Regina v Tatau [2007] SBHC 163; HCSI-CRC 500 of 2005 (10 May 2007)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No: 500 of 2005

REGINA

V

JAMES TATAU,
JOHN OME,
JOHN NELSON ROSS,
PHILIP KWAIMANI

(Goldsbrough J)

Regina represented by Mssrs. Thorpe & Hobart
James Tatau represented by Ms. Brown
John Ome represented by Mr. Averre
John Nelson Ross represented by Mr. Khan
Philip Kwaimani represented by Mr. Averre

Date of Hearing: 9 November 2006 – 14 March 2007
Date of decision: 10 May 2007

1. In 2004, in the months of October and December, violent attacks were perpetrated on those who had been invited into this country to assist in securing peace and stability for the benefit of its citizens. Those attacks involved the indiscriminate shooting at police vehicles containing officers of the Participating Police Force (PPF) in the country as part of the Regional Assistance Mission to Solomon Islands (RAMSI).

2. One such attack occurred on 21 October 2004 and a second attack on 22 December 2004. In that first incident an officer was injured. In that second incident an officer was killed. These incidents are the subject of this trial. Within the trial there was some evidence that other attacks may have taken place with less effect, and that there then existed a group of people who supported and were prepared to assist in the organising of these attacks.

3. John Ross and Phillip Kwaimani are charged with the attempted murder of Ruskin Tsitsi and Toa Fifita on 21 October 2004 at Lunnga River Bridge.

4. James Tatau and John Ome are charged with the murder of Adam Dunning and the attempted murder of John Donald Collie on 22 December 2004 at Zion.

5. All of the victims are, or were, members of the PPF of the Regional Assistance Mission to Solomon Islands. All of the victims were on duty driving police vehicles at the time of the alleged offences. Their respective vehicles were subjected to gunshots and thereby injuries were caused. To that extent the allegations are similar.

6. Both allegations were tried together as at the beginning of the trial James Tatau was said to be involved in both allegations. That position changed at the no case to answer stage of this trial. Prior to the commencement of the trial there was also a joint conspiracy allegation, an allegation that was withdrawn by the Crown prior to arraignment.

7. The offences of murder and attempted murder are set out in the Penal Code as follows:-

200. Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder and shall be sentenced to imprisonment for life.

and

215. Any person who—

1. attempts unlawfully to cause the death of another; or

2. with intent unlawfully to cause the death of another does any act,

or omits to do any act which it is his duty to do, such act or omission being of such a nature as to be likely to endanger human life, is guilty of a felony, and shall be liable to imprisonment for life.

8. Given the circumstances of the fatal and other injuries to the police officers in their vehicles, it is not suggested that whoever fired the shots at the vehicles lacked the requisite intent in relation to either of these offences. That therefore is not an issue in this trial. It is not an issue in this trial that the vehicles were shot at and that the death and injuries described were sustained by the occupants. The dates, times and places of the alleged offences are again not in issue. Shooting at moving motor vehicles with the type of guns that were used in the way in which the guns were used is no doubt within the ambit of attempted murder or murder dependant upon the extent of the injuries. Again this is not an issue in this trial although raised by Mr. Averre in a suggestion that as far as the Lunnga River Bridge shooting that there was no evidence of intent to kill. I believe that the forensic analysis of the results of the shots is sufficient evidence of what the gunman intended in aiming his rifle to dispel that argument.

9. What is in issue in this trial is whether the accused were parties to the shootings, not the shootings themselves. To determine that issue, I will in a moment turn to deal with each accused and the particular allegations against each of them, which the Crown says proves their respective involvement in the alleged offences.

10. Participation in an offence can take several forms. In a case such as this it can describe the person who fired the shots, and any person who helped the person who fired the shots in a material way. This assistance can be in the form of encouragement, providing the weapons, later hiding the weapons, and other forms of assistance as described in that part of the Penal Code setting out the ways one can participate in offences (Part V).

11. There is evidence of events occurring prior to either shooting incident to which I shall now refer. Prior in time to either of these two shooting incidents, there is evidence of the reception of guns by Mr. Tatau and Mr. Ross at a beach site at Ranadi, Honiara. Evidence of this event comes from only one witness Felix Iro Ledia. The evidence from this witness suggests that Messrs.

Ross and Tatau diverted him from a simple journey to purchase cigarettes and forced him through threats to accompany them to the beach at Ranadi where the three of them awaited the arrival of a speedboat. His evidence is that this took place at around 0430 hrs.

12. After the arrival of the speedboat and the loading of weapons and ammunition into his vehicle a further diversion from his trip was made to deliver the weapons to the Japanese War Memorial. The witness was able to say that included in the arms cache were weapons similar to those it is said were found to have been used in both shooting incidents.

13. Through cross-examination it became apparent that the witness had told a different story of this event to a relative of his, and that there was some inconsistency in what he had told the police when he was interviewed by them about this story, but not such that I cannot believe that an event of this nature did take place.

14. There was no talk between any of these men, according to the evidence, of the use to which these guns and the ammunition with them were to be put.

15. From this evidence, which I find to be convincing, it is clear that both Mr. Tatau and Mr. Ross had access to firearms. What is not clear is whether either of them had any particular plan for the use of these arms, and whether any of these arms was actually used in either of these shooting incidents. The evidence only suggests that the type of firearm used in these offences was included in this stash of arms.

16. Before turning to consider the two shooting incidents, there is another area of evidence to be covered. The Crown as part of the case against Mr. Tatau and Mr. Ross brought evidence of meetings that took place attended by Mr. Ross and or Mr. Tatau where the question of what might be done to persuade RAMSI to leave Solomon Islands was said to have been discussed. This evidence, it is said, is proof of motive. I agree with the contention of the Crown that motive is not an essential element of these offences, but that such evidence can go towards making it more probable that a man would commit such offences when he has the reason to do so in comparison with another.

17. There was an abundance of evidence from a variety of witnesses. The only conclusion that I have made of this various evidence is that conversations of how to provoke the Regional Assistance Mission to Solomon Islands to leave Solomon Islands did take place, and that at one time or another Mr. Ross and to a greater degree Mr. Tatau were present at these meetings and did contribute to the discussions in a way which suggested that they supported the notion that RAMSI should leave.

18. I agree that this finding makes Mr. Ross and Mr. Tatau more likely to be the ones committing offences against RAMSI officers than people who had no such notions. I do not agree that such a finding alone is sufficient to find Mr. Ross and Mr. Tatau guilty of the offences charged. Nor, I should add, do the Crown make this assertion. In the view of the Crown this is merely evidence making their involvement more of a possibility.

19. I now turn to the allegation arising out of 21 October 2004. There is little other evidence, other than from the two officers in the police vehicle that was hit, of the shooting of 21 October 2004. Some people gave evidence of hearing the shots, thus enabling the court to make a finding of what time the shooting occurred, although this was possible from the evidence of the vehicle occupants. But there were no eyewitnesses to the crime. The evidence of the fact of the shooting and the injuries came from the victims themselves and from police officers who examined the vehicle and its occupants and the scene of the crime. That evidence is not challenged and the facts presented through it are not in issue.

20. The evidence from the vehicle showed two bullets hitting the target and from the scene shows that at least fourteen 5.56mm bullets were fired, all from the same gun. Forensic examination shows that all fourteen recovered spent cartridges were fired from the same gun, either an SR88 or a Chartered Arms (Singapore) Ultimax rifle.

21. There is no evidence that more than one gun was fired at this scene. There is evidence that the person who shot the gun did so from a stationary position. There is evidence that the gunshots were fired in such a way as to hit the driver.

22. In November 2004, Phillip Kwaimani, it is said, spoke with the witness Jeffrey Oto at KG market. Jeffrey Oto is related by marriage to Phillip Kwaimani. The relative of his that married Phillip Kwaimani is Sharon Gulu, Mr. Kwaimani’s now estranged wife. He knows Mr. Kwaimani as Akiu. Jeffrey Oto’s evidence of the conversation he says he had with Mr. Kwaimani was to the effect that Mr. Kwaimani told him that he had shot at the RAMSI vehicle with an SR88 because a Mr. Kwaiga had told him to do that. He also said that Mr. Kwaimani explained to him that he was angry with RAMSI for coming and locking up former Malaitan Eagle Force (MEF) members.

23. His evidence continued that Mr. Kwaimani said he committed this act alone. He continued that he did not report this conversation to the police, as he was not sure that Mr. Kwaimani had actually committed the offence he had described, but that maybe he was merely trying to "look big", although he did say in cross examination that he did not feel that Mr. Kwaimani was simply boasting.

24. In giving his evidence this witness had difficulty in remembering a lot of the details that would have made his evidence more credible. He was eventually given permission to read his statement to the police that had been made some time earlier as he complained that he had been permitted little time prior to giving evidence to look through his statement and remind himself of what he had said. I permitted that refreshing of his memory from his statement as it should have been facilitated prior to his being brought into the witness box, but it appeared that this had not been done as well as one might have expected. Given that he needed to do this, I take his evidence in the light of that. Without the reference to his statement, this witness had little independent recollection of what happened at the market. He did make reference to Mr. Kwaimani taking a pistol out of his pants when explaining that he had ‘shot the RAMSI’, but even this seemed to be recalled only after a reading of his statement. He had made that statement on 16 March 2005.

25. I could not be satisfied on the basis of this evidence alone that the confession made to him by Mr. Kwaimani was a true confession. I am not even sure if I would conclude that the conversation between him and Mr. Kwaimani took place in the way that he described. Certainly he did not feel that he, a former police officer, had been told anything that he should without prompting report to the police.

26. Mr. Kwaimani was arrested and taken eventually into Rove Prison where, during an induction interview, he allegedly made further admissions. I have already determined that the circumstances in which the alleged admission were made permits their reception into evidence. This interview was between Mr. Kwaimani, one Michael Cougan and one Douglas Mamaka. Sgt. Douglas Mamaka was a prison officer and Michael Cougan a prison adviser.

27. The purpose of this interview was not to gain information about the offences alleged to have been committed by Mr. Kwaimani but about safety concerns Mr. Kwaimani might have about being in prison. When he began to talk about the allegations made against him, Douglas Mamaka cautioned him that he did not have to talk about them, but Mr. Kwaimani continued and gave his audience the impression that he wanted to talk about them. In the course of this disclosure, Mr. Kwaimani, it is said, told the two officers that, being angry with RAMSI for earlier being moved on, he awaited the arrival of a RAMSI vehicle by the Lunnga River bridge and shot at it as it passed, with a gun he had acquired at the ‘G’ Club.

28. Evidence of this conversation came from both Sgt. Mamaka and Officer Cougan.

29. This evidence was not coupled with any evidence, for example, that Mr. Kwaimani had been moved on earlier as he had described, nor of any evidence about the ‘G’ club. There was no reference made by Mr. Kwaimani during this interview that the offence was committed in the company of others, there being no mention of others in his story to them. When the officer Mr. Cougan made his statement in this matter he did so without reference to his intelligence report that he had made at the time of the interview or shortly thereafter. It was only when his report surfaced and reference was found therein to the officer Mr. Mamaka, that Mr. Mamaka was interviewed and asked to give evidence. Otherwise the evidence of Mr. Cougan would have been that he undertook this interview alone, even though in his own evidence Mr. Cougan agreed that his understanding and ability to make himself understood in Solomon Island pidgin was lacking.

30. Whilst I am prepared to accept that Mr. Kwaimani told these two officers the story that they had now told this court, I am alert to the possibility that in providing the details that he did there is a distinct possibility that he was not relating to them what happened but what was alleged against him. Although this was put to both witnesses and the same was denied by them, I have reservations in accepting that part of their evidence because of the circumstances of the interview. No notes were taken at the time and there is no verbatim record of the interview, an intelligence report being later complied not for the purposes of recording these alleged omissions but for other quite proper purposes. Given that it is now presented as an admission that can form the basis of a conviction I would not be inclined to exclude the possibility that the surrounding entry to the conversation, i.e. that this was a recital of what was alleged against him as opposed to what he actually did, and therefore have difficulty in accepting the evidence as a sole basis for a conviction. This takes into account the lack of understanding of pidgin in relation to Mr. Cougan and the difficult task of being an interpreter even when one is proficient in the language under consideration without the skills necessary to interpret, and the fact of having almost a dual role. Absent reminding, of course, Mr. Cougan did not make any reference to the use of an interpreter.

31. I can also appreciate that any confession may not include every detail an offence. When others are involved, an offender even desirous of confessing his part in an offence may well determine that he will not confess on behalf of others. That may well explain the lack of any reference to others being involved in the offence and yet still permit the confession to be described as a true confession that may be relied upon.

32. There is also evidence that Mr. Kwaimani told another inmate of the prison, who, for the purpose of this trial is referred to as Mr. X, of his involvement in the Lunnga Bridge shooting. Having heard the story from Mr. Kwaimani this prisoner was prepared to write a letter that Mr. Kwaimani wanted to send to people he maintained had persuaded him to carry out this shooting. Although he was prepared to write the letter for Mr. Kwaimani, this prisoner was not prepared to do so before telling the prison authorities of the plan and seeking their assistance, no doubt with a view to something in return from the prison authorities. The letter was duly written and a copy exhibited as evidence from the indentations carefully made by the prisoner when he wrote the letter, as he says, at Mr. Kwaimani’s dictation. There is evidence that the page exhibited also bore Mr. Kwaimani’s signature, or something similar to it.

33. The evidence from Mr. X showed that he, Mr. X, intended to obtain the maximum benefit possible for himself out of his actions. That, I conclude, is manifest through his slow and deliberate passing on of information little by little, no doubt with a view to reminding the authorities from time to time of his helpfulness. It is, in my view, without out doubt that his evidence to the effect that he was moved to assist because he heard of the death of a young police officer was disingenuous.

34. The letter said, amongst other things, that others had encouraged, indeed paid for, Mr. Kwaimani to perform this shooting, and that otherwise he was a happy family man. He required those to whom he wrote to compensate him for the trouble he now found himself in.

35. Whilst it is clear that the contents of the letter demonstrate guilt on the part of the author, it portrays a different picture to the confessions earlier made. It presents a much more sinister picture, of a premeditated and financed undertaking to carry out the shooting of a RAMSI vehicle and its occupants. Is this the true confession on which the court can safely convicted Mr. Kwaimani? It would make little sense to a recipient if the contents were not true.

36. However, given that, was it ever intended to be sent? Or was this a device on the part of Mr. X to further his own ends? To what extent did Mr. X encourage the writing of a letter in these terms regardless of the truth of the contents? The very fact that these questions remain in my mind demonstrates to me that I do not accept the evidence as reliable.

37. Finally it is alleged that Mr. Kwaimani admitted his part in this shooting to a fellow prisoner called Stanley Kaoni. In this version of events Mr. Kwaimani told the other prisoner that he committed the offence in the company of a man named John and some other men, that he had emptied a magazine in firing over and over again from a light machine gun and that John was there holding a pump action shot gun. He continued that he had taken the gun to Malaita, but had lied to his lawyer that he had thrown the gun away.

38. The witness Stanley Kaoni who gave this evidence had benefited from the Crown both discontinuing and reducing charges against him.

39. This is the extent of the evidence against Phillip Kwaimani. Other evidence that was received within this trial of meetings and prior involvement with guns and ammunition did not include reference to Mr. Kwaimani.

40. In dealing with confession evidence the court, in addition to being satisfied that the confessions were made, must be satisfied that the confessions were true. It must be clear from what I have already said that in most instances I could be persuaded that the words alleged to have been said by Mr. Kwaimani by witnesses were probably said. The question remains at to whether those words themselves amount to a confession of an offence sufficient to be relied upon to support a conviction.

41. It is significant that the versions it is said were given to various people differ. He was alone and there was little prior thought to the event, it was undertaken as he was temporarily angry with RAMSI for being moved on, it was a premeditated plot paid for by others, he was in the company of others. The only consistent item is of using a light machine gun, and of shooting more than once at the vehicle. I do not agree with the defence suggestion that there is no evidence about the use of a light machine gun. Whilst the experts asked to comment on the firearms used do not use the terms LMG when describing a Chartered Arms (Singapore) Ultimax model I do believe that there is sufficient evidence that such a weapon as an Ultimax is called by people who talk about guns as an LMG.

42. It cannot be the case that all of Mr. Kwaimani’s confessions are true. There is evidence that he did not tell the whole truth when talking about what he did with the guns following the shooting in one version of his confession. But more importantly it is impossible to find, for there is no evidence on the point, as to which version is the true version. I do not even know which version that the Crown seek to rely upon, save that since four people were at first alleged to have committed the offence I can safely make the assumption that the Crown do not rely upon the confession to Jeffrey Oto as being a true version of events.

43. I conclude, with regards to Mr. Kwaimani that there is not evidence before the court sufficient to safely conclude that the charge against him has been proved beyond reasonable doubt and in view of that conclusion Mr. Kwaimani is entitled to an acquittal.

44. As for John Ross, the evidence against him in relation to the charges of attempted murder comes again in the form of alleged admissions. These admissions were made to ordinary citizens, as opposed to persons in authority. It is said that the day following the shooting, Mr. Ross was bragging to acquaintances that he was the big man who did the shooting, that it was ‘him who shot the RAMSI’. This was repeated on other occasions. There were no further details offered by Mr. Ross as to how and with whom he committed these offences against the police officers.

45. The version of events given by Mr. Ross in court and to an extent in his interview with the police was of being at home stricken by malaria. Both in what he said to the police and in his evidence to the court there was much that could be said to be less than convincing. Two of his sisters gave evidence, but not his wife who had been described by one sister as lying at home with Mr. Ross when all this took place. There was confusion as to where the medicine taken to treat this malaria came from and whether Mr. Ross had gone to buy fish at the market. His evidence was given in a most unsatisfactory manner, indeed in a way that made it very hard to believe any of it.

46. Evidence of one of these meetings between Mr. Ross and Mr. Tatau included a description of Mr. Ross being in effect chided by Mr. Tatau that if he indeed was the offender guilty of the Lunnga River shooting, then he should regard any subsequent difficulty of his own making – you are on your own effectively. To this Mr. Ross is said to have hung his head.

47. This evidence itself goes to the heart of the Crown case against Mr. Tatau that was ended at the no case to answer stage. For if it is to be relied upon, it suggests that Mr. Tatau was not involved in that shooting. It cannot, in my view, be regarded as evidence that Mr. Tatau was involved in that event. That would make the statement from Mr. Tatau towards Mr. Ross quite hard to understand.

48. Mr. Ross, I have found, was involved with Mr. Tatau in the collection of arms on Ranadi beach. There is evidence that Mr. Ross spoke about the removal of RAMSI both in meetings and during taxi journeys that he took. He was not a man to keep his opinions, it seems, to himself.

49. On the basis of his evidence and that of his witnesses, I do not accept that he was at home, ill with malaria, as he has described.

50. I do find that to young and perhaps impressionable people who were often to be found in the area known as Rasta’s compound, Mr. Ross said that he was the shooter, using words like me big daddy John Ross. As to the conversation when confronted by James Tatau as to whether he had admitted to being involved in the Lunnga Bridge shooting, I am of the view that the evidence of that falls into two categories, the evidence that James Tatau asked Mr. Ross that question, and the evidence that suggests that Mr. Tatau made the observation that Mr. Ross had admitted his involvement and that the admission by Mr. Ross of these things had itself somehow landed Mr. Tatau into trouble. The problem with such conversations, or at least the problem that arises when these conversations are related in a trial, is the essence being lost in translation from pidgin to English.

51. No doubt it is not unique to this jurisdiction, but an abundance of caution needs to be applied when trying to ascertain not just what was said but the meaning that should be attributed to it. The absolute translation from English to pidgin or vice versa is a most difficult task. What the pidgin words denote in English may well look simple and to an outsider no doubt do so, but that should not be mistaken for a true understanding of their meaning. This difficulty is exacerbated when sufficient time is not taken to investigate the true understanding of any conversation as between the speaker and the listener. It is with regret that I note the impatience of counsel on occasions with their own witnesses. Such impatience, no doubt without any malice or ill intent simply results in witnesses withdrawing from any attempt they might have been prepared to make to fully explain their involvement in any particular matter. I suspect that it is also the case when interviewing police officers think that they have just been told what they want to hear that the process is thereafter taken no further.

52. Mr. Ross is undoubtedly guilty of big mouthing himself. In my view he may have lied to the police about his whereabouts on the night of this shooting. He was involved with Mr. Tatau in the reception of arms at Ranadi Beach. But he did not, in my view, make admissions that can be relied upon to support a finding of guilt. Whilst describing himself as the ‘shooter’ I bear in mind that it is probably the Crown case that Mr. Kwaimani was the man firing the shots, not Mr. Ross, and take into account the early forensic evidence that the vehicle was probably fired at by only one gunman. Thus if it were the case that Mr. Ross could be held responsible for what he said, I must also take it that in saying he ‘did the shooting’ he was in fact saying that he was with the ‘shooter’.

53. There is no evidence of both Mr. Kwaimani and Mr. Ross being at this scene, other than through their alleged admissions. There is no evidence apart from both saying that they were the gunman of any prior agreement to undertake the crime. There is no evidence of prior association. It is therefore difficult to explore the notion of joint enterprise in circumstances where I do not find the admissions to be reliable.

54. As in the case of Mr. Kwaimani I find that the evidence presented to the court is inadequate to discharge the burden of proof required in a criminal case of guilt beyond reasonable doubt and Mr. Ross must be found not guilty as a result of that finding.

55. The second shooting took place in December 2004 and resulted in the death of police officer Adam Dunning. The life of one human being is as precious as any other. The effect, though, of the death of one who was prepared to serve and protect others does and should provoke a stronger response. Whilst those who shot and killed Adam Dunning and would have shot and killed his fellow officer gave little apparent thought to the effect their actions would have on the lives of their victims, and the families of their victim, those who benefit from the protection and service do so.

56. The evidence from the scene of the shooting is limited, but it is sufficient to make out that the shooting took place and resulted in the death of the young police officer. These issues are not in dispute and have been well supported by the necessary evidence. The issue again is who carried out the attack.

57. John Ome and James Tatau are said to have carried out this attack. John Ome is implicated through an alleged admission of his involvement in the attack. James Tatau is said to have been involved from the beginning of a plot to attack RAMSI through his actions, words and false alibi. There is no direct evidence from eyewitnesses as to their presence at the scene at the time of the shooting although there is some evidence of Mr. Ome being at the area of the shooting earlier the same evening.

58. Although evidence was led that Mr. Ome may have attended meetings at the house of Benjamin Una where the topic of RAMSI’s continued presence was discussed, it appears that Mr. Ome was in prison when the meetings described took place. But it is clear from the evidence that Mr. Ome has some association with Mr. Una and that comes from the various evidence of a night out when Mr. Ome together with Mr. Una, Mr. Una’s son and the witness Ms. Kaimauri. I accept that the evidence from those people and others connected with the premises where the drinking took place, the Mendana Hotel and the Marimba Club have knowledge of a night out taking place, but I have some difficulty in concluding that this night out took place on 21 December 2004. Ms. Kaimauri gave the best evidence in this regard linking the night out with a subsequent trip to Australia that she maintains took place two days later. But that evidence must be considered in the light of other evidence presented to the court that the night out was 20 December or even before then.

59. That I cannot be satisfied that the night out described took place on 21 December, and I am not convinced on the totality of the evidence presented by the Crown, removes the argument presented by the Crown that Mr. Ome lied in his interview with the police when he said he was at home that night, at least as far as being at the Mendana Hotel and the Marimba is concerned.

60. Other evidence of Mr. Ome’s whereabouts on 21 December came from the witness Ansa Wate, the then tenant of the Green Store not far from where the fatal shooting took place. Mr. Wate gave evidence of two men coming into his store and serving first one of them with a bottled drink and then that man being joined by the second man. Mr. Wate was able to point out the second man from a collection of photographs that he was shown, although not the first man. The second man, Mr. Wate identified as being Mr. Ome, of that, he said, he was eighty percent sure. He believed that he heard the first man using words of PNG, as opposed to Solomon Island, pidgin. He put the time of this incident at 2025 hrs from the clock in his shop.

61. The photograph he identified was that of Mr. Ome. The second man who had come into his store was wearing a white singlet and a ‘hood’ otherwise described as a beanie, although that word itself came from a suggestion made by the police and not the witness himself. The man according to the evidence of the witness was inside his store for one minute at a distance of about one metre.

62. In terms of identification evidence I believe that this evidence would not pass the test as set out in Turnbull for identification purposes. The witness had no prior knowledge or association with the second man and saw him for a very short and most unremarkable period. It seems to me that the most remarkable feature of the short interlude was the use by the first man of PNG pidgin. In any event I do not regard the evidence as demonstrating to me conclusively that the second man was indeed the accused John Ome. The first man was certainly not made out to be James Tatau, as so it is wrong to suggest that there is evidence that Mr. Tatau and Mr. Ome were together in the area of the later shooting to map out the plan to shoot a vehicle later that night.

63. That finding also takes away the possibility that the Crown can point to consciousness of guilt in Mr. Ome’s record of interview with the police when Mr. Ome asserts that he was at home on this evening/night.

64. The other pointer to consciousness of guilt, it is contended by the Crown, relates to the denial by Mr. Ome of any knowledge of or association with Mr. Tatau. Evidence was adduced on the point in an attempt to demonstrate that Mr. Ome and Mr. Tatau had been seen at various drinking establishments but that in my view illustrated nothing more than the two men being in the same nightclub at the same time sometime during the period of ethnic tension. It did not, in my view, amount to evidence of prior association.

65. Without consciousness of guilt and in the absence of convincing evidence that Mr. Ome was in the Green Store earlier in the evening planning with Mr. Tatau, the remaining evidence against Mr. Ome comes in the form of an alleged cell confession to the witness Stanley Kaoni, the same witness to whom it was said the Mr. Kwaimani confessed his part in the October 2004 shooting. The remarks I have made in relation to Mr. Kaoni earlier apply equally here. Whether there was a true confession by Mr. Ome to Mr. Kaoni, it is not sufficient evidence alone on which to base a conviction for the charges that Mr. Ome faces.

66. In those circumstances, where the Crown has not been able to prove the charges against him beyond reasonable doubt, Mr. Ome is entitled to be acquitted.

67. As I have earlier said, I find that there is credible evidence that Mr. Tatau and Mr. Ross were involved in the reception of firearms at Ranadi Beach. Mr. Tatau remains charged with the murder of Adam Dunning and the attempted murder of John Donald Collie in December 2004.

68. There is also credible evidence that Mr. Tatau spoke in public of his dislike relating to the presence of RAMSI within Solomon Islands. This happened at various meetings held and during the course of taxi rides.

69. The Crown suggests that Mr. Tatau was present in Honiara at the time of the fatal shooting attack and that he together with John Ome carried out that crime.

70. To that end evidence has been called to support the notion that Mr. Tatau was present in Honiara and, on his part, evidence has been called from the place where Mr. Tatau says he was during that time.

71. It is the contention of the defence that Mr. Tatau travelled with his family to spend Christmas at the home of his wife’s family in Ro’one. The Crown agrees that Mr. Tatau and his family did travel when Mr. Tatau says that they did. From this point the versions of events diverge and whilst Mr. Tatau seeks to demonstrate to the court through his alibi evidence that he remained in Ro’one the Crown called evidence of sightings of Mr. Tatau in Honiara during the time Mr. Tatau says he was in Ro’one.

72. As one might expect the Crown and the defence make similar observations critical of the evidence of other parties’ witnesses. It comes down to the basis premise that the Crown must prove beyond reasonable doubt that their version of events is the correct version. Mr. Tatau does not have to prove beyond reasonable doubt that he was in Ro’one but that would go a long way to dispelling the allegations against him.

73. The evidence given has been well set out in the closing submissions of counsel. I do not intend to repeat it here.

74. By relying upon a false alibi and the surrounding material suggesting that Mr. Tatau had the intention to carry out some crime against officers serving in RAMSI to encourage their departure from these shores, the Crown says that this can be conclusive proof that Mr. Tatau carried out this horrendous crime. They maintain that Mr. Tatau had the means, that is to say he had access to the weapons that he had the motive, in his expressed dislike of RAMSI’s presence in the Solomons, and, they say, he had the opportunity by being in Honiara undercover, as it were, of a false alibi. They point to the need for intense planning for this to be successfully carried out, of assistance in financing and logistics.

75. The evidence for either version of events, that Mr. Tatau was in Ro’one or that Mr. Tatau was in Honiara comes from people who were less connected to the sort of underworld figures that Mr. Tatau seemed to keep company with. I have no difficulty in accepting in this area of the evidence that people were not lying when giving their evidence. This area of the evidence comes from people less connected with the events than some others. It is an area where people are simply trying to do their best in difficult circumstances.

76. I therefore do not agree that the whole of Ro’one village has made a decision to help Mr. Tatau out of a difficulty for which they all sympathize. I recall the evidence of police officer Marcus Boorman who said that if one believed what the police heard from villagers in Ro’one during the investigations, then it is well established that Mr. Tatau was in the village when this killing occurred.

77. If he was in the village, the case for the Crown has no chance of success, for it is not the case for the Crown that Mr. Tatau controlled this operation from a distance. It is the case for the Crown that Mr. Tatau interrupted the family holiday to make one or more undercover journeys to Honiara from Ro’one to put into effect his well thought out plan.

78. From the evidence I cannot say that I am convinced to the requisite standard that this was indeed the case. The evidence produced on behalf of Mr. Tatau makes such a finding impossible. The advantage that the witnesses from Ro’one have is that Mr. Tatau was there and could be observed for much longer periods than the not much more than fleeting glances that were available to people who may have been on ships with him or may have seen him in Honiara briefly.

79. I have other concerns that decrease the value of the evidence for the Crown. Sightings allegedly reported to the police not acted upon, the length of time that Mr. Tatau was said to have remained in Honiara after the shooting, his travel by public conveyance as opposed to a private boat trip. If one is to accept the Crown version that this was a well conceived and executed plan the expectation would surely be that Mr. Tatau would remain in Honiara for the shortest period, lest his alibi in Ro’one fell apart. He would surely use the funding available to him to travel privately and at his convenience rather than risk being sighted long after the event and travel with the general public.

80. It may well be that the evidence of how long it would take if one were to travel by speedboat between the two places distracted me in that regard, but that was a part of the case for the Crown. Just as the funding appears to have been available for the delivery of firearms by speedboat said to be part of this scheme, so one would have thought the safe and speedy return of the principal actor would have been catered for.

81. It is for those reasons that I cannot find that the evidence from the Crown does establish to the requisite standard that Mr. Tatau did indeed travel to and from Ro’one to carry out this attack.

82. I can understand the criticism of civilian witnesses for not coming forward with the information that they had at an earlier point in time. I understand that it is difficult to accept that one would remain silent when a gross injustice is taking place in front of one – seeing Mr. Tatau taken away for a crime that he could not, in your view have committed since he was in your village at the time – hearing that Mr. Tatau is guilty of a crime in Honiara when you can see him in the house a few doors down at the time the message is to be heard on the radio. But that is to overlook that fact that civilians do not always do what might be regarded as the right thing for various reasons, fear, indifference, lack of understanding, lack of confidence.

83. It is to be recalled that Crown witnesses themselves did not always take the action that one might have in similar circumstances taken – reporting threatening and conspiratorial remarks. Then one must consider what evidence is before the court to demonstrate that the witnesses from Ro’one knew and understood the details of the crime alleged against Mr. Tatau, how he was said by the Crown to be involved in this plot. The radio may well have announced that the police were looking for Mr. Tatau over the death of a young police officer but there is no evidence that the villagers were aware of what the police said his involvement was. There is no evidence that when asking questions of the villagers that the police explained how Mr. Tatau was involved. But my understanding of the criticisms of defence witnesses does not remove the fact that I cannot find as a fact in this trial that Mr. Tatau travelled to carry out this crime.

84. It is for that reason that Mr. Tatau is entitled to be acquitted of the charges against him.

85. Anyone who might consider that Solomon Islands has returned to a normal and safe state, at least by the end of 2004, following the period of ethnic tension that befell this country in past years need look no further than the details of this trial for that notion to be dispelled. That a group of people were prepared to plan and execute this crime is clear. No amount a legal jargon can remove the fact of the offences. A man was killed and another injured. The number of deaths could have been more.

86. Whilst it may be said that as people who have now been acquitted these four accused have suffered during the period before trial, it has to be said that in the main what has happened to these four accused was brought on by themselves. Faced with confessional material as in this investigation, the only route available to the police is to bring the matter before a court. Only a court can determine the truth and reliability of such material. The four accused having behaved in the way that they chose must look to their own conduct to explain what has befallen them.

87. In the event acquittals are recorded as against all four remaining accused in this trial. Phillip Kwaimani and John Ross for the attempted murder of Ruskin Tsitsi and Toa Fifita on 21 October 2004 and James Tatau and John Ome for the murder of Adam Dunning and the attempted murder of John Donald Collie on 22 December 2004.

10 May 2007
Goldsbrough J