Regina v Iro'ota [2005] SBHC 7; HCSI-CRC 066 of 2004 (8 July 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 66 of 2004

REGINA

–V-

EDDLEY IRO’OTA, PATTESON SAENI AND JIMMY LUSIBAEA

(Goldsbrough, J)

Date of Hearing: 4 – 29 April 2005; 2–20 May 2005
Date of Judgment: 8th July 2005

Mr R Barry for the Prosecution
Mr K Averre for E. Iro’ota
Ms K Anderson for P. Saeni
Mr G Scott for J. Lusibaea

JUDGMENT

1. Jimmy Lusibaea is charged with assaulting Colin Hagi Jnr. This he alleged to have done with Patteson Saeni and Eddley Iro’ota at Honiara Central Police station on the evening of Sunday 26 November 2000. Collin Hagi Jnr. had been detained in the Central Police station following a joint operation to arrest suspects in an arson investigation. He was one of several suspects so detained, others being, amongst others, Collin Hagi Snr. and Samani Ramo.
   
2. This train of events began after the burning down of a building known as Placemakers in Honiara which incidentally housed the offices of lawyers Nori and Kwaiga. Following a meeting held at Mr. Nori’s house a party comprising police and members of the Malaita Eagle Force (MEF) set off to seek out and detain suspects believed to have left Honiara for Auki shortly after setting fire to this building. This combination of police and MEF gives rise to the term ‘joint operation’.
   
3. In short, Collin Hagi Snr., Richard Aega and Samani Ramo were found on Malaita Island, detained and variously transported to Honiara for further questioning. On arrival, it was determined that Collin Hagi Snr. had nothing to do with the alleged arson and should therefore be returned to Malaita. Of the remaining suspects, Richard Aega was assaulted in transit, detained in Rove prison for the night and was allowed his freedom the following day. Collin Hagi Jnr. having been found and picked up in Honiara was detained in the Central Police station where the alleged assault took place, and Samani Ramo met his death during his detention in Rove prison.
   
4. Before turning to consider the evidence, much has been said by counsel commenting upon it about the effect of family relationships. In many instances witness have been either family members or wantoks, that is to say sharing the same language or having originated from the same area. Variously it has been said that relatives or wantoks (or both) either have particular although unstated reasons either to lie about and implicate the accused or to testify in support of their kith and kin. This is applicable not only to Mr. Lusibaea but all three accused and is mentioned here so that it is clear that this point has been borne in mind when assessing the evidence although it will not be referred to again with any particular emphasis. Although taken into account, it will become apparent that this simplistic commentary on the evidence is not particularly helpful for in some instances the most damning of evidence comes from a wantok, as does some of the most exonerating. Most witnesses are wantoks.
   
5. Since Mr. Lusibaea faces only one charge, in contrast to his two co-accused who are both also charged with the murder of Samani Ramo, his position is considered first. There is overwhelming evidence that the assault on Collin Hagi Jnr. did take place. Even Mr. Lusibaea in his evidence agrees with this. His version of events is that police called him into the police station themselves to assist and that in answering this call for assistance he witnessed part of the assault and thereafter ordered it to be stopped. He suggests that the assault on Hagi was carried out by a group of men, some of whom he identified, all of whom he said were from North Malaita. His intervention, he asserts, was at the request of Lazarus Taki, a police officer in charge of the police station that evening.
   
6. That the assault took place is more than adequately established, but who were the assailants and what was the extent of the injuries to the victim? Those questions are to be answered from a consideration of the evidence presented.
   
7. Mr. Lusibaea had been involved in the detention of the arson suspects from an early stage. He attended the briefing following the fire at Nori’s house, he travelled with the joint party on a speedboat to Auki, and he led one of three groups that sought the suspected men. The suspects detained by his group were released without being brought to Honiara. He travelled with the suspect Aega back to Honiara on the same speedboat. He then followed the suspect Aega to Rove prison complex, in his words to make sure that Aega was put in a cell and not simply released. His concern in this regard emanated from his belief that the suspect was a wantok of the police officer to whom he, Mr. Lusibaea, had handed over that suspect.
   
8. Civilians were at the time of this incident involved in the apprehension of criminal suspects as a consequence of these joint operations described earlier. Without this knowledge any outsider might not understand why Mr. Lusibaea had become so involved in what elsewhere would be a purely police function. This also explains why during the trial most witnesses were questioned as to their affiliations with MEF or the police force, for to be part of a joint operation was to be a member of either or, possibly, both. The picture sought to be painted by the prosecution in this trial of MEF lead defence counsel to protest that being a member of MEF was not the issue in this trial, and that the court should not be swayed by the suggestion that membership of MEF was a significant and inculpatory factor. From the analysis of the evidence that follows, it should be clear that the court was indeed not so swayed. Nevertheless the picture was a necessary part of the scene to permit a full understanding of these events.
   
9. The evidence about the state of Honiara at this time came from several witnesses. At one extreme it was said that Honiara was under the control of MEF and at the other that MEF assisted the police in cases where the suspects were former militants. The Townsville Peace agreement had been signed a little more than one month prior to this date but had not been fully implemented, all arms had not been surrendered and Solomon Islands were still to return to normal, stable governance. This slight diversion from the facts of the assault goes to explain that when Mr. Lusibaea arrived at the prison and sought entry he was granted the same.
   
10. Since the prisoner Aega had been taken to the female section of the prison to be detained, Mr. Lusibaea went to that part of the prison, and came across, in the same female area, the prisoner Samani Ramo. It was during this encounter that yet another assault is alleged to have taken place, although it is not a matter before the court. Mr. Lusibaea gave evidence about this assault on Samani Ramo, explaining that he stopped the assault on the prisoner by an unrelated group of men. Other witnesses suggested a different version of events, but it is not necessary for the court to make any particular findings on this matter.
    
11. From Rove prison Mr. Lusibaea went about his normal business. His principal business interest in Honiara appears to have been providing security services at various premises around the town employing about sixty people. His influence in the security business was far reaching. He himself had been resident, at the request of the management, at the King Solomon Hotel. He gave evidence of this himself, and of how he was able to ensure the safety of the premises by his presence alone.
    
12. Before turning to the evidence relating to the alleged assault at Central Police station, it is necessary to refer to a further alleged assault that Mr. Lusibaea witnessed this day. That assault was the assault on another arson suspect Richard Aega. This occurred shortly after the speedboat returned from Auki with the suspect and before Mr. Lusibaea handed that suspect over to the police. Many people had assembled at the wharf to await the arrival of this boat and its passengers. The arson had clearly become a major attraction and there was plenty of interest in the detained suspects. Again there are competing versions of the assault and the court is not required to make any findings about it. Mr. Lusibaea gave evidence to the effect that the assault on Aega was carried out by those assembled waiting for the arrival. It happened, he maintains, as the suspect preceded him out of the boat and he hastened out of the boat to stop the assault continuing.
    
13. It is in this context that the court was required to hear this otherwise unrelated series of events. No objection to it came from defence counsel. It was lead in an attempt to show the court that the accused had a particular disposition towards these suspects from an early stage in the investigation. From the defence point of view, it served to demonstrate that the accused had variously intervened to stop several serious incidents.
    
14. The evidence concerning the Central Police Station assault on Collin Hagi Jnr. comes from the victim, six police officers, the accused Mr. Lusibaea, the accused Mr. Iro’ota (to the extent that he denies being there) and Mr. Willie Tongana. I do not propose to recite in any great detail the evidence that was lead. The victim described Mr. Lusibaea as holding him whilst ordering others to assault him. Messrs Ata, Saliga, Tofasi, Toata and Taki of Mr. Lusibaea holding the victim and thereby facilitating the assault. Variously there were suggestions of encouragement from Mr. Lusibaea.
    
15. Willie Tongana’s evidence supported that of Mr. Lusibaea in that Mr. Lusibaea attended the police station and stopped the assault. That Mr. Lusibaea stopped the assault, although not his level of involvement in it, is also supported by the evidence of William Tofasi. He gave evidence that Mr. Lusibaea told the others to stop when the victim fell to the floor a second time. There was evidence of punching and kicking when the victim fell to the floor from his wooden stool, of blood and of the victim falling unconscious. Of the extent of the assault the witness Taki described his assessment of the victim’s chances of surviving the attack with his life as fifty-fifty.
    
16. In questioning the witnesses to the assault and in subsequent submissions the defence suggested that the evidence of some of those who said they witnessed the accused holding the victim, ordering the assault and by holding him facilitating it was the result of a conspiracy against the accused. In the alternative it was suggested that the witnesses had mistaken the accused for someone else and suggested that this mistake was as between the appearance of the accused and another person who the accused compared to looking like himself. Incidentally the accused did not give the evidence as suggested at the top of page 12 of defence submissions about a person impersonating him.
    
17. Mr. Lusibaea was a well-known figure in Honiara in 2000. In his own words he was respected. To use the witness Taki’s words, he was feared. It may well be that this amounts to the same thing in this context. This is the explanation given by Taki for his previous inconsistent statement not naming Mr. Lusibaea as a culprit. The witness Forau gives fear as his principal reason for omitting to refer to Mr. Lusibaea in his earlier statement to the police. This explanation, it seems to me, is sufficient to explain the earlier failure to mention the true role of this accused. Having accepted that their explanations are reasonable, and therefore not going as to affect their credit, it remains necessary to consider whether they and the others who identified the accused were mistaken in their identification of the accused or of their perception of the role this accused played in the assault.
    
18. Given his own testimony, Mr. Lusibaea was present when this assault took place. For witnesses to then mistake another person for him, then they must have had the two similar looking people before them at about the same time. Apart from the evidence of the accused there is no evidence of this look alike (who was named in that evidence). Additionally, the evidence from the accused only related to them both having their hair fashioned in dreadlock style, not of other similar physical characteristics. There was evidence from a prosecution witness that they differed in build.
    
19. Cross-examination of the prosecution witnesses over recognition of this accused yielded no results. Repeatedly the witnesses asserted that they recognised this accused. The area where the assault took place was a small confined area. It was well lit. The witnesses had the opportunity to observe the accused over a period of time. They were not treated to a mere fleeting glance. The victim in particular recognised this accused, he knew him as a commander in MEF. He had seen him before and since driving around town. Observation over a period of time, at close quarters and with the opportunity to hear him speak all suggest that the witness, assuming he is honest, will not be mistaken in his recognition.
    
20. The victim was firm in his identification of Mr. Lusibaea as one of his assailants. The evidence he gave suggests that Mr. Lusibaea held him in a way that facilitated the assault and that he ordered the others with him to hit the victim, and kicked the victim in the chest. It was suggested to the witness that he was mistaken in his identification and previous inconsistent statements were also put to him. Those previous inconsistent statements were mainly in relation to other people but at least one of them related directly to this accused. Looking at them as a whole and the explanation given for them, coupled with the witnesses’ concessions in cross-examination, I am satisfied that they do not affect this witnesses’ credibility to any great extent. Nor do I find it established that this witness was motivated to lie for the reasons put forward by the defence. The witness was clear about his evidence and resolute as to his identification of this accused.
    
21. The witness Ata, a special constable, gave evidence of this accused holding the victim by the arm. He gave no evidence of this accused hitting or kicking the victim. He did give evidence that this accused spoke to him, asking where or whether the prisoner was there before walking past him heading towards the area of the cells. The witness knew of the accused but had not spoken to him before. Yet he was quite certain of the man’s identity. The witness Saliga, a police constable, also gave evidence that he saw Mr. Lusibaea holding the victim by the arm as the assault took place. His knowledge of Mr. Lusibaea was slight again, but his evidence clear on identity. His evidence also confirms that of the accused about the accused being the one who told the others to cease the assault.
    
22. The witness Tofasi, another police officer, gave evidence of his knowledge of Mr. Lusibaea as they come from the same place in North Malaita, and describing him as a distant relative and wantok. Again the court heard ‘Rasta held Hagi’s hand’. It seems that Mr. Lusibaea was also known as Rasta. His evidence included this accused throwing a punch as well as restraining the victim, and this accused ordering the assault to end. It was suggested to the witness that he was involved in conspiring against this accused. This witness demonstrated a better prior knowledge of the accused Lusibaea than other witnesses and therefore perhaps can be considered as more reliable in recognition terms than others that only knew ‘of’ the accused. In cross examination he again was not moved from his position of identifying Mr. Lusibaea
    
23. The witness whose evidence of prior knowledge surpassed all previous witnesses was Lazarus Taki. It was even part of the defence case that the two had previously worked together in joint operations. This witness gave a good description of the assault and the people who carried it out. He is a police office and was in charge of the police station that night. He had made previous inconsistent statements, his first confirming the version that Mr. Lusibaea arrived after the assault. He gave an explanation of these inconsistencies and as previously referred to the court finds that the explanation given is sufficient and reasonable and that the previous inconsistency does not materially affect credibility. His evidence on the assault and Mr. Lusibaea’s participation in it was significant. He did not accept and I do not find that he had any improper motive for making these allegations against the accused. My assessment of his evidence was that it was given in a straightforward and impartial manner and could be given substantial weight even taking into account the prior inconsistent statement. Without diminishing the effect, the witness did not take the opportunity to elaborate where he may have done. If he did not see part of the incident, he did not give evidence, as some witnesses have done, of matters that he had been told about.
    
24. The witness Forau, although he did not have the previous associations as did Taki, was in the same position as regards previous inconsistent statements. His evidence about the assault was not as significant as that of other witnesses since he left the area during the event. He confirmed the arrival of the group including this accused but shortly thereafter became an observer at a distance. I had concerns about his evidence as at times he appeared to be testifying to things he could not have seen. Even on his own evidence, his time spent in observation of the group of assailants was short. “They came in and I went out”, was how he described the scene in chief. His evidence was also to the effect that the witnesses Taki and Tofasi were at the police station when the group arrived. This is in direct contradiction of the preponderance of evidence and further weakens his testimony. It does, however, go towards countering the suggestion put by the defence that these two witnesses, Forau and Taki, changed their stories together following a joint decision to do so for improper reasons. Further consideration of his testimony also brings to light additional contradictions and inconsistencies. These are considered later in this judgment. Because of the total effect of these, the court does not put any great reliance on his evidence.
    
25. I have earlier referred to the defence evidence. Mr. Tongana’s evidence to the effect that he could see all that happened in the police station must be considered in the light of the position he indicated he was observing from. That he did by reference to photograph 17 of exhibit A. From that position his view inside and towards the back wall of the police station where the assault took place would be severely curtailed. He could not, the court finds, have had a sufficient view to be in a position to provide the detail he did. That finding is based on the views available to the court from other photographs of the Central Police station.
    
26. No other defence witness testified to the assault. The evidence from the defendant Mr. Lusibaea, going against as it does against a substantial body of credible evidence to the contrary, the court does not accept on the circumstances surrounding the assault. That decision is based simply on weighing the evidence from those who say to the contrary and is not based on membership of MEF or any other matter that the court should not properly take into account. The court has also considered in making this determination whether, as is possible, a number of witnesses have made the same mistake, or have been influenced in their testimony through stories they have heard from others. Where this did happen and became apparent, as in the case of the victim Hagi in relation to other matters, this has been taken into account. But it does not appear to the court to be applicable in this instance.
    
27. The court is aware of the need to exercise caution in cases where identification is the issue and those matters referred to by defence counsel, not only for this accused, have been considered. Some of those matters were set out in R. v. Turnbull[1]. To the extent that those consideration are relevant in this case they have been considered. That fact, the court hopes is, in any event, apparent from a thorough reading of this judgment.
    
28. Turning to the accused Patteson Saeni, the court notes that the evidence against him relating to the assault at Central Police station comes from the victim, Vincent Forau and Lazarus Taki. Since the question again is that of recognition or identification the court will consider the evidence in the light of the guidelines referred to above.
    
29. There is evidence about Patteson Saeni from a time prior to the assault. It comes from witnesses who saw him at Henderson Airport in Honiara during the arrival of those suspects and their captors who travelled from Malaita to Guadalcanal by plane. Those witnesses were Collin Hagi Snr., Moses Ako and John Fogau. The evidence from John Fogau will be considered separately. Collin Hagi Snr. was a suspect in the Placemakers building arson who was transported to Honiara by plane. He gave evidence of the greeting he received at the airport in Honiara. The prosecution suggests that the evidence of Collin Hagi Snr. can be accepted, and that the only serious challenge to his evidence comes from counsel for Mr. Saeni, relating to the conversation between Mr. Saeni and Moses Ako in the car from the airport to Rove about the suspects.
    
30. Counsel for Mr. Lusibaea’s complaint about the evidence of Collin Hagi Snr. relates to answers to questions about the fire at the Placemakers building. His answers are described as evasive. Although counsel attempted to implicate the witness in the burning down of the building, this attempt was not successful, and given that those earlier investigating the allegation i.e. Lake et al came to the same conclusion, this is not surprising. Counsel for Mr. Iro’ota had no particular issue to raise in relation to the evidence of this witness.
    
31. The challenge in cross-examination of the witness’ recall of the conversation in the car was not extensive. That evidence was in part supported in the evidence of Moses Ako, who confirmed the conversation in the sense that he gave evidence that Saeni asked him who he thought was responsible for the burning down of Placemakers, although Moses Ako did not give evidence of the threat against Ramo coming in reply from Saeni. His evidence suggests that Saeni simply did not respond. Moses Ako in his evidence admitted that he was drunk at this point in time.
    
32. From this evidence and taking into account the challenges brought to it, the court can amply find that the witness Hagi Snr. had been detained and thereafter questioned and transported to Honiara by plane. It can also find that Mr. Lusibaea was in Auki at this same time, that Patteson Saeni was at Henderson airport to meet the suspects arriving from Auki, and transported at least one of them to the Rove prison complex together with Moses Ako. The court can also find that the witness Maelanga was involved in taking both Samani Ramo and Collin Hagi Jnr. to their place of further detention.
    
33. Significantly from this evidence the court finds that, in asking Moses Ako about who had been identified as the principal suspect, Mr. Saeni displayed more interest in the suspects than a general interest and that when he heard from Moses Ako who the principal and most likely suspect was i.e. Samani Ramo, the accused Saeni uttered the threat – “tonight we will panel beat him”.
    
34. At Central Police station, the evidence lead suggests that Mr. Saeni came as part of the group that assaulted Collin Hagi Jnr. There was evidence from the victim that Mr. Saeni was part of his assailants, although that evidence was later contradicted. In cross-examination the victim testified to the effect that his earlier evidence in chief was not accurate in that he could not say for sure that Mr Saeni was part of that group. He had named Saeni because of stories he had heard after the event. Although this creditable admission reduces the weight of evidence against Mr. Saeni, it does not have the effect of removing him from the scene. It is also significant that the victim had initially also said that Mr Iro’ota was an assailant and then did not maintain that evidence even in chief. Yet in relation to Mr. Saeni he took a different course by naming him in chief and giving his further evidence in cross-examination. That difference in approach is perhaps best explained by the final remark of the victim in re-examination suggesting that he named Saeni only partly as a result of stories and partly because he fitted the description of the man he did see assault him. “But yesterday when I saw him I thought this was the man that hit me”.
    
35. Lazarus Taki knew Mr. Saeni as a member of the Royal Solomon Islands Police (RSIP), and had known him for about three and a half years prior to this incident. He recognised Mr Saeni as one of three people he did know who were involved in assaulting Collin Hagi Jnr. His evidence was to the effect that Saeni was hitting and kicking the victim. It was suggested on Saeni’s behalf that Taki was not an honest witness. This suggestion came as a result of the previous inconsistent statement dealt with above in relation to Mr. Lusibaea. There was no inconsistency in relation to Mr. Saeni, but it could still go to the witnesses’ credit nevertheless. Both the witness Taki and Forau made additional statements shortly before giving evidence implicating Mr. Lusibaea where previously they had not done so. Hence the suggestion of dishonesty. Mr. Saeni had always figured in earlier statements as being involved in the assault.
    
36. The court does not accept this suggestion of dishonesty on the part of these witnesses on these grounds. As previously stated the explanation given to the court by the witnesses who admitted these prior inconsistencies was both reasonable and acceptable. The evidence of Taki was clear and convincing. His evidence was not seriously undermined by cross-examination. He knew all three accused. He knew Saeni as a member of RSIP, Iro’ota similarly, in addition to playing rugby and attending training courses and Lusibaea through previous encounters and a family relationship.
    
37. The fullest explanation of his previous inconsistent statement and the subsequent change was given in cross-examination by counsel for Mr Lusibaea. In that exchange the witness confirmed that the change came about as a result of discussions with the DPP and not the investigating officer and because of the prevailing security situation, both then and now. I accept that evidence that the changes were not the result of any improper motive.
    
38. Other witnesses to the assault did not give evidence that suggested Mr. Saeni was involved. The question raised here is whether through not seeing and being able to identify Mr. Saeni as a culprit this goes to suggest that witnesses who did see and were able to pick out Mr. Saeni cannot be relied upon. This similar question also needs to be addressed with regard to the other two accused. Given that the incident was fast moving and to some extent horrifying it is not, in my view, of particular evidential significance that not all witnesses saw everything or could give evidence that always confirmed the evidence of others. This is something that is to be expected when several people are invited to describe the same event. It is not, however, a matter that the court did not take into account when considering its findings.
    
39. The witness Tofasi went further than other witnesses did by testifying that Saeni was positively not amongst the group of assailants lead by Mr. Lusibaea. He had prior knowledge of Saeni. His evidence suggested that Mr. Saeni arrived after the assault had finished and the assailants had left. He came to the police station, the witness says, looking for the victim. The court must consider the effect of this evidence. He was driving a dark blue vehicle the witness said and was in the company of others but that those others did not come inside the police station. Having been assured by the witness that the victim was ‘already dead’ Mr. Saeni, the evidence continues, left after being shown the blood on the police station walls and floor. This evidence when taking his previous police statement into account demonstrated an inconsistency. That inconsistency was put to the witness and explained as being the result of being ‘rushed’ by the officer taking his statement. This explanation is not as valid as that of other witnesses previously discussed. Furthermore, his evidence to the effect that Mr. Saeni was not there, meaning as it must that the witness did not see him there during the assault, does not preclude the court from preferring other evidence to the contrary, should that evidence be found to be more reliable.
    
40. Taking into account the recollection of the victim and more significantly the evidence of Taki, the court finds that Mr. Saeni was a party to this assault on Collin Hagi Jnr. The evidence of Forau added little to the equation when considered in the light of my earlier remarks about his evidence. Having considered the evidence to the contrary above, the court finds the evidence as a whole to be more capable of supporting this finding.
    
41. Eddley Iro’ota is also accused of this assault. It was a part of the prosecution case that he, too, was at Henderson Airport to meet the arriving suspects and their party. The evidence to support that comes from Moses Ako. The court has already accepted that witness’ evidence in relation to Patteson Saeni, and in particular his evidence of the conversation between the two of them in Saeni’s car. The evidence of Collin Hagi Snr, it must be said, supported that. In the case of Mr. Iro’ota the evidence is not so supported. Neither the witness Fogau nor the witness Hagi Snr. have any recollection of Iro’ota being at the airport when they arrived from Malaita. That, of itself, does not mean that he was not there, but the court needs to consider the circumstances in which the witness observed this accused.
    
42. The evidence suggests that there were a lot of people at Henderson to meet this group. The witness admits that he had been drinking and that by the time he arrived at Henderson he was drunk. He does not say for how long he observed Iro’ota or whether there was any reason Iro’ota stood out from the remainder of the crowd, whether through physical appearance or behaviour. He did not speak to Iro’ota, and only saw his face. This compares unfavourably with the same witness’ encounter with the accused Mr. Saeni that lasted much longer as they then travelled together to Rove prison. In the absence of any other evidence suggesting that Iro’ota was there, this evidence falls short when considered against Turnbull guidelines.
    
43. From Henderson the scene moves to Rove prison. At Rove amongst others there could variously be found Collin Hagi Snr., Maelanga, Fogau, Lusibaea, Hagi Jnr., Richard Aega and Moses Ako. Collin Hagi Snr. did not see Iro’ota at Rove, Richard Aega probably arrived too late to see this gathering, Fogau did not see Iro’ota, nor did Hagi Jnr. Again it is only Ako who even suggests that he was there. Collin Hagi Jnr. is moved from Rove to Central Police station amidst general apprehension of harm befalling these suspects. This is evidenced by various remarks such as “don’t touch the suspects”, “don’t harm this one” and “don’t harm them in a government cell”.
    
44. At Central Police station only Vincent Forau sees Iro’ota. The victim did not see him. No other police officer who gave evidence saw Iro’ota, although several saw Lusibaea and two saw Saeni. This requires the court to give further consideration to the evidence of Forau to establish how credible his identification of Iro’ota at the scene is. Vincent Forau is a long serving police officer. He was part of Taki’s general duty shift. He was late arriving for his shift on this day. As a police officer he had worked with Iro’ota before, as he had indeed with Saeni. He described Iro’ota as a friend, Saeni as a good friend. His evidence suggested that the group of assailants numbered four or five and that he recognised three of them as being Lusibaea, Saeni and Iro’ota. It further suggests that on arrival the assailants were confronted with Taki; that they spoke with Taki rather than this witness; and that Taki and constable Tofasi escorted the group to the cell area to call for Hagi Jnr.
    
45. The witness did not give direct evidence of the assault on Hagi as he, along with other police officer, left the police station through fear. “I did not see what happened in the charge office because I ran out the back”, he said. He admitted in cross-examination that he left the police station through the back door “before they had even passed the inquiry counter”. His evidence goes against the generally accepted position that Taki was not in the police station when the group arrived, and that he (Taki) only arrived back from attending an incident report as the assault was beginning. His evidence is also self-contradictory. In chief he said that when the group arrived they spoke to Taki and Tofasi yet in cross he said that Taki was away on patrol when they group arrived “but he did arrive when they were still there”.
    
46. The greater part of the evidence, in particular from Taki and Toata, suggests that Taki was not in the police station for the arrival of the group but returned shortly thereafter in response to a radio message by Toata. The court accepts that Taki was not within the police station when the group arrived but did return shortly thereafter. Whether this finding destroys Forau’s credibility and therefore his reliability in putting Iro’ota at the scene remains to be considered. He did not maintain what he initially said about Taki. From the transcript the change in position can be seen. It was dealt with in cross-examination as if earlier he had simply been mistaken.
    
47. I do not accept, as the prosecution submits, that the fact that others do not identify Iro’ota is not surprising. I agree that the event was moving and traumatic. But it was witnessed by many and of those witnesses, as the prosecution itself submitted, there were some very good witnesses. Whether surprising or not, that no other witness to give evidence can put Iro’ota on the scene is a cause for concern. Given the doubts cast upon the evidence of Forau already this must suggest that the case against Mr Iro’ota in this assault has not been proved beyond reasonable doubt. Further, even if the court were to find he was there, there is then no evidence at all as to what part, active or otherwise, he played in the offence. This takes the court back to the findings that there was not sufficient credible evidence to put Mr. Iro’ota at Henderson or Rove during the earlier part of the day.
    
48. All three defence counsel raised the question whether the assault on Collin Hagi Jnr. resulted in the infliction of grievous harm upon him. The offence charged is under section 226 of the Penal Code which provides that:-
    

Any person who unlawfully does grievous harm to another is guilty of a felony, and shall be liable to imprisonment for fourteen years.

49. Some of the elements of that offence are defined in the preceding interpretation section as:-
    

"grievous harm" means any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, membrane or sense;

"harm" means any bodily hurt, disease or disorder whether permanent or temporary;

"maim" means the destruction or permanent disabling of any external or internal organ, member or sense;

"dangerous harm" means harm endangering life;

50. This victim was viciously assaulted with clenched fists and booted feet. He was punched and kicked until he became unconscious. He bled profusely as a result of the assault. It is possible that he fell into a state of unconsciousness more than once, being picked up and brought back into consciousness to face further beating until his assailants determined that they had inflicted sufficient damage for the present time. The victim himself thought that he might die. The witness Taki believed that the victim’s chances of survival were “fifty-fifty”. There is no medical report on the victim. He was not allowed to remain at the hospital for any length of time for security reasons. The evidence suggests that both the doctor who treated him and the nurse who admitted him wanted the victim to remain in the hospital for further treatment and observation. This was denied them and the victim at the insistence of the police was taken away from the hospital, fearing further violence and disruption at the hospital. I believe that to be a sufficient explanation of the absence of a medical report.
    
51. The victim described, in addition to his pain and discomfort, a broken tooth and a dislocated jaw. There was evidence that he could not eat solid food for a while after the beating, although his description of a dislocated jaw must be taken as it was, the description of a lay person to a medical condition. It may well be that this victim’s life was not endangered (dangerous harm) but I am quite satisfied that there was harm which seriously injured this victim’s health, which itself is sufficient to found a charge under the section. The serious injury to the victim’s health I believe to be the effect of being punched and kicked until a state of unconsciousness is brought on, having a tooth broken, and having cuts inflicted that required stitches. All of these taken together are more than capable of being described as serious injury to health. In those circumstances it would not be appropriate for the accused to be convicted of any lesser offence.
    
52. Turning to the charges against Mr. Saeni and Mr. Iro’ota concerning the death of the suspect Samani Ramo, it will be remembered that Collin Hagi Jnr. was taken from Rove prison to Central Police station when it was decided that Samani Ramo would be held in the female unit of the prison. He was taken there and remained there in custody. He was fatally wounded by gunshots at that female unit and died before reaching the hospital in the ambulance that was called to transport him.
    
53. There is no issue that Samani Ramo was killed as a result of the trauma from gunshot wounds to his arms and legs. There is no issue that these gunshots were fired at him at close range by men just outside of the female unit building, still within the female unit compound after dark had fallen on this Sunday. There is no issue that four wounds made up the total inflicted on him, into both arms and around both knees. There is no issue that he was left alive by the gunmen when they left the scene. He was reported alive in the ambulance but dead on arrival a short time later at the hospital.
    
54. The issue here is who comprised the group that went into Rove Prison Female unit to inflict these fatal wounds. There were a number of witnesses to the shooting apart from those involved in it. These were both prisoners and prison officers. There were a number of witnesses at or around the main entrance to the prison and the adjacent fire station, and witnesses in the area leading up to the prison at the armoury guard house.
    
55. On duty at the armoury guardhouse were policemen Ellison Manepuju and Martin Piturara and six other special constables. Manepuju was unable to name any of those other special constables and they did not give evidence in this trial. These two men were not together at the time of the shooting as one had left to take a meal and on his way back to duty diverted to buy a coconut at a local market. The evidence of Manepuju was simply that he saw two vehicles enter the prison complex as they went past where he was standing. It was shortly after that entry that he heard a single gunshot and then witnessed the same two vehicles leave the prison complex at a higher than normal speed. He maintained that as these vehicles drove past him he recognised both Patteson Saeni and Eddley Iro’ota. He described a dark blue double cab Landcruiser and a white sedan motor car, both driving past with the driver’s window half open and seeing the accused and identifying them through those open windows. Whilst this evidence goes some way to suggesting that these two accused may have gone to Rove prison this night, it is not without its own difficulties. The time for observation of these passing motor vehicles was short, and the distance of 125 metres away where they parked substantial. There is the possibility that the type of vehicle drew more attention than the driver, and that believing a vehicle to belong to an individual suggests that it is being driven by the person one believes to own it.
    
56. The witness did not go and investigate what may have occurred after he heard one loud boom. There is evidence from Martin Piturara that the witness asked him to go and investigate, although the witness does not recall making this request. Significantly the witness was sure that no other vehicles had arrived at the same time or in the interval between Ramo being taken into the Female Unit and these two vehicles arriving. The preponderance of evidence suggests that this is not correct, since Richard Aega was taken to the female unit accompanied by the accused Lusibaea during this time. These are the problems identified with the evidence of this witness and because of them, the court finds that the evidence of this witness alone would not support a finding that Saeni and Iro’ota went into the prison this night.
    
57. Martin Piturara heard the gunshots when he was at Rove market buying his coconut from a shop. He did go up to the prison main gate to try and find out what had happened, either of his own initiative or at the request of Manepuju. On his way he observed two vehicles leaving. In evidence in chief he suggested these to be a Landcruiser and another type of vehicle but changed his evidence during cross-examination. In cross-examination he agreed that the two vehicles were a Suzuki type vehicle and a one and a half tonne truck. This was consistent with his earlier statement to the police. Although he attempted to remember and recall the vehicle types, this witness did not give any indication of the identity of the respective drivers. In further cross-examination it became apparent that also in his earlier police statement he had said he had seen Mr. Lusibaea, but he agreed in answering that this had been a mistake. His evidence does not then take the court much further except to confirm the conflicting versions as between himself and Ellison Manepuju.
    
58. Philip Pelebo, off duty from being a fire officer was observing the scene from his barrack quarters. He heard the gunshots from his room, and was able to suggest that the gunshots could be heard around 7.00pm. He went outside and did observe the injured man being carried out of the prison. He saw the ambulance arrive. In cross-examination he testified to the effect that he saw masked or hooded men leave the prison after hearing the gunshots in a white vehicle with a tray. It was clear that although he thought it might have been a landcruiser, he was unsure of whether indeed it was. He could not give any evidence of identification from the distance he was observing. This evidence does not take the court a great deal further in terms of identification of the gunmen.
    
59. On duty within the fire station this night was Philip Qaloboe. His vantage point was much closer than the previous witness and as a result his evidence has more significance. He recalled seeing vehicles arrive and men getting out of them. He identified amongst those men, some of whom were wearing hoods, Patteson Saeni. Patteson Saeni at this stage was not wearing a hood, he said in evidence. He knew Patteson Saeni, and had known him for about three years prior to this incident. He gave evidence that Patteson Saeni had lived at the same barracks as he was. He gave evidence that Saeni went into the prison with a prison officer. Shortly after he heard the gunshots. Two of these men had remained at the prison gate, he said. Having gone back into the fire station office, he was joined in that office by a prison officer wanting to use the telephone to call for an ambulance.
    
60. His evidence about the number of motor vehicles that arrived was inconsistent with that of other witnesses, in particular Manepuju. I do not believe that anything turns on this, as the court is more concerned with the people in the vehicles than the vehicles themselves. The witness himself gave his evidence in a manner more convincing than the other witnesses and he did have a better vantage point and a longer observation period than did the others. In a previous statement he had said that the vehicle was that of Patteson Saeni, whereas he was happy to agree that he did not know the vehicle to be owned by Saeni. Again I do not find that this is a significant factor, as it is often the case that a witness makes an assumption of ownership. In this case there is evidence from another witness to the effect that he knew the vehicle belonged to a person – because he was driving it. More importantly the court needs to determine whether, having seen these men arrive and at the time not knowing who any of them were, did this witness subsequently decide that one of them was Patteson Saeni because of the stories he had heard about his involvement. I do not believe that it is suggested that the witness is not an honest witness. It is suggested, though, that he has been influenced by the power of stories. This has also happened in this case. Another witness agreed in cross examination to adding to his evidence of what he saw, which he did not see, with reference to what he had been told had occurred. Is this the case with the evidence of this witness?
    
61. I have examined his evidence and I had, of course, the benefit of hearing it delivered. Subsequently, I have considered all of those matters that defence counsel suggests put together make his evidence unreliable. In particular I note the comment that if this witness could make a mistake as between prison officers Sebe and Ponotufu-Rangi, then he could well be mistaken about Saeni. He did know Sebe, and indeed saw him later that evening and Sebe did not accompany the gunmen from the main gate to the female unit. That was most likely Ponotufu-Rangi. What does this mistake do to the credibility of the remainder of his evidence? I believe this is best approached from the relative importance that the witness could be expected to put on the matters surrounding the scene he was watching. His attention was, no doubt, focussed on the arrival of this group of men, some wearing hoods, being indicative of them not being prison officers. This may also go to explain the witness’ inability to detail the make and model of every motor vehicle that arrived. The vehicles were not the focus of his attention. Any observer of a scene will take in some but rarely all of that scene. This is not speculation on the part of the court; it is an observation on human nature. My overall assessment of his evidence is that it was clear, not perfect, not embellished and confident. It was not undermined by cross-examination to the extent that it must be regarded as unreliable. I accept his evidence identifying Mr. Saeni as arriving at the main prison complex and thereafter going into the prison itself.
    
62. Neither John Sinogo, Richard Aega nor Mathias Sebe could identify anyone involved in the shooting that they variously heard or witnessed. Their evidence forms the basis on which the court can find that the shooting of Samani Ramo occurred when and where it did. It does not assist in identifying the culprits.
    
63. Mathew Ponotufu-Rangi, earlier referred to as having accompanied the group of men from the main gate to the female unit was on duty as a prison officer this night. He, too, did not know who any of these men were on this night. Having led them to the female unit, he then witnessed the shooting. In his account of the shooting he refers to one man as being the leader, telling others what to do and shooting the deceased himself. This leader he described. Following the incident he telephoned his relative, Lazarus Taki to relate to him what has just happened in the prison. This was his second telephone call to his relative this day, the first earlier to relate another incident. No doubt at some stage the description of the leader was also communicated.
    
64. Having walked to the main prison gate and seen the group of men and then taken them to the female unit and observed the shooting, this witness had ample opportunity to take in the physical characteristics of the men. He did not know them. But his opportunity to observe them over a period and at close quarters suggests that he may be able to identify one or more of them at a subsequent time. This time, it is said, arose a week or maybe two weeks later when, in the company of his relative Taki, the two of them encountered a man they both identified, Taki as Patteson Saeni and Ponotufu-Rangi as the leader.
    
65. It is this subsequent identification that is the evidence from this witness that supports the prosecution case. It is challenged as unreliable by the defence. Since the defendant Saeni was unaware of this supposed identification taking place, and its date is not clear, there can be no criticism of his counsel for not being in a position to challenge the evidence in detail. It is without doubt that the witness Taki prompted the conversation that led to the identification of this accused. He drew Ponotufu-Rangi’s attention to the car in which Saeni was said to have been the driver and said something to the effect that the driver was the leader. Ponotufu-Rangi responded by confirming this to his relative and hiding himself to avoid being seen by the driver.
    
66. It is fair to say that the circumstances in which this purported identification took place were less than ideal when put against Turnbull guidelines. The motor vehicle was moving in the same direction as the two men. The time available for viewing would therefore have been short. It was not too far away but must have been on the opposite carriageway. The vehicle must have come from behind the men thereby shortening the viewing time as opposed to a vehicle coming in an opposite direction. The witnesses have described the viewing in different ways in previous statements, in one of which it was described as a different vehicle that was observed stationary. It is submitted that as a result of these issues, little weight can be placed on the identification.
    
67. Suitably modified for a judge sitting alone the guidelines available draw the court’s attention to all of the factors that are important when assessing identification evidence. They are: -
    

"First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms the judge need not use any particular form of words.

Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example, by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given ... Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence.”

68. In addition to the above, this court needs to consider the effect of the suggestion by Taki that the driver was the man involved. Had the witness Ponotufu-Rangi spontaneously begun the conversation this would not have been necessary. But this conversation, it is agreed, was begun by Taki. He saw this driver first and asked his companion about that driver. Taki, it must be remembered, had witnessed the assault at Central Police station and had seen Patteson Saeni involved in that. He had also seen Patteson Saeni carrying a gun tucked in his trouser belt, and may well have heard the parting remark of the group of men that they were going to the prison to see the other suspect, Ramo. This is found from the evidence given in this trial relating to the assault on Collin Hagi Jnr. Taki, following the assault, takes the telephone call from Ponotufu-Rangi telling him that the shooting has occurred at the prison and the shooting was of the other suspect. He could not be criticised if he had already come to the private conclusion about the identity of all or some of the men involved in the murder at the prison.
    
69. Given this, the identification evidence should probably be given even less weight than otherwise. Standing alone, this evidence could well be described as not sufficient to be put to a jury (in Turnbull terms) and in this instance to support a conviction by a judge. What the court then needs to do is consider the cumulative effect of the various identifications that have been given in this case and make a determination based on the whole of the identification evidence and not just on one piece in isolation. This is consistent with the principles laid down in other authorities dealing with identification issues[2]. In undertaking this exercise the court must still be concerned to see whether this amounts to adding a number of wholly unreliable identifications together to make one that may be relied upon[3].
    
70. I am satisfied that this would not be the case in this trial. The identification by Qaloboe outlined and considered above is not an unreliable identification. The identification by Ponotufu-Rangi is less than completely reliable but, when supported by another identification that has no connection with, this can justify its acceptance as being capable of supporting a finding. Then, when it is accompanied, as it is, by evidence from the same witness as to the build and physical characteristics of the accused given earlier matching those of this accused, there is, in my view, a sufficient body of evidence such as to support a finding that Patteson Saeni went into the prison on this evening together with other men, went to the female unit and shot Samani Ramo four times resulting in his death shortly thereafter. A 9mm pistol was seen on Saeni earlier this same evening by the witness Taki, whose evidence I have already described. The victim was shot with a pistol, as described by the witnesses to the shooting. The intention to carry out some form of punishment on the remaining suspect had been expressed at the end of the assault on Hagi. It is my view that all of this evidence must be taken into account when assessing whether the prosecution has discharged the burden of proof.
    
71. Turning to the accused Iro’ota and the same charge of murder, there is no cumulative effect remaining to be considered. The evidence that he arrived at the prison five minutes after Saeni, in a white sedan motor vehicle is all that there is about him. That came from the witness Manepuju. It is correct to say that that other may have put a white motor vehicle as having arrived as well but no other identification evidence has been put forward. Given that the court has found that there is insufficient evidence to put this man at Henderson airport or Central Police station earlier this day, there are no other matters that can be said to support any finding of his presence at the prison other than this. Iro’ota himself put himself at Rove Market at the time of the shooting, and at the prison complex shortly thereafter. That evidence was a part of his alibi evidence that I do not propose to recite at any length. Counsel for Mr. Iro’ota did point out to the court the dangers of finding an alibi without foundation and, through that, making adverse yet perhaps otherwise unsupported findings. I think that in this case, counsel was wise to give the court that reminder.
    
72. Other witnesses contradicted Manepuju in his evidence of the vehicles that arrived. He was contradicted in his identification of Iro’ota arriving by the evidence of Qaloboe who, in his evidence describing Saeni, made it clear that he did not see Iro’ota at this scene. There is no evidence from inside the female unit of his presence. In those circumstances the court would be wrong to make a finding that he was there and played a part in this shooting.
    
73. An alternative version of this murder came from the prosecution witness Onigela. He was at Rove complex checking a duty roster when he heard gunshots. His evidence was to the effect that he saw people leave through the main prison gate, recognised three of them all carrying guns including a pistol and was warned by one of them to leave the scene. He named three people as comprising this group and that one of them, another prosecution witness, was the one that told him to leave the scene. His evidence continued that he then went about his business and told no one of what he had seen. He did not explain this further. Years later, he testified, the man who he had seen and had told him to leave the scene visited him at his home, told him that the police were investigating the murder and that he, Onigela, should not tell the police of what he had seen. Mention was made of the exchange of a Mazda motor car as payment for this service. He, he says, agreed to this deal. Later, feeling sorry for Saeni, who by now a suspect for the murder, he told him of this.
    
74. This version is further complicated. When the witness who allegedly made this corrupt offer of a Mazda for Onigela’s silence, he had gone to see Onigela at the instance of the investigating police officer McLeod. For a reason that only the investigating officer knows, he decided to enlist the assistance of this civilian witness and asked him to go and get Onigela’s story. This civilian witness had been a police officer and had been involved in the joint operation to Auki to round up the suspects in the first place. By the time the investigation took place years later he was no longer a police officer. Although I might not have chosen quite the same phrase to describe him, when counsel for Mr Iro’ota suggested that this witness was ‘up to his neck in it’, I did not feel the phrase inappropriate.
    
75. The decision to enlist the assistance of this witness did permit the opportunity that witness may have needed to persuade Onigela to remain silent. That it did not in the end have the effect of doing so was merely fortuitous. I hope it is not necessary to suggest that the officer think carefully before taking the same course again. The same officer gave evidence of a conversation after caution with the accused Iro’ota. He waited until after a colleague who had been travelling with the three of them in a motor vehicle on the way to questioning left the motor vehicle to make interview arrangements, and tried to elicit what information he might from Iro’ota in preparation for interview. What he elicited was a different story for being at Rove than the alibi given to the court. It is not an issue that arises given the court’s findings, but I was not impressed to hear that evidence was obtained in this way, given the efforts that other police officers take to ensure that what is elicited by way of interview material is collected in a more secure way.
    
76. In support of the alternative version is the evidence of one of the prisoners in the female wing, Pitamama. In addition to seeing, from his evidence, the same prosecution witness with the gang which shot Samani Ramo, his evidence was to the effect that Saeni was not amongst these men. This must be considered in the light of his assertion that he did not know Saeni at this time, although he knows him now. His evidence of the men wearing hoods also gravitates against his assertion that Saeni was not there. Finally his evidence of the man he says calling out for Ramo putting on and taking off his hood the court has some difficulty with. It is in my view sufficient to say that applying the Turnbull guidelines to this witness’ assertion that Saeni was not there, it would not be possible to find that the witness was correct. The result of that analysis in this instance is that his evidence should not be given the weight necessary to displace the more credible evidence on which the court has made findings.
    
77. What effect should this alternative version of the murder have on the assessment of the evidence against Mr. Saeni? I have considered all of it and conclude that it is not capable of belief. It comes from a witness, then a special constable, who chose not to do anything about what he saw at the time. That may be more understandable than one might think taking into account the then prevailing security situation. Thereafter the witness was for a time content to accept the offer of a bribe for his silence. Only after a feeling of conscience did he tell anyone his story and only now has it been brought before the court. That alone would make any court wary of his evidence. But further consideration of it demonstrates that as a story it does not hold up. No-one else saw this departure. More importantly witnesses who might have been expected to have seen Mr. Onigela view this departure from where he maintains he saw it did not. When called upon to depart from that which he felt he wanted to say, he was at a loss. It is, in this courts’ view, quite wrong to suggest that this version should be regarded as a version consistent with innocence of those presently accused of it.
    
78. The circumstances surrounding this evidence, in particular that a prosecution witness was responsible for the murder himself, lead to the suggestion that this person had gone about ensuring that others were implicated to distance himself from the murder charge. This, it was said, extended to falsely implicating others in the assault charge dealt with earlier. Having found that the evidence of Onigela is not reliable, it is perhaps not necessary to dwell on this. The particular witness did not himself give the evidence on which the court has based its findings, but the court has considered whether the suggestion that his behind the scene efforts did result in the corruption of other witnesses, and finds this not to be the case.
    
79. The trial began with an application to separate the accused Lusibaea from his co-accused, at least as far as the assault charge was concerned. That application was dealt with at the beginning of the trial and what I said at the time I incorporate into this judgment. Similarly, at an earlier stage, the court was required to determine the status of an unregistered customary marriage. Again I incorporate that which I said at that time into this judgment. The legislature may well wish to consider the remarks made by the Crown on the matter and whether it is desirable to examine moves that have been taken in various Commonwealth countries to change this position.
    
80. Was it murder? The deceased survived the shooting for maybe an hour. There was a delay in getting him to the hospital. The medical report, however, confirms that even without this delay the deceased would have died as a result of the injuries inflicted by these four gunshots. The law on murder is clear, and no useful purpose is served by repeating it in full here. At the least the intent of the gunman was to inflict grievous bodily harm through the four gunshot wounds. On departure it is said that one of the group said “take him to hospital”. This is noted but does not suggest that anything less than a finding of murder is appropriate to the facts of this case.
    
81. In my assessment, then, of all the evidence against the accused Saeni, I conclude that its effect is such as to enable the court to safely conclude, beyond reasonable doubt, that he, Saeni, went to the female unit of Rove prison this night, together with others and armed with a pistol, called out for the deceased, sat him down and shot him at close range with his pistol four times, thereby causing his death.
    
82. As to the assault on Collin Hagi Jnr. the court finds that Mr. Lusibaea was at Central Police station and brought the prisoner out of the cell, sat him down at the rear of the charge office, and held his arm against the wall while others, including the accused Saeni, punched and kicked the victim until he fell onto the floor. That thereafter the assailants picked him off the floor and continued the assault. In those circumstances, having found that Mr. Saeni delivered blows and Mr. Lusibaea restrained the victim to facilitate this, the court does not believe that it is necessary to consider the various types of participation in offences. These two accused persons participated in the assault in a way that clearly demonstrates their respective criminal liability. The activity was a joint activity, again as demonstrated by the respective parts that they played, and as such they are jointly liable for the consequent injuries. Although it does not go as to guilt, the court also finds that Mr. Lusibaea uttered the encouragement to the others to begin and end the beating. These findings are set out here to demonstrate that the court has taken into account those matters above that could have gone to affect these findings as described in the earlier part of this judgment, in particular, for example the suggestion that one of the prosecution witnesses orchestrated the greater part of the evidence in this matter to avoid his own criminal liability.
    
83. In the event the findings of the court are as follows: -
    

1. as to the assault on Collin Hagi Jnr. contrary to section 226 of the Penal Code Mr. Lusibaea and Mr. Saeni are guilty and Mr. Iro’ota is not guilty

2. and as to the murder of Samani Ramo contrary to s 200 of the Penal Code Mr. Saeni is guilty and Mr. Iro’ota is not guilty.

Dated this 8th day of July 2005

Goldsbrough, J

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^[1] [1977] Q.B. 224 at228-231, 63 Cr.App.R. 132 at137-140
^[2] R. v. Tyler,96 Cr.App.R. 332, CA
^[3] R. v. Fergus (Ivan), 98 Cr.App.R. 313, CA