Regina v Noneke [2006] SBHC 75; HCSI-CRC 67 of 2004 (27 March 2006)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 67 of 2004

REGINA

v

JOSEPH NONEKE, LIVAE MEQO AND RUSSELL EDOLO

Date of Hearing: 9 May-1 August 2005
Date of Judgment: 27 March 2006

Mr. M. McColm for the Director of Public Prosecutions.
Mr. M. Anders for Mr. Joseph Noneke
Mr. C. Baker for Mr. Livae Meqo
Mr. C. Godbolt for Mr. Russell Edolo

JUDGMENT

Information charging murder, contrary section 200 of the Penal Code

Brown PJ: On the 22 February 2002 two men, Mr. Fred Fawcet-Kay and Mr. Rex Dalia were shot dead whilst traveling by boat back to the plantation of Mrs. Jessie Fawcet-Kay, the mother of the deceased, Mr. Fred Fawcet-Kay. The mother was a widow who resided on her plantation with her son and other workers and their families, adjacent to Diamond Narrows, a passage which separates the island of New Georgia from Vonavona and has the town of Noro, a shipping port at the southern opening to the passage.

The Prosecution Case.

The prosecution case was that the first two defendant, Mr. Noneke and Mr. Livae Meqo with 2 Bougainvillians pursued the boat of Mr. Basil Neuwa who was returning to the plantation with the two others from the plantation, when adjacent to the waterside house of Lopetti, those in the Bougainvillian boat opened fire with rifles on those in Neuwa’s boat, initially killing Mr. Fred Fawcet-Kay (who fell dead in the boat with gunshot wounds) and later shooting Mr. Rex Dalia whilst he was in the water. His body was recovered from the sea days afterwards with an apparent gunshot wound to his lower back.

Both Mr. Noneke and Mr. Livae Meqo have been charged with murdering the two men and Mr. Edolo, (also charged with their murder) was alleged to have been complicit in the organization which led to the killing, for Mr. Edolo was one of (and one of the principals on his evidence) a party or group of "security" and was responsible for these killings. The Bougainvillians have left the area, and must be presumed to have given up on their "security" business. With the advent of the Regional Assistance Mission, these "extra-territorials" seem to have dissipated. They were not called in to give evidence.

The issue in relation to the 2 men in the boat.

The prosecution relies on the apparent intention to kill or cause grievous bodily harm by virtue of the use of firearms (in the manner described by the witnesses) by those in the boat. The Crown case against Mr. Noneke was that he carried a weapon and was seen to be standing in the boat, aiming this gun (or rifle) together with the 2 Bougainvillians whilst the white boat was slowly circling the area after the first volley of shots apparently killed Mr. Fred Fawcet-Kay whereupon a second series of shots apparently one of which struck Mr. Rex Dalia in the water, were fired. Mr. McColm for the Crown says his participation in this fashion shows his complicity in the killings.

Whilst not alleged to have carried a gun, Mr. Livae Meqo was the driver of the white boat when this happened and was again by his presence and knowledge, an accomplice or as Mr. McColm puts it, complicit (a partner in an evil action) in the killings. Now neither Mr. Noneke nor Mr. Livae in their sworn evidence before me admitted any complicity nor did they say anything which might be construed as implicating the other in this criminal enterprise. In fact, both said they were unfortunately in a boat with these 2 Bougainvillins when these killings took place without their foreknowledge or complicity. There was no talk afterwards about the killings, talk going to the reasons for or circumstances leading to the shootings. Whilst this may be seen as curious, Mr. Baker for Mr. Livae says the Crown has not shown a plan, common intent or motive known to his client. For in terms of the Penal Code, "malice aforethought" must be proven.

Since both defendant had little to say about the others actions on this day and they were not cross examined at any length, I need not wade through the labyrinth surrounding the law and proper directions to a jury by a judge in relation to evidence of a co-defendant implicating a fellow defendant, especially when they both give evidence in their own case. Of course, here the court sits without a jury and is also the judge of facts. Nevertheless, such warnings should be borne in mind by judges in this jurisdiction where appropriate. For the absence of such implicating statements may be considered as exculpatory and needs to be considered by a judge acting without a jury. That law has grown up to a large extent where jury trials place an onerous burden on judges trying to balance fairness to defendant with the due administration of justice. (R v Henning (unreported, NSW CCA, 11 May 1990) the court said:

"But different principles apply when the supposed accomplice who gives evidence against a co- defendant is himself a defendant giving evidence in his own case. It would be difficult indeed to seek to apply inflexible rules to such situations. For the interests of justice will almost certainly require different responses in different circumstances. Considerable latitude must be allowed in order to enable trial judges to address the situation in a manner which will adapt to the competing interests in the particular case." (Approved: Webb v The Queen (1994) 181 CLR41)).

Nevertheless a court should still warn itself of the need to properly consider the evidence of co-defendants as in this case, especially when such evidence may be seen to be exculpatory to ensure adequate weight, if appropriate is given to that evidence.

"A witness in his own case, would not be an accomplice or complicit unless he was privy to the criminal intent of the principal offender".

I must address that principal issue, (raised by Mr. Baker and Mr. Godbolt for Mr. Edolo). That phraseology was considered by Mann CJ in R v Ready & Manning [1942] VicLawRp 2; (1942) VLR 85, at 93;

"The only definition in the books of the word "accomplice" which counsel was able to cite to us was that pronounced by Denman J in R v Cramp (1880) 14 Cox CC 390, who said that a witness would not be an accomplice unless she was privy to the criminal intent of the principal offender."

For the shooters were, on the Crown case, the Bougainvillians and Mr. Noneke. It follows, then that the Crown has the burden of showing the three defendant were "privy to the criminal intent" of the principal offenders, who, obviously were the shooters. So the burden of proving the Crown case against Mr. Noneke, then, may be said to be lighter than that against the other two if I accept the evidence that Mr. Noneke was seen to be a shooter in the white boat.

The criminal intent which the Crown sought to sheet home with respect to all three defendants was that the act of shooting these men was done with malice aforethought with intention to kill. (Sections 200, 202 of the Code.)

The Crown led a great deal of evidence about what had gone on before and immediately afterwards, about Noro involving this "security" group, evidence relevant to show it had a motive to kill these two men. It is necessary to address this clearly for neither Mr. Livae nor Mr. Edolo were amongst the shooters but rather their guilt may be inferred, on the Crown’s case, from the fact that the motive underlying these killings called for the participation of these particular members of the "security" group. Mr. Noneke, for the reasons given later is on a different footing as a shooter.

The necessity for the prosecution to prove motive in this case.

It is necessary for the Crown to prove motive in this case, since the nature of the killings, simpliciter, may show "malice aforethought" in those proven shooters but all three have been charged with murder. The New South Wales Court of Criminal Appeal said in R v Murphy (1985) 4NSWLR 42 at 60;

"Motive is not merely a matter which may explain the defendant’s conduct. It is rather a fact directed to proof of the defendant’s guilt; as Chamberlain v Queen (no.2)(1984) [1984] HCA 7; 153 CLR 521 makes clear, before a jury can infer guilt from motive they must be satisfied that the motive asserted has been proved beyond reasonable doubt." (My highlight)

In R v Ball [1910] UKLawRpAC 59; (1911) AC 47 at 68 Lord Atkinson said;

"...Evidence of motive necessarily goes to prove the fact of the homicide by the defendant, as well as his "malice aforethought", inasmuch as it is more probable that men are killed by those who have some motive for killing them than by those who have not."

For these cases are collected in Ross on Crime, 2nd edit., at 643 where the learned author speaks of "evidence of motive is admissible from which intent may be inferred."

The appropriateness of a Chamberlain direction.

But the learned author leaves hanging the above reference to Chamberlain v Queen (no. 2)(1984) [1984] HCA 7; 153 CLR 521 without qualifying it by the clarification and implied correction to be found in Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 where two of the Justices of that High Court acknowledge what they describe as "some misconception" in so far as the practical application, (which followed Chamberlain), in trial judges directions, appeared to misapprehend the Justices dictum about general standard of proof in criminal cases. For in Shepherd, Mason CJ, (whilst acknowledging his brother judge Dawsons’ conclusion in that case), says this about his earlier decision in Chamberlain;

"I agree with Dawson J and McHugh J that Chamberlain is not authority for the proposition that, in cases based on circumstantial evidence, juries must be directed that they cannot use a fact as a basis for inferring guilt unless that fact is proved beyond reasonable doubt."

Justice Dawson said (speaking of Chamberlain);

"Gibbs CJ and Mason J apply the same principle to circumstantial evidence, saying that "in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it." They continue at p 536: "It follows from what we have said that the jury should decide whether they accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence and that they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference." Up to that point, Gibbs CJ and Mason J offer no support for the proposition that a jury may only draw inferences against a defendant from facts which have been proved beyond reasonable doubt. But their Honours add (and this would appear to be the main passage relied upon by the applicant in this case): "Nevertheless the jury cannot view a fact as a basis for an inference of guilt unless at the end of the day they are satisfied of the existence of that fact beyond reasonable doubt. When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favor of what is alleged, and in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence."

Now that passage considered in isolation may support the applicant’s submission, but it cannot do so in the light of the passage which precedes it. It is, I think, quite plain that, in saying that a "fact as a basis for an inference of guilt" must be proved beyond reasonable doubt, their Honours are referring to an intermediate fact which is a necessary basis for the ultimate inference. They must be doing so, for it is otherwise not possible to say, as they do previously, that the jury can draw an inference of guilt from a combination of facts, none of which viewed alone would support the inference. And of course, it is quite correct to say that an intermediate fact which is an indispensable step upon the way to an inference of guilt, whether it be a fact derived from a single piece of evidence of a conclusion of fact drawn from a body of evidence, must be proved beyond reasonable doubt if the ultimate inference is to be the only reasonable hypothesis."

This idea, if I may call it that, of "an intermediate fact which is essential before an ultimate inference of guilt can be drawn" is somewhat esoteric, in the abstract, especially when, it would seem a court of appeal has to consider the form of words used by trial judges for a jury’s benefit in a summing up. Ross, the learned author has collected many cases which attempt synthesis of various judicial pronouncements.

Dawson J goes on to illustrate the distinction between items of evidence and an intermediate factual conclusion by reference to Gibbs CJ and Mason J’s citation of part of the Court of Criminal Appeal of South Australia’s judgment in Reg v Van Beelen (1973) 4SASR 353 at 379;

"But the requirement of proof beyond reasonable doubt relates to the final stage in the process; the jury is not in our view required to split up various stages in the process of reasoning leading to the conclusion of guilt beyond reasonable doubt and to apply some particular standard of proof to each of those steps... and to instruct them to do so would in our opinion be confusing and possibly misleading and would tend to the imposition of an artificial and scholastic strait-jacket on their deliberations. That of course, does not mean that they ought to be encouraged or permitted to draw inferences of guilt from doubtful facts. As a matter of common sense it is impossible to infer guilt beyond reasonable doubt from facts which are in doubt." (My highlight)

In this case where I sit without a jury, I need warn myself of the distinction set out above, for an intermediate step, for instance, must be imputing knowledge of the intention to kill complicit in the "security" to these particular individuals. While presence at the crime may also be viewed as a necessary intermediate step in the logical process, Mr. Edolo was not there. Mr. Livae, while there, denies complicity. So whilst I am satisfied of Mr. Livae’s presence I need weigh up all the evidence of complicity and motive if I am to be satisfied of their guilt beyond reasonable doubt.

The issue of aiding and abetting the crime.

Mr. Edolo’s complicity was the subject of much of the prosecution evidence which was directed to show he knew of the plot to kill; in fact was party to the plot; had authority to direct and control others complicit and had motive to kill.

The Crown relied on the evidence of various witnesses to show complicity and motive.

Mr. Dickson Lulu.

Mr. Lulu had lived at the Baru estate near Noro from 2000 until recently. He was a neighbour of Mr. Edolo. Mr. Lulu’s evidence was directed to showing that he, who had been raised in the area, knew the Bougainville men by name, they lived at Billy Veo’s house, they frequented Mr. Edolo’s house and they were armed with high powered military style weapons. He had seen all three defendants with guns in 2001, 2002.

He knew the weapons to be AR 16 and SLR’s (self loading rifles). On the day in question, at about 4:30 in the afternoon, He said Russell had run towards him asking him where Nelson, Mr. Lulu’s elder brother was. Mr. Lulu answered that he didn’t know where he was. Russell said, "Did he follow Fred?" Mr. Lulu said, "no, he didn’t follow." When asked why, Russell said, "it looks like Fred will be like this- "(and the witness indicated a hand motion across his throat in a cutting fashion). Mr. Lulu went on to say Russell worried in case my older brother was with Fred for Mr. Lulu’s older brother was Russell’s best friend.

Mr. Lulu heard gunshots coming from the Mrs. Fawcet-Kay plantation direction, maybe 2 shots then a little bit later, second shots. Russell had gone away and Mr. Lulu was afraid and went to his house.

The Baru shop was close to his house and the house of Mr. Edolo. Later Mr. Lulu saw Russell that night at his home with Connie and Mr. Livae. He didn’t go into the house but spoke to Connie. Connie told Mr. Lulu something. Mr. Lulu was aware Fred had been killed.

When asked by the prosecutor about Mr. Livae, the witness was reticent to talk. He was asked, "As best you can, tell the court what was said between you two."

Mr. Lulu was prompted and said, ‘it’s a bit long ago- I didn’t ask him- I was a bit afraid- asked him go with others- he said he went with them- (pause)"

He was asked, "anything else?"

The witness shook his head, and said, "After that story going around- he said he followed the others".

The witness looked down and was silent.

Having regard to his reticence and manner in which he had given his evidence, coupled with the attitude evinced by most witnesses, except perhaps, Mrs. Jessie Fawcet-Kay, I would have to say this witness was still afraid.

In cross examination he was asked about the funeral for Fred but denied talking to Mrs. Fawcet-Kay about the killing at the funeral. He did admit to telling his brother how Fred died and from that a reasonable inference could be drawn that his conversations with Connie and Mr. Livae enlightened him. Certainly he gave no account in cross examination of any conversation with Mr. Livae in which Mr. Livae professed to be an innocent party and surprised by the happenings on that afternoon. Nor was he asked.

He was cross examined to suggest his recollections were coloured by the stories about the killings and while he he was asked whether he repeated these stories in court and answered yes, since the question had been repeated twice, its answer suggested a lack of understanding in the witness for his story to the court in its particulars, was not shaken by the cross examination. He insisted the Bougainvillians lived at Billy Veo’s house, he had seen Mr. Livae with a gun; Mr. Livae used to go around with guns; the conversation with Mr. Livae did take place; he did not make up the story about talking to Mr. Livae; and what he knew was what he told the court.

Mr. Godbolt, for Mr. Edolo cross examined on the fact "lots of others apart from Mr. Noneke, Mr. Livae and the Bougainvillians were at Russell’s house that night"; that the Bougainvillians visited other houses about Baru; people were afraid for they would bring guns; there were rumors about Billy Veo’s involvement in the shooting and the fact Billy Veo and Mr. Edolo were close friends.

Importantly he was asked about his brother, Nelson’s trouble.

"Q. True your brother Nelson got into trouble with Fred when with Fred and Fred discharged a gun at Soltai wharf?"

"A. Yes."

He was asked about conversations with Russell for Russell was worried about Nelsons relations with Fred and agreed he had had such conversations. When it was directly suggested he was mistaken about the detail of his recollection of the particular conversation with Russell at the time of the shootings, Mr. Lulu said, "he asked me as such. I think he must have known something."

I accept the witness’s recollections as they were made despite the fear the man still holds about these events. His answers in cross examination did not shake his recollections. His relations with Mr. Edolo stemming from Russell’s friendship would give him cause to remember these happenings. He lived in the community in which the Bougainvillians and the two defendants lived for this period beyond the time of the killings. He has had no cause to reflect on the veracity of the matters told him by Connie and Mr. Livae. He also has recounted the conversations with Russell to the best of his recollection. Mr. Edolo in his evidence spoke of Malaitans being unfavoured and of telling Nelson (Mr. Lulu’s brother) to stay away from Fred. Fred had brought a Malaitan, Mr. Rex Dalia to the plantation. I find this significant. It goes to the Crown’s case about motive to kill. Whether a reasonable motive or not, the fact of the dislike of Malaitans about the place at this time of the ethnic tension may be irrational but true. I accept Mr. Lulu as a witness of truth.

Mrs. Miulyn Nivan gave evidence about Mr. Edolo arriving at her shop, holding long trousers covering a gun which he took from the shop on the day. Russell had been said to have had possession of a gun by Mr. Lulu, for instance, but the importance was the contemporaneous visit on the day of the killings. The shop was close by the water. Russell denied it in his own case. He said he was catching a bus. I cannot understand why this woman would make up such a story, for it has no place in the chronology of events leading to the killings nor does it conveniently fit into what happened after. The story then can only be of relevance, if accepted, as going to support the Crown allegation that this man, Mr. Edolo was part of the "security" for he openly carried a gun on this occasion, when shots were heard from the direction of the plantation. Miulyn Nivan said so close she thought they were behind the store and she sent the child to look.

Having heard Mr. Edolo’s evidence in his own case that he was waiting near the store to catch a bus, I need decide who to believe. I accept the woman’s story for Mr. Edolo had been at pains to show he had come back to Baru at the behest of Billy Veo and was part of Billy Veo’s group. Clearly there was no issue with the fact he derived his authority from his relationship with Billy Veo and from hearing him in evidence, he was quite sure of his own status in this place. He said Billy Veo was his uncle. Mr. Noneke was his blood cousin and Mr. Livae his related cousin.

He was involved with this "security" group. The fact he carried a gun on this occasion is explicable for the very reason of the gunshots just heard. His denial however, must cause me to reflect on his involvement in and knowledge of the proposed killings. I accept the woman’s story since it would be inexplicable without an underlying reason for Russell to have a gun. That reason is a thread which runs through the Crown case and is directly associated with his position in this "security" group.

Three witnesses were called by the Crown Godfrey Kama, Dick Kea and Palateau Beti gave evidence of meeting Mr. Edolo a few days before the killings. They were drinking about the waterfront at Noro, when Mr. Edolo joined them. In the course of the conversation Mr. Edolo asked them if they would be willing to shoot Fred. He left, presumably to get guns and these three also took the opportunity to leave. Mr. Edolo, while admitting the fact a conversation took place, denied its import. He did say there was talk of a gun but it arose in the context; "Watch out they might shoot you" Russell replied; "I’ll get you a gun". Mr. Edolo said he responded in this fashion for he was angry and said it to brush them off. I’m satisfied the gist of the conversation was that given by the witnesses. Mr. Edolo’s connection with the Bougainvillians was obviously known to these three and the discussion about guns recounted by the witnesses is in that context. The discussion about killing, however, goes beyond that. I am satisfied this part of the conversation took place and that suggestion of means and intention to kill came from Mr. Edolo.

Malakula Bitai gave evidence of a conversation he had with Fred the day before the killings. He said Mr. Edolo approached him and asked him to keep a look-out for Fred’s canoe. He was approached at the Ink Shop and later, Mr. Edolo walked towards the wharf area. On another occasion, before this, he had heard Mr. Edolo say; "Mifala going to shoot Fred". Mr. Edolo was drunk at that time. In fact, Malakula Bitai had acted as security and clearly had had dealings with Mr. Edolo over time and knew him well. Mr. Edolo denied both conversations. The witness was unmoved in cross-examination. His evidence conflicts with that of Mr. Edolo.

Tony Siope said he saw the blue canoe of Mr. Basil Neuwa at Noro on the 22 February and later saw MV Tomoko arrive. Later he saw a white Ray boat with a 40 hp outboard driven by Mr. Livae and then Mr. Livae walking on the wharf. He saw Fred, Basil and Rex in the blue canoe going towards Fawcet-Kay when on his way back from the depot. He was talking to his friend, James Vitale near the Noro market. Later that day, Mr. Livae, Mr. Noneke, James Vitale and a Bougainvillian came and took him to the Bougainvillians’ house at Baru. He was questioned about guns belonging to Fred. While there, Chika was asking the questions. Later Russell came and sat down. He was told to go shortly after. James did not leave with him. Russell remained in the house.

James Vitale’s evidence corroborated the evidence of Tony Siope. I find a particularly important difference, however in the relationship between these two witnesses and the interrogators. It would seem the interrogators saw it necessary to have Tony Siope accompanied by an armed Bougainvillian, Mr. Livae and Mr. Noneke when he was sent to collect James Vitale. While Tony Siope and James Vitale were friends, the nuance in Vitle’s evidence is important for his evidence is not so much oath helping in Siope’s favour but independent evidence. Vitale was seen to be treated differently by the interrogators. I accept him as a witness of truth. His evidence clearly inculpates Mr. Noneke, Mr. Livae and Mr. Edolo as members of the interrogating team.

It was clear Chika was directing his attention to finding out what if anything, these people knew of Fred’s guns and their whereabouts. For Chika had been unable to recover any weapons after the killing from the plantation. In fact, a gun was later recovered by a policeman. On Vitale’s evidence, I am satisfied Chika’s attitude evinced a willingness to resort to physical violence to obtain this information, violence threatened so soon after these killings. Mr. Noneke and Mr. Edolo were party to these threats. In the circumstances, Mr. Livae and Mr. Edolo must be presumed to know what was going on about the house and the reason for Vitale’s armed collection from his place.

On the prosecution evidence, the reason these two men from the plantation were pursued in this fashion was the reasonably founded belief (for Fred had discharged a firearm at Noro not long before) that Mr. Rex Dalia, (described as a special constable from Honiara and a friend of Mr. Fred Fawcet-Kay, then living with him at the plantation) and Mr. Fred Fawcet-Kay had guns at the plantation. This may be presumed to have been perceived as a threat to that security group which had taken over law enforcement about Noro (even to the extent of having police subservient) and its environs with the assistance of the Bougainvillians and the apparent connivance and complicity of the "local member" one Billy Veo who arranged it seems the "protection" contract about the Kitano wharf and fish canning factory on the Provincial governments’ behalf and cost.

I make no findings in respect of these presumptions but accept the Crown evidence which does go to show that those in the white boat or Ray boat belonging to the Bougainvillians did seek to search about the residences on the plantation after the killings presumably for weapons and that the group at Baru actively sought information immediately after the killings, about the whereabouts of any weapons which Fred FK may have had. The "security" group (a name which I will use to describe the members of the party or group to which these defendant clearly belonged) included these Bougainvillians sometimes described as members of the Bougainvillian Revolutionary Army ("BRA"), named as Michael, Chika and Connie, two of whom were (admittedly by the defence) in the white Ray boat.

I am satisfied, however on the evidence that the "security group" was interested in and determined to counter with force (for the "security" were armed with military styled weapons) any possible conflict with its control of the geographical area about Noro, including any possible threat Mr. Fred Fawcet-Kay may pose by having arms. I’m further satisfied, having heard all the evidence, that these two men were targeted by this group. How else can the escape by another, the boat driver Mr. Basil Neuwa, a resident, be reconciled with the sheer demonstrated fire power, unless by reference to the intended targets. Mr. Basil Neuwa was never followed up.

It goes beyond mere knowledge in Mr. Edolo’s case, however and the participants in the boat trip also here in court, have been shown to have participated in the killings in the manner described by the witnesses whose evidence I have accepted. For Mr. Edolo may be said to have sought to procure the assistance of the 4 other men only days prior to the shooting to kill Fred. That part of the Crown case satisfies me Mr. Edolo was intending to kill Fred through the agency of others. There has been no evidence of his withdrawal or countermand of this intention and the other two had opportunity at Noro to abandon their agency by leaving the boat. Matters which a judge should take into account in these circumstances are those which a jury should address. In R v Lowery & King No. 2 (1972) VR 560 Smith J said:

"The Crown here is entitled to urge on you that even if for some reason you were not satisfied that there was an actual understanding or arrangement between the two defendant that the girl should be killed, nevertheless, you should at least be satisfied by the evidence admissible against each of the defendant that the girl must have been intentionally killed by the conscious, voluntary act of one of them, no matter which, aided and abetted by the other."

That statement of the law is appropriate here.

The Eyewitness evidence.

A number of eyewitnesses were called by the prosecution. The first was the deceased’s mother, Mrs. Jessie Fawcet-Kay who described events seen from her verandah overlooking the Passage after her attention was drawn by gunshots from the direction of the water. She was talking to Annie Neua, Basil Neua’s wife at the time. Both women became immediately cognizant of what was happening to the persons in Basil’s boat for they could see from their vantage point and Annie immediately ran away, fearing for her own safety. Despite Mr. Ander’s cross examination, Jessie FK left me in no doubt she saw the white boat, and the blue boat of Basil Neua’s, (following the first gunshots when it may be presumed her son suffered his fatal wounds), the circling white boat from which persons were aiming and subsequently fired into the water, at Mr. Rex Dalia. She may have been old and infirm as Mr. Anders argued, but her evidence left me in no doubt she carried the recollection of the these events to this court and recounted them as truthfully as she was able, notwithstanding the passage of time. Her distressed state, evidenced by the manner of her recollections in court, especially following her cross examination designed to disparage her, left me in no doubt that she saw three men with guns in the white boat and a driver. The photographs illustrate to me those others’ recollections that put the two boats very close to the landing adjacent to Lopetti’s house. At that distance from her own verandah and the path leading down to the jetty, she would have had an uninterrupted view, and said she saw the three with guns and the manner in which the white boat was being driven, a manner which accorded with other evidence. She had occasion to see the two defendants and the Bougainvillians up close when their boat landed whilst she was pleading for them to bring her son ashore. She did not know them but described the fat one with a rifle as the man to whom she had addressed her remarks and it may be implied he was the Bougainvillian whom all accepted as the leader of this enterprise, one called Chicka. By the time these men came ashore, it seems she was by herself, all others having run into the bush.

I find her to be a brave and courageous lady in the circumstances, knowing her son had just been killed by these men confronting her with guns. I do not accept Mr. Ander’s suggestion her evidence was weakened by her assumptions when it so obviously was firsthand evidence of what she saw. If she was to fabricate, it would have been simple to have recognized either Mr. Noneke or Mr. Livae Meqo by saying so in court. She did not do so for she didn’t know them at the time.

Counsel’s obligations under Bar Rules when cross-examining witnesses.

Other witnesses did, however, and they were in Lopetti’s house playing cards. There was argument over the identification of Mr. Livae and Mr. Noneke as those on white Ray boat, for Raewyn Emi’s (Lopetti’s wife) evidence to that effect was objected to on the basis she could not have known them at the time and hence not recognized them, but this was not a case dependent on identification as it transpires, for both these two defendant gave evidence and never suggested for one moment they were not on the boat. Mr. Anders argument, which I overruled at the time for other reasons, in hindsight, reflects on his appreciation of his ethical duties to this court for he was cross examining as to credit on this issue of her recognition. His questions were designed to discredit the woman by suggesting her misconduct, by her intent to mislead the court (Mr. Anders continually suggested witnesses were liars) on this issue which could not have been part of his client’s case (for Mr. Noneke admittedly was in the white boat) and could only have been put forward for the purpose of impugning the character of the woman, an improper purpose on which to base cross-examination when the court has regard to Victorian (for instance) Bar Council Rules[1] and counsel’s obligation to the court in any event.

Having heard the woman, I was consequently satisfied Raewyn Emi saw these defendant in the boat with the others, saw those in the boat carrying 3 guns and that (while she decamped with the others then in the house; the house being adjacent to the boats then on the water very close by), her sighting of what was taking place encompassed the men with their guns; what the boats were doing while 3 stood with their guns and so I am not in any doubt, (supported as she was by those others who witnessed the same scene before running into the bush), of her veracity.

It stands to reason on the Crown case, Mr. Noneke was one carrying a gun, for Mr. Livae was the driver and the Bougainvillians (on the defendant’s evidence) were armed. I prefer the evidence of the eye-witnesses who saw three men (including Mr. Noneke) carrying guns in the white boat, to Mr. Noneke’s denial. I do not accept the suggestion by counsel, in effect, that the witnesses in the house of Lopetti saw Mr. Noneke brandishing a paddle, rather than a rifle for while Mr. Noneke says in his own evidence, "they paddled over to the blue boat," this suggestion is but that and unlikely with the Ray boats motor still going; Mr. Livae in control at the outboard motor’s tiller. For it seems the blue boat was taken under control after the second series of shots were fired, shots which killed Mr. Rex Dalia. (At the time of the initial shots, Mr. Basil Neuwa had jumped overboard, leaving the blue boat without a boatman at the helm). Those in the house looked at the circling Ray boat, (before the second series of shots), saw 3 men brandishing guns. It is difficult to accept counsel’s suggestion when Mr. Noneke did not say he was standing in the white boat holding a paddle while the shooting was taking place. Certainly Mr. Noneke owned or had possession of a rifle although he does not admit to carrying it on this day. I accept the prosecution witnesses’ evidence on this material point as to who were pointing guns from the Ray boat. I do not need to find how many shots were fired or who’s shot, if more than one, killed a particular individual. They were all in the one boat and acted in concert.

In James Lopetti’s house that day were himself, his wife Raewyn Emi, Landington Moi and Frank Giza all playing cards. Apart from Raewyn Emi, those others left me with the distinct impression they still were afraid of the possibility of repercussions as a result of their evidence. Mr. Anders pointed to the failure in some instances to divulge material evidence about recognizing the boatmen to the police at the time, to police who came afterwards to investigate, and attributed such failures with the consequent additional accounts of recognition and description of the happenings to this court as contradiction of their earlier accounts, either to the untruthfulness of the particular witness or to reconstruction of events more recently as a consequence of a series of interviews and demonstrations carried out by the prosecutor at the scene with assistance of police.

Cross-examiners manner of questioning.

Mr. Anders manner or technique while cross-examining, may have been seen by the witnesses as disparaging, for by his tone of voice and attitude, it caused witnesses to reluctantly answer. But that reluctance should not as a matter of logic, then be attributed to their propensity to lie as Mr. Anders would have it. That reluctance may also be the result of the witness’ discomfort on finding his or her evidence criticized to the witnesses’ face, a device perhaps useful and calculated to annoy in other jurisdictions where the witnesses response can be manipulated to suit counsel’s purpose when addressing a jury, but quite counterproductive here where custom abhors that behaviour and the response elicited from these witnesses may be attributed to the overbearing manner exhibited by counsel, culturally insensitive, and unassociated with the truthfulness or otherwise of the narration.

The narrator or witness is used to story-telling in the social milieu of his own community. He or she comes to court expecting to tell his story without interruption; his own recital without open contradiction. Public disagreements are unwelcome and often provoke dispute. In this trial, the response of Sgt. Rove, when cross-examined, reflected this expectation, for he became upset that his recitals of facts were criticized and responded to the questioning by refusing to entertain the questions or by denials intended to put a stop to what, the Sergeant considered it would seem, inappropriate disagreement with his recital. To cross-examine in the tone and manner adopted by Mr. Anders, risks openly insulting the narrator. If this is perceived by the narrator, and the narrator publicly, is offended, it is likely the narration will suffer. The court, aware of the mores of narration and recital, should not, without good cause, adopt Mr. Anders suggestion that the narrator’s response, then, to his cross-examination, should be seen as "lying", when the response may be the natural (customary) consequence to the interlocutor’s public disagreement. A very good illustration of the realization of counsel’s intention to provoke by openly contradicting the witness’ account, was that evinced by Raewyn Emi, when she suddenly, in the course of Mr. Anders cross-examination, realized he was disparaging her. She was physically taken aback and her attitude to the court changed. So the court, then must take these social mores into account when faced by that type of cross-examination, examination tending to insult the narrator.

The court’s duty where cultural mores brought into play.

The court has a duty, in those circumstances, to ask itself whether these social mores have given rise to the tension and often disparate stories or if the witness has been undermined in the reliability or otherwise of the narration. A principle determinant, I would suggest is not only the responses elicited by the questioning but the nature and tone of the interlocutor. For public dispute by the interlocutor in an insulting fashion will provoke offence and invariably needless dispute over the resultant responses.

Counsel did not help matters, when having embarrassed the witness to the extent that her embarrassment caused her to smile and giggle (a normal response in this country and a similar response evinced by females in Japan, for instance), he attempted to castigate her for her insensitivity in a murder trial, only to smile and engage other counsel at the bar table in chatter while the prosecutor was cross-examining a defendant on the actual acts surrounding the shootings. So while the tactics may call into question a Bar rule against abusing witnesses (in the cultural milieu of the Solomon Islands), the real reason for this criticism is that the court is sometimes left with the impression that the examination achieves little but antagonism. The continual reference to lying witnesses, in the address, does focus somewhat the court’s mind on all the witnesses, including the defendant who gave evidence.

Mr. Anders’ criticism of Nerolyn Teko exhibited a lack of cultural sensitivity and factual awareness which I find unhelpful when counsel seeks to impute improper motives to a witness when the witness’ fear had so obviously basis in fact. For this witness first statement to police 4 days after the killings (or incident as Mr. Anders would have it) contains her denials of knowledge of those participating, and an acceptance of one gun used. At that time, it would be fair to say since the "proper authority" or police had no real control in the area, (the "security" having taken over with the "security" so clearly responsible for these killings), it would be foolish in the extreme to risk retribution was this witness to name the perpetrators then. Mr. Anders poignantly put it by quoting the witness’ second denial to the police, "I must be honest here, and that I totally had no idea of these people even to know their names." Mr. Anders submission (the witness’ assertion to me in court that those earlier statements were made whilst frightened of the ramifications if the truth be told), that the evidence was "clearly incapable of being attributed to fear, and was a transparent attempt to manipulate the truth", has no support whatsoever on an objective view of the circumstances appertaining at the time. Two men had been extra- judicially killed and persons were going about asking for those who knew something about it to come forward. Shades of the Balkans, for the police who did attend at the time had fears for their own safety.

The evidence of guns in the white boat.

It remains for me to consider the evidence of the witnesses who saw the guns in the white boat. Lopetti was sure of the fact, Raewyn Emi saw three guns, and Frank Giza saw three men holding guns. All ran away, and Mr. McColm’s suggestion that the proximity of the gunshots on the water to the house of Lopetti caused the flight of these witnesses is probable, when I consider their statements in court and look at the photographs. It was not put by defence counsel to these witnesses they were mistaken in their placement of the boats near the jetty and house, rather than at the entrance to the Narrows, (although there was the obvious discrepancy over metres distances) for the two defendant, Mr. Noneke and Mr. Livae said the shooting took place quite some distance from the house at the entrance of Diamond Narrows passage, so that the defendant’s distancing themselves from the eyewitnesses in this fashion leaves me with a doubt of their veracity. For the overwhelming evidence about the site of the shootings did not place it at the entrance. I’m satisfied on the prosecution case the defendant Mr. Noneke had a gun at the time, was in the boat and was seen with the gun standing with the other two. I am left with no doubt over his complicity in this murder. His defense, obliquely raised, that he was present through compulsion, whilst not seriously argued (for defence counsel sought to suggest a paddle mistaken as a weapon) cannot stand for there was no threat by either of the Bougainvillians sufficient for the court to ask objectively whether the defendant had reasonable belief in any threat and reasonably believed he was unable to escape the threat. Mr. Noneke was at pains to say he was ignorant of the purpose of the trip; he had no idea the Bougainvillians had guns with them until they were produced at the death; and he did not participate to the extent alleged by the prosecution in the enterprise. I accept the evidence of the prosecution witnesses as to his participation with the gun. His defense, if it be raised, fails.

The later prosecution and police investigations at the scene.

There was criticism of prosecution and police attendance at the scene before this case came to trial, criticism based on what defense counsel asserted was the effect on witnesses of "re-enactments" and photographs taken at the scene. I am satisfied defense criticism was baseless for witnesses alleged to have been influenced by what they saw or heard when the prosecution party arrived at the plantation, denied any such influence. Apart from the boat trip of Mr. Basil Neuwa, there was nothing in the way of re-enactment. Neuwa’s trip and photographs were not put to other witnesses as the route of the journey on the fateful day. In the circumstances of these killings, the court would expect the prosecution to reassess the evidence originally taken by reference to the scene to ensure the evidence was at least plausible from a view of the geographical area. Anything less would be negligent.

Mr. Livae Meqo

Mr. Baker represented Mr. Livae who was the white Ray boat driver on this fateful occasion. The Bougainvillians had then 3 shooters and 1 boat helmsman. In fact, Mr. Livae was employed by Western Coconut as a boat driver, although he denied ever having driven these Bougainvillians before. He was asked by Chika to drive his (the Bougainvillian’s) white Ray boat on this occasion. Mr. Livae never asked the reasons for this, obviously an out of the ordinary approach if he was to be believed, but he followed Chicka’s directions.

The Crown case against Mr. Livae was bound up with the case against Mr. Noneke, for of course both were in the boat which followed the deceased back from Noro. It was the evidence of the eyewitnesses about the plantation who saw the happenings after the sound of the first shots, coupled with that evidence of the driver, Mr. Basil Neuwa, and the aftermath at Baru which showed Mr. Livae’s continued association and involvement with the Bougainvillians that satisfies the court, beyond doubt, of this defendant’s active participation in the killings. For the witnesses about the plantation who deposed to events after the first shots described the white boat circling slowly in the water whilst the 3 men stood with their guns, pointing, until the second group of shots which may be presumed to have struck Mr. Rex Dalia. The implication the Crown seeks the court to draw from the fact of the circling, is that the driver, Mr. Livae, put these shooters in a position to aim shots at the man in the water.

Mr. Livae said in his evidence on oath he lost control of the boat at the time of the first shots for he was "so shocked he let go of the outboard motor and it started spinning around." He said Chika told him to straighten the boat which he did when he was surprised again when Chika made another shot.

The Crown witness who spoke of the boat circling, left me with the impression it was circling under control whilst these three men aimed their guns, and their evidence was not shaken on that material point. She did not describe a boat spinning out of control in the water and it is difficult to reconcile Mr. Livae’s description with the fact of three men, the shooters, standing in a Ray boat aiming their guns whilst awaiting the target of Mr. Rex Dalia to materialize in the water. For the target did, and was shot. A spinning boat, had that been the case, would surely have been brought under control shortly after the initial shots yet there was a distinct separation in time before the next series of shots. I am satisfied the boat was under control of Mr. Livae at both times of the shootings.

His evidence was to the effect he had been engaged by Chika earlier that day to drive his boat. They firstly went to Baru whilst MV Tomoko arrived, then went back towards Baru on the water (where the Bougainvillians had their base) when Mr. Livae says Chika told him to go to Munda. Then Mr. Livae said he saw a blue canoe in front, not expecting anything to happen, when Chika took a rifle from the bottom of the boat and fired at the boat in front. This evidence is at odds with the blue boat driver, Basil who heard the sound of the white boat overtaking the blue boat when suddenly, as it came adjacent, those in the white boat opened fire and Basil jumped straight overboard. I accept Basil’s version, since the suggestion both boats were traveling innocuously, as Mr. Livae would have it, does not have the ring of truth. I have no doubt Mr. Livae was aware of the fact of weapons with the three shooters in the white boat for he was with the boat and the party whilst they traveled about Noro, and Baru until they saw and followed the blue boat returning from its shopping trip.

His association later whilst he collected Tony Siapu with Connie, armed in the boat, reflected his participation in the earlier episode when the killings took place. He was a party to those killings by his active participation as the driver of the white boat accompanying these armed men.

Mr. Edolo

He gave sworn evidence. He worked for Western Coconut Products at Noro as an accountant. He had previously worked for Concrete Industries in Honiara until shortly after the coup supported by the Malaitan Eagle Force, during the ethnic tension, he had been threatened by one man and he left for Noro. His uncle is the previous regional member, the Honourable Billy Veo and both Mr. Noneke and Mr. Livae are related. He went to Noro in 2000. On 16 September 2003 he signed a 3 year contract of employment with Western Coconut Industries. Before then he worked part time for the company. Joseph Mr. Noneke also worked for Western Coconut at the mill. Mr. Edolo does the payroll. Joseph Mr. Noneke said in his sworn evidence he worked as a security for the Western Provincial Government. He denied speaking to Bitai at the earlier dance although he recalls the fundraiser dance. On the day of the killings, he spoke to Mr. Lulu when they heard the sound of 2 shots. Mr. Edolo said; "Mrs. Fawcet-Kay" for the sound came from the passage. He did not speak to Mr. Lulu about his brother, Nelson. All the neighbours and Mr. Edolo went to the top of the hill to the left of Billy Veo’s house overlooking the passage but couldn’t see anything. He was asked if he went to the Kokusu store, he said to find Billy and went by bus to the commercial buildings. He told Billy who made no comment it seems although both returned to Baru. Mr. Edolo went home, he didn’t move around. He was asked what he heard and said; "who do the shooting, what happened".

Later at about 8, 8-30pm he went down towards the house of the Bougainvillians beside the sea. He saw Tony Siope and James Vitale with Chika and Connie. Mr. Noneke he did not see. Mr. Edolo recounted hearing Chika telling Tony, "stay quiet". Jimmy wasn’t speaking. Mr. Edolo explained that Tony was from the Western Province. When asked why he need explain, Mr. Edolo said; "I didn’t want anything else to happen".

He remembered meeting the 4 men earlier in February. He had gone to the market to buy betel-nut. Dick called out; "Watch out Russell they will shoot you". Mr. Edolo felt bad, he had no idea what they were talking about. He denied saying; "do you want a gun". He did not want Fred killed, did not organize the killing and had no idea why Fred was killed.

Mr. McColm cross-examined him. He was asked about a land claim over the plantation. He denied knowledge of it or of confrontation over it. He appeared angry when questioned about it. He only became aware when he read a statement of Timothy Nineke. He was asked about his tribal and Earthmovers, a company operating in the area. He knew nothing of it.

He said the Western Provincial Government owned Western Coconut and that Billy Veo was a director of the company, representing the provincial Government. He oversaw the payroll. Mr. Livae worked as a canoe driver. He denied that Mr. Noneke worked as security. He never saw Mr. Noneke with a gun, only Bougainvillians carried guns at night. They came to his home for water at night. He didn’t know who paid the Bougainvillians and he had nothing to do with their payment. He didn’t know where Chika lived. He was asked about an incident involving a Gilbertese fight. Const. Ishmael Kave and one Maka came to his house. He recalled an incident when Kava and SC Mathew Maka came looking for Chika. He remembers Michael (a Bougainvillian) coming with them but denied Mr. Noneke and Michael were already there. He denied they left carrying guns. He denied knowing about guns. He denied asking Bitai to keep a lookout for Fred’s canoe. He denied the earlier statement of Bitai that Mr. Edolo had told of an intention to shoot Fred.

Where his evidence is in conflict with that of Bitai, I prefer that of Bitai for Mr. Edolo’s selective recollection, and his direct denial of where Chika lives, satisfies me Mr. Edolo could not be accepted on these material points. Clearly Mr. Noneke admits to carrying a gun as a security and it is likely those in the immediate neighbourhood would have seen him do so. Mr. Edolo lived in that Baru community and Mr. Noneke was related. I find that denial of seeing Mr. Noneke with a gun about the area clearly unbelievable.

The gunfire incident at the wharf was the subject of further cross-examination. Mr. McColm had difficulty in eliciting what Mr. Edolo knew of the story about Fred discharging a gun at the wharf but when asked why Mr. Edolo was so concerned, he said; ‘I was Noro community elected to maintain peace in the community to maintain peace.." When asked who else, he said; "Church leaders, Island groups, Malaitans, Guadalcanal- set up by Noro Town Council Clerk." When asked if Billy Veo part, he said; "No, he’s the Honourable member." He was asked whether the Bougainvillians were part of his group, he answered; "No". Again, he was questioned about shootings. His answers again showed a reluctance to address the question. When asked; Q.-"As part of the group were you concerned about the shooting (at the wharf)" A-"Shooting is not normal in my life, that’s why I didn’t think much about the shooting" Yet he was sufficiently concerned to warn Mr. Lulu to have his brother, Nelson keep away from Fred.

I’m satisfied Mr. Edolo was party to the intention to kill Fred. The association with the Bougainvillians is clear from the peripheral uncontested facts about the role of Chika, the Bougainvillians residence at Baru, Mr. Edolo’s position as elected community peace-keeper, the relationship with Billy Veo responsible for the Provincial Government’s engagement of these Bougainvillians and Mr. Edolo’s own evidence before me when his denials of particular conversations and events cannot stand in the face of uncontroversial evidence which I have touched on and accepted.

I’m satisfied he did go into the shop once shots were heard and took the gun, uncovered from the shop since at that time he was unaware whose guns had been heard. He was not arming himself against the Bougainvillians. His story about going down to the Bougainvillians’ house on the night of the shooting; "I didn’t go to talk, just to see whose these Bougainvillians are" was totally unconvincing. Yet he went inside the house, talked to Chika then left. He did not find out what he wanted to find out. He was asked: "Q. Ever ask who was involved in the shootings?" "A. No" "Q. Why not?" "A. Not my business".

These questions and answers reflect on his truthfulness for he put himself forward as a senior member of this community. Certainly his attitude in court showed an awareness of his self-importance. His denials that he had no business in these matters and never talked about the killings reflect adversely on his credit.

The motive.

The motive relied upon by the Crown clearly related to the presence of the Malaitan policeman friend of Fred at the plantation; the presence of guns in Fred’s possession; Fred’s independent attitude about Noro town with a gun and the perceived threat that combination caused to the position and influence of the established security, including Mr. Edolo as the community elected representative. As I say, whether acts taken in furtherance of the group’s aim to do away with a perceived threat are objectively reasonable, has no part in my deliberations, for the facts show there was a pre-existing intention to kill at least Fred; that plan was known to Mr. Edolo who had communicated his knowledge to others before the event; Mr. Edolo was the elected community representative in the security group which included the Bougainvillians (for the Provincial Government was said to have engaged them) and the plan was put into effect by shooting both men. The motive is plain and the execution was carried out in a manner, by shooting, anticipated by Mr. Edolo in his conversations with the 4 earlier in the week.

Mr. Livae Meqo gave sworn evidence. He was the boat driver on this day although he denied ever having driven the Bougainvillian, Chika before. He lived at Big Baru. Chika asked him to drive his boat on this day. Mr. Noneke and Connie were in the boat. They waited about the wharf when the MV Tomoko docked. Chika told him to go to Munda. He never questioned Chika. In Forsett- Kay passage, Chika surprised him by pulling a rifle out and firing 2 shots. He didn’t see what Chika was shooting at but he lost control of the boat for his hand left the motor handle and the boat commenced circling. Chika spoke to him and he regained control. He was again surprised when Connie had another shot. He looked and saw the blue boat with one man and a bottle of gas. He recounted going to the wharf while the others ran up and later going back to Baru. Once there he was told to pick up Tony Siope. Later he spoke of escaping. He didn’t talk of the shooting because he was frightened and someone might hear it and might kill him. He never owned nor carried a rifle about.

He was asked about his cousin, Mr. Noneke but didn’t know whether he was security. He said he worked with the boys at the mill. He was asked whether people in the west were concerned that Malaitans would come and make trouble but he said he concentrated on his job. Mr. Noneke never told him what he did. He’d never seen Mr. Noneke with a gun nor walked with him nor seen a gun in his house. In 2003 he moved to live with the boys by the sea, some workmates and boys who came for a visit. He knew of the Bougainvillians because others called them by name. At night they carried guns. He had no business to speak to Chika and the day of the killings was the only day Chika spoke to him. He never spoke to Chika after.

The cross-examination afforded me opportunity to hear the witness for quite some time. He was self assured and certain in his answers. His story on the water was unbelievable for someone said to be a boatman. Had his hand left the controlling handle at speed, it would be a matter of a moment to regain control. In that time the boat would not immediately circle especially at speed. When asked about Mr. Noneke and a paddle, he paused before denying seeing Mr. Noneke with a paddle but qualified it by saying: "When Chika shot we grabbed paddle-engine spin around- engine off- Chika asked me to start engine, then we stopped, Mr. Noneke grabbed a paddle and he paddled towards the blue boat, after the man in the water was shot". He denied the presence of 3 guns, rather said only Connie and Chika had guns for: "when Chika made a shot, we turned a round and that’s the time I saw Connie hold a gun." (Mr. Livae was at the stern of the boat and it is reasonable to expect he would have had the occupants of his boat in view throughout). He knew of no concern about the Malaitan policeman with Fred, he knew of no reason to shoot at the blue boat and on his evidence was totally unexpected. In the circumstances of the events of this day, including the journey to Noro with Chika and the others before chasing the blue boat, these denials must be seen as untrue.

The white boat was seen to be circling, under control. The second shot or shots struck the person in the water. There was time following the first set of shots to regain control of the white boat had Mr. Livae momentarily lost control. Chika certainly never lost his balance whilst standing in the white boat.

I accept the contrary evidence about the behaviour of the white boat. It follows that I do not accept the story of Mr. Livae about the loss of control and his expressed surprise about these events on the day. His evidence has been contradicted in material parts by other witnesses whom I have accepted, above. I am consequently satisfied he was a party to this affair and his denials of knowledge of the existence of weapons in the boat he was driving on this day is not believable. His story was discredited in cross-examination and his continued use as a driver after the killings during that evening leaves me in no doubt he was complicit in the killings. He was chosen as an experienced driver, because of his relationship to the others, Mr. Noneke and Mr. Edolo and lived amongst the very security at the waterfront at Baru. He had been seen with a gun before this and clearly was known as part of this group. His denials seek to distance him from being a cohort of those persons with whom he was seen to accompany on this day. His expressed absence of communication with those others in the boat about the incidents on this day also goes to the issue of his foreknowledge of the purpose of the boat trip on the water following the blue boat. Yet he accompanied his cousin who was known to be a security, he was not employed, he said by the Bougainvillian, Chika and yet he was chosen for this particular day. I do not accept his evidence where he seeks to deny knowledge of the purpose of the trip in the face of the other evidence of his complicity. He was a cohort of these people in the boat and there were 3 securities with him in the boat.

Mr. Joseph Noneke.

Mr. Noneke’s evidence seeks to blame the Bougainvillians again, while he was a passenger in the boat on this day. The evidence is to the contrary and I believe the Crown witnesses who saw him to be a shooter. Whether or not he fired his weapon is not an issue for he was seen to be aiming his weapon when these men met their death. His complicity coupled with that of his relatives, Mr. Edolo and Mr. Livae reflect customary ties and explain to an extent, why these three defendants were so involved.

The use to which the court may put any untruths of the defendants.
Where there are these denials in the defendant stories to those given by the various Crown witnesses, having heard and seen the defendant in the witness box, I am satisfied despite the defendant’s assertions to the contrary, that the various untruths that I have touched on above, support the prosecution case. I have considered their respective stories in the light of Richens (R v Richens (1993) 4 All ER 887 at 886):

"The mere fact that the defendant tells a lie is not in itself evidence of guilt. A defendant may lie for many reasons, for example: to bolster a true defence, to protect someone else, to conceal disgraceful conduct of his, short of the commission of the offence, or out of panic or confusion. If you think that there is or may be some innocent explanation for his lies, then you should take no notice of them but if you are sure that he did not lie for some such or innocent reason, then his lies can support the prosecution case."

Richens is an appropriate warning that a judge should have regard to and exposition of the proof necessary on the Crown case where there is evidence given by a defendant in this jurisdiction.

For surely whilst the Bougainvillians remained at Noro, Mr. Noneke, Mr. Livae and Mr. Edolo were free from any public criticism. That was very apparent when I consider the evidence of the Crown witnesses and their explanation under cross-examination why they had been reticent in complaining to the police. That reticence cannot afford these three defendant help for their complicity has been proved beyond reasonable doubt.

The strands in a cable.

There is then so much evidence of their complicity that it would be wrong to seek to identify "links in a chain", rather the evidence may be said to be "strands in a cable".

The metaphor is in Wigmore on Evidence. Dawson J, when speaking of it in Shepherd said;

"On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that the fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where, to use the metaphor referred to by Wigmore on Evidence, vol 9 (Chadbourn rev 1981), par 2497, pp412-414 the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning."

It can be seen from my extensive reference to various parts of the evidence that this evidence is a matrix and thus it is unnecessary to seek to identify links in a chain for the facts illustrate a combination of acts by all involved so as to make the metaphor particularly apt. Having had regard to all the evidence and illustrating my reasoning by reference to some, I am satisfied beyond reasonable doubt of the guilt of the three defendants and they are convicted of both murders.

THE COURT

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^[1] John Phillips Advocacy with Honour LBC 1985 at 7