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High Court of Solomon Islands |
HIGH COURT OF SOLOMON ISLANDS
Criminal Case No. 426 of 2005
REGINA
-v-
HAROLD SAEA
(Commissioner J Lewis)
Date of Hearing: 14 May 2007 until 26 June 2007
Date of Judgment: 17 August 2007
Ms Louise Kleinig for the Crown
Mr Daniel Evans for the Accused
JUDGMENT
Commissioner Lewis:
PRELIMINARY
1 Verdicts and Reasons were delivered ex tempore on the 17 August
2007.At the time of delivery I undertook to elaborate concerning the
facts and the law as I had found them to be. I now do so.
2 The Accused, Harold Saea, has pleaded not guilty to charges of one count of the murder of Manasseh Tiva and 5 counts of attempted murder of four men, Allen Braillee, Gabriel Talusi, Raymond Tusia and Rueben Vathagi.
3 The Crown says the alleged murder and the alleged attempts to murder took place on 3 October 2001 at a place known as Koiloa village, a coastal village in the Tasimboko area, East of Honiara.
THE PROSECUTION CASE
4 The charges arise out of a series of incidents which occurred during the morning of 3 October 2001 allegedly involving the accused.
5 The case for the prosecution is that the defendant, Harold Saea, with malice aforethought, caused the death of Manasseh Tiva by an unlawful act. It is alleged that the defendant either personally or acting in concert with others, shot Manasseh Tiva causing his death.
6 It is further alleged by the prosecutor that the defendant, either personally or acting in concert with others, attempted to kill three men and a teenager, Rueben Vathagi, who were in company with Manasseh Tiva that day, namely, Allen Braillee, Gabriel Talusi, Raymond Tusia and Rueben Vathagi – the teenage boy.
7 The Crown case is that the four alleged victims of attempted murder were seated under a Koilo tree on the beach near koilo village, talking. Near them sat some teenage boys. Some of those on the beach observed a canoe approaching from the East. They recognized it to be that of Henry Saea. Then Talusi, Henry Saea, Braillee, Tusia and Rueben Vathagi went to Talusi’s motorized canoe stationary in the nearby shallow sea. Talusi, Braillee, Tusia and Vathagi boarded the canoe while Tiva attempted to mobilize the canoe and start the engine. At that point Henry Saea was on the beach in the vicinity of the canoe in which Talusi, Tusia and Braillee had arrived.
8 The Crown case is that as the canoe approaching from the east drew closer, suddenly and without warning, Harold Saea, the accused, stood up in the vessel, swore at Talusi and opened fire on Talusi and the others in Talusi’s canoe, using an high powered SR88 rifle.
9 Manasseh Tiva was hit by a bullet which entered his right shoulder, traveled through the vital structures on his chest and exited through his left shoulder. Tiva fell into the sea and died probably immediately but certainly from the wound.
10 The Crown says that those on Talusi’s boat and near it took cover then fled for their lives under continuing gunfire. Talusi armed himself with a gun and returned fire from the beach in what the prosecution says was ‘lawful self-defence’. During the exchange of fire, the Crown alleges that Talusi suffered firearm injuries to his forehead and thigh.
11 The prosecution informed the Court that Talusi would not be presented to give evidence. The Court was informed by the prosecutor that Talusi was not available. He is missing – believed now to be deceased as a consequence of other events unrelated to the present matter. There is no evidence about Talusi’s whereabouts nor can there be. No point is made by defence counsel as to Talusi’s absence.
12 The prosecution case is that the accused and the other occupants of the canoe in which they had traveled to Koilo (a canoe belonging to Harold Saea) abandoned the canoe and walked along the beach continuing to fire gunshots in the direction of those who were fleeing them.
13 Talusi, Braillee, Tusia and Vathagi succeeded in escaping into the bush.
14 The prosecution evidence includes photographs of the area and documentary evidence of the cause of death of Manasseh Tiva.
15 The prosecution case is that although it may not be proven that the shot fatal to Tiva, was fired from the weapon of the accused, Harold Saea, the submission is that the defendant is nevertheless criminally liable for the death of Tiva by reason of the operation of the provisions of sections 21 or 22 of the Criminal Code.
16 The prosecution argues that the accused is guilty because either:
(a) Harold Saea intended to kill or cause grievous bodily harm to one of the occupants of the canoe, together with his aiders and abettors, or because
(b) Saea with the other occupants of Henry Saea’s canoe were pursuing a joint criminal enterprise to engage in an armed assault upon the occupants of Talusi’s boat and that the shooting of Manasseh Tiva was a probable consequence of that joint criminal enterprise.
17 During her opening address to the Court, the prosecutor expressed her anticipation that the defence may argue that Harold Saea was acting in defence of his brother, Henry Saea, or the issue of provocation and should that happen then the Crown will be put to proof that such a defence did not and does not arise.
18 Thirteen witnesses were called in support of the Crown case. I will consider the evidence of those witnesses in due course.
THE DEATH OF MANASSEH TIVA
19 The fact of the death of Manasseh Tiva is not an issue. The evidence of his death and evidence of a wound to the body is contained in the Exhibit P2. P2 is a document prepared by Dr Oberli, a consultant from the National Referral Hospital in Honiara.
20 I find that Dr Oberli conducted a post mortem examination of Mr Tiva’s remains at 1600 hours on 4 October 2001 at Roghu village, east Guadalcanal and concluded that the cause of death was an ‘high velocity gunshot entering the body at the right shoulder traversing horizontally through the upper chest and exiting at the left shoulder, causing extensive damage to the upper mediastinum and its structures (main vessels, airways, lungs)’. The evidence is not in dispute.
21 I find that on 3 October 2001, Mr Tiva died as a consequence of a single gunshot wound from a bullet which caused the fatal injuries observed by Dr Oberli. At the time of his death, Tiva was standing either in or near the canoe of one Gabriel Talusi at Koilo Beach, Tasimboko area, Eastern Guadalcanal Province. Tiva fell into the water after being struck.
A VIEW OF THE LOCALITY OF THE INCIDENTS
22 The Court attended at Koilo village. Trees, foliage, objects, distances, buildings and the locality generally were noted by the Court at the request of the counsel. A written record of the view was taken and the record has become Exhibit P27. I have considered the matters in the Exhibit together with the sketch drawings and photographs in evidence in particular contained in Exhibits P3, P25 and P26.
23 I have used Exhibit 27 to refresh my memory of what was seen and said at the Koilo village area. I add that I did not and will not treat the view as evidence.
24 At the view, I was asked to consider some geographic features as a basis for drawing conclusion in conjunction with later evidence. The Crown suggest that to compare those features with the lie of the land with how it lay some nearly seven years ago, may seriously lead to error.
25 That may be so unless it is in the comparison of some large geographic feature of the area. In any case, there is no real context concerning large features in or around the vicinity of Koilo Beach which the Court was asked by counsel to observe – the contest if it may be called – that went to the extent to which foliage may have played a part in obstructing the view of witnesses.
THE DEFENCE PRESENTED BY THE ACCUSED
26 The defence at law relied upon by the accused are ‘defence of another’ and ‘self defence’, (although the latter defence is not relevant in the context of the charges as presented and in light of the findings made as the trial has progressed) and the lack of any intention on his part to kill or inflict grievous bodily harm on Talusi or any of Talusi’s associates.
27 The Penal Code (hereinafter, ‘the Code’) as amended, section 17 provides:
"17. subject to any express provisions in this Code or any other law in operation in Solomon Islands, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English common law."
28 I am constrained by and follow, the provisions of section 17 of the Code.
29 The accused made a statement from the Dock. I am assured that Mr Saea is illiterate. The prosecution did not challenge that assertion which I accept. I gave leave for his counsel to read the statement to the Court by having read the statement from the bar table and thereafter, (at a series of brief intervals), inviting Harold Saea through the interpreter to say whether he agreed with what he heard read out by his counsel. The accused assented to the accuracy of the reading and interpretation of the statement.
30 There is nothing in the Criminal Procedure Code which proscribes the use of such a technique. An accused ought not be deprived of the right to make a Dock statement by reason of the misfortune of his illiteracy.
31 In his defence, the accused called three witnesses who were able to give evidence of the events, which allegedly occurred the day before the incidents charged and which I was assured were relevant to the guilt or innocence of the accused. I am satisfied having heard the witnesses that the evidence was relevant, and that they were truthful witness who were doing their best to recall the events of 2001.
AGREED FACTS
32 Exhibits P22 and P28 contain facts which counsel agree I may find proved beyond reasonable doubt for all purposes. The facts are as follows:
P22
Is evidence of an agreed fact, "that in a statement made to police, Raymond Tusia said that he went in a canoe with Allen Braillee and Gabriel Talusi on the day before the shooting at Koilo in order to reconcile with Henry Saea.
P28
It is agreed between prosecution and defence and the Crown alleges and the defendant admits pursuant to the provisions of section 181 of the Criminal Procedure Code that:
(1) The distance between the witness box and the public gallery’s double blue doors (sic) in Court room 6 of the High Court is approximately 9.3 metres.
(2) The distance between the seated position of the witness and the public gallery’s double blue doors (sic) in court room 6 of the High Court is approximately 10.9 metres.
33 I am satisfied that the foregoing matters contained in Exhibits P22 and P28 are matters of fact for present purposes.
THE LAW
34 The prosecution carries the onus of proving beyond reasonable doubt each element of the charges brought against the accused. There is no shifting onus which arises for consideration. When I used the expression ‘I am satisfied’ in this judgment, I mean ‘satisfied beyond reasonable doubt’. The accused carries no burden or onus of proof.
35 There is, however, a requirement by reason of the prosecution alleging that the accused was party to a joint criminal enterprise to kill or cause grievous bodily harm to specific persons, that the Judge, (not the jury) must be satisfied that reasonable evidence of common intention to commit the unlawful acts – ‘preconcert’ – exists.
36 I am satisfied that there were other men (not charged with any offence) in company with Harold Saea on 3 October 2007. I find that there is no reasonable evidence of preconcert between the accused and the others in the canoe to kill or cause grievous harm directed at Talusi or those in his company near the canoe for reasons which I set out shortly.
37 The elements of the charges
Murder is defined in section 200 of the Code as:
"any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder."
Section 202 of the Code provides:
"202. Malice aforethought may be express or implied and express malice shall be deemed to be established by evidence proving either of the following states of mind preceding or co-existing with the act or omission by which death is caused, and it may exist where that act is unpremeditated –
(a) an intention to cause the death of or bodily harm to any person, whether the person is the person actually killed or not; or
(b) Knowledge that the act which caused death will probably cause death of, or grievous bodily harm to, some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference
whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused."
Grievous harm is defined in section 4 of the Code thus:
"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 any permanent or serious injury to any external or internal organ, membrane or sense."
‘harm’ has its own definition. It means "any bodily hurt, diseases or disorder whether permanent or temporary."
38 I adopt the statutory phrase ‘grievous bodily harm’ when describing that element of the definition of malice aforethought in this judgment.
39 The Prosecution must, in order to establish the guilt of the person charged with the offence of murder, prove beyond reasonable doubt that the accused intended to cause the death of or grievous bodily harm to the deceased or knew that the deceased would be killed or inflicted with grievous bodily harm and was responsible for the accused’s death.
40 Attempts to commit a crime
Attempts to commit a crime are provided for in Part XXXIX of the Code provides as follows:
"378. When a person intending to commit an offence, begins to put his intention into execution by means adapted to its fulfillment, and manifests his intention by some overt act, but does not fulfill his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.
It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfillment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.
It is immaterial that by reason of circumstances not known to the offender it is impossible in fact commit the offence."
JOINT CRIMINAL ENTERPRISE
The Law
41 In matters involving the existence of joint criminal enterprise, there is only in the very rarest cases evidence which neatly sets out the parties to and the terms of the proposed criminal venture and the time and place when it was to commence. One can usually only determine what the objective of any joint criminal enterprise is from proved circumstances.
42 It seems to me that having regard to the opening and closing addresses of the Crown Prosecutor, the preliminary questions for determination are at least:
43 The Code, sections 21 and section 22 govern the law concerning the joint criminal enterprise and its application in the present case. The section is identical in form and expression with sections 7 and 8 of the Criminal Code of Queensland.
44 I have made reference to and I have adopted and cite some statements of the interpretation of the law as it relates to both sections 21 and 22 of the Code from ‘Carter’s Criminal Law of Queensland’ 15th edition.
45 Section 21 of the Code provides:
"21. when an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say:
(a) every person who actually does the act or makes the omission which constitutes the offence;
(b) every person who actually does the act or makes the omission which constitutes the offence;
(c) any person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(d) any person who aids or abets another person in committing the offence;
(e) any person who counsels or procures any other person to commit the offence;".
46 Section 21 of the Code bears the marginal note "principal offenders". By section 21 of the Act. Criminal responsibility is extended to a person who is party to an offence. The sections deem to be guilty those persons who:
47 The words "where an offence is committed" do not require that the perpetrator be convicted before another may be found liable as a party to the offence. It is enough that the commission of the offence by someone is established in the case against the alleged accessory [Carter 7.25].
48 The mere fact that the prosecution cannot nominate which of two persons acting in concert committed a criminal act does not prevent the conviction of both where the commission of the offence by someone is proved on the case of each person: R v Warren and Ireland (1987) A Crim R 317. [Carter 7.25].
49 A person charged may be convicted of a lesser offence than that committed by the perpetrator: R v Barlow (1997) 188 CLR 1. [Carter 7.27].
50 The Prosecution must establish by evidence admissible against the accessory that the offence was committed by the principal offender. R V Warren and Ireland (infra) [Carter 7.30].
51 Paragraph (a) of section 7 (of the Queensland Criminal Code) may be read distributively as meaning all persons who actually do the act or one or more of the acts in the series which constitute or constitutes the offence.
52 It is necessary that the accessory know what offence was or might be committed – R v Beck 1990 1Ad R 30. It is actual knowledge of the principal offence which is required: recklessness will not suffice. Georgianni v R [1985] HCA 29; (1985) 156 CLR 473 [Carter 7.40].
53 Where it cannot be established beyond reasonable doubt that the accused was the person who physically committed the offence charged, the Crown may seek to prove that the accused aided in the commission of the crime by participating in a joint criminal enterprise.
54 A person participates in a joint criminal enterprise either by committing the agreed crime or by being present and (with the necessary knowledge) intentionally assisting in or encouraging another to commit that crime.
55 The judgment of Hunt CJ at Common Law in R V Tangye (1997) 92 A Crim R 545 per Hunt C at 556 – 557 provides a direction for the present case. I adopt the following direction by Hunt CJ:
"The Crown needs to rely on a straightforward joint criminal enterprise only where – as in the present case – it cannot establish beyond reasonable doubt that the accused was the person who physically committed the offence charged. It needs to rely upon the extended concept of joint criminal enterprise, based upon common purpose only where the offence charged is not the same as the enterprise agreed.
So far as a straightforward joint criminal enterprise is concerned, the jury should be directed along these lines:
(1) The law is that where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused.
(2) The joint criminal enterprise exists where two or ore persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be expressed and its existence may be inferred from all the circumstances. It need not have been reached at any time before the time the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime.
(3) A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to encouragement to the other participant in the joint criminal enterprise to commit that crime.
(4) If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission."
56 The direction in Tangye is appropriate to the present case in the context of sections 21(a), (b), and (c) of the Penal Code since a joint criminal enterprise "arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime". McAuliffe v R [1995] HCA 37; (1995) 183 CLR 108.
57 The understanding or arrangement need not be express and its existence may be inferred from all the proven circumstances. Furthermore the arrangement may alter and broaden over time Miller v R (1981) 55 ALJR 23 and it not need be reached at any time before the crime is committed – Mohan v R [1966] UKPC 3; [1967] 2 AC 187. [Carter 7.45].
58 The mere fact that the Prosecution cannot dictate which of two persons acting in concert committed a criminal act does not prevent the conviction of both where the commission of the offence by someone is proved on the case of each person. [Carter 7.45].
59 Where both or all participants in an attack inflict a blow or blows that combine to cause or contribute to the resulting death (in a charge of manslaughter) then section 21 (a) applies – R v Sherrington (2001) QCA [Carter 7.45]. It follows that where the charge is a charge of murder that same combination will arise.
60 Where it is not possible from the whole of the evidence to determine which accused committed which act, then the case may be left on the basis of 21 (a) (b) or (c) but knowledge of the intention of the others is critical to the success of the Crown case against the one. [Carter 7.45]
61 The distinction between sections 21 and 22 of the Code turns on the issue of whether the joint criminal enterprise is a ‘straightforward’ one or an ‘extended version’ involving the considerations of ‘probable consequences’ set out in section 22 of the Code.
62 The Court of Appeal had occasion to consider the provisions of Part 6 of the Code in Raebo Ligabutu and others v Regina Criminal Appeal No. 2 of 2006 delivered 23 November 2006 where the Court was asked to consider whether the appellants or any of them was in law also criminally responsible for the murder of the victim of Ligabutu’s shooting ‘either as a participating party under section 21 of the Code or, as a joint offender’ sharing in the prosecution of a common purpose under section 22 of the Code’.
63 Ligabutu was decided on its peculiar facts. In the course of their judgment, their Lordships said, following R v Barlow (1997) 188 CLR, "in order to render such a secondary offender liable under the corresponding provisions of section 7 of the Queensland Criminal Code, that person must be proven to have given aid or assistance knowing that the offence was being or was about to be committed by the primary offender .and concluded that "in the present case therefore section 21(c) of the Penal Code required proof that each of the accused appellants realized when they assisted (the principal offender) that he intended to kill or do grievous bodily harm .which is to be determined subjectively".
64 Their Lordships then go to consider the meaning and effect of section 22 of the Code which they note is identical with s.8 of the Queensland Criminal Code, considered in Barlow supra.
65 Their Lordships concluded that the questions to be answered were (1) whether the appellants (the secondary offenders) "formed with the principal offender a common intention of killing someone or causing him grievous bodily harm and (2), whether the killing of (a person other than the intended victim) was a probable consequence of carrying out that intended purpose"........adding that the second question is to be determined objectively. Their Lordships further said that when considering section 22 of the Code "What is to be proved was described in McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108 at 114 as understanding or arrangement amounting to an agreement....that they will commit a crime", which, need not be expressed and may be inferred from all the circumstances."
66 I note that it was said in McAliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108 at 113:
"the doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be described as a joint criminal enterprise. Those terms – common purpose, common design, joint criminal enterprise – are used more or less interchangeable to invoke the doctrine which provides a means, often an additional means of establishing the complicity of a secondary party."
THE NATURE OF THE ALLEGED JOINT ENTERPRISE IN THIS CASE
67 The Prosecution case is couched in the alternative. The Crown says:
"the defendant, either personally or acting in concert with others shot Manasseh Tiva causing his death........... It is further alleged that the defendant either personally or acting in
concert with others attempted unlawfully kill four other men who were with Manasseh Tiva that day, (Braillee, Talusi, Tusia and Vathagi)."
68 The nature of the joint enterprise alleged here, as I understand the prosecutor, is that Harold Saea and four others (named by the accused in his statement to the Court as) Michael, Swin, Kennedy and Betu, opened fire in the direction of Talusi and the group with him, (Braillee, Tusia, Vathagi and Manasseh Tiva) all in or near the canoe in which they had arrived having agreed to kill or inflict grievous harm o the man Gabriel Talusi.
THE WITNESSES PRESENTED BY THE PROSECUTION
69 Factors affecting the reliability credit and acceptability of witnesses
70 The evidence given by the witnesses Braillee, Tusia, Vathagi, (hereinafter ‘Talusi’s group’) Chuchuni, Tagabosoe, Taghasi, Metea and Lumi (‘hereinafter the eyewitnesses’) was strikingly similar – namely that there had been no angry exchanges between Talusi and Henry Saea at Koilo – that there was no difficult situation to resolve between Henry Saea and Talusi at Koilo beach early on 3 October 2001 and that Harold Saea and his group (Harold’s group) – had had no justification in fact in attacking Talusi’s group or in shooting at the eyewitness group.
71 I formed a distinctly adverse view of the evidence of both the ‘Talusi group’ and the ‘eye-witness group’. I have concluded that their evidence was unreliable for a number of reasons. Counsel have helpfully drawn my attention to the strengths and weaknesses of their evidence. I have noted carefully those submissions.
72 When assessing the demeanor and the evidence of the eye-witness group and their evidence, I have taken into account the length to time taken first to obtain the statements of the witnesses and second, to further investigate this matter and to bring it to the trial stage. Such delays defeat the proper operation of the justice system. Having said that, I recognize that troubled times existed in Guadalcanal generally following the year 1999 which clearly contributed to the delays and disruptions experience by everyone.
73 The events which have led to the charges, occurred some almost 6 years before the time of writing this judgment. Eyewitnesses to the event may be forgiven for failing to accurately recall details of the events surrounding Tiva’s death.
74 When assessing the witnesses as to reliability and credibility, I have taken into account the fact of their poor education, relative youthfulness and lack of experience of life. I have noted the need for interpretation and that the translation of some matters must necessarily be imprecise and may have led to the witnesses misunderstanding the statement takers and indeed vice versa.
75 It is common experience of the Courts hearing matters long after the events have taken place, to find that witnesses, sometimes with the aid of notes or aides memoir and commonly without any assistance from notes, exaggerate a recollection or distort the effect of what they have seen or experienced as a consequence of having had discussions with other witnesses and by adopting what they have heard from others about the event in issue.
76 Witnesses will often assert emphatically that their account is the true one. If they are inclined to exaggerate or to gild their evidence then the effect of their evidence if accepted, may profoundly effect the body of evidence led. It has been necessary to approach the evidence called in this trial with the greatest care. I have taken that course.
77 I conclude that the "eye witnesses" have elaborated upon their early statements to police and they have reconstructed their accounts following years of discussion with each other about what happened and the effect of those discussions has rendered their evidence unreliable.
The Witnesses
78 Darren Francis Low is a police officer. In 2004 – 2005 he was attached to the National Investigations Unit of the Solomon Islands. He was assigned to investigate the death of Manasseh Tiva. He visited Koilo village on 28 March 2005 and three or so occasions thereafter.
79 Constable Low interviewed potential witnesses. He took notes and photographs of Koilo. In Court, he identified the photographs and maps contained in the Exhibit P3. The Prosecution have asked me to note that the statements were taken from the witnesses at a time when the suspected offenders were thought to be armed and at large at a time when the witnesses were vulnerable. Given the lawlessness of those times that the police were unable to assist them very much. Those are factors I weigh into account when determining their reliability.
80 I am asked to accept that though testimony in court years later is at variance with statements given earlier and nearer the event, that a court ought not consequently disregard the evidence of the witness but rather scrutinize the evidence with care and in particular consider apparent inconsistency carefully. I agree.
81 I find that police officer Low was accompanied by Det Nelson Kabitani RSIP and Sergeant Derek Runi RSIP. Kabitani appears standing alongside Alfred Chuchuni in photograph 11 of the Exhibit P3.
82 Constable Low identified various buildings depicted in Exhibit P3, particularly he identified the building in photograph at page 22 as Manasseh Tiva’s family home.
83 The evidence of Constable Low is that when interviewing potential witnesses in 2005, he had in his possession statements taken from potential witnesses in 2001.
84 He showed the potential witnesses Vathagi Taghabasoe the statements which had been given by them to police in 2001 and he showed the witnesses Tusia, Lumi and Braillee those which they had made in 2001. Those statements were then read and interpreted to them either by Detective Kabitani or read by other officers to them.
85 Constable Low informed the potential witnesses the purpose of his visit. The accused is the only person who has been arrested in connection with the investigation into the death of Tiva. Constable Low says that the investigation is still open as regards ........other offenders.
86 Constable Low was a witness whose evidence was not challenged and whom I find to be an objective witness who has assisted the Court with evidence which I accept readily as truthful and dependable.
The hostile or adverse witnesses: Henry Saea and Stanford Lumi
87 The prosecutor sought to declare the witnesses Henry Saea and Stanford Lumi who she had called as witnesses, hostile or adverse to the prosecution case. In the exercise of discretion.
88 I concluded both to be hostile witnesses – that is they were not simply forgetful as they seemed to claim, but were deliberately withholding material evidence concerning in particular the retreat by Talusi from Koilo beach in the face of Harold Saea’s approaching vessel. I do not take their evidence into account in reaching conclusions about any contentious issues here.
89 Mr. Evans of counsel for the accused, invited me to consider parts of the evidence of Henry Saea and Lumi as salvageable. I find that their evidence is worthless and I do not accept Mr Evans’ submission. My view as a trial judge is that once found to be hostile in the circumstances of this trial, their evidence is not to be relied upon.
90 The process of determination of adversity or hostility requires the Court to consider those laws of the Solomon Islands which derive from the provisions of section 3 of the Criminal Procedure Act 1865 U.K.
91 The English Act applies in the Solomon Islands (see R v Bata & Ken Arasi) by virtue of section 3.1 of the Constitution – and see McLellan and Bowyer [1961] HCA 49; (1961) 106 CLR 95 which sets out the test to determine a witness to be hostile.
92 Section 3 of the Criminal Procedure Act UK Provides:
"How far a witness may be discredited by the party producing"
"a party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but he may in the case the witness shall, in the opinion of the Judge, prove adverse, contradict him by other evidence, or by leave of the Judge, prove that he has made at other times a statement inconsistent with his present testimony, but before such last mentioned proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness and he must be asked whether or not he has made such a statement."
93 The evidence of Henry Saea and Stanford Lumi before this Court was at odds with statements which they had much earlier given to Police. I granted leave to the prosecutor to cross examine them on the basis of a voir dire and having regard to what was revealed then, I made a declaration that each man was a hostile witness.
94 The prosecution have asked me to note that the statements were taken from the witnesses at a time when the suspected offenders were thought to be armed and at large at a time when the witnesses were vulnerable. Given the lawlessness of those times that the police were unable to assist them very much. Those are factors I weigh into account when determining the reliability of all of the witnesses.
95 I am asked to accept that though testimony in court years later is at variance with statements given earlier and nearer the event, that a court or not consequently disregard the evidence of the witness but rather scrutinize the evidence with care and in particular consider apparent inconsistency carefully. I agree.
Assessment of the evidence of the ‘eye witness’ group and ‘Talusi group’
Rueben Seli Vathagi
96 The evidence of Vathagi – his evidence is contentious. Mr Vathagi, 23 years of age (he thought) during trial, was at all material times he says, a resident of Koilo village where he resided with his family.
97 On the day in question, he did not attend school. He explained that this was because his parents had not paid the necessary fees imposed by the school for his tuition.
98 Vathagi describes the arrival of Alfred Chuchuni at Vathagi’s family house and where a discussion ensued between Vathagi and Chuchuni about ‘unpaid school fees’ which caused them to have been turned away from school as they talked they went to the beach front (some 10 metres from the village) and sat down and talked some more.
99 The place where they sat, he says, is to be seen in photograph 9 by the side of a big Koilo tree. The Court viewed the tree. Vathagi and Chuchuni were joined at the tree by Moses Metea of Sasapi village, a neighbouring village about 2 kilometers away. Both Chuchuni and Metea were presented as witnesses by the prosecution.
100 Vathagi says that 20 minutes after they sat and started talking, he saw three canoes on the sea each setting out from Taivu Point to the east of Koilo beach. They were 30m apart and went down West from there. He says "the boat in the middle came ashore and started shooting but not really ashore’.
101 Vathagi’s evidence is that about 0900, he saw Talusi. Talusi was in a canoe that set out from Talauru point to the West of Koilo. At Koilo, it turned into the shore.
102 The canoe from Taivu and the other canoe passed close to one another. Vathagi says that he was 50 meters away from them and then they stopped briefly alongside each other ‘for one minute only’ then the one from Taivu point proceeded West towards Mbambala.
103 Then the one which had come from the West came to the shore. It contained Talusi, Allen Braille and Raymond Tusia. Braillee held the vacated canoe and Talusi walked over to where Vathagi was. Talusi was was empty handed and he asked to see Manasseh Tiva. Vathagi and others ran and got Tiva at Talusi’s direction.
104 Mostyn Taghabasoe ran ahead and woke Tiva. Tiva went straight into ‘Talusi’s gang’.
105 According to Vathagi, Henry Saea’s canoe then appeared and approached from the West. Henry was in the boat with his son and two other men. Henry got out and came to the beach and spoke to Talusi. Henry’s manner was friendly as was Talusi’s. Henry’s boat remained for about 3 minutes, and left.
106 Tiva then drove Talusi’s canoe around in the sea for about five minutes.
107 Talusi’s canoe was red inside, red and blue outside. It had a 30hp motor and was longer then Henry’s canoe. Vathagi said ‘while we sat there, there was no strong talk, we just sat there telling stories.
Then after a hour and half, Talusi stood up and told Tiva to get in the boat.
108 Tiva told Vathagi to follow him and he, Talusi, moved towards the boat. I hesitated. Tiva paused and waited for me to follow him. After a minute or so, I went to the boat at which time Talusi and his ‘guys’, Raymond (Tusia) and Allen Braillee) were in the boat already. Tiva was behind the canoe and succeeded in getting the engine down.
109 Vathagi described the canoe which was approaching Koilo. He described his first sight of it as bein when it was 40 or 50 meters away. He recognized Harold Saea who was ‘holding an ‘SR88’. Vathagi says that Harold was seated but then he got up. Vathagi says that he saw that there were four other people in the canoe and that two had guns as well as Harold.
110 Vathagi’s evidence is that he heard Harold say ‘Talusi, fuck you, leave that engine’’ [2/44] and at that time Henry Saea was about 9-10 meters from Talusi’s boat and then he, Harold, started firing. Vathagi described how he dived out of the canoe into the sea. Vathagi says the he heard bullets entering the sea. He says that when he came up for air, he saw Tiva running up (the beach) then he dived again and stayed under for one minute or so. When he came up a second time, he saw Talusi on the beach holding an SR88.
111 Although Talusi may have had injuries resembling those caused by gunshot, and several witnesses gave evidence that he had such injuries, [see Vathagi 15 May page 63] there is no direct evidence of how or when Talusi sustained them or if they were indeed gunshot wounds. The prosecution had a need to prove that any injuries observed on Talusi’s person after the shooting at Koilo were inflicted by gunshot projectiles if it was to be submitted as corroborative evidence that Harold Saea carried the requisite intent to kill or injure Talusi – as indeed it was so submitted in the prosecutor’s closing address [day 18 page 26.2].
112 As counsel for the defence points out, there is some evidence that Vathagi had some allegiance to the Talusi group – he’d been with them all morning. He was directed to go with them if he is to be accepted and he was shot at. I am not prepared to accept the evidence of Vathagi except where it is independently confirmed. I conclude, Vathagi is not confirmed independently by the other witnesses in the ‘eye witness group" nor by Braillee or Tusia. The evidence of each of the eye witness group and of Braillee and Tusia is simply unreliable.
FINDINGS
113 I am satisfied from the whole of the evidence of the following matters: that at all material times but in particular on or about 3 October 2001:
114 Harold Saea (the accused) resided at Taivu and was the brother of Henry Saea. Henry Saea owned a fibreglass canoe with a cabin and an outboard motor.
115 Gabriel Talusi was at the material time in possession of a fibreglass canoe also fitted with an outboard.
116 On the morning of 3 October 2001 at about between 9.00 and 10:00 o’clock, Talusi drove his canoe from West of Koilo village on the sea to Koilo beach, with the witnesses, Braillee (also known by the nickname ‘Noko’) and Tusia (also known by the nickname ‘Aludani’) in his company.
117 Talusi was a man who had a reputation for criminal activity among people generally in Eastern Guadalcanal and had been in trouble with police for serious crime. He was known as a man who carried weapons and was regarded generally as a dangerous to the safety of others. Braillee was Talusi’s cousin brother.
118 Not long after Talusi, Braillee and Tusia arrived at Koilo beach, the canoe of Henry Saea beached next to Talusi’s canoe at Koilo, containing Henry Saea, Henry Saea’s small son and two men – one named "Michael’ and another man. Henry Saea spoke to the men with his son in the canoe and sent them off in an Easterly direction - Henry Saea remained and joined the Talusi group on the beach. It is likely, but no more than likely, that Talusi intercepted Henry’s canoe and directed Henry to drive it to the beach.
119 On the previous day I accept that Talusi, Braillee and Tusia had intercepted Henry’s Canoe between Taivu Point and Foxwood. I accept the evidence presented by the defence about the encounter. I conclude it to be more than reasonably possible that the Taivu Point/Foxwood incident to be the beginnings of incidents leading to the shooting of Tiva on 3 October 2001.
120 At the time of arrival of the two canoes a group of teenage boys (the eyewitnesses) were sitting ‘telling stories’ (or talking) beneath a large Koilo tree; these boys were the witnesses Chuchuni, Tagabasoe, Metea, Taghasi and Lumi.
121 Just before the arrival of Henry Saea, Talusi sent several of the teenage boys to summon Manasseh Tiva who then lived nearby the beach. Not long after, Tiva arrived sat with Talusi who by now was sitting with Braillee and the witness, Vathagi. Tusia was holding Talusi’s canoe. Tiva then went to Talusi’s canoe and with Tusia, sped around in a couple of circles and returned to shore and rejoined the Talusi group.
122 The two groups of people at Koilo beach that morning, were ‘Talusi’s group’ consisting of Talusi, Tiva, Braillee, Tusia and Vathagi and the eyewitness group, consisting of Chuchuni, Taghasi, Tagabasoe, Metea, and Lumi.
123 The groups were separated by a distance of at least 5 metres. I am satisfied that anything said by those in the ‘Talusi group’ could not be heard by those in the ‘eye witness’ group.
124 The two groups remained on the beach under the shade of trees talking for some 30 to 60 minutes after the departure of Henry Saea’s canoe. Towards the end of the hour, the canoe belonging to Henry Saea was observed by some in the two groups to be approaching from the East.
125 Talusi then moved towards the canoe, those accompanying him were Braillee, Tusia, Vathagi, Henry Saea and Tiva. When they reached Talusi’s canoe, Talusi and the others with the exception of Tiva and Henry Saea got in the canoe. Tiva remained outside the canoe and was at the motor attached at the rear and was beginning to push the canoe into the sea.
126 I am satisfied that Henry Saea was on the sand near Tiva. To the East the approaching canoe contained Harold Saea who was armed and four other men, Michael, Swin, Betu and Kennedy, two of whom were armed.
127 When the approaching canoe was within 50 meters to 70 meters away from Talusi’s canoe, Harold Saea, holding a weapon, stood up and said something which included an epithet and was addressed to Talusi.
128 I am satisfied that very quickly following the statements, a shot was fired by someone in the approaching canoe and Tiva fell into the sea, apparently dead. Thereafter, those with Talusi took cover: Vathagi dived into the sea. I am satisfied that Braillee and Tusia ran away for cover the vegetation and buildings in the village. I am satisfied that Talusi left the canoe and when he did so, was armed with a military style firearm. Talusi fired at Harold Saea’s group as he retreated up the beach and left the area, later meeting with some of his group at the village of Omi.
129 Henry Saea did not enter the Talusi canoe at any time before the first shot was fired. He remained on the beach. When the shooting started, Henry took cover in the bushes near the village of Koilo, later returning to his canoe and leaving the area in it.
130 Firing continued for some minutes. I am satisfied that those in company with Harold Saea left the canoe belonging to Henry in the water without securing it and moved on to the beach, ceased shooting and walked East, passing the witness Tome, as they did so.
131 Later on, a post mortem (already described in this judgment) was conducted on the body of Tiva and the death was found to have been caused by a high velocity gunshot would with associated fatal injury to the upper chest of Tiva.
132 There is no evidence that any one of the men in Saea’s canoe was motivated to kill or inflict serious harm on Tiva. The only evidence which would suggest Tiva may have been a target is the evidence that Tiva was in the company of Talusi and assisting in getting the canoe underway by pulling down the outboard motor in the stern and pushing Talusi’s boat into the sea.
133 No evidence of an interview by police with the accused has been led.
DISCUSSION AND CONCLUSIONS
134 The first question to be asked and answered from the whole of the evidence is whether the Crown prosecutor has proved that Harold Saea was not possessed of a subjective believe (not a false belief) that Henry, his brother, was in imminent peril of death or in imminent peril of being inflicted with grievous harm at the hands of Talusi or his associates.
135 The second question is, having found that Harold believed that his brother Henry was in imminent danger of death or grievous bodily harm at the hands of Talusi and or those with Talusi, what did Harold do in pursuit of that belief?
136 From the whole of the evidence I am not satisfied that the shot which caused the death of Tiva was a shot fired by Harold Saea. I am, however, satisfied that the first shot fired at Koilo beach that day was a shot which originated from and was fired by one of Harold’s group in the direction of the Talusi canoe.
137 I am not satisfied that whoever it was who fired the shot, intended the shot to hit any one in the area of Talusi.
138 I find that the first shot, which undoubtedly came from the canoe in which Harold Saea and his group were traveling, was not fired in pursuance of any agreement to kill or to cause grievous bodily harm to Talusi or anyone else.
139 I have arrived at the conclusion that immediately before the shot was fired from Harold Saea’s canoe that Talusi was not in immediate physical possession of a firearm, although military type firearm was at hand. I find that to have fired a weapon at the group in and near Talusi’s canoe at that time was an excessive response in the prevailing circumstances. There had been no discussion no ‘parley’ there was no justification to use such force at that time.
140 I am satisfied that the first shot which came from Harold Saea’s group was in accordance with a general understanding or arrangement between Harold Saea and the armed members of Harold’s group amounting to an agreement arrived at during the trip to Koilo to threaten and intimidate Talusi with firearms in an attempt to secure the release of Henry Saea, but not to kill or maim anyone.
141 I find that the agreement between those armed and in Harold Saea’s group was to obtain the release of Henry Saea by threats and intimidation, miscarried when Tiva was shot dead. That agreement as to do an unlawful act. Section 22 of the Code provides:
"22. When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence."
Section 199(1) of the Penal Code provides:
"199. (1) Any person who by an unlawful act or omission causes the death of another person is guilty of the offence known as manslaughter ...".
142 It remains to make plain the factual conclusions I have reached and the rules I have applied in arriving at the findings and the verdicts in this matter.
143 There has been no shifting onus in this case. The Crown has assumed the burden of proof beyond reasonable doubt from the outset. The Crown has carried the obligation of proving beyond reasonable doubt the principal facts which constitute the Crown case against the accused.
144 The DPP has been alert to the likely defence presented by the accused here by the accused. There was reference to the expectation of the DPP in the Crown opening that ‘defence of another’ would be relied upon.
145 The Crown carries the obligation of negativing such a defence by proving that Harold Saea did not believe that he needed to have gone to the defence of his brother or alternatively if there was such a need, then the degree of force use was excessive measured against an objective standard.
146 Now the Crown says that from the evidence before it, the Court ought now to be satisfied that reasonable evidence of an arrangement to kill or cause bodily harm to Talusi existed between Harold Saea, Michael, Swin, Kennedy and Betu before Tiva died – a preconcert understanding.
147 Evidence that an agreement has been reached between conspirators to a joint criminal enterprise is rarely if ever spelled out with the precision of a commercial contract.
148 To enable a tribunal of fact to conclude that there is reasonable evidence of the existence of the agreement to commit the particular crime or crimes charged is all that is needed. Reasonable evidence is often, but not always, inferred from the actions of the conspirators and the circumstances of their behaviour and activities leading to the crime.
149 There is nothing from the whole of the evidence which enables me to conclude that reasonable evidence exits of a collective agreement in the members of the Harold Saea’s group, to kill or cause Talusi grievous bodily harm. I make it plain that I am not prepared to infer from the evidence, any agreement between Harold and his passengers in the approaching canoe was a joint criminal enterprise to kill or inflict grievous bodily harm on Talusi.
150 There is evidence which suggests that another agreement may reasonably be inferred concerning Harold Saea’s group. For example, that the Harold Saea group was possessed of a collective intent to go armed with loaded weapons to rescue Henry Saea, and to use the weapons to threaten the Talusi and those with him – there is the evidence of Harold’s aggressive shouts directed at Talusi on the sea at Koilo, and there is the fact of the opening shot accompanying the shouts.
151 I am asked to conclude the preconcert in the Harold Saea group was that Talusi should be killed or caused grievous bodily harm. I am not prepared to draw that conclusion from the evidence before me.
152 I am, however, satisfied that there was preconcert to rescue Henry by use of threats and intimidation in the minds of those with Harold and Harold himself to set Henry free from Talusi. His threat was directed at Talusi. It was Tiva who was shot down by someone.
153 I conclude that ‘preconcert’ by Harold’s group to do acts other than kill or maim did exist. I conclude that there is reasonable evidence that the Harold Saea group quickly traveled from Taivu to Koilo, armed and for some of the way at least, with members of the group crouching hidden in the boat (see evidence of witness Tome) to rescue Henry from Talusi.
154 The issue of Henry’s location just before the shot which killed Tiva was fired is a vexed one. I find that Henry was very close to the motor of Talusi’s vessel, not up to 11 metres from it as some have him. Chuchuni has Henry 5.7 metres from Talusi’s canoe, Tagabasoe 8 - 10m, Taghasi 6 - 7 m, Metea 10m, Lumi – no estimate, Vathagi, 9 - 10m, Braillee 8m, Tusia – no estimate. I place no reliance on the realibility of the ‘eye witnesses’ about these matters except where their evidence about some particular incident is corroborated. I am not persuaded sufficiently to depend upon them as corroborating each other. On the contrary I believe that they were simply unreliable. Those witnesses from Talusi’s group are also in my opinion quite unreliable.
CONCLUSION
155 The scenario for 3 October 2001 begins with Henry Saea traveling in his boat in company with his young son and two men ‘Trevor’ and ‘Michael’ in the sea heading along near Koilo Beach. At Koilo, Henry sent Trevor and Michael and his son away to Taivu. He then sat with the men Talusi, Brailee, Tusia and Vathagi.
156 I am satisfied that when Harold, Betu and Michael were headed towards Koilo from Taivu that the men with him were armed and anticipating trouble from Talusi because of the news which had come to them concerning the events of the night before and from what
Michael had seen at Koilo that very morning, Talusi was armed and he had again threatened Henry Saea and was controlling Henry.
157 Having considered what was said to the Court by the accused in his statement, I conclude that it is reasonably possible that Harold Saea set out to see what was happening to his brother Henry Saea after Michael told Harold that Henry was being held by Talusi who was armed and who had sent the message that he wanted to see Harold and that Harold must go to Talusi otherwise Henry was ‘out’ – that is to be killed.
158 I consider it reasonably possible that Harold decided to arm himself for his own protection and was about to set out in Henry’s canoe when he was joined by Michael, who in turn invited – Swin, Betu and Kennedy, to travel to Koilo to speak with Talusi and to simply threaten Talusi in order to gain Henry’s release.
159 I have already found that I am not satisfied that there was an agreement made between Harold and the others to kill or cause grievous bodily harm to Talusi or anyone at Koilo that morning. From the state of the evidence, I am satisfied that their collective intention was to rescue Henry from Talusi. To that extent they were going to show force or engage in threatening and intimidating Talusi to achieve that end. That was the extent of their agreement. It amounts to preconcert to commit an unlawful act.
160 I have concluded that it is reasonably possible that the first shot was indeed fired by someone from the canoe of Harold, to be a warning shot. There is evidence that it came from the weapon of Harold Saea. The ‘eye witnesses’ certainly took that view. I think that it was probably fired by Harold Saea but given the state of the evidence I cannot conclude beyond reasonable doubt that it was. Harold Saea says that the first shot came from Talusi – but that is not a reasonable possibility given the evidence.
161 I am satisfied that it was the first shot fired between the groups which struck and killed Tiva. I am satisfied that when Tiva was struck that he was at the rear of Talusi’s canoe either lowering the engine or pushing the canoe further into the sea.
162 It is unclear where precisely Henry was at the time of the first shot. Various witnesses have him in various places. Some witnesses have Henry in Talusi’s canoe, others have him as far as 10 metres away from Talusi’s canoe – East of it, on the beach. I am satisfied that Henry was in the near vicinity of the rear of Talusi’s canoe when Harold Saea’s canoe arrived and was located at the point from where the first shot was fired.
163 I am satisfied that the distance between Talusi’s group and Harold Saea’s group was some distance between 50 to 100m. The canoe of Harold Saea was to the North East of the Talusi canoe.
164 I am satisfied that the first shot fired which caused the death of Tiva came from Harold’s canoe and a weapon wielded by one of Harold’s group. Just who fired the shot has not been proved.
165 I am satisfied that a joint criminal enterprise did exist between the members of Harold Saea’s group – not a joint criminal enterprise to kill Talusi or to cause Talusi grievous bodily harm, but that it was an understanding or arrangement amounting to an agreement to get Henry away from Talusi’s group by threatening Talusi and his group with firearms three of Harold Saea’s group were carrying and by displaying great aggression toward Talusi.
166 It was an offence against the law of the Solomon Islands in October 2001 to threaten any person with a weapon or weapons. See the provisions of the Penal Code sections 231 (The offence of intimidation) and section 244 (the offence of Common Assault).
167 What followed among the Harold Saea group following Tiva’s death was not the further execution of the any purported plan to kill or maim Talusi but a wild shooting by those in Harold Saea’s group and firing by Talusi himself during which no person is proved to have sustained any gun shot wound.
168 Harold Saea’s group appears to have retreated (on foot for some unexplained reason), to the East along the beach past the witness Tome, without recovering Henry Saea’s canoe and remarkably, without having got Henry into their protection.
169 The Crown poses the issue of joint criminal enterprise by postulating five questions (in each question I take ‘proved’ to mean ‘proof beyond reasonable doubt’:
4. If that agreement did not as a matter of proven fact encompass an intent to kill or do grievous bodily harm to persons of a category of which Tiva was a member, was Tiva murdered (a) either by a bullet, shot at and intended to kill or do grievous bodily harm to Talusi, (transferred malice – see definition of malice aforethought – s. 202 Penal Code,) or (b) as a probable consequence of the plan between the accused and those with him as proven (s.22 Penld Code – derivative liability). ( I answer NO to this question).
THE DEFENCE OF ANOTHER
170 The justification at law relating to the defence of another arises as a matter of policy and good sense. It would be a travesty of justice if any person was not allowed to act in defence of or to make an attempt to rescue another from any crime being committed against that other.
171 There strict limits placed on the actions of would be civil defender or rescuers by the laws of the Solomon Islands.
172 As counsel have pointed out The Penal Code Cap 17 provides:
"17. Subject to any express provisions in this Code or in any other law in operation in Solomon Islands, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English common law."
173 The Constitution section 4 provides:
"4. (1) No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence under the law in force in Solomon Islands of which he has been convicted.
(2) A person shall not be regarded as having been deprived of his life in contravention of this section if he dies as the result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably justifiable-
(a) for the defence of any person from violence ............... (d) in order to prevent the commission by that person of a criminal offence,".
174 There is no doubt that the principles of the common law of England link both self defence and the defence of another. Each defence contains identical elements. The difference between them is merely the identity of the person being rescued. The defences constitute an unqualified defence to murder.
175 When the justification of ‘defence another’ is raised by an accused person it is usually arises through either remarks made by an accused person in a statement made to police or alternatively through cross examination. The prosecutor in this case had it in mind very early that the defence of another would be run and in this trial and adverted to it during the prosecution opening address.
176 Once the Prosecution becomes alerted to the accused presenting the defence of ‘defence of another’ the prosecutor must prove beyond reasonable doubt that the accused was not justified in using force to repel violence or if he or she was justified in using force then the prosecution must prove beyond reasonable doubt the force the accused used to defend the person being assaulted or used to effect the rescue, was excessive.
177 Justification, for present purposes, is that state of affairs where the accused forms a belief (not a pretended belief) in a necessity for him to defend another from actual imminent physical danger of grievous harm or death. See R v Ome (1980-1981) SILR 27 which sets out the principles as they apply to self defence states the law relative to the defence of another.
178 The Code section 204 provides:
"204. Where a person by an intentional and unlawful act causes the death of another person the offence committed shall not be of murder but only manslaughter if any of the following matters of extenuation are proved on his behalf, namely-
(b) that he was justified in causing some harm to the other person, and that, in causing that harm in excess of the harm which he was justified in causing, he acted from such terror of immediate death or grievous harm as in fact deprived him for the time being of the power of self-control;".
179 The factual structure of the present case is somewhat complex. The Crown case is that Harold Saea was made aware that Talusi had detained Henry Saea at Koilo. On the previous evening he had been made aware by the witness Gwenda Saea of an incident between Foxwood and Koilo beach in which Talusi had detained Henry and threatened Henry as a consequence of which Henry had handed over goods for Talusi under threat.
180 Harold Saea had been made aware by Michael that Talusi was armed now at Koilo. He was not aware that Talusi had threatened Henry with a gun on the previous day. From Harold’s Dock statement it is clear that Harold was made anxious and put in terror of his brother being killed or seriously injured by Talusi. In that setting Harold set out in Henry’s canoe on the journey from Taivi to Koilo Beach to rescue Henry Saea from Talusi.
181 I conclude from the whole of the evidence that it is reasonably possible that Harold decided to rush to save his brother from what ever Talusi was up to just as he says and his letting the others come was for ‘back-up’ in the threats he would make to Talusi.
182 There is evidence about Talusi and his reputation. Harold Saea says in his statement that he knew of the reputation of Talusi and his criminal past and his activity in the province. Harold was possessed of the knowledge of the encounter between Talusi and Henry and his passengers and was in a state of dread as to what was about to happen to Henry.
183 I conclude that there is neither direct nor inferential evidence of preconcert between the members of Harold Saea’s group – of any arrangement amounting to an agreement to kill or cause grievous harm to Talusi between Harold, Michael, Swin, Kennedy and Betu or indeed between Harold and any one of them.
184 I conclude, however, that there is evidence from which I infer that Harold Saea’s group was possessed of a collective intention from the time the group left Taivu to travel to Koilo, a preconcert to threaten and intimidate Talusi and his associates with the firearms to secure the release of Henry Saea.
185 Just when that agreement was made is difficult to say but I conclude that it was made either when the five jumped into Henry’s canoe, three carrying weapons, to set out from Taivu and travel to Koilo or during their journey.
186 At Taivu the opening shot was fired around the time of Harold’s shouting at Talusi in accord with the understanding arrived at between the members of Harold’s group to threaten and intimidate Talusi into releasing Henry Saea. The shot which followed did so immediately on Harold’s initial shouting.
187 I find that Talusi was not holding any firearm at the time of the shot which struck Tiva. I have no doubt that Talusi picked up a firearm as soon as he could get to it. I find that the shot which killed Tiva was the first shot fired – that is the weight of the evidence.
188 It is a reasonable possibility that Tiva was hit by a bullet which was not intended by the person who fired it to strike anyone.The events which followed happened very quickly. Talusi seized his firearm, left his canoe and commenced firing the weapon and retreating up the beach and ultimately ran off to Omi, where he met Vathagi and others.
189 There is no evidence which satisfies me that the shots fired at the time of Talusi’s retreat were aimed directly at Talusi, Vathagi, Tusia. Braillee or the so called eyewitnesses save that it was in their general direction.
190 It is a reasonable possibility that a member or members of the Harold Saea group directed fire in the general direction of Talusi’s and his retreating group to ensure that they decamped to ensure that Harold’s group could safely leave Koilo.
191 I am not satisfied that there is evidence of any intention on the part of Harold Saea to kill Talusi or his group nor to kill any of the eyewitness group. I find that the charges of attempted murder are not proved.
192 Harold’s group left Henry’s canoe unsecured and floating and walked off along the beach to the East, passing the witness Tome and they did so.
193 The agreement between the members of the Harold Saea group to use firearms to and intimidate Talusi and those with him has the effect of fixing Harold Saea with responsibility for the manslaughter of Manasseh Tiva.
194 I find the accused Harold Saea guilty of the manslaughter of Tiva as a consequence of the operation of section 22 of the Code.
VERDICTS
195 The accused is not guilty of murder but guilty of the manslaughter of Manasseh Tiva for the reasons given.
196 As to the charges of attempted murder I find the accused not guilty. The Prosecution has failed to prove that Harold Saea intended to kill, Talusi, Braillee, Tusia and Vathagi by firing shots or at them and the evidence does not support any such intention on his part or on the part of any of his group as a consequence of any agreement to do so.
THE COURT
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