR 92 and Chan Wing–Siu v R [1984] 3 A11 E R 877

Regrettably, too often a case which can only be treated as a true case of aiding, abetting or encouraging under s66(1) has been made more difficult and confusing to a jury by the Crown’s attempted invocation of s66(2)

It may be thought that the distinction between complicity in a crime being established by reference to section 21 and complicity being established under section 22 is so subtle as to make McCullin J’s comments unnecessary but looking at, for example, the New Zealand cases of Curtis and Hamilton and the Australian case of McAuliffe the distinction is important. It seems to me that section 21 is aimed at those who intentionally participate in an offence whilst section 22 is aimed at those who might set out with others or another to commit a particular offence and become complicit in an entirely different offence. What McCullin J was simply saying is that if there is straightforward evidence of aiding and abetting then there is no need to rely on the doctrine of common purpose.

There is also a distinction to be drawn between the mens rea required in situation covered by section 21 and that covered by section 22. The difference was considered at length in the English House of Lords case of R v Powell and Another.[7] That case involved two separate appeals. In the first; Powell, another appellant named Daniels and third man had gone to the house of a drug dealer to purchase drugs. The drug dealer was shot dead. It could not be proved who fired the shot but the case was originally argued on the basis that it was the third man. The Crown case against Powell and Daniels was that they too were guilty of murder because they knew that the third man was armed and that he might use the gun to kill or cause serious injury to the drug dealer. They were convicted of murder and their appeals to the Court of Appeal failed.

The question certified for the opinion of the Law Lords was:

“Is it sufficient to found a conviction for murder for a secondary party to a killing to have realised that the primary party might kill with intent to do so or must the secondary party have held such an intention himself?”

The second appeal related to a man called English. He and another man had attacked a police officer. The plan by both men was to attack and injure the officer with wooden posts. During the attack the other man used a knife and stabbed the officer to death. The questions certified for an opinion were:

“(i) Is it sufficient to found a conviction for murder for a secondary party to a killing to have realised that the primary party might kill with intent to do so or with intent to cause grievous harm or must the secondary party have held such an intention himself?

(ii) Is it sufficient for murder that the secondary party intends or foresees that the primary party would or may act with intent to cause grievous bodily harm, if the lethal act carried out by the primary party is fundamentally different from the acts foreseen or intended by the secondary party?”

Their Lordships, in opining about the question in Powell and the first question in English, agreed with a long line of cases[8] in deciding that;

“where two parties embark on a joint enterprise to commit a crime, and one party foresees that in the course of the enterprise the other party may carry out, with the requisite mens rea, an act constituting another crime, the former is liable for that crime if committed by the latter in the course of the enterprise.”

Their Lordships agreed with the Australian High Court in saying that, “...the test has become a subjective one and the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose”[9]; and with principle proposed by Sir Robin Cooke [10] ,”...whereby a secondary party is criminally liable for acts of the primary offender of a type which the former foresees but does not necessarily intend” . As Sir Robin Cooke put it “The Criminal culpability lies in participating in the venture with that foresight”.

As to the second question in Powell the court held that the question could be resolved by the application of the principal stated by Lord Parker in Reg. v. Anderson, namely that,

”where two persons embark on a joint enterprise, each is liable for the acts done in pursuance of that joint enterprise, and that includes liability for unusual consequences if they arise from the execution of the agreed joint enterprise but (and this is the crux of the matter) that, if one of the adventurers goes beyond what had been tacitly agreed as part of the common enterprise, his co-adventurer is not liable for the consequences of that unauthorised act. Finally, it is for the jury in every case to decide whether what was done was part of the joint enterprise, or went beyond it and was in fact an act unauthorised by that joint enterprise”

Lord Hutton qualified that principal by stating that;

“If the weapon used by the primary party is different to, but as dangerous as, the weapon which the secondary party contemplated he might use, the secondary party should not escape liability for murder because of the difference in the weapon, for example if he foresaw the primary party might use a gun to kill and the latter used a knife, or vice versa.”

In conclusion the Court said that for the purposes of directing a jury, it should indicated that a secondary party would not be the subject of criminal liability if he contemplated the act causing the death as a possible incident of the joint venture but the jury could take the view that the risk was so remote, “that the secondary party genuinely dismissed it as altogether negligible”. The Court also said that,

“it might be preferable for a judge in charging a jury to base his direction on the test of foresight rather than the test set out in the first passage in Reg. v. Anderson. But in a case where, although the secondary party may have foreseen grievous bodily harm, he may not have foreseen the use of the weapon employed by the primary party or the manner in which the primary party acted, the trial judge should qualify the test of hindsight stated in Reg. v. Hyde [1991] 1 Q.B 134 in the manner stated by Lord Parker in the second passage in Anderson.”

Their Lordships recognised that,

“There will be cases giving rise to a fine distinction as to whether or not the unforseen use of a particular weapon or the manner in which a particular weapon is used will take a killing outside the scope of the joint venture, but this issue will be one of fact for the common sense of the jury to decide”.

As regards common sense, it should be noted that the court agreed with Lord Salmon’ s comments in Reg. v. Majewski[11] (when in that case he rejected criticism of a rule of the common law based on strict logic) that:

“this is the view that has been adopted by the common law of England, which is founded on common sense and experience rather than strict logic”.

As the adjudicator of both facts and law then it is my task to decide whether the evidence shows, beyond reasonable doubt, a straightforward case of aiding and abetting. In simple terms, did the parties do what they set out to do? Were they involved, in the ordinary sense of that word, in the murder of Brian Majapeso? If the answer to that is in the affirmative then I have no need to consider whether they were involved in a common criminal enterprise. If the answer is no then I do have to consider the provisions of section 22. I then have to ask whether all or any of the defendants were involved in a common intention to prosecute an unlawful act. If yes then I must further consider whether use by William Amalo of the rifle to murder Brian Majapeso was something they could reasonably have foreseen.

The evidence

Almost all of the evidence in this case was challenged by Counsels for the defence. There was a recurrent theme throughout this trial. The issue, simply stated, was this. The defence say that I cannot trust the evidence of many of the witnesses because individual witnesses have given multiple statements at different times and that what is set out in those different statements does not correlate exactly. The defence say that the witnesses have, for one reason or another, progressively embellished their evidence. The issue has arisen because although the incident happened in 2001 it was not investigated thoroughly until after the arrival of RAMSI in 2003.

This issue can only be understood and resolved one way or the other by consideration of the history of this case and by reference to the state of affairs which existed for some four or five years prior to the arrival of RAMSI in July 2003. That state of affairs has become known as the “ethnic tension”. No one in this trial has given evidence about the recent history of the Solomon Islands but having, in common with many, many ordinary Solomon Islanders, experienced at first hand the descent into the mire that was the ethnic tension I am entitled to take Judicial note of it. The situation as existed during the ethnic tension is common knowledge to the majority of Solomon Islanders and those “others” of us who lived through it. In any event it has been recited in other cases before the Court.

I have no need to relate that history in detail. Suffice it to say that in late 1998 and early 1999 there was growing culture of violence and lawlessness. At first this was mainly confined to Guadalcanal. Later that culture spread like a canker to all parts of the Solomon Islands. As the year 2000 approached the Royal Solomon Islands Police Force ceased to be effective as a law enforcement body. There were raids on Police armouries and eventually in June 2000 a coup was staged and the main armoury at Rove was emptied. The stolen weapons passed from the possession and lawful control of the RSIP to individuals. Many of those individuals were serving Police Officers but they no longer took orders from lawful authorities. Some of the weapons came into the possession of men like William Amalo, men who were not subject to any kind of authority or control, lawful or otherwise.

The general population was threatened, harassed, intimidated robbed and even killed by some of the men with the guns. The rule of the gun took over from the rule of law and much of the general population lived under an oppressive threat of imminent harm. The fear felt by many Solomon Islanders was very real, very genuine.

It was not only those in the general population who had concerns either. Those Police Officers, and there were plenty of them, who did try and remain loyal to their oaths of allegiance were unable to carry out their duties effectively. Much of the time they were subject to the same threats and intimidation suffered by the population as a whole. It is against this background that the investigation into the murder of Brian Majapeso must be set.

A key element in understanding what was going on is the evidence of Sgt Tebitaru. He was the fourth prosecution witness called to the stand. He is a serving Police Officer attached to the Honiara Communications centre. In October 2001 he was at Taro Police Station in Choiseul Province. He wasn’t asked why he was there at that time. He became aware of the death of Brian Majapeso on 6th October 2001. He decided to go to Mbarabarakakasa village. He took with him PC Foru and a Doctor. The evidence of another Police Officer suggests that in 2001 there were no CID officers stationed at Taro. Although he has been a Police Officer for some 22 years Sgt Tebitaru says quite candidly that in all that time he has only investigated some 30 crimes. He says that he is presently an Operations Supervisor in communications section at Rove Police HQ. Most of his Police career has been spent in “communications”.

In evidence in chief he explained that there had not been enough time to contact CID officers. He readily accepted that normally CID would investigate matters such as this. In cross examination he said that he instructed PC Foru to “get a few statements”. The idea was to just get enough information so that his superiors would instigate a proper investigation with forensic backup. He was quite clear that he did not intend his first visit to be a thorough investigation. He and PC Foru went to get, “the main points, not to get the whole story”. In answer to my question he said that he, “thought there would be further investigation by CID at the village”.

There is no doubt in my mind that Sgt Tebitaru was being open and above board with the court. He was not making excuses he was simply saying that he was doing the best he could do in all the circumstances. He had no intention in October 2001 of conducting a thorough investigation. PC Foru in his evidence also confirmed this. PC Foru said he did expect to have to take further statements about the incident. Whilst he thought he had taken full statements, he expected to have further instructions from the Director of CID in Honiara. Both he and Sgt Tebitaru wanted to get the basic information back to their superiors so that they would instigate a thorough investigation. That this was the case is supported by the extract from the “Diary of Action Taken” (Exhibit 15). It shows an entry dated 7th October 2001 “Informal Message sent to Compol for assistance on the investigations Dispatched today thru (sic) radio and Manpower also requested.”

Despite this very clear evidence I am bound to say that subsequent witnesses were repeatedly asked about their early statements and why this point or that fact was not included in them. The common response, which can be roughly paraphrased as, “I thought I had told them or I did tell them but they didn’t write it down”, was treated with utter distain by Defence Counsel and the question was repeated again and again. To my mind this repeated questioning became oppressive and at times and I said so in Court.

In considering the evidence then a reasonable starting point would be the statements made by witnesses the day after the incident on 6th October 2001. Statements were made, according to the Diary of Action by Paul Harry Pope, Joseph Lauga, Polycap Kimata, Clearance Potobose and Isaac Koramakolo.

Paul Harry Pope says in his statement that at about 7pm on the evening of 5th October 2001 he was with other villagers who were working on the Kindy House. He became aware of the arrival of a white ray boat. He heard a shot. He could see that the boat had five occupants, William Amalo Paisi Miavana, Joseph Miavana David Hicks Honitele and Roboe Ligibatu. He says the boat was skippered by Paisi Miavana. Joseph Miavana and Paisi Miavana came up to where he and others were standing. Some villagers had already run away by then. Joseph Miavana and Paisi Miavana said, ”You fala no any kind long boxing ia. You fala usim hands and mefala usem gun”. They got hold of Pope and began to pull him towards the boat. At the same time William Amalo approached holding an M16 rifle.

On reaching the group Amalo pointed the gun at Pope’s forehead. Joseph Miavana told Amalo that Pope was one of Lukeson’s brothers. William Amalo asked him to confirm that. Pope did and said that any problems (between Joseph Miavana and Lukeson) did not include the villagers. William Amalo pointed the gun at his forehead, swore at him and “butted” him with the rifle. Pope thought he was about to be shot and so he grabbed hold of the weapon. There was a brief struggle and Joseph Miavana got hold of him around the neck. Paul Harry Pope fell down and William Amalo aimed the gun at him and fired. The shot narrowly missed his leg. Amalo then fired another shot into the air. For the sake of convenience I will call this the “Pope incident”.

The Pope Incident is not described by any of the others who gave statements that day except that Isaac Koramakolo says he was told about it later by Paul Harry Pope. He says that he did not see it.

Paul Harry Pope then says in his statement that after the shot in the air William Amalo returned to the canoe to load his re-load his gun. He (Pope) went further up into the village followed by Joseph Miavana and Paisi Miavana. They said to Pope that if he ran away or tried to escape then William Amalo would shoot him. He then heard a shout and saw Amalo approaching again so fled to the “old church building” and from there to the sea. He saw Joseph Miavana and Paisi Miavana talking to Brian Majapeso. He then saw William Amalo approach and he “ordered” the two brothers to move and he then shot Brian Majapeso.

All three of them started swearing and Amalo shot his gun into the air “continuously”. Property was damaged or stolen including the village stand pipe. He heard the canoe leaving and then went to help Brian Majapeso. He put the time then at about 20:15 hours. The whole incident had lasted about an hour.

Joseph Lauga says he was in the village area watching the Ray Boat arrive. He heard a shot described as “given out to the air”. He heard a second shot, “given to the village”. He and Brian Majapeso then “escaped from the area”. Later both brothers came up to speak to Brian Majapeso. Joseph Lauga then saw William Amalo approaching and so he went and hid in a nearby kitchen. He was watching what happened. He then heard Amalo order the two brothers clear and said, “Bae me shootim manea”. He then fired a shot which hit Brian Majapeso.

He went to help Brian Majapeso who had crawled away to hide underneath one of the houses. He thought that Brian Majapeso had only been shot in the leg but was told by him that he’d been shot in the belly. He saw the three men coming back and so went to hide in Koromakolo’s house. He saw Mr Koromakalo there and told him that Brian Majapeso was going to die. William Amalo continued firing in the air but later Joseph Lauga together with Clearance Potobose and Polycap Kimata went to Brian Majapeso where they tried to help him. Brian Majapeso then died.

Polycap Kimata does not describe either the arrival of the canoe or the Pope Incident. Clearance Potobose says he was at Brian Majapeso’s house when he saw the canoe arrive. He went with others to see who had arrived (a common thread is that the villagers were expecting a certain Sogati to arrive to collect crayfish). He describes receiving a shot from the boat. He does not mention the Pope Incident. Polycap Kimata then describes in his statement how he saw Joseph Miavana and Paisi Miavana talking to Brian Majapeso. William Amalo came up and said, “Clear, bae me shootim man ia”. He then fired at close range on Brian Majapeso who fell to the ground.

Clarence Potobose describes sitting at Brian Majapeso’s house. Joseph Miavana and Paisi Miavana came up and asked for Lukeson. They argued some more and when William Amalo approached Clarence Potobose “escaped” to watch what was happening. He heard William Amalo say, “Clear out, bae me shootim man ia”. Amalo then shot Brian Majapeso who fell to the ground.

Issac Koromakolo was busy helping women and children to get to safety. He did not see anything although he heard shooting.

Pausing at this stage it is interesting to note what is entered in the Diary of Action (Exhibit 15). There is an entry dated 6/10/01 under the heading “Brief of the Incident Occurred”. Apart from some detail which is plainly incorrect the note relates that Paul Harry Pope was, “confronted by the suspect William Amalo who asked him about Lukeson Kubeava. Paul Harry Pope then told him that he was at Pachuava Village on the Western side of Barrabarakakasa Village.” [My italics]. That does not appear in any of the statements that were taken on 6th October so where did the information come from? It clearly comes from a witness, or witnesses, spoken to by the Police and adds a great deal of credibility to what was said in Court by witnesses namely that they did tell the Police everything but that some information or evidence was not written into their statements.

The Police took another statement from a villager in these “early” days and that was from Felix Kojomama. We cannot be sure when that was because the copy handed into the Court (exhibit 19) was said to be a working copy and it is impossibly dated 7th August 2000, some many months before the incident. During the Preliminary Inquiry Mr Talsasa for the DPP’s office seemed to suggest that the statement was made on 7th October 2001, but the witness in cross examination said it was given to Police some 2 weeks after the incident.

In it the witness says that he was in his house when he saw a Rayboat approaching. He then heard a gun shot. People then came past his house saying that the four defendants and William Amalo were looking for Lukeson. He first helped his wife and young child to go to a safer place and he then went to the beach. He saw a struggle going on between Paul Harry Pope, Joseph Miavana and Paisi Miavana. He also saw William Amalo fire at Pope. Felix Kojomama then refers to William Amalo running back down the beach to the Rayboat and to David Hicks Honitele and Roboe Ligibatu handing over a magazine.

Whilst that was happening Felix Kojomama says that Brian Majapeso came out of hiding and approached Joseph Miavana and Paisi Miavana. He (Brian Majapeso) went and told them, “to leave the place”. He was still talking to the two brothers when Amalo appeared again and shouted, “Clear. You two fella out. Me shootim hem”. A shot was fired and Brian Majapeso fell to the ground.

The rest of the statement tells of the time after the murder and of William Amalo, Joseph Miavana and Paisi Miavana walking around the village with shots being fired, property being damaged and incidents of theft.

That then was the initial evidence collected by the Police. It does appear that at that time they were concentrating on William Amalo as a “suspect” although they knew that the four defendants were present and something of their “involvement”. Problems have occurred in this case because the investigation then seemed to stall. I have already indicated what the situation was like at the time and whilst it is very unfortunate that little was done to make progress in the investigation it is understandable. Recently the Courts have had to deal with quite a few similar cases where there was no investigation or just a cursory investigation at the time when offences were said to have occurred and where the more detailed investigation was only completed after the arrival of RAMSI in July 2003. It does lead to problems when looking at evidence because time clearly has an effect on memory. In addition recollections, though held honestly, may be coloured by interaction and normal social intercourse with other people after the event.

This is what is said of the evidence in this case. It was suggested that as the witnesses have discussed the events of that day between themselves their evidence was based on those discussions and was therefore suspect. In my opinion several of the witnesses were intimidated by that approach. They gave the impression that they thought they had done something wrong. It is human nature to talk about traumatic incidents, and by any measure what occurred on 5th October 2001 to the witnesses was traumatic. Witnesses should not be told that they must be lying because they have told and retold their story. There is a world of difference between that and witnesses getting together to concoct evidence. Of course being a judge of the facts as well as the law I must be aware of the dangers of evidence being distorted but that is all part of the “art” of the evaluation of evidence.

On that basis I will deal now with the evidence given in Court by the witnesses who had given those early statements. First, Paul Harry Pope. He confirmed the evidence in his statement. He elaborated on some parts of it. He described in greater detail the fight between him Joseph Miavana,Paisi Miavana and William Amalo. He denied emphatically that he and Polycap Kimata had started the fight. He denied that Polycap was involved at all. There was considerable discussion about the word “butted”. Counsel for the defence insisted that this must mean a blow with the butt of the rifle (carried by William Amalo). However, I accept that Pope meant and has always meant that Amalo struck him with some part of the rifle. He described how William Amalo had pointed the muzzle of the rifle at his forehead and had pressed the muzzle against his forehead. I am certain that the word “butted” was used as a pidgin expression to mean exactly what was described.

Paul Harry Pope described in Court how he was watching Amalo and saw a movement which suggested that Amalo was about to fire. He then tried to wrest the rifle from Amalo’s grasp. He was grabbed by both Joseph Miavana and Paisi Miavana. He demonstrated how he had half fallen to the ground with the two brothers still holding him when he saw William Amalo aim the rifle at his leg. He moved just as a shot was fired and the bullet missed his leg. He was able to struggle to his feet and he held onto Paisi Miavana and used him as a shield. William Amalo fired a shot in the air. Paul Harry Pope realised that Amalo had run out of ammunition because he was trying to cock the rifle and clearly no round was being chambered. He says that he saw the rifle being thrown to the ground and so he struggled free and ran further into the village. No one else says that Amalo threw the gun to the ground.

He was pursued by Joseph Miavana and Paisi Miavana. They grabbed him again. He told them they would be in trouble. At that stage Polycap Kimata shouted that William Amalo was nearby with a gun and Pope looked back and saw Amalo some 25 to 30 metres away. He struggled free from Paisi Miavana and was told to run by Polycap Kimata and others. He went to hide behind a tree. He saw and heard what was going on. The two brothers said (to William Amalo), “Shoot that man”. That man being Brian Majapeso. William Amalo fired and Brian Majapeso, “struggled and went under a house”.

Paul Harry Pope says that he had some 40 to 50 metres of clear space between him and the group. He saw Brian Majapeso being shot. After the shooting the three men began swearing and were asking, “Where is Paul Pope?”. He ran away again.

When cross examined he was adamant that the two brothers got out of the canoe followed very closely by William Amalo. He denied that only Paisi Miavana had initially approached the group of villagers on the beach and that Paisi Miavana had simply asked for a light for a cigarette. He denied that he and Polycap had argued with William Amalo and that Joseph Miavana had merely tried to separate them. He said that in fact Polycap had run away when William Amalo appeared with the gun. Paul Harry Pope denied that Paisi Miavana had told him to run away. He said that he had told the Police everything that had happened and he confirmed that he had signed his statement as being true and correct. He agreed that some of the evidence he gave in court was not in his written statements.

He denied that his evidence to Court was substantially different to his written statement. He said that he had told the Police about the two brothers telling William Amalo to shoot Brian Majapeso. He was asked why he hadn’t told the Court about the order to shoot Brian Majapeso by the two brothers in his evidence in chief. He had in fact done so. He also explained that the tree he had hidden behind was close to the Old Church. He confirmed that he had gone to the “sea” and that was after the shooting of Brian Majapeso when the three men seemed to be looking for him again.

In further cross examination he said that he was in his house when he first heard the canoe and went to the water pipe area. He took about 20 seconds to get there. He said as the gun was fired from the canoe the two brothers got out. He again denied that there was a fight between him, Polycap and Amalo. He denied that Joseph Miavana’s involvement was to stop the fight. He added that when he was using Paisi Miavana as a shield the two brothers were telling William Amalo to shoot him. He says that when Amalo apparently ran out of ammunition and threw the gun on the ground he ran away. He denied that Joseph Miavana and Paisi Miavana told him to run away because Amalo might shoot him.

He said that he ran to his father’s house, to the side of it. Joseph Miavana and Paisi Miavana came up to him. He heard Polycap Kimata shout and he ran again. He was about 50 to 60 metres from the group when Brian Majapeso was shot.

He was adamant that Joseph Miavana was not still near the water pipe area where the Pope incident had taken place. He saw Joseph Miavana, Paisi Miavana and William Amalo together about 5 or 6 metres from Brian Majapeso. He heard the two brothers tell Amalo to shoot Brian Majapeso. At the time William Amalo was standing between the two brothers.

He was then closely questioned about his memory and about why certain elements of the evidence he had given in court were not in his written statement. He again said that he thought he had told the Police everything. He also offered an explanation that he was very frightened when he gave the first statement (on 6th October) and he might not, “have remembered all I said”. He thought his memories of the events were clear and that the period of 4 years had not affected them. He was also questioned about the evidence he gave at the preliminary inquiry held at Central Magistrates’ Court in February 2004.

When cross examined by Counsel for Roboe Ligibatu the witness agreed that there were several shots before the fight at the water supply pipe. They were as the canoe was landing and after Joseph Miavana, Paisi Miavana and William Amalo had disembarked.

Counsel for David Hicks Honitele then cross examined the witness. He confirmed the initial shots had been fired as the canoe landed and then after three men had gotten out. He said that he had told the truth to the Police in October 2001 but yes he might have missed some things out. He had told the truth though. He was then asked about being butted and why in his statement he talked about being butted and why he now said in evidence he hadn’t been butted. It was pointed out that in fact he had said in evidence that he had not been struck with the rifle butt. In answer to a question from the court Paul Harry Pope said that William Amalo had pressed the gun against his forehead. It was a strong touch.

I found Paul Harry Pope to be a credible witness. I accept that his memory of events must be less than perfect after 4 years but I am sure this witness was not lying. As I have already said, the evidence from the senior Police Officer at the beginning of the investigation was that they did not intend to take full statements. Indeed it would be hard to see how two sides of A4 paper could contain all the detail that would be involved in an incident lasting, according to some witnesses, an hour or so. I do not find that this witness’s credibility is damaged by the fact that not all that he told this Court was written down in his initial statement. I accept that most of his evidence to the Court was an accurate recollection of events at four years distance. I will return to the reference to “most” later in this judgment.

Turning now to the evidence of Joseph Lauga given in Court, he gave a slightly different version of the Pope incident. He confirmed that a “warning shot” had been fired by William Amalo as the canoe landed. At that time he told his wife to run to their house to get their small baby. He stood by the Kindy House garden to watch what was happening. He could remember Brian Majapeso being there together with Peter Lomoa, Dennis and Issac Koromakolo. William Amalo got out followed by Joseph Miavana and then Paisi Miavana. They walked up to the Kindy House area and asked for Lukeson. Brian Majapeso said that they did not know where Lukeson had gone. The three men then went to get Paul Harry Pope. William Amalo threatened Pope with the gun. Joseph Miavana and Paisi Miavana were holding onto Pope. There was a struggle and Amalo fired the gun. At that time Joseph Lauga says he and others who were near the Kindy House ran off.

He ran towards Benjamin’s house with Brian Majapeso. Brian then went to see the two men. The witness ran to Michael’s kitchen. He hid there and looked through a gap in the walling made by dogs. He saw the two brothers talking to Brian Majapeso. They said, “shootim manea die”. Brian was then shot. The two brothers and William Amalo then returned to the beach area and Joseph Lauga went to speak to Brian Majapeso. He was with Brian Majapeso when he saw the three men returning so he ran off again. He later went to hide some distance from the village with his wife.

In cross examination he confirmed that he did not know the names of the men until afterwards. He wasn’t entirely sure who told him, he thought possibly Issac. He agreed that there had been talk about the incident, about Brian’s death but that no one had “discussed it”. They had spoken to people from the outside about Brian’s death. He confirmed the order of disembarkation and that Joseph Miavana and Paisi Miavana had asked for Lukeson. The question “Where nao Lukeson” was addressed to the group not an individual. He did remember when asked that Polycap was nearby. He explained that Paul Harry Pope was by himself and that Joseph Miavana and Paisi Miavana went to get him to take him to William Amalo.

He was then closely questioned about his statement on 6th October 2001. He said that he knew what the Police were investigating, Brian’s death. He says that he told the Police what he heard and saw about Brian’s death. He was then asked why he had not mentioned in his statement the struggle with Paul Harry Pope. His answer was that he knew Pope was to give a statement and he thought Pope should tell what happened to him. He said that despite there being nothing in his first statement he had seen the incident and that he had not spoken to Paul Harry Pope and made up his evidence. Shortly after that he changed tack by saying that he may have forgotten to tell the Police some things (on 6th October 2001) and that in his second statement (which confusingly is dated at the head of the statement 5th February 2003 but which is dated following the signatures as 5th February 2002) he was asked specifically about Paul Harry Pope.

He confirmed the evidence given in chief that he had heard Joseph Miavana and Paisi Miavana say, “Shootim mania”. He agreed that he made a statement saying that Amalo said, “Clear, bae me shootim mania”, but that he had told Police that Joseph Miavana and Paisi Miavana had spoken first. His second statement was read to him and he replied that he thought the Police were recording all he said. He confirmed that he had agreed that he told the Police that his statement was correct and that he had signed it.

It should be mentioned at this stage of the proceedings the witness was asked if his wife was in court. The witness said no. Counsel then indicated he “had different information” but did not elaborate. The clear implication was that the witness was lying about his wife. The questions leading up to that point were also on the basis that “some one has told you what to say” and whether it was going to be implied that that “some one “ was the wife was not clear. The suggestion that Mrs Lauga was in court or nearby was never mentioned again.

Joseph Lauga was then cross examined by Counsel for Joseph Miavana, Mr Lawrence. During that cross examination he was again asked about the order that the three men disembarked. He again said William Amalo first followed very closely by the two brothers. He was asked how far from the boat had the men walked when they asked for Lukeson. He was able, by reference to different objects, to estimate some 30 or 40 metres. He was then asked why he had not mentioned this in either of the two statements he had made. He responded by saying the Police had asked about Brian not Lukeson.

Then he was questioned about the difference in his evidence and that of Paul Harry Pope. The former says he was by the water supply pipe when the three men came up. Joseph Lauga says that Joseph Miavana went up Paul Harry Pope’s house and brought him down to where William Amalo was. He heard some one calling out for “Pope”. His description of what happened next is similar though not exactly the same as that of Paul Harry Pope. He has Pope standing at the time that Amalo fired a shot. He ran off when Pope escaped from Joseph Miavana, Paisi Miavana and William Amalo. He did not see what happened when William Amalo returned to the canoe immediately after the Pope incident.

He was asked about the kitchen and how he was able to see what happened to Brian Majapeso. He made an indication with his hands as to the size of the hole he was looking through as he was lying down. He thought the distance from the kitchen to where Brian Majapeso was shot was about 30 to 40 metres. He confirmed that he did hear Joseph Miavana and Paisi Miavana tell William Amalo to shoot Brian Majapeso. He said that he thought he had told the Police that when he made his second statement.

Counsel then changed direction and returned to the initial incident. The witness was unwavering in his recollection that William Amalo was the first one out of the canoe. He was just as unwavering when stating that there was no fight between Paul Harry Pope, Polycap Kimata and William Amalo. The fight only involved Paul Harry Pope not Polycap Kimata. He saw William Amalo going back to the canoe as he (the witness) ran away to hide.

When questioned by Counsel for David Hicks Honitele, Ms Swift, the witness was asked about a map. The map given to him was one, “produced by the prosecution but altered”. Despite the map clearly not being a prosecution document as it had been “altered” I allowed the witness to be questioned on it. He did not think the map was accurate. He was then given the opportunity to draw his own. He did so and explained the differences between his map and that originally handed to him.

He then went on to deny hearing of the death of William Amalo and then making another statement just to incriminate the four defendants.

Before he began his re-examination Mr McColm asked for the map drawn by Joseph Lauga to be tendered. There was an objection to this which I confess I did not 100% understand. The objection came from Mr Lawrence who said that Mr McColm was going to use the map to ask questions in re-examination which did not directly relate to Ms Swift’s questions in cross examination on the map. I allowed the map to be tendered. It is exhibit 4.

In re-examination Mr Lauga was asked about seeing William Amalo return to the canoe. He said, “I saw him go back then I ran away.” There were vehement objections from Defence Counsel when Mr. McColm asked if the witness had seen William Amalo arrive at the canoe. I allowed the question to be put and the short answer from the witness was, ”No”.

I found Mr Lauga to be a credible witness. I accept, as I did with Mr Pope, that not all he may have told the Police was written into his first statement. I also accept that time may have had an effect on his recollection of some of the finer detail of what went on. However I have absolutely no doubt that this was a truthful and honest witness.

In his evidence Clearance Patobose said he was with others near or at the Kindy House. He saw the canoe arrive and as it did William Amalo fired a shot. Clearance Potobose then ran to the Kindy House. He was on his own in the Kindy House. He saw the two brothers get out and walk up the beach. He says they got to the water supply pipe and twisted it. He is the only witness who puts the damage to the water supply pipe in the initial stages of the incident. Everyone else has this happening much later.

Paul Harry Pope went towards them and they grabbed him. He heard Joseph Miavana and Paisi Miavana say that Pope was Lukseson’s cousin. He saw William Amalo “buttem” Pope with the barrel of the gun near to his right temple. Pope grabbed hold of the gun. Joseph Miavana grabbed Pope around the neck and Paisi Miavana grabbed him around the legs. William Amalo shot at Pope’s legs but missed. William Amalo looked as if he wanted to shoot Pope again and so Pope held onto Paisi Miavana and used him as a shield. William Amalo fired in the air. Amalo then returned to the canoe.

At the canoe Clearance Potobose saw Roboe Ligibatu give some bullets to David Hicks Honitele who gave them to Amalo who then walked back into the village. When Clearance Potobose saw Amalo returning from the canoe he ran away to where he lived. This was at Lawrence’s house. He stood beside the house.

He had said earlier that Pope had run off chased by Joseph Miavana and Paisi Miavana. When he was beside Lawrence’s house he saw Joseph Miavana and Paisi Miavana talking to Brian Majapeso. William Amalo approached them and he then heard them say, “shootim mania”. A shot was fired and he saw Brian fall. He then ran off to the mangroves to hide. He couldn’t see anything from his hiding place in the mangroves but he could hear shooting.

This witness marked a map and that was tendered (exhibit 5).

In cross examination Clearance Potobose said that he had not been asked by the Police to add to his story. He had not talked about the case to the Police. He confirmed that he was alone in the Kindy House. He saw Paisi Miavana get out of the canoe first closely followed by Joseph Miavana and William Amalo. At that time a lot of people had run away but Paul Harry Pope came running down towards the water pipe. Joseph Miavana and Paisi Miavana then approached him. Pope was on his own and not with Polycap Kimata. The witness heard Joseph Miavana and Paisi Miavana saying, “ Yufella anykind boxing, mefella playem gun.” When asked why he had not mentioned this in evidence in chief the witness said quite bluntly that he hadn’t been asked.

He was then cross examined at length about the visit by the Police the day after the shooting. He confirmed that the statement produced (exhibit 6) was his. He said that he knew the police were there to investigate a murder and that he wanted to help as much as he could. He confirmed that he had signed the statement as being a “true story”. He was then given the statement to read with the assistance of the interpreter whilst the Court adjourned for a few minutes. After having had the opportunity to read the statement, or rather have it read to him, he agreed that certain elements of his evidence were not present in the statement. He said that he had told PC Foru about all that he had seen and PC Foru had not written it down.

When it was put to the witness that there were significant differences between what he had told Police in his statement and what he had said in evidence he said that this was due to the Police making mistakes not him. The evidence given in Court was a correct telling of what he had seen.

The witness reiterated that he was at his house when Brian Majapeso was shot. William Amalo, Joseph Miavana and Paisi Miavana were close to Brian, about 3 metres from him. He was some 50 or 60 metres from the group. It was put most strenuously to the witness that there were irreconcilable differences between what he had told the Police on 6th October 2001 and what he was telling the Court. Mr Potobose was of the view that the Police had got it wrong He explained that the statement wasn’t read back to him at the time, instead the Police told him what he’d said. He realised “today” that there were differences.

Clearance Potobose was then cross examined by Mr Lawrence. He was closely questioned about talking to other witnesses and others in his village and was adamant that he had not done so. He said again that the evidence he had given in court was based on his memory of what he had seen. He clarified where Paul Harry Pope was before the ”fight”. He had run a short distance from the direction of the Church. He stopped close to the water pipe and Joseph Miavana and Paisi Miavana approached him. They pulled him further down the beach.

He was then asked why he had said in his evidence that Paul Harry Pope had come from the Church when in fact he hadn’t. The witness said, quite correctly, that he hadn’t said in his evidence that Paul Harry Pope came from the Church.[What he’d actually said was from Church direction.] It was then put to Clearance Potobose that on arrival Joseph Miavana alone had approached Pope and Polycap Kimata. He denied this. The witness said that he had never been at Brian’s house. He said he was at Lawrence’s house when Brian Majapeso was shot. He had not been hiding in the mangrove at that time. He confirmed that he did blame the four defendants for Brian’s death but his evidence was not an act of revenge. He did not believe in payback.

In cross examination by Counsel for Roboe Ligibatu he confirmed his evidence that her client had passed something to David Hicks Honitele. He said that he had told the Police that when they took his statement the next day. He did not know why they had not written it down.

Counsel for David Hicks Honitele asked the same question. Clearance Potobose agreed that his evidence about the involvement of David Hicks Honitele was not in the statement. It was then suggested quite forcibly to the witness that he was not telling the truth and that he had made up the evidence because the charges against David Hicks Honitele and Roboe Ligibatu had been dropped. He denied this most emphatically and said he did not know charges had been dropped. He then was taken in great detail through what he had seen happening at the canoe when William Amalo returned to it. He described in detail how Roboe Ligibatu and David Hicks Honitele were sitting side by side. The front of the canoe was facing out to sea. Both men were sitting on the rail or side of the boat furthest from the Kindy House. Roboe Ligibatu was towards the stern and David Hicks Honitele nearer the front. William Amalo walked to the middle of the canoe and he had to get his feet a “little bit wet” to do so. The bullets were then passed to William Amalo.

I find that Clearance Potobose was a truthful and credible witness. I have absolutely no doubt that most of his evidence was an accurate recollection of events.

Polycap Kimata was called to give his evidence after several other witnesses had been called. I have to say that of all the witnesses I heard he was the least helpful. I believe he embellished the evidence he gave in court not for reasons of making the defendants look bad but rather to make himself look good. I do not believe there was any malicious intent behind his exaggerations, he has probably relived the events of that day in his own mind with himself in a role of the hero.

His evidence to the Court was also a little confusing with the witness having placed himself in several different locations with different people. The central theme though was that he was in the thick of the action and closest to it. I do not place a great deal of reliance of his verbal evidence.

I did not hear any oral evidence from the only other person to give a statement on the day after the shooting, Mr Issac Koromakolo.

Felix Kojomana was called. He said he saw Joseph Miavana and Paisi Miavana meet Paul Harry Pope close to the water supply. He says Joseph Miavana and Paisi Miavana were told they should leave. There was a fight between them and Pope. William Amalo was there and he shot at Pope. He missed and then fired a shot at a house. Amalo then ran out of ammunition. Pope made good his escape and Amalo returned to the canoe. At that time this witness has the two brothers swearing at the ”community” and used words to the effect, “Yufella save anykind tumas at boxing. Mifella play with guns”.

He also saw Amalo return to the canoe and the two men there, Roboe Ligibatu and David Hicks Honitele, hand over a basket from which Amalo took a magazine for the rifle. Amalo then went up into the village following Joseph Miavana and Paisi Miavana. They were talking to Brian. He told them to, ”go back”. They refused. Amalo told them to “move out” and he shot Brian Majapeso. The witness said he saw all this from the veranda of his house.

He was cross examined as to when he gave his first statement (exhibit 19) and he said it was about two weeks after the incident. He was at the village on the 6th October when the Police first called but he was busy with the body of Brian and with the mourning so did not speak to them. He was taken through some differences between his written statement and his oral evidence. He confirmed that he saw all that had gone on even though he had, on hearing the first shot, taken his family to safety. He had not discussed his evidence with others in the village and had not heard what they said to the Police on 6th October.

He also said that he had heard people talking about Lukeson when they first fled the beach but he also said that he heard the questions asked by the Miavana brothers. In his mind he said the two stories were the same. He also said that some of the differences between his written and oral evidence could be accounted for by the fact that the Police hadn’t recorded exactly what he said although he had told them.

Felix Kojomana was adamant that he had not been coached by the Police of the Prosecution lawyers as to what to say. He said that when saw that things were missing from the statements he made additional statements.

Counsel for Joseph Miavana asked the witness about timing. The witness was very confused as to times. He initially thought there was a 10 minute gap between the time the fight ended with Pope and the shooting of Brian Majapeso. He later reduced this to maybe less than 5 minutes maybe less than 4 minutes. He does not have a watch. He did accept that when he arrived at the beach area the canoe had arrived, “and they were walking up the beach”. He also confirmed that he went down with Paul Harry Pope. By that he explained that Pope went first and he followed shortly after. Paul Harry Pope went to the water supply pipe and he went to the coconuts and stood with others. He said that he was there for the start of the fight but he missed the initial argument between Joseph Miavana, Paisi Miavana and Pope.

He also said that Brian Majapeso was at Michael’s house but came out to meet Joseph Miavana and Paisi Miavana. At that time William Amalo was still down at the canoe. He watched what happened at the canoe and then ran up to his house and stood and watched events from his veranda.

Ms Garo for Roboe Ligibatu closely questioned the witness about the differences in his evidence and statements relating to what was said by her client and David Hicks Honitele at the canoe. It was hard to reconcile his answer with the different versions.

In reply to Ms Swift for David Hicks Honitele he said that he watched what happened at the canoe and when he saw William Amalo returning up the beach he and others walked up through coconut trees watching what was going on. He acknowledged that there were some differences in the different versions of the evidence that he had given but he tried to explain that some of the differences were one and the same to him. During evidence in chief he said that the two men in the canoe had handed Amalo a basket and that Amalo had taken a magazine out of it. In his statement and in the evidence recorded at the Preliminary Inquiry it was just a magazine that the men handed over

I accept the majority of this witness’s evidence as truthful and accurate. I have some reservations about some of it. For example, it seems to me that it would have been difficult for this witness to have seen the initial arrival of the canoe even if, as he explained, he did not take his family to the mangroves, but just saw them on their way to safety before going down to the beach area. I have also indicated that some of his answers in court were hard to reconcile.

I heard from other witnesses during the trial but I have not placed any reliance on their evidence in reaching my decision on the facts. I say this not because I think the witnesses were deliberately lying but because I believe the evidence they gave may have been tarnished by the passage of time. I have nothing to compare from these witnesses about what they saw at the time. The witnesses I have dealt with did give statements at the time of the incident and it has been possible to compare what they said then with what they say now.

It is also a distinct possibility that the way this investigation has progressed has influenced what witnesses say in their statements and why there has been additional material introduced in oral evidence. It is obvious that the evidence was gathered piecemeal. Some of it was collected after the file had been referred to the DPP’s office. Other evidence was gathered after a hearing in June of this year and after His Lordship the Chief Justice gave a ruling on bail. There is nothing wrong with this. The prosecution are perfectly entitled to review the case they have to present and to fill any perceived gaps in the evidence. In fact I would have been surprised if the prosecution had not done so. However, when there is a case, such as this, which involves events some years in the past very great case must be taken in order to avoid “creating” evidence rather than merely finding it. I do not say that the prosecution have done anything wrong in this case. I am perfectly satisfied that they have not coached the witnesses what to say or told them what must be said. I anticipate that how the witnesses were asked questions may have influenced how those questions were answered.

In case I have not made myself clear, I do not accuse the prosecution of acting in an underhand manner. Nor do I suggest that they have deliberately set out to mislead the Court in any way. It is clear from the timing of the statements made that on a review of the papers some one has asked the question, “Have we covered this point or that point in the evidence?”. You only have to look at exhibit 25 to see that kind of exercise in operation. There is absolutely nothing wrong with that. The danger in this case is that the witnesses are then trying to remember events that happened 4 years ago and what they say about those events may be coloured by the way they are asked about them, no matter how innocently and properly the questions are put.

I should also say at this stage that I accept that not all the witnesses told the exact same story. If they had, as suggested by the defence, got together to decide what evidence they would give then you would expect their stories to match. They do not. For example only Pope says that Amalo threw the gun to the ground. Only Clarence Potobose says that the water supply pipe was damaged before the Pope incident. In my opinion the differences make it clear that the witnesses have not concocted their evidence as a group. Each was trying to say what he remembered as happening.

I have mentioned “most” evidence of several witnesses earlier in this judgment. I do not accept that because I have said that I only believe most evidence that all the evidence from a particular witness is so discredited that I have to reject it. If I am satisfied about the reason why some evidence cannot be relied on to the required standard I am still entitled to rely on the evidence that I am sure about. It is my belief that during the ”review” process I have mentioned previously some witnesses have convinced themselves that their original evidence was deficient.

They have probably talked to other witnesses or to other people who were involved in the events of 5th October 2001. They honestly believe that what they now say they saw and heard is what they actually saw and heard. The events of that day in October 2001 were traumatic. A well respected member of the community was shot dead. A large number of gunshots were fired. I do not doubt that those who were involved have spoken to one another about what happened. I am sure that the witnesses remember what happened that day but I am equally sure that what they now remember as happening is likely to have been rendered less than a perfect memory of the reality by the passage of time and by the influence of what others have said to them about what they think happened. When asked about this the witnesses have denied talking to others because it has been put to them in such a way as to imply that to have done so would mean that they have done something terribly wrong. In this case though there are statements which were made the day after the incident. What was recorded in those statements is far less likely to have been affected by the sort of influences mentioned above. Where there is close correlation between the oral evidence in Court and those statements it is much easier to accept all such evidence as truthful and accurate.

From the early statements made in this case and from the evidence given in Court I find that the four defendants and William Amalo arrived in Mbarabarakakasa village sometime in the late afternoon or early evening of 5th October 2001. I am certain, from Sgt Tebitaru’s evidence of his encounter with the men after the shooting, that William Amalo had with him several weapons and a quantity of ammunition. As the canoe in which they were travelling ran onto the shore at Mbarabarakakasa a shot was fired. Three men got out of the canoe. The order in which they disembarked is not of any great relevance but I find it is likely that the two Miavana brothers got out first very closely followed by William Amalo. The two defendants Roboe Ligibatu and David Hicks Honitele remained in the canoe

As they were walking up the beach Amalo fired another shot directed towards the Kindy House area close to a group of men who had gathered there to see what was going on. At this point there was panic and many of the villagers began to run away.

Joseph Miavana and Paisi Miavana approached a group of men, including Brian Majapeso somewhere near the Kindy House. They asked for Lukeson. They were told he wasn’t there. They then met Paul Harry Pope somewhere close to the water pipe. They said words to the effect that he was a close relative of Lukeson. They grabbed hold of him and pulled him towards William Amalo who then threatened him with the rifle. Fearing for his own safety Pope then tried to wrest the rifle from Amalo. At that point both Joseph Miavana and Paisi Miavana grabbed hold of Pope and tried to stop him getting the gun away from Amalo. Paul Harry Pope then half fell to the ground with Joseph Miavana holding him around the neck and Paisi Miavana holding his lower body. A shot was fired by William Amalo at Pope. It missed. Pope regained his feet and managed to use Paisi Miavana as a shield. Amalo was trying to get a clear shot at Pope but was unable to. He fired another shot into the air and ran out of ammunition. He began to go back towards the canoe.

At that point Pope was able to break clear from the two Miavana brothers and he ran further up into the village. Other men who were standing close by also fled to wherever they thought it was going to be safe. Yet other men, including the witnesses Clearance Potobose and Felix Kojomama stayed close to the Kindy House area. They saw William Amalo return to the canoe and they saw Roboe Ligibatu and David Hicks Honitele hand over to Amalo what appeared to be, and which in fact turned out to be, more ammunition. They saw William Amalo reload the rifle with what he had been given and start to walk back up the beach and so they then decided to seek safety as well.

At about this time the two Miavana brothers caught up with Pope in the village and another struggle took place. It is likely that Brian Majapeso got involved at about this time. William Amalo was seen to be approaching and Paul Harry Pope was warned by shouts from other villagers. He broke free and fled again. Brian Majapeso then talked to the Miavana brothers and although what he actually said is largely irrelevant (and unclear) he likely as not told them to leave the village. As he was doing so Amalo approached closer. He told the two Miavana brothers to stand clear as he was going to shoot Brian Majapeso. He used the words “Clear, bae me shootim manea”. They stood aside and William Amalo opened fire. Brian Majapeso was hit by the single shot fired and he later died. After that all three men, Joseph Miavana, Paisi Miavana and William Amalo, walked around the village and many more shots were fired. There is no evidence to suggest that those shots were fired by anyone other than Amalo. Some shots were fired into the air and some were directed at various items around the village. The 3 men then returned to the canoe and they and the 2 others left.

I do not find that either Roboe Ligibatu or David Hicks Honitele said anything to William Amalo as he collected more ammunition from them. I believe words were said but I cannot be sure who said what.

I do not find that the two Miavana brothers told William Amalo to shoot Brian Majapeso. It is extremely likely that some words were said but there is some doubt that they were words of exhortation to William Amalo to shoot Brian Majapeso.

I do not think that this evidence shows that any of the defendants aided and abetted in the murder of Brian Majapeso. Whilst their presence was some help and no doubt encouraged Amalao it would be difficult to say that they were aiding and abetting in every sense of those words.

Whilst the facts may not disclose a straightforward case of aiding and abetting I am sure, beyond any reasonable doubt, that they show the four defendants and William Amalo shared a common intention to carry out an unlawful purpose. It can be inferred from the facts that the common purpose was to assault and injure Lukeson or to otherwise cause him some kind of serious mischief. At the very least it can be inferred from the conduct of the defendants that the common intention they shared was to intimidate the villagers of Mbarabarakakasa. These are unlawful purposes.

There is no doubt in my mind whatsoever that the defendants knew Amalo was armed, that he had guns and ammunition in the canoe. It is clear that they were looking for Lukeson. William Amalo was prepared to use the weapons he had with him. The defendants knew that. If there was any doubt in their minds about that it must have been dispelled very early on. In fact before anyone got out of the canoe because he had fired a shot into the air on arrival and shortly afterwards another shot directed at the village.

Joseph Miavana and Paisi Miavana participated in the attack on Paul Harry Pope. They saw William Amalo shoot at Paul Harry Pope. There could have been absolutely no doubt in their mind that William Amalo intended to use the rifle to cause serious harm to someone.

Roboe Ligibatu and David Hicks Honitele could not have failed to see what was going on. They would have seen William Amalo fire at Paul Harry Pope and they would have heard and seen him fire the shot into the air afterwards.

On William Amalo’s return to the canoe Roboe Ligibatu and David Hicks Honitele handed him further ammunition. At that stage they could have withdrawn. At that stage they could have done something to discourage Amalo from returning to the village with a loaded weapon. A weapon which, I repeat, they knew he was capable of using and had in fact used to try and injure someone shortly before. No argument has been raised or evidence given about duress.

Joseph Miavana and Paisi Miavana could also have returned to the canoe at that stage. They did not. They actively pursued Paul Harry Pope further into the village. I am in no doubt that they wanted to bring him back to William Amalo. At that time they knew William Amalo had a rifle. It is possible that they thought he had run out of ammunition but they knew he had other weapons and more ammunition in the canoe. I am certain they had seen William Amalo start back towards the canoe.

When they encountered Brian Majapeso and when William Amalo re-appeared back on the scene they obligingly did what he asked knowing that he intended to shoot, or shoot at, the unfortunate victim. Their actions are very close to straightforward aiding and abetting but at the time their intentions were probably directed at Lukeson Kubeava rather than Brian Majapeso.

I am sure that the prosecution evidence shows that all four defendants embarked upon a common course of action that day. They may not have intended Brian Majapeso to be the victim. They may even have sincerely hoped that no one was going to get killed or seriously hurt. However they had seen at first hand what William Amalo was willing to do, that is use a military firearm to intimidate or even injure someone. Following the reasoning of Sir Robin Cooke, their culpability for the murder of Brian Majapeso lies in the fact that they participated in a venture knowing that William Amalo had a weapon with him and that he was more than willing to use it.

I cannot and do not accept that they did not realise what might happen. On the facts I have found there could not have been the slightest doubt in their minds that William Amalo was willing to use the rifle to kill or injure some one and that he would more than likely do so. I believe they took Amalo along for precisely that reason. This is not a case where the primary party went off, totally and unexpectedly, on a “frolic of his own”.

I find the defendants Joseph Miavana, Paisi Miavana Roboe Ligibatu and David Hicks Honitele guilty of the murder of Brian Majapeso.

On that finding I have no choice but to sentence all four defendants to life imprisonment.

R D Chetwynd
Commissioner of the High Court

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^[1] Att.-Gen.'s Reference (No. 1 of 1975) [1975] EWCA Crim 1; [1975] Q.B. 773, 61 Cr.App.R. 118, CA.

^[2] Archbold Digital Edition 18-1
^[3] Archbold Digital Edition 18-19
^[4] R. v. Assistant Recorder of Kingston-upon-Hull, ex p. Morgan[1969] 2 Q.B. 58,53 Cr.App.R. 96, DC
^[5] Archbold Digital edition 18-30
^[6] R v Curtis [1988] 1 NZLR 724
^[7] [1997] 4 All ER 545
^[8] Reg.v. Smith (Wesley) [1963] 1 WLR 1200
Reg.v. Anderson; Reg. v. Morris [1966] 2 QB 110
Reg. v. Wakely [1990] Crim L.R. 119
Chan Wing-Sui v. The Queen [1984] UKPC 27; [1985] A.C. 168
Hui Chi-ming v.The Queen [1992] 1 A.C. 34
^[9] McAuliffe
^[10] Chan Wing-Sui
^[11] [1976] UKHL 2; [1977] A.C. 443