Reginam v Dausabea [2007] SBHC 128; HCSI-CRC 461 of 2006 (11 October 2007)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 461 of 2006

BETWEEN:

REGINAM
Crown

AND:

CHARLES DAUSABEA & NELSON NE’E
Accused

Date of Hearing: 14 May 2007 – 17 September 2007
Date of Judgment: 11 October 2007

Mr McColm and Mr McConaghy for the Crown
Mr Ashley for Charles Dausabea
Mr Lawrence and Ms Munamua for Nelson Ne’e

JUDGMENT

Cameron PJ

1	The defendant Charles Dausabea is charged with inciting riots in Honiara on 18 April 2006, and intimidation. The defendant Nelson Ne’e is charged with intimidating a person following those riots.
2	The riots occurred following the election and announcement of a new Prime Minister on 18 April 2006. In the days leading up to this there had been intense lobbying between already elected members of parliament for votes for various candidates for the position of Prime Minister and to form a government.
3	The person elected as Prime Minister that day, Snyder Rini, had been put forward by the then existing government as its new candidate for that position. Sufficient votes were cast for him to enable that same government to continue in office.
4	This outcome did not meet with popular acclaim among the large crowd which had gathered outside Parliament House that day to hear the Governor-General announce the result.
5	Dissatisfaction was immediately voiced by elements of the crowd, with many people shouting for Snyder Rini to resign. It was apparent from the shouting that some regarded Snyder Rini and his followers as favouring the Chinese business people in Solomon Islands, and demands were made for a change of government and for the unsuccessful candidate, Job Dudley Tausinga, to be appointed.
6	The defendant Mr Dausabea is an experienced member of parliament who at the time was a member of the opposition group. That group’s candidate for Prime Minister was Job Dudley Tausinga. The result of the voting represented a defeat to the group of which Mr Dausabea was a part, and had the effect that such group would remain in opposition.
7	The Crown alleges that because such group lost the election, Mr Dausabea on that day resorted to unlawful means in an attempt to reverse the result and have his group installed as the government. The Crown says that he did this by inciting the crowd already gathered outside Parliament House to riot.
8	What is clear is that there was a riot outside Parliament House in the afternoon of the day of the election during which police had to form a barrier to prevent the crowd from entering the building (where the parliamentarians were gathered inside), stones and rocks were hurled at police and vehicles, vehicles were overturned and burnt, and some people were hurt. Eventually police with riot gear arrived, and teargas was used by police to disperse the crowd.
9	It is common ground that elements of the crowd then moved down the hill to the Point Cruz area of Honiara, where they looted some shops as well as caused damage to some buildings.
10	The crowd then made its way to Chinatown, arriving there in the late afternoon of 18 April 2006. Groups of people then roamed the streets and broke into and looted a large number of Chinese shops. In the evening some started setting fire to buildings housing Chinese businesses, and by the next day a number of buildings had been completely destroyed by fire.
11	The Crown says that Mr Dausabea was seen in Chinatown in the late afternoon or early evening of 18 April 2006. Witnesses gave evidence of Mr Dausabea driving down the main road of Chinatown, calling out to the crowd ‘go ahead, go ahead’ and at the same time waving his right arm outside the driver’s window of the vehicle. In this way the Crown says that he was encouraging the crowd to destroy buildings, to loot, and generally to riot. This gives rise to the incitement to destroy buildings and incitement to riot charges he faces relating to Chinatown.
12	The Crown also contends that shortly before being seen acting in this way, Mr Dausabea had stopped his vehicle opposite the gates to the Honiara Hotel in Chinatown and told one of its security guards that he would be back to burn down the hotel. This gives rise to the charge of intimidation.
13	Mr Dausabea and Mr Ne’e faced a number of other charges in respect of which at the close of the Crown evidence there was found to be no prima facie case established. In particular, there were charges of conspiracy to commit the felonies of murder, arson, and rioting by destroying buildings.
14	The case on the conspiracy charges, according to the Crown’s opening address, was centred around an alleged meeting between Mr Dausabea, Mr Ne’e and others said to have taken place at the Airport Motel on 13 April 2006, a few days before the election.
15	At this meeting the Crown alleged that Mr Dausabea made it clear that he wanted a new government, that if the same government came back then "they must destroy the government and the systems", that "they were to destroy the Chinese businesses by burning and looting" because they gave money to support the current government, and that if the people did not respond in this way "rebels from Malaita would be invited over to kill the government".
16	The Crown’s case was that in furtherance of these objectives Mr Dausabea and others, following the defeat of their candidate at the election, set about actively encouraging people on that day to riot, loot and burn and destroy buildings, and in particular buildings in Chinatown.
17	In the event, the evidence for the Crown did not establish that any such meeting at the Airport Motel had taken place, let alone that words of the kind described had been spoken. The defendants were then found not guilty on the conspiracy charges.
18	As a result, the Crown was no longer able to contend that the actions of Mr Dausabea on the day of the election were part of a pre-conceived plan to de-rail the elected government and assume power through unlawful means. This meant that the Crown case was largely reduced to pointing to the alleged acts of Mr Dausabea on the relevant day, and inviting the Court to infer from those that he had engaged in inciting others to destroy buildings and to riot.
19	The first charge that Mr Dausabea faces is inciting a person or persons to riot at Parliament House. This refers to the afternoon of the election day where a crowd was gathered in the grounds outside Parliament House, and at a point in time before that crowd moved away and made its way to Chinatown.
20	Evidence was given that a short time after the announcement of Snyder Rini as the Prime Minister elect, Mr Dausabea emerged from Parliament House, walked through part of the crowd to his vehicle, and drove off. Lawrence Nare Ramosaea gave evidence that as Mr Dausabea walked towards his car, he heard him say "All my people we have lost now" and then "you can do what you want to do now". Joe Ariaria and Walter Natei gave evidence of hearing Mr Dausabea say words to similar effect. I accept the evidence of those witnesses on that point, and while there were some discrepancies as to the actual words used, I am satisfied that the words Lawrence Nare said he heard or at least words to that effect were spoken.
21	The Crown relies on those remarks by Mr Dausabea as establishing an intention to incite a person or persons to riot. In order to decide on that matter, careful attention needs to be given to the circumstances which existed at the time such words were spoken.
22	Many police officers gave evidence of having attended Parliament House that day in anticipation of a controversial election result being announced, with the prospect of ensuing trouble from the crowd. Naturally the various accounts differed according to the individual perspectives of those observing the events and their ability to recollect the details.
23	Taking that into account, I am satisfied that the sequence of main events was as follows. It is apparent that on the morning of 18 April 2006 the various already elected members of parliament (including Mr Dausabea) proceeded to Parliament House in order to cast votes for the candidate of their choice for the office of Prime Minister. During the course of that morning, a large number of people made their way to Parliament House and stood outside, awaiting the announcement of the result.
24	By late morning, prior to the announcement of the result at around midday, a large crowd of possibly 250 people were in the grounds of Parliament House. At that stage, the crowd was relatively friendly and happy. A number of police officers were already present, some of whom were among the crowd as well as moving around the grounds.
25	The announcement of Snyder Rini as the Prime Minister elect was made by the Governor-General from the eastern balcony of Parliament House at about midday. Immediately there was a change in mood from elements of the crowd. People started shouting for Snyder Rini to step down as Prime Minister, and calling out support for one of the defeated candidates, Job Dudley Tausinga.
26	A police officer Adam Bycroft gave evidence that the change in attitude only related to certain parts of the crowd. He said that there were a couple of select groups in the crowd who were looking for cues from others and who appeared to be organised in their opposition. He said that the main opposition came from a large group of about 70 people, who were "shouting very loudly and organized type chanting". He said that following the announcement, this main group walked quickly and in unison from the eastern end towards the western end, where the entrance to Parliament House is, and then moved onto higher ground in front of the building. I accept this evidence.
27	The evidence establishes that most people moved to the western end of the building following the announcement. Police then formed a line in front of the steps leading into the entrance to Parliament House at that western end, in order to prevent members of the crowd from entering the building itself.
28	The verbal protest from elements of the crowd continued and certain parliamentarians addressed the crowd from the entrance of Parliament House in an attempt to calm the crowd and have the people accept the result of the election. Those that spoke included Job Tausinga, the unsuccessful candidate of the faction of which Mr Dausabea was a part. He also attempted to calm the crowd.
29	Mr Job Tausinga spoke to the crowd only a short time after the announcement. I accept the evidence of Adam Bycroft that as Job Tausinga was speaking to the crowd, Mr Dausabea was seen to leave Parliament House and make his way through the police cordon and then the crowd to his vehicle, which was in the car park of the grounds. He then drove off. As he was making his way to the vehicle he said the words already referred to, namely "All my people we have lost now" and "you can do what you want to do now", or words to similar effect.
30	At the stage that Mr Dausabea left, I am satisfied from the evidence that stone throwing from elements of the crowd had not started. The evidence from Adam Bycroft and other police officers was that this did not start until an attempt was made to remove Snyder Rini from the grounds, which occurred later in the afternoon. To the extent that some witnesses recollected stone throwing before the attempt to move Snyder Rini, I consider they were mistaken. It seems to me that the most likely trigger for this violence was the attempt to remove him.
31	Accordingly, I find Mr Dausabea first left the grounds that day at a time when certain elements of the crowd were loudly expressing their dis-satisfaction with the result, when police had formed a line in front of the entrance to Parliament House to prevent the crowd from entering the building, but before any stone throwing or other violence had started.
32	I consider that it would have been apparent to Mr Dausabea at the time he left that elements of the crowd were capable of becoming violent if the situation was not carefully managed. I refer to the evidence of another parliamentarian, Peter Boyers. His evidence was that minutes after the announcement, and within the confines of the building, he heard Mr Dausabea say "lets all go before they begin throwing stones". Although Mr Boyers was not part of the faction to which Mr Dausabea belonged, I accept that he heard Mr Dausabea say that. It follows I do not accept Mr Dausabea’s denial of this both in his interview with police and the evidence he gave in this Court.
33	I therefore approach the matter on the basis that at the time Mr Dausabea said the words referred to, he knew that there was potential for elements of the gathered crowd to resort to stone throwing as a means of expressing their anger.
34	The charge which Mr Dausabea faces in relation to Parliament House is inciting a riot. To constitute a riot one must first have an unlawful assembly. That can be a collection of people formed with the intention of committing an offence. It can also be a collection of persons formed for a common purpose who then by their actions cause others to reasonably fear that they will commit a breach of the peace.
35	A further requirement for a riot is that such assembly must have "begun to execute the purpose for which it is assembled by a breach of the peace and to the terror of the public". (section 73 of Penal Code).
36	I do not accept that the crowd or elements of it were an unlawful assembly at the time Mr Dausabea first left the grounds. While the mood of elements of the crowd was clearly that of anger, I find no violence by way of stone throwing or other means had occurred, and no threats of violence had been made or at least had been heard. While police had taken the precaution of forming a line in front of the steps, there was nothing to justify a fear that a breach of the peace would be committed.
37	It follows that I do not consider the crowd could be said to be riotous at the time Mr Dausabea first left.
38	The Crown contends that Mr Dausabea’s actions and words amounted to inciting a person or persons to riot. To establish that, it is not necessary for those actions and words to actually cause a riot. Nor is it necessary that an unlawful assembly be already formed at the time.
39	Inciting persons to commit criminal acts is not defined in section 381 or any other section of the Penal Code. I refer to Smith and Hogan on Criminal Law, 2nd edition, 1969. In dealing with the offence of conspiring to murder or soliciting the murder of a person under the Offences against the Person Act 1861 (now repealed), the authors quote an extract from section 4 which makes it an offence to "solicit, encourage, persuade or endeavour to persuade or propose to any person, to murder any other person". The only relevance of this to the present case is that the learned authors say of this extract that it "seems to add nothing to the common law of incitement" (p.234). I consider that the words solicit, encourage, persuade, endeavour to persuade, or propose were the appropriate elements of incitement under the common law in England as at 1978, and therefore are applicable to Solomon Islands. I also agree with the learned authors that "To constitute an incitement there must....be... an element of persuasion" (p.149).
40	The issue, then, is whether by his words or actions Mr Dausabea intended to solicit, encourage, persuade, attempt to persuade, or propose to any elements of the crowd to riot. That is, to commit "a breach of the peace and to the terror of the public".
41	I have no doubt that in certain circumstances, such words spoken by a leader would serve to inflame an already angry crowd and encourage breaches of the peace. For example, if said in the light of or in response to voiced threats of violence from elements of the crowd they could more readily be inferred to be words of encouragement to commit violence. If said after violence had already commenced, equally they could be considered to be intentionally provocative.
42	It is necessary to examine more closely the evidence of those witnesses who heard Mr Dausabea utter the words to which I have referred. Lawrence Nare, after giving evidence that Mr Dausabea said the words as he passed through the crowd, was asked who Mr Dausabea said the words to, and his reply was "He’s just saying those words". Joe Ariaria’s evidence was that "He wasn’t talking to any particular person, he’s just talking out aloud to the crowd" (Joe Ariaria said he was about 10 yards away at the time). Walter Natei simply said he was standing near Mr Dausabea when he heard the words. Alick Foubala, who gave evidence he had heard Mr Dausabea say "can’t say anything the man has won he’s won, don’t make so much noise", simply said Mr Dausabea was outside "in front of the crowds of several hundreds of people".
43	It seems that Mr Dausabea did not address the crowd in any formal sense, and I so find. It is recalled that as Mr Dausabea was leaving, Job Tausinga was addressing the crowd, and I accept the evidence that the crowd was listening relatively quietly to him speaking at the time.
44	There is no evidence as to whether Mr Dausabea addressed his remarks to any particular section of the crowd, and the overall impression one gets from those who heard him (which evidence I accept) was that he made his remarks to no one in particular, and no doubt to those who happened to be standing near him at the time.
45	There is no evidence of whether the words were spoken loudly or softly, of the tone of voice used, or the way in which the words were spoken.
46	To my mind, the meaning of those words, uttered in the setting which I have described, is equivocal. Clearly they were not intended to dissuade the crowd from continuing to protest against the election of Snyder Rini as Prime Minister.
47	However, they may have been intended to mean no more than people should feel free to continue their protest outside Parliament House. I accept Mr Ashley’s submission that they are capable of meaning something to the effect of "stay here and engage in a protest".
48	I have not overlooked that Mr Dausabea from his earlier remarks inside the building clearly knew that elements of the crowd were capable of resorting to throwing stones. However, it does not follow that this type of behaviour is what Mr Dausabea must have been alluding to in using the words "do what you want to do now" or words to that effect when leaving the parliament grounds.
49	Nor have I overlooked that under cross-examination Mr Dausabea agreed that such words, if used, would have been inflammatory. Mr Dausabea denied using the words at all, and his readiness to agree with the prosecution as to their meaning has to be seen in that light. In any event, it is for this Court and not Mr Dausabea to consider the effect of those words and the intention behind them. As Mr Ashley rightly submits, Mr Dausabea’s view "is actually not probative of the question of what the accused meant by those words".
50	In my view the words fall short of establishing an intention to persuade or attempt to persuade elements of the crowd to commence a riot. While that is a possible construction of the words, I am not satisfied beyond reasonable doubt that this was their intended meaning.
51	The Crown also relies on what it says occurred at a later point in the day when Mr Dausabea arrived in a vehicle at the Iron Bottom Sound Hotel with the other members of his political faction (who arrived in a bus). The Crown says at that time Mr Dausabea encouraged a group of security guards and members of the public gathered around the entrance gate to the hotel to go up to Parliament House to continue the protest and to in effect cause or join a riot there.
52	Medley Kwalemanu was the chief of security at the Iron Bottom Sound Hotel at the time. He said that when Mr Dausabea returned from Parliament House that afternoon he spoke to him and another security guard. Mr Kwalemanu said Mr Dausabea told them to tell the public that the election was lost, and that people could do what they wanted to do. Mr Kwalemanu says that Mr Dausabea then spoke to a group of the public gathered outside the gates of the hotel, telling them that they could do anything they wanted to do, that they should go up to parliament and demand that the Prime Minister step down, and that they should go up and stay at parliament.
53	Another security guard at Iron Bottom Sound Hotel, Galorick Iro, said that he saw Mr Dausabea talking to Medley Kwalemanu and another guard, Rex, and that when he approached the group he overheard Mr Dausabea saying words to the effect that our government has lost and that they should tell those at parliament that they have to wait until Snyder Rini has resigned.
54	The evidence was that following Mr Dausabea’s spoken words a group outside the gate left and headed in the direction of town, which was the same direction as Parliament House.
55	The defence spent some time attempting to discredit Mr Kwalemanu, drawing out of him that the security firm with whom he was engaged at the time had subsequently sacked him and attempting to link him with an unmet demand for $20,000.00 to the government for unpaid allowances. The inference that the defence wished the Court to draw was that Mr Kwalemanu had a grudge against the current government, which government now includes Mr Dausabea, and that therefore his evidence should not be accepted as truthful.
56	Despite the attempt to discredit him, I do not consider that Mr Kwalemanu was being untruthful and I accept that he heard Mr Dausabea say the words to which I have referred. The evidence of this was largely corroborated by Mr Iro, and I have no reason to believe that between them they concocted an untruthful story.
57	Mr Iro at one point in his evidence said he overheard Mr Dausabea say to the security guards "if he does not resign you can do anything you want to do". However, when later asked in cross-examination what words he had overheard, he said he heard him say "our government has lost" and "Tell them that they must stay until Snyder Rini has resigned". In other words, he did not re-assert that Mr Dausabea had used words linking a refusal by Snyder Rini to resign with an invitation to "do anything you want to do". Nor does Mr Kwalemanu, to whom Mr Dausabea had addressed his remarks, say that Mr Dausabea linked the two statements in that way. I therefore do not accept that Mr Iro heard Mr Dausabea using words linking a refusal by Snyder Rini to resign with an invitation to "do anything you want to do". I consider Mr Iro was mistaken in his recollection as to this.
58	There was some evidence that Mr Dausabea and others, at about this same time, contributed cash to a pool of money, the suggestion being that the money was then used to buy sweet biscuits to distribute to members of the public who were still protesting outside Parliament House. However, there was no evidence of the use to which that money was put so I take no account of this.
59	Similarly, there was no satisfactory evidence linking Mr Dausabea to the distribution of any water to the crowd who were at Parliament House.
60	In order to consider whether Mr Dausabea’s words and actions at Iron Bottom Sound Hotel amounted to inciting a person or persons to riot at Parliament House, it is necessary to consider what had occurred in the grounds at the time Mr Dausabea left there for a second time with the other opposition parliamentarians and went to the Iron Bottom Sound Hotel, and to compare that to what happened later at Parliament House.
61	As earlier stated, Mr Dausabea had first left Parliament House very shortly after the announcement of the new Prime Minister and while Job Tausinga was addressing the crowd.
62	Officer Adam Bycroft gave evidence that following Mr Dausabea’s first departure from the grounds of parliament, he had seen Mr Dausabea return some 30 to 40 minutes later. I accept this. There was also evidence from a number of witnesses who said when Mr Dausabea returned he had changed from a suit to casual clothes, and that on his return he parked the vehicle he was using and went back inside the parliament building. I accept this evidence also.
63	Evidence was given by a number of witnesses that shortly after his return to Parliament House, Mr Dausabea led the opposition members (totalling 23 including Mr Dausabea) out to a waiting bus, which then departed with all those members except Mr Dausabea. He departed at the same time in the vehicle he had earlier used.
64	There was evidence from a Mr Kauha that at the time the opposition members left on the bus he heard people yelling things including "fuck RAMSI", "break down the Parliament" and "Dynametim Parliament". He said that the yelling came from the direction where the bus was leaving. Mr Dausabea was not on that bus, and there is no evidence that persuades me that Mr Dausabea heard yelling of such a kind from any element of the crowd or from the bus.
65	A number of witnesses gave evidence that at some point after the members of opposition had left in the bus and Mr Dausabea in the vehicle, there was an attempt to remove Snyder Rini from the parliament grounds. Officer Adam Bycroft estimated that this occurred about 20 to 30 minutes after the bus had left, and I accept this.
66	It was at this point, as I have already said, that stones began to be thrown. There were a number of witnesses who described the attempt by police to remove Snyder Rini in a Toyota landcruiser, which attempt was unsuccessful because the vehicle was bombarded with stones and rocks and effectively destroyed. Snyder Rini had to be rushed back inside Parliament House under police escort, and it was only at a later point in the afternoon that it was considered by police to be safe enough to evacuate Snyder Rini and the other members of the government from the grounds.
67	A number of witnesses gave evidence that the attempted removal of Snyder Rini was a significant turning point in the behaviour of the crowd, with matter deteriorating rapidly after that. As Officer Adam Bycroft said "a lot of things took place after that".
68	A number of police witnesses gave evidence that following the stoning of that vehicle, matters deteriorated to the extent that there was extensive stone throwing at police, a number of police vehicles parked in the grounds were set alight and destroyed, a police riot squad had to be used as a shield against the crowd entering the parliament building, and teargas was used to disperse the crowd.
69	Significantly, at the time Mr Dausabea led that group out from Parliament House, the evidence points to no stone throwing having occurred. Neither is there any evidence from which it can be inferred that Mr Dausabea heard any threats of the type mentioned by Mr Kauha in his evidence. The scene at the parliament grounds at that time was the continued presence of a large crowd, elements of which were calling for the resignation of Snyder Rini, but there was no evidence that the crowd or elements of it had yet become violent.
70	Returning to Mr Dausabea’s movements, he arrived at Iron Bottom Sound Hotel at about the same time as the bus carrying the other 22 members of his political faction. It is apparent from the evidence that the bus and Mr Dausabea went directly from the parliament grounds to Iron Bottom Sound Hotel. I accept that the trip from Parliament House to Iron Bottom Sound would have only taken a matter of minutes, so at the time Mr Dausabea arrived there the attempted evacuation of Snyder Rini, triggering the stone throwing, would not have occurred. In other words, the turning point in the behaviour of the crowd had not been reached.
71	There was no evidence that while at Iron Bottom Sound Hotel on that occasion, Mr Dausabea learned of any further developments that may have occurred at Parliament House after the time that he had left.
72	As with the words used by Mr Dausabea when he first left the parliament grounds earlier that day, I consider that in the circumstances which then existed their meaning is equivocal. I do not accept that their only possible meaning is as an invitation and encouragement to those to whom the words were spoken to commence or join a riot. They are perfectly capable of their literal meaning only, which is to suggest that people go up and stay at parliament and join in the protest.
73	I have not overlooked the evidence, including that of Ragoso Samani (now the Minister for Tourism), that at the stage he and the other members of the then opposition left Parliament House in a bus and travelled to Iron Bottom Sound Hotel, he had felt frightened by the crowd. His evidence was to the effect that at that time he felt the crowd would not have been prepared to let the parliamentarians as a whole freely leave the building and grounds. Mr Dausabea gave evidence to similar effect. It does not follow that when Mr Dausabea spoke to the security guards and members of the public at Iron Bottom Sound Hotel, and encouraged them to go up and stay at parliament, that he was necessarily inviting them to join those elements of the crowd who may have been prepared through violence or otherwise to prevent Snyder Rini and his team from leaving the grounds freely. It is quite possible that Mr Dausabea was simply seeking the continued presence of as large a crowd as possible in the parliament grounds to increase the likelihood of Snyder Rini resigning.
74	Therefore the Crown has not established beyond reasonable doubt that Mr Dausabea’s actions and words, either as he left Parliament House the first time or later when he arrived at Iron Bottom Sound Hotel, or both considered together, amount to an intention to incite a riot.
75	I turn now to the charges against Mr Dausabea relating to what occurred in Chinatown that evening. These are a charge of inciting persons to riotously assemble to destroy buildings, and an alternative charge of inciting a riot.
76	Two witnesses gave evidence of having seen Mr Dausabea in Chinatown that evening, encouraging the crowd to riot and to destroy and loot buildings. The first witness was Charles Karaori. He gave evidence of arriving at the Honiara Hotel just before 12 noon that day. He says he remained inside the gate of the hotel until about 5.30pm. At about 3.00pm he says he saw a lot of people on the road outside the hotel, that he heard a lot of banging going on in Chinatown, and he saw people carrying goods (presumably stolen).
77	He said that he was frightened so he remained inside the hotel gates all afternoon.
78	He said that at around 5.00pm he saw Frank Hou, a security guard at the hotel, talk with Mr Dausabea, who was the driver of a vehicle which had stopped outside the hotel gates. I will return to this topic later.
79	He gave evidence that a few minutes after he had seen Mr Hou and Mr Dausabea talking, it being then nearly 5.30pm, he went for a walk into the central part of Chinatown, and ended up in Chung Wah Road (the main road in Chinatown) next to a building known as Super Accommodation. He said he was surprised to see there the same vehicle which he had seen shortly before outside the hotel gates, still being driven by Mr Dausabea, and making its way slowly eastward along that main road and through the crowds.
80	He said that he saw the crowd yelling at the vehicle and Mr Dausabea shouting to them "go ahead". He said that at the same time Mr Dausabea was driving with his left arm only and his right arm was raised outside the driver’s window, and was being moved backwards and forwards with a clenched fist.
81	Mr Karaori’s evidence was that members of the crowd were at the time breaking into shops, and that they seemed happy with what Mr Dausabea was telling them and carried on with that activity.
82	As to whether I accept this evidence, I first note that parts of that evidence appear to be very contrived, as though deliberately fashioned to intentionally implicate Mr Dausabea in inciting the crowd. When asked what the crowd was doing at the time he saw Mr Dausabea, Mr Karaori said:
		"I – I saw it this way. I think when I saw the crowds changing their responses of Mr Dausabea’s hand, they all said – my observation at that time it looks what they are doing is in the interest of Dausabea at that time."
	And when asked whether he could hear what the crowd were shouting at the time, Mr Karaori said:
		"Yeah, some of them said, "Ok, we go ahead, we go ahead. That’s what I heard".
	I am sceptical that in the circumstances described by this witness a crowd would react to an overture to "go ahead" by retorting "Oh, we go ahead, we go ahead." That would be an unusual and somewhat unnatural response from an excited crowd. I therefore treat this evidence with caution.
83	In a similar vein is Mr Karaori’s response that it looked like what the crowd was doing was in the interests of Mr Dausabea – these gratuitous remarks seem specifically designed to inculpate Mr Dausabea, and once again make me cautious about accepting Mr Karaori’s evidence.
84	I note from the evidence that Mr Karaori was closely linked with the member of parliament Mr Severino Nuaiasi, who was a member of the Snyder Rini political faction. I note also that Mr Karaori conceded that he did not like Mr Dausabea. While those factors in themselves are innocuous, combined with the other matters they are further reason to treat Mr Karaori’s evidence with caution.
85	Mr Karaori also gave evidence that he saw Alex Bartlett in Chinatown that night. Mr Bartlett, along with Mr Dausabea and Mr Ne’e, also stood trial for allegedly inciting riots in Chinatown on 18 April 2006, but I found there was no case for him to answer at the conclusion of the Crown’s evidence.
86	I mention Mr Karaori’s evidence about seeing Mr Bartlett in Chinatown that night because Mr Karaori went on to say that when Mr Bartlett and his "boys" walked past him near the multi-purpose hall, he then consciously followed that group for a distance and later stopped and kept them under observation for a time. This suggests to me that Mr Karaori may have been more than an independent observer that night, and is a further reason to treat his evidence with caution.
87	I note, too, that it seems curious that having not ventured from the area behind the gates at Honiara Hotel from 12 noon to around 5.30 pm, because he said he was frightened, Mr Karaori then decided to go for a walk into Chinatown, and remained out and about until about 8 pm. It is clear from the evidence of a number of witnesses that the level of riotous behaviour in Chinatown increased during the afternoon and escalated as the evening and night arrived. So while on his evidence Mr Karaori was too frightened to leave the hotel grounds earlier, he would have this Court believe that at a time when the riots had clearly escalated he willingly ventured out on foot unaccompanied and went straight to the main trouble spots, and remained out and about for approximately two and a half hours. This inconsistency casts doubt on the reliability of Mr Karaori’s evidence.
88	Under cross-examination, Mr Karaori admitted that he had first made a written statement to the Police on 26 April 2006. It was put to Mr Karaori that he had said in that statement that in the weeks leading up to the election he observed a Mr Nori associating with Mr Dausabea and Mr Ne’e at Iron Bottom Sound Hotel, and that Mr Nori was in the 1998 tensions and in trouble for looting back then.
89	Even though that was contained in his statement, Mr Karaori denied that he had told the Police that and in effect his response was that the police had included it in his statement of their own volition. I do not accept the Police did this.
90	Mr Karaori had exactly the same response to another portion of his statement, which recorded that the then member of parliament, the late Bartholomew Ulufa’alu, made a speech to the crowd outside Parliament House that day in which he encouraged the crowd "to riot, loot, steal and destroy business". Once again, Mr Karaori denied telling the police this, even though it is contained in his statement. I do not accept that this portion of his statement was contrived by police.
91	For all these reasons, I am not prepared to accept the evidence of Mr Karaori that he saw Mr Dausabea driving down the main road of Chinatown yelling and gesticulating to the crowd to ‘go ahead’. After having seen Mr Dausabea outside the gates of the Honiara Hotel, I do not accept that Mr Karaori saw him again that night.
92	There was also evidence from Stanley Takika that he had seen Mr Dausabea driving up the main street of Chinatown that evening while rioting was occurring, calling out to the crowd to ‘go ahead, go ahead’.
93	Mr Takika said that as Mr Dausabea was calling this out, he had his right hand outside the driver’s window of the vehicle and was making a sweeping motion with his hand, with the palm open.
94	The first unsatisfactory aspect of Mr Takika’s evidence is what Mr Takika said in his written police statement about the words and actions of Mr Dausabea, as contrasted with his evidence in Court.
95	In his written statement of 8 May 2006, he said of Mr Dausabea "As he was yelling this out to the crowd I observed him pointing his hands towards the shops instructing them to enter shops and loot". He was questioned as to why he had said that, given that in Court he had said only that Mr Dausabea was waving his right hand backwards and forwards, palm open, at the same time saying ‘go ahead, go ahead’. In other words, he did not say to the Court that Mr Dausabea had been pointing his hands towards the shops, instructing people to enter shops and loot.
96	Mr Takika attempted to explained this discrepancy by saying that he did not think he had told police that Mr Dausabea had been instructing people to enter shops. In other words, he was suggesting that police had somehow embellished what he told them, tailoring it to suit an intended prosecution. I do not accept that the police did this. In my view the discrepancy on this important point is significant and was not satisfactorily explained by Mr Takika.
97	There is a further troubling inconsistency between this witness’ evidence and his police statement. In his evidence to the Court he said that when he saw Mr Dausabea in Chinatown it was daylight, though "the evening type of daylight". However, in his police statement, he stated he had arrived in Chinatown at about 7pm that evening.
98	It was pointed out to him in cross-examination that it would have been dark at 7pm at that time of year (which is common knowledge). He explained this inconsistency by saying he had told police that he did not know what time he arrived in Chinatown, but had then provided them with a rough estimate of the time. One would have thought that with what was potentially a very significant and crucial statement, every care and attention would have been taken by police to establish as precise a timing as possible, and I have no reason to believe that any different approach was taken. In other words, when questioned a few weeks after the riots, this witness’ best estimate of the time he arrived in Chinatown was 7pm. If that were so, it follows that it would have been after dark that he saw Mr Dausabea in Chinatown. His evidence to the Court that it was still daylight is an inconsistency on a crucial point and further undermines the credibility of this witness.
99	In cross-examination of Mr Takika it emerged that on 12 October 2006 he signed a memorandum of understanding with police in which he agreed to give evidence in accordance with his statement. On 17 October 2006, 5 days after signing the memorandum, he received $3,060.00 from police, which he had requested in order to pay school fees. He explained that he asked for the money because he had made the police statement, was frightened that it related to Mr Dausabea, and that he couldn’t earn money after that because all of the paid work he had been doing was for Chinese and that work was no longer available after the riots. He also had to admit to the Court receiving various additional sums of money from police, after initially denying this.
100	The fact that by its terms the memorandum of understanding expressly obliged Mr Takika to give evidence according to his statement, rather than obliging him to give evidence according to the truth (which of course can be one and the same thing, but is not necessarily so), is further reason for caution to be exercised in considering his evidence. So, too, is the fact that this witness received substantial funds from police following the signing of the memorandum of understanding, and the fact that he was reluctant to acknowledge this.
101	For all these reasons, I do not accept Mr Takika as an independent or reliable witness and am not prepared to accept that he saw Mr Dausabea in Chinatown that evening.
102	I have not overlooked the fact that Mr Karaori and Mr Takika both gave evidence which bears a number of similarities, from the type of vehicle Mr Dausabea was said to be driving to the assertions that they saw Mr Dausabea driving through the crowds, down the main road of Chinatown, yelling ‘go ahead’ with his right arm gesticulating outside the driver’s window.
103	I have given careful consideration to whether the fact that each account appears to a large extent to corroborate the other is good reason to accept that the accounts are truthful. However, I have concluded, for the reasons given, that I cannot safely rely on the evidence of either individual, and in light of this I consider it would be wrong to bolster one account with the other.
104	I now consider the evidence of Peter Loea and Olonga Kisi. Both these witnesses were working as security guards for ITA Hardware, which fronts onto Mendana Avenue, on the day of the riots.
105	Mr Loea said that during the afternoon of that day he observed from his place of work Mr Dausabea drive past, heading east, and saw him with a raised right arm, waving it with the palm upwards. Mr Loea said that there were a lot of people on the road, and that Mr Dausabea was driving slowly. He also said that at that time he had seen no looting. He said the looting occurred at a time after he had first seen Mr Dausabea drive past.
106	He said that he saw Mr Dausabea driving past a number of other times that day, and that on one of those occasions he was speaking on a cell phone.
107	Mr Kisi, also a security guard at ITA that day, said he saw Mr Dausabea drive past once or twice that day.
108	I do not consider that the evidence of Mr Loea and Mr Kisi strengthens the Crown’s case against Mr Dausabea on the incitement charges. It is as equally consistent with innocent behaviour as it is of inculpatory behaviour. In other words, it is totally inconclusive. Further, I do not consider it strengthens in any way the evidence of Mr Karaori and Mr Takika as to what they say they saw Mr Dausabea doing in Chinatown that night – I have already provided reasons as to why I consider their evidence to be unreliable.
109	I therefore consider that the Crown has failed to prove to the requisite standard the charges of incitement relating to Chinatown.
110	I now consider the charge of intimidation against Mr Dausabea, where he is alleged to have told Frank Hou on the road outside the Honiara Hotel that evening that he would be back to burn the hotel.
111	The offence of intimidation includes threatening to cause unlawful injury to property a person has an interest in with intent to cause alarm to that person (section 231 of the Penal Code).
112	Mr Hou was engaged as the head of security for the Honiara Hotel on the day of the riots, and in this capacity had an interest in the property, namely the hotel itself. Thus any threat to burn the property, if made to Mr Hou with intent to cause him alarm, would fall within the section and constitute intimidation.
113	Mr Hou told the Court he only provided security for the hotel on the occasions he was requested to do so, and this was such an occasion. He said he arrived at the hotel between 12 and 12.30pm on 18 April, and was briefed about the situation by the owner of the hotel, Tommy Chan.
114	His evidence was that between 6 and 6.30 that evening Mr Chan wanted to leave the hotel and go across to his residence on the other side of the road, as he was concerned about its security. Mr Hou said he stopped Mr Chan doing this and offered to go himself. Not wanting to unlock the gates to the front entrance, Mr Hou crawled through the gap under the gates, stood up, and was about to cross the road to Tommy Chan’s house. He said that at that time a vehicle driving westward along the road slowed down, and from it he heard someone yell "Fuck you".
115	Mr Hou said he then approached the vehicle, which had stopped, and saw Mr Dausabea through the open left front window of the vehicle, sitting in the driving seat. He said there was no one else in the car.
116	Mr Hou told the Court that Mr Dausabea just stared at him for 2 or 3 seconds, and then said "Wait for me, I’ll come back and burn this hotel". He then drove off.
117	Mr Hou said he then went back and briefed the security boys at the hotel, of which he was the head, to be ready. He said he spoke in particular to a security guard Andrew Mua.
118	In cross-examination it transpired that Mr Hou had first made a written statement to police on 22 April 2006, four days after the incident. He acknowledged that in that statement he told police what he heard from the vehicle were the words "Fuck you" being shouted. He said nothing in his statement about Mr Dausabea having said he would come back and burn the hotel down.
119	It further transpired Mr Hou had made an additional statement to police the next day, 23 April, in which he included details of the alleged threat from Mr Dausabea.
120	Mr Hou was extensively questioned as to why he had not mentioned the threat in his first statement. His response was that he had been threatened by "Dausabea’s boys", and he said "they even came to me at the hotel". His second statement of 23 April 2006 is consistent with that, in that it contains the following passage: "The reason that I didn’t put these additional things in my first statement is that I didn’t want to say anything more as I feared for my life and the safety of my family".
121	No evidence was given as to why, while not prepared to implicate Mr Dausabea in his first statement because of fear, the very next day he was prepared to do so. I add that no detail as to the content of any threat was provided, nor was there any detail as to the identity of who made any such threat or when it was made.
122	In light of this, I consider such a major discrepancy has not been satisfactorily explained. I consider that the reliability of the evidence of this witness on this vital point, namely whether the threat to burn the hotel was made, is considerably under-mined as a result.
123	It also emerged from cross-examination that Mr Hou at the date of giving his evidence was a suspended police officer, that suspension having resulted from a number of criminal charges brought against him in about December 2004. The suspension was in force as at the date of the riots.
124	Mr Hou admitted to having been charged in December 2004 with conspiracy to commit a felony, threats to burn property, and larceny in a dwelling house. Those charges remain outstanding. Mr Hou denied the suggestion that he was still hoping to get back into the police force.
125	While the presumption of innocence applies in relation to those charges, the fact they were considered serious enough to warrant his suspension from the police force and that he has been so suspended for now nearly 3 years is a factor I have to bear in mind in assessing the honesty and reliability of this witness’ evidence on the crucial point of whether he heard Mr Dausabea say those incriminating words.
126	In so assessing the situation, I accept as truthful his evidence of events up until the point where he says that Mr Dausabea said those incriminating words to him.
127	I also bear in mind the evidence of one of other security guards, Andrew Mua, who heard the words "Fuck you" being said, saw Mr Hou talking to Mr Dausabea at the vehicle, saw Mr Hou return to the hotel grounds and then say "How are we going to protect the hotel". I disregard Mr Mua’s evidence of what he said Mr Hou then told him about the conversation with Mr Dausabea as it is hear-say, and I do not accept that it properly forms part of the res gestae.
128	What Mr Hou first said on his return to the hotel grounds is consistent with having received a threat related specifically to the hotel. It is also consistent, though, with a general concern for the security of the hotel, given the evidence was by that time there was real concern for property and persons in the area – for instance, Tommy Chan’s concern for his residential property, and Mr Hou’s unwillingness to let him venture out from the hotel grounds to check his property.
129	Taking all matters into account, I am unable to accept as reliable the evidence of Mr Hou that he heard Mr Dausabea say to him "Wait for me, when I come back I’ll burn this hotel" or words to like effect. I reject this portion of Mr Hou’s evidence. It follows that the charge of intimidation is not proved.
130	Mr Dausabea and several other witnesses gave evidence for the defence. On the whole, I was not impressed by that evidence. However, in view of the fact the Crown has not proved the charges against Mr Dausabea to the requisite standard, I will not elaborate.
131	I now consider the remaining charge of intimidation against Mr Ne’e. The Crown case against him is that he threatened to cause injury to Anna Nuaiasi with the intention of causing her alarm.
132	The alleged threat is said to have been made in a telephone call made by Mr Ne’e to Mrs Nuaiasi on 20 April 2006.
133	Mrs Nuaiasi gave evidence of that call. She was a very reluctant witness for the Crown, and was ultimately declared hostile. Most of the questioning which then followed centred around what she had said in a previous statement to police.
134	Mrs Nuaiasi is and was as at April 2006 the wife of Severino Nuaiasi. She gave evidence that her husband was elected as a member of parliament in April 2006, and was part of the group who supported the successful candidate for Prime Minister, Snyder Rini.
135	By contrast, Mr Ne’e was part of the group who supported the unsuccessful candidate for Prime Minister, Job Dudley Tausinga, and so following the elections for Prime Minister on 18 April 2006, Mr Ne’e was a member of the opposition group.
136	It is against this background that Mrs Nuaiasi gave evidence of receiving a telephone call from Mr Ne’e on 20 April 2006, two days after the election of Snyder Rini as Prime Minister. Her evidence was that Mr Ne’e rang to speak to her husband, who wasn’t there at the time. Mrs Nuaiasi then said Mr Ne’e asked to speak to her son, who also wasn’t there. She said there was no talk about parliamentarians, about the Nuaiasi’s home, or about any reason for the call. In other words, on the evidence Mrs Nuaiasi first gave to the Court, there was nothing to implicate Mr Ne’e in any threatening or intimidatory behaviour.
137	Mrs Nuaiasi was subsequently declared hostile to the prosecution, and in the leading questions which followed, she agreed that the following extracts from her written statement to police on 22 April 2006 were true:
		He said, "I am Nelson Ne’e. I know Severino personally. I also know your son Francis as he is a member of my rugby team, the Diesel Power. That is why I need to talk to you. This is a real concern for your husband. As you know very well, I am also part AreAre so I will speak our native language. Your house does not have any security fencing. It’s not safe. I know Severino is with the government. There are three(3) groups who do not care about the Army and Police component of the RAMSI. Thus I am going to need an urgent response from your husband. It’ll be very risky for him and his family if he does not comply. I must also tell you that there are five(5) Malaitans who are currently with the government. Why did these people join the government? Why did they ignore the Opposition group? This is the sole factor as to why the three(3) groups are not happy. You must bear in mind that the three(3) groups have a list of names of these five(5) Malaitan parliamentarians. If they do not comply; this group will have these members necks chopped off." He said the three groups were from Lau, Kwara’ae, Tobaita, residing at Green Valley. He spoke harshly to me, forceful that my husband must comply with what he wanted, and my husband must make that decision to comply. He warned me that I am in danger because of my husband and also the four others who have been listed. I just wanted to get away from these threats. When he was telling me these things it was in away that was threatening me, not in a way that he was merely passing on information. I was very frightened.
	If accepted as accurate, it is clear that this was an attempt to have Mrs Nuaiasi persuade her husband to leave the government group led by Snyder Rini and join the opposition group of which Mr Ne’e was a member. Also, in so far as the statement deals with the way in which the words were said, it goes some way towards establishing that there may have been an intentional threat.
138	It can be seen that the Court was confronted with completely contradictory accounts. First, the version which Mrs Nuaiasi gave the Court before she was declared hostile. Secondly, the version contained in her written statement. Following this the ground shifted again, with Mrs Nuaiasi agreeing in cross-examination from Mr Lawrence that Mr Ne’e had never threatened her or her family.
139	By virtue of these various conflicting versions given by Mrs Nuaiasi, I am of the view that Mrs Nuaiasi’s evidence cannot be safely relied on. However, even if I accepted the extracts from Mrs Nuaiasi’s statement as being an accurate account of what in fact occurred, I am not satisfied beyond reasonable doubt that it would amount to intimidation.
140	The Crown relies on Mr Ne’e’s association with a Mr Tatai. Mrs Nuaiasi gave evidence that earlier on the same day of the phone call she had received a visit from a Mr Tatai who had told her similar things to what was later said to her by Mr Ne’e. She gave evidence of being very scared of Mr Tatai, who she said spoke to her in threatening terms. Mrs Nuaiasi also confirmed in evidence that during the telephone call from Mr Ne’e, she heard Mr Tatai in the background telling Mr Ne’e to tell her that he would pay her another visit that evening. The Crown invites me to conclude that Mr Ne’e’s call must be construed in the light of Mr Tatai’s earlier visit to Mrs Nuaiasi, and the fact that he was present with Mr Ne’e during the phone call and overheard by Mrs Nuaiasi talking of a further intended visit.
141	There is nothing of substance to implicate Mr Ne’e in Mr Tatai’s visits and how he behaved towards Mrs Nuaiasi. The fact that Mr Tatai was present during Mr Ne’e’s telephone call to Mrs Nuaiasi, and was overheard talking of a further intended visit to her, is inconclusive. I am not prepared to infer from Mr Tatai being present with Mr Ne’e or from what he said to Mr Ne’e at that time that there was collaboration between the two for the purpose of intimidating Mrs Nuaiasi.
142	While what Mr Ne’e said to Mrs Nuaiasi is capable of amounting to intimidation, it is also equally entirely consistent with Mr Ne’e being genuinely concerned about the welfare of Mr Nuaiasi and his family if he did not change his political allegiance. In other words, it is entirely capable of being construed as no more than a warning of the dangers Mr Nuaiasi and his family faced. Further, what Mr Ne’e said in his interview to police and in his unsworn statement is consistent with his trying to warn Mrs Nuaiasi of the dangers of the situation.
143	Consistent with this is the evidence that at the time of this phone call Mr Ne’e was a close family friend of Mr Nuaiasi, which I accept.
144	There is no evidence to suggest Mr Ne’e had any control or influence at all over the groups described in Mrs Nuaiasi’s statement and said to be ready to commit violence if Mr Nuaiasi and the other politicians in his position did not swap sides. In the unsworn statement Mr Ne’e made to the Court he denied having any influence or control over those groups.
145	I conclude that the charge of intimidation against Mr Ne’e has not been made out to the requisite standard. Verdicts
146	In respect of Mr Ne’e, I enter a verdict of Not Guilty on the charge of intimidation in Count 6, and Mr Ne’e is now acquitted and discharged.
147	In respect of Mr Dausabea, I enter verdicts of Not Guilty on the charge of inciting a riot at Parliament House in Count 3, Not Guilty on the charges of inciting a riot to destroy buildings in Chinatown and inciting a riot in Chinatown in Count 4, and Not Guilty on the charge of intimidation in Count 5. Mr Dausabea is now acquitted and discharged on all charges.
THE COURT