Regina v Cawa [2007] SBHC 6; HSCI-CRC 315, 329 of 2004 (15 March 2007)

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RONNY CAWA,
CARRADINE PITAKAKA,
GEDDILY ISA,
OWEN ISA &
WILLIAM HENCE

Date of Hearing: 20th March, 29th August & 11th November 2006
Date of Judgment: 15th March 2007

BROWN, J: These five men were charged with the murder of Brother Nathaniel Sado of the Melanesian Brotherhood, who was killed sometime in February 2003. It is alleged that these five, acting in concert, beat Brother Sado to death at a village known as Pite on the Weather Coast of Guadalcanal after he had been imprisoned for some time in a hole made about the roots of an abololo tree. Pite was a Guadalcanal Liberation Front (GLF)-controlled village at the time of the insurrection by the GLF. The Crown case was that Ronny Cawa, the second in command to Harold Keke, the leader of the Front had the Brother kept against his will as a prisoner whilst he was interrogating him. It is alleged that these five accused on a particular morning inflicted such a beating on him that he died.

The Crown case then is that these five acted together by common purpose or agreement to kill or alternatively aided and abetted each other in beating him well knowing he would die. The Crown says that it is not necessary to prove which of the accused carried out the blows which directly caused his death for if they were participants in the enterprise, they are equally liable.

The motive for murder was that the GLF suspected Brother Sado had travelled to the Weather coast as a spy seeking information about the activities of the GLF about Pite village, for they were the suspicions which drove the interrogation by Cawa and which after beatings, caused Cawa to imprison the Brother. The truth or otherwise of the GLF suspicions which gave rise to the beatings is not on point although the prosecution does say that those suspicions were false. For there has since the Spanish Inquisition, in some quarters been a reluctance to accept the veracity of statements made under duress of such nature as to amount to torture.

The Crown case relies on direct evidence of two Crown witnesses who were alleged to have seen beatings leading to the death of Brother Sado although neither witnessed Brother Sado die. As well, the Crown relies on confessional material in various records of interview given by the defendants to investigating police (apart from the accused, Carradine Pitakaka, who did not make a statement.).

After the killing, Brother Sado’s body was buried at the beach at Pite village and was ultimately exhumed in October 2003. A post-mortem was carried out in Honiara by Dr. Malchom Dodd, a forensic pathologist from Australia. The post mortem Report was the subject of much cross examination by the Defence Counsel as to possible scenarios which may have caused the skeletal damage seen by the doctor whilst conducting his post-mortem examination (for the remains had mostly decomposed) Following investigation by the police, including RAMSI personnel, the five accused were arrested and charged.

Section 200 of the Penal Code says that any person, who of malice afore-thought causes the death of another person by an unlawful act or omission, is guilty of murder. Malice afore-thought is define in Section 202 of the Penal Code,

"Malice afore-thought may be expressed or implied and expressed malice shall be deemed to be established by evidence proving either of the following states of mind preceding or co-existing with the act or omission by which death is caused and it may exist where that act is unpremeditated:-

(a) an intention to cause the death of or grievous bodily harm to any person, whether that person is the person actually killed or not –

(b) knowledge that the act which cause death will probably cause the death of, or grievous bodily harm to, some person whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused."

Mr. Weir the chief Crown prosecutor refers to the Penal Code, Sections 21, 22 and quotes from the decision in R v. Keke-

"a man may be principal in an offence in two degrees. A principal in the first degree is he that is the actor, or absolute perpetrator of the crime - and in the second degree, he is who is present, aiding and abetting the fact to be done. Which presence need not always be an actual immediate standing by – but there may be also a constructive as when one commits a robbery or murder, and another keeps watch or guard at some convenient distance."

He also refers the Court to the Queen v Coney [1881-1882] per Cave J at page 541, who stated that...

"mere presence alone is not sufficient to constitute a case for principal of the second degree. To constitute a case for the principal of the second degree, there must be evidence of conduct pointing to assisting or abetting the principal of the first degree. That is, where presence is entirely is innocent or accidental, there can be no evidence of aiding or abetting. Where presence is on the face of it, not accidental, it is no more than evidence for the jury or court".

"In my opinion, to constitute an aid and abettor, some active steps must be taken by word or action with the intent to instigate the principal or principals. Encouragement does not of necessity amount to aiding or abetting, it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, or non interference or he may encourage intentionally by expressions, gestures, or actions intended to signify approval.

In the latter case he aids and abets in the former, he does not. It is no criminal offence to standby, a mere passive spectator of the crime, even if the murder. Non-interference to prevent the crime is not itself, a crime.

But the fact that the person has voluntarily and purposely present, witnessing the commission of a crime and offered no opposition to it, though he might reasonably be expected to prevent and had the power so to do, or at least to express his descent, might under some circumstances afford cogent evidence upon which the jury would be justified in finding that he wilfully encouraged and so aided and abetted. But it would be purely be a question for the jury whether he did so or not."

Mr. Weir, again, uses the reasoning White CJ in the Queen v Peter Loumia and others, Criminal Case No. 7 of 1984 [unreported, dealing with Section 219 (c)] of the Code-

"some of words need to be restated in perhaps ordinary language and it is important to keep in mind that ‘aids’ means actively helps. Abets means ‘encourages’. It is not sufficient to show that a person has done any of these things; aiding, abetting, counselling or procuring unless it is also shown that the person knew what it was the other person intended to do. To know what was intended, however, does not mean that he had to know precisely what was going to be done but that he knew generally what it was the other person was going to do. For example, as in this case, that lethal weapons were likely to be used.’’

As Mr. Weir says, the Court must necessarily be satisfied beyond reasonable doubt whether the co-accused are principals in the first or second degree and if so, they will, in terms of the Code, be equally culpable as part of the joint enterprise, whose object was the murder of Brother Sado.

Mr. Weir points to what he says to be the basic principle of joint enterprise; -if two or more persons act together in furtherance of a common unlawful purpose, in every act done to further that purpose by any of them is in law, done by them all. It does not matter who inflicted which blow and where, on Brother Sado’s body, or how many times or indeed who may have inflicted the fatal blow; in the event that death was the result of the combination of blows or perhaps one – each accused is equally responsible for the result.

The Prosecutor goes on to say that the evidence may not establish a particular accused was involved in the alleged previous assaults of Brother Sado, leading up to the day of his death but may have participated in the final assault resulting in his death – so by virtue of his conduct he has become a part of the joint enterprise at the point in time that he contributed to the assault.

Mr. Weir points to Geddily Isa, when one looks to the evidence of the principal Crown witnesses Allan Sarevo and Jeffrey Kibo. An accused may be said to have participated in a joint enterprise by simply being present at the time when the crime is committed and with knowledge that the crime is to be or is being committed, intentionally assist or encourages another participant in the joint criminal enterprise. He goes on to say that the presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participants in the joint criminal enterprise. He says that describes the principal in the second degree.

The Prosecutor says that each of the five co-accused (excepting Carradine Pitakaka) voluntarily confessed in their respective statements to the Police and that the Court may rely on those confessions. The veracity and reliability is strengthened when the Court has regard to prosecution witnesses Allan Sarevo and Jeffrey Kibo. For it was Jeffrey Kibo who witnessed the events leading to the death of Brother Sado the day following; while earlier beatings were witnessed by Allan Sarevo. Jeffrey Kibo also gave evidence of having been instructed by Ronny Cawa to dig a grave whilst Brother Sado was still alive. Brother Sado was subsequently buried in that grave. If Kibo is to be accepted, the fact that the grave was dug whilst B. Sado was undergoing a beating by Cawa is clear evidence that Cawa foresaw the consequences of the beating. Cawa’s own statement to investigators could leave the court in no doubt of this.

Mr. Weir was correct to point out that the evidence of these two principal Crown witnesses is critical to prove the charge of murder against the accused, Carradine Pitakaka. He had made no statement to the police. It should be said at the outset that neither witness was able to particularise the date of the events about which they spoke in Court. It was apparent, however, that. Sarevo was recounting events which preceded the death of B. Sado and those earlier events may be presumed to have occurred on the day preceding the death. Sarevo who was not living at Pite at that time although was told of the death the day following his visit to Pite ostensibly he says for a prayer meeting. Mr. Weir says that if I were to accept the principal witnesses’ evidence, when viewed in conjunction with the records of the interview of the various accused, the effect is a reciprocal confirmation of the admissions in the various records of interview. The Prosecutor goes on to say that the defence case to a large extent "attempts to sanitise the extent of their participation in the joint enterprise" but that this Court may accept part or the whole of the evidence of both Allan Sarevo and Jeffrey Kibo when viewed in conjunction with the records of the interview.

The prosecution case is that the accused are guilty of the offence charged for that there was a common intention to kill or cause grievous bodily harm to B. Sao (s. 22 of the Penal Code) and that whether principal in the 1st or 2nd degree (R v. Keke) (s. 21 of the Penal Code) all co-accused fall within the definition of a person "deemed to have taken part in committing the offence and to be guilty of the offence".

So far as the first part of the case is concerned, it is helpful to ask the question not how he was killed but why he was killed. It is very plain on the Crown case that B. Sado was killed because he tried to run away a second time.

This reason was made clear when I look at the evidence of William Hence given on Tuesday 29 August. He said he told the boys at Pite that Sado would die if he wanted to runaway, if not he would be held in prison. This questioning arose from the answer given to Q 299 in his Record of Interview of the 26 September 2003.

Answer So when he want to run away so this guy hold him and beat him. So after they ran and tell us, let us know, Hey this guy want to run away". So we come and tell him, Why do you want run away? If you don’t want to run away we won’t kill you, we won’t hurt you, we’ll give you shelter. So you want to die"? Well we have no choice. You want ...(indistinct)... we will kill you and hate you". So we have to ... have to ...(indistinct)... we will not say anything about you because it’s you and you want to die". So we just left him alone and we go back to our place we stood and put him the place where he used to stay in that cage. And in the morning ...(indistinct)... I think ...(indistinct)... "I don’t know". So I come and said, "Oh we kill him dead now." So I have to beat him ...beat him ... until he was wounded and then I go ... I and I tell the boys, "Oh this guy is going to die. "So some guys come little bit ...(indistinct) ... beat as well until he dies so they carry him and go to the graveyard.

Mr. Lawrence asked him whether Hence said, in his interview with the police – "Oh, this guy is going to die" and after denying it, Hence said, "I said, if he’d like to run away, then they would kill him dead". In cross examination by Mr. Weir, Hence said his conversation was to elicit a response from the others, (and impliedly should not be seen as a direction or expectation in the maker of the statement, Hence, of the likelihood of the Brothers’ killing)-

"This I said that (the recorded interview/answer Q299) – just for them to say whether to kill or not – whether what they were going to say about that".

It is illuminative of Mr. Hence’s state of mind at the time of the beating, in that he denied being angry at Brother Sado when it was suggested Mr. Hence believed he was there to gather information. Rather his evidence emphasized the state of Brother Sado as "a prisoner of war" so that the fact of the 1st escape and his warning to Brother Sado, would appear to have given rise to the expectation of a further beating to death in the event of another attempted escape. It was not just a threat or propaganda as Mr. Hence says to keep Brother Sado secure but recognition of the statement as importing intent. Hence suggests he only said the words to elicit a response from the others, a sense which contradicts the whole tenor of his earlier statements. For there he was at pains to explain that the blame for Brother Sado’s death lay with Brother Sado for he had been warned of the consequences of escape.

The plain fact was that Brother Sado was killed there. I accept Hence’s statements in his interview as a literal statement of the fact. I do not accept the interpretation he now seeks to place on that earlier statement, for the reason, above. On the evidence of Kibo, Hence was an assailant when B. Sado died. Brother Sado was killed for he had tried to runaway a second time; that thread ran through all the evidence.

Mr. Lawrence for Hence suggests that the death was consistent with Hence’s evidence, occurring after Hence had left the scene when Mr. Lawrence suggests the violence towards Brother Sado escalated and he was killed.

Having so found "why" he was killed (and on the evidence of Dr. Dodd there is no doubt injuries inflicted would kill), Mr. Lawrence’s submission that Brother Sado was receiving a non-severe punitive beating at the time by Hence, (who admits to striking him) and that Hence is exculpated by the fact that B. Sado’s death was evidently caused when the beating escalated, relies on Hence’s statements in the witness box that he had left Pite to return to Vatulaki when "all the boys came" to punish Brother Sado In that examination in chief, when asked about going to Pite, Hence said he went and saw boys beating Brother Sado and he put the question to the boys;"Kill him dead?" and received the answer, no, punch him so he wouldn’t runaway; to learn his lesson so then Hence came and punched Brother Sado. In the interview with Police he makes no mention of departing the scene. I do not accept his court evidence on this point, for the earlier reasons. He had acknowledged that if Brother Sado was to runaway, the consequence was made plain and know to Hence.

I’m satisfied this beating on the day Brother Sado died was at least a second beating and that it followed an earlier warning in the night not to attempt to escape for fear of fatal consequences. I’m also satisfied Hence was present during the fatal beating.

I’m so satisfied for in his interview at Q 312 Hence recounts Ronny Cawa telling him "we kill him" and there is detail in that part of the interview which shows Hence followed the events of the beating of Brother Sado, "full naked" until he was killed and taken by "those guys" and buried. He does not distance himself from the place at the time of the statement to police and despite counsel’s careful argument on the evidence which Hence gave me in court, I do not accept him on that point.

Geddily Isa gave evidence before me of seeing Kibo and Timo, for Kibo dropped a stone on Brother Sado’s chest and Owen Timo was the second person who threw a stone. Others about were Kali, Elijah and Amoni when asked, he said Hence was standing on the river bank facing Vatoloki, Pitakaka was on the other side of the river, towards Vatoloki while Ronny Cawa was in the bunker with Geddily Isa. When asked by Lawrence whether Hence was on the river side before the stoning of Brother Sado, Geddily Isa conceded that he was, and later when asked how close was the accused to Brother Sado said, that they were in the area not near to where Brother Sado was lying. He was specific about Hence being on the Vatuloki road side. In cross examination he denied seeing Willie (Meto) Hence hitting Brother Sado. For Mr. Weir, referring to Q 232 of Geddily Isa’s record of interview directly put Geddily Isa’s naming of Hence when asked by the police investigator "who beat Brother Sado". His explanation in cross examination was to the effect that Brother Sado died in their territory (GLF) and that is why he named the GLF members. He did not name Kibo or Timo nor describe them dropping rocks on Brother Sado to the investigator.

When considering Geddily Isa’s evidence I am left with the very strong feeling that his evidence in court is wholly at odds with that given the investigating police officer. Where, then does that leave the case against William Hence for he says he left for Vatoloki before Brother Sado died. Geddily Isa has him not near the scene but standing on the side of the river. He does not place him with the two perpetrators of the stoning.

In his earlier interview with the police Hence does not mention Vatoloki or leaving to go back but recounts, at Q 299 a cogent account of his participation in the killing. I do not accept his later account, in court that he left before Brother Sado died, for it was plain on his own account that Brother Sado was caught attempting to escape a second time and that he had earlier heard Brother Sado told "don’t run away or we will kill you dead". That was on the cards when Hence went back to Pite. I do not accept his later testimony that he left Pite whilst Brother Sado was undergoing a beating anticipated by Hence, where Brother Sado lost his life nor do I accept Geddily Isa’s evidence which seeks to exculpate Hence and others. It stretches credulity for someone interested in the affair to depart from the scene of a beating rather than gravitate to it. Consequently I do not accept Geddily Isa’s evidence in court for it, too is at odds with his earlier statement about Hence’s involvement. I am satisfied it has been given to support Hence but does not have the ring of truth.

I am so satisfied, on all the evidence that Hence falls within the definition of one deemed to have taken part in committing the offence. In such a hierarchical society where personal loyalty dominates, (where Ronny Cawa has been acknowledged to be and was the second in command to Harold Keke in the GLF), this man Hence’s actions in the presence of Ronny Cawa, there at the time, were acts of a principle in the first degree. It follows, that this finding of guilt is predicated on Hence’s testimony both in court and earlier to the investigating officers.

The various references to Hence’s actions in beating Brother Sado in the other records of interview of the concurred cannot of course but used against Hence. Those references however, were used by Mr. Weir in his cross examination of those accused who gave evidence in court and while that cross examination may affect their credit, whether favourably or otherwise I do not use statements of complicity, even on oath as evidence admissible against companions (Tripodi v. The Queen [1961] HCA 22; (1961) 104 CLR 1), I look at favourable evidence given by Hence’s co-accused, especially when given on oath (as is the case of Geddily Isa) and on balance need decide whether to accept it. In this case where Geddily Isa has distanced, as it were, Hence and other of his co-accused from the continuing beating of Brother Sado, leading to his death, I am not minded to accept it to that purpose for it is contrary to the earlier statements of Hence. I do not accept Geddily Isa’s narrative in court as worthy of credit. I shall explain why later, when I deal with Geddily Isa’s case.

Mr. Lawrence’s argument about Dr. Dodds acceptance of the possibility of a rock, for instance causing the blunt force trauma leading to the death of Brother Sado is of little assistance for the Crown case is one of complicity in the killing. I am satisfied Hence was complicit. Mr Lawrence properly points to the earlier question, 299, as relevant to the material to be taken into account when deciding if Hence knew Brother Sado was to be killed. He says the court must be left with a doubt when it considers the answers to questions 312 & 313, coupled with his evidence in court. I have considered all the evidence, but am left in no doubt.

Mr. Lawrence as did other counsel, attacks the evidence of both Seravo and Kibo, as unreliable. I do not propose to deal separately with those which address particular parts of the Crown witnesses evidence as affording support for counsels submissions but rather deal with the various arguments when I address Pitakaka’s case. For the issue relates to the witnesses credit in so far as their evidence is tied to the material elements of the offence, and should not be broken down into a numerical exercise, for and against according to inconsistencies or other criticisms.

The prosecution case against Cawa rests, principally on his admissions in his interviews with investigating officers on HMAS Manoura on the 13 August 2003. Mr. Weir invites me to treat his second record of interview some three weeks later at GBR as a transparent effort to resile from those admissions and as a pretty flaccid attempt to distance himself from the killing of Brother Sado.

Mr. Weir argued that corroboration if need be, can be found in the evidence of Allan Serevo and Jeffrey Kibo. Allan Serevo’s evidence showed a course of conduct or a prolonged period of abuse over the time from his first interrogations by Ronny Cawa.

Jeffrey Kibo knew Ronny Cawa. The GLF were about Kuma on the Weathercoast when Kibo was there with his uncle. He knew Cawa from that time and often saw him at Inakona, for Kibo had moved there, following threats were he to remain at Kuma. When Brother Sado died, Kibo was then living at Vatuloki not far from Pite. He had seen Brother Sado hands tied, in the prison tree at Pite. Cawa, Pitakaka, Hence and others were at Pite when he saw Brother Sado in the prison tree.

On the day Brother Sado died, he was told by Cawa while Kibo was cooking his breakfast to go down and help them dig the grave. Cawa did not tell him whose grave it was. He either was not curious or intuitively knew. I should say I’m satisfied even without the dock recognition that Kibo knew Cawa at the earlier time. When Kibo reached Pite, Cawa told him to help others dig a grave which had been commenced before Cawa told Kibo to go to Vataloki to get a spade.

On his way to Vatoloki he was in Pite where Cawa, Pitakaka, Hence and the two Isa brothers lead Sado down. Brother Sado was wearing a lava lava when the group passed him. When Kibo returned with the spade he saw Cawa and Hence beating Sado who was sitting on the stones in front of Michael’s house (since destroyed) with Sado’s hands tied behind his back. He saw Cawa striking Sado with his hands about Sado’s head and face. Kibo was not far from the beating and able to see clearly. Kibo heard Sado exclaiming "eh eh" in the course of the beating. Hence was also hitting Sado about the face and eyes. He said Geddily Isa, Owen Isa and Pitakaka were also hitting Brother Sado. Kibo located the particular sites; of the beating, the prison tree and where he stood while those others were beating Sado. He was afraid while witnessing the beating. Photographs were shown him and he identified the particular places, he was not undermined in cross examination on the issues.

He left to return to the grave site with the spade and continued to dig until the dead Brother Sado was brought to the site. Cawa, Pitakaka, Geddily, Isa, Owen Isa and Hence with others came to the grave. Sado was carried in a canoe and dumped into the grave hole. A lava lava covered him. His hands were not tied. Kibo and one other straightened the body in the grave.

In the grave Kibo noticed injuries to Brother Sado’s face and blood on his chest. He saw marks at the front of Brother Sado’s chest, blood down to his stomach and at the back was a big hole. The hole ran from front to back.

An empty basket was also put in the grave, it was thrown down. Kibo recalls seeing a Melanesian Brother holy or "secret" stick but cannot recall what became of it.

He said he’d never seen anything like that before. He identified the photo, exhibit 30 as that of Brother Sado.

Ms Stewart attacked the credit of Kibo for that his involvement in the killing may have caused him to invent his story to protect himself from prosecution.

Ms Stewart pointed to the witness Kibo’s denials that he was a member of the GLF despite his presence in the location where GLF held sway; his particular tasks in the area for the GLF described by Owen Isa and Geddily Isa and that Harold Keke, the Commander of the GLF marked him as a member when giving evidence. She said his denials reflected his motivation to conceal his involvement with the GLF for his grave digging must be seen as evidence of his criminal complicity in the death of Brother Sado and thus he had a reason to lie about the involvement of the others to exculpate himself. In those circumstances, it would be unsafe and unsatisfactory to rely on his testimony, given his involvement with the GLF.

I accept that he sought to avoid openly admitting his allegiance with the GLF in that time. I do not accept his testimony should be wholly disregarded (R v Keke CRC 25/2004 per Kabui, J. where he deals with the cultural propensity of Solomon Islands witnesses).

Kibo was named by particular accused as the perpetrator of the killing in evidence on oath in court. The difficulty I have with that is the absence in the particular accused’s earlier records of Kibo as the responsible "boy" who finally killed Brother Sado. Of course that is not determinative of the issue but it does not logically sit with the inculpatory nature of those records of interview to now say that, not only were those statements misunderstood in the sense of the Royal plural (when "we" related to the actions of the group rather than the singular, "I") but that the actor in the group was in fact Kibo. I am satisfied that is too long a bow to draw for Kibo’s name is not registered as one involved in the beating of Brother Sado in those various records, least of all in either of Cawa’s, even though in his second, he says, he knew the boys who did this thing.

Kibo’s evidence on the material part about the beating of Brother Sado on the day he died is wholly consistent with the very story given by Cawa in his first statement to police. I accept Kibo for I accept Cawa’s first statement.

Ms Stewart says that it would be unsafe and unsatisfactory for me to convict on the basis of the confessional material contained in the two records of interview with the investigating officers for a number of reasons. The principle underlying her argument is that the inconsistencies between the two records is so obvious and contradictory, that the court should be chary of accepting any part of the records as to their truthfulness for there is no evidence before the court on which I could make up my mind. I have already said what Mr. Weir suggests I make of the second interview, for it is, even when read slowly, difficult not to conclude Cawa was seeking to resile from his earlier statement. Even allowing for the difficulties in interpretation, and a paucity of English expression, Cawa’s second interview does not seek to clarify or explain but rather may be seen to obfuscate.

Ms Stewart makes the point that Cawa actively asserts that he was not present at the time of Brother Sado’s death. As well, she says Cawa gave conflicting responses to the allegation that he ordered the killing of Brother Sado and in the second interview he vehemently denies the giving of any such order. Cawa’s denials in his various statements must be considered in the light of all the other evidence. Harold Keke saw Cawa as his second in command. He named Pitakaka as a commander operation, "really good in an ambush". Hence was a commander of his area, Geddily Isa was named as a commander. Owen Isa was also named. This came from Mr. Weir’s cross examination, for the examination by Mr. Benn who called him elicited behaviour in the witness box, curious to say the least. I could not frankly find evidence which supported Cawa. But when referring to Seravo, Keke said he was with him from the time the GLF born and about Kibo, a GLF gun man.

Cawa was at Pite, of that there is the evidence of Seravo and Kibo, and to an extent Cawa’s own concessions in his recorded statements. What he denied in effect is being present when Brother Sado was killed.

I do not believe him on that issue. Seravo’s evidence had him beating Brother Sado on the day before. Cawa admits firing warning shots when Brother Sado escaped. Cawa was seen beating Brother Sado on the day he died by Kibo. While Kibo also has Cawa accompanying others with the body of Brother Sado to the grave. The second record of interview may fairly be seen as affecting the credit and does not, in my view reflect a "consciousness of guilt", for the admissions are to be found in the first interview. The second interview I find to be an attempt to cover his frankness in his first interview by his dissimulation. From the tenor of the interview on HMAS Manoura it is apparent Cawa understood the questions for where he felt it necessary he elaborated on his previous answers in a cogent responsive manner. Ms Stewarts argument that the interview because it was "in difficult circumstances, in the absence of a lawyer and without the benefit of a native speaking interpreter"; does not make it inadmissible, but I have read it, nevertheless with care to ensure that answers in fact, can clearly be seen to be responsive to the question. Of course, in some cases, the answers are clearly evasive but evasion cannot be seen as evidence of guilt. (Broadhurst v. The Queen (1964) AC 441). Again, the criticism which Ms. Stewart levels at the record, even if accepted, do not in the circumstances of this operation, cause me to reject the record as unfairly obtained in those circumstances. It is apparent from the evidence of the intervention force that great care was exercised to ensure those taken to Honiara were apprised of the purpose. On the face of his record, Cawa clearly exhibits understanding.

In the first interview he approaches Brother Sado from that of a friend to one who entered territory of the GLF without permission, a trespasser.

Cawa interviewed Brother Sado in "a military way. Brother Sado was put in jail as a prisoner of war. He escaped". Cawa says he fired a warning shot. The record states,

"Q 70 Folau

A Cawa

Q 71 Folau

A. Cawa

Q 72 Folau

A. Cawa

Q 73 Folau

A. Cawa

Q 74 Folau

A. Cawa

Q. Folau

A. Cawa

Q. 75 Folau

A. Cawa

Q. 76 Folau

A. Cawa

Q. 77 Folau

A. Cawa

Q. 78 Folau

Q. 79 Folau

A. Cawa

Q. 80 Folau

A. Cawa

Q. 81 Folau

A. Cawa

Q. 82 Folau

A. Cawa

Q. 83 Folau

Cawa

Q. 84 Folau

A. Cawa

Q. 85 Folau

A. Cawa

Q. 86 Folau

A. Cawa

Q. 87 Folau

A. Cawa

Q. 88. Folau

A. Cawa

Q. 89 Folau

A. Cawa

Did he tell story anything, talk or run?

He run. So I said go hold him up at the spot. So they advance and chase him and then they kill him dead.

Who are they?

My boys.

You tell them to kill him, yeah?

Yeah. Because three warning shots, no response, so sentence to death.

Okay, so it’s your decision, yeah?

Yeah.

You see the boys at the time they kill him?

Huh?

You see the boys at the time they kill him?

No. I just say go and kill him dead, because warning shots is already over and he don’t was to surrender so.

Okay. So at the time they kill him, who are this boys?

Ah, those boys they stay at base where me stay with him.

What is his name?

I think maybe. I a lot of boys. Names I don’t know. It’s a lot.

Oh yeah. Three boys, more?

You mean three boys?

Three boys that kill Francis, I mean Nathaniel, it’s too much?

Too much yeah?

Because we are a lot, yeah. When they are gone, in a group.

So you just given order you just kill him dead?

Yeah.

So he is one Brother. Where is his body at this time?

His body, we bury him at Pite.

Where?

Weather Coast.

Oh, okay. How did they kill him?

Because he.

No. How did he get shot, shot or?

When they catch him (punches fist into hand)

Bang him, year?

Yeah, bang him. Because he weak man. So one, two, three hit. Dead.

Just punch or shoot him?

Just punch.

Out on his head?

No cut him. Just punch. Because he’s nothing, weak man.

Did shoot him with gun?

No shoot him with gun. Three warning shots for him to surrender but he disobey order so he.

Whip him or, whip him with any timber?

No. As far as I receive information, hit him and died.

They recover his body and bury him at Pite?

In village over there. Pite village.

Clearly the actions of Cawa seeking out Kibo to assist with a grave bears out Cawa’s plain intention to have Brother Sado killed if Cawa is to be believed. On this point I accept Kibo’s evidence of the instructions.

Cawa’s reference to Brother Sado as a weak man susceptible to being beaten to death, coupled with Cawa’s reference to the "punching" accords with Kibo’s eye witness account of the beating leading to Brother Sado’s death.

I do not accept Cawa’s implied disassociation from the actual beating. He was seen to beat Brother Sado on the previous day. He was seen to beat B Sado on the day in question. Those acts coupled with the direct "sentence to death" leaves me in no doubt Cawa is guilty as a principal in the first degree.

Ms Swift correctly points out that other considerations need concern me when I look at Carradine Pitakaka for he, unlike the other four accused, did not give an interview to police. He cannot, as Ms. Swift says, be "hoist by his own petard", but still risks the petard of others. Nor did Pitakaka give evidence before me but exercised his right to remain silent.

It is the prosecution case that the witnesses Allen Sarevo and Jeffrey Kibo are material for Sarevo witnessed a savage beating by Pitakaka and the other co-accused (except Geddily Isa who was at Pite) the day before the killing, evidence of a course of conduct when considered with that of Kibo who also witnessed Pitakaka and the others beating Brother Sado on the fatal day.

It is incumbent on the court to be satisfied of the elements necessary for joint enterprise murder where the Crown points to a course of conduct over a period of time for the accused must be shown beyond reasonable doubt, to have contemplated that it was probable that the deliberate beating or acts of the co-accused would intentionally lead to the death or grievous bodily harm of Brother Sado.

Ms Swift says in truth the prosecution case rests on one prosecution witness Jeffrey Kibo. For if the court was to accept the evidence of Sarevo as to the previous beating and Pitakaka’s involvement in that, it is irrelevant to the murder charge. For that beating did not cause Brother Sado’s death and has no evidentiary value in assisting the prosecution case of murder.

Mr. Weir, the prosecutor speaks of the purpose of Allan Sarevo’s evidence as that going to show a course of conduct, the context in which the final beating of Brother Sado must be viewed. For the Crown case is that of a joint enterprise and I think it reasonable to accept that test enunciated by Wood CJ in this jurisdiction.

In "Giorgianni" the court made it clear that the principal in the second degree must actually know that the crime is being committed or will be committed. To that extent, the non accidental presence of the appellant and his acquiescence in or assent to what occurred would not be enough unless it was also made clear that the Crown had to establish that such assent or acquiescence amounted to that degree of encouragement or assistance as would constitute him a principal in the second degree". (In R v. Phan (2001) 53 NSWLR 480, Wood CJ at 487).

The relevance Mr. Weir says, of Sarevo’s evidence was that he knew Pitakaka (and the others); the person they were beating the day before was Brother Sado; Sarevo saw Pitakaka butting (rifle butting), beating and kicking him; and that the GLF lead by Harold Keke controlled Pite. He named and described those others beating Brother Sado on this day, including Cawa. Brother Sado’s hands were tied by rope and he was at the bottom of a vola tree in Pite where the beating took place. He heard Cawa asking Brother Sado "Did the government send you" and Brother Sado said "No. The government didn’t send me I’ve come to see Harold Keke to talk to Harold to make peace. People have suffered".

I’m satisfied Pitakaka was part of the GLF Group about Pite. The GLF had imprisoned Brother Sado. On the day Sarevo saw those beating of Brother Sado, Cawa was interrogating Brother Sado. Pitakaka was a party to the interrogation and beating.

Pitakaka, I am satisfied was at Pite on the night following the beating witnessed by Seravo. His presence was confirmed by Owen Isa’s evidence in court. Owen Isa said whilst he was on sentry duty Brother Sado attempted to escape and after recapture, was told he, Brother Sado, would be killed if he tried to escape again. Brother Sado was put in his prison tree. At about 2 am that same night Owen Isa said Jeffrey Kibo and Pitakaka took over guard duty.

Later that morning he was awaken by shouts that Brother Sado had escaped again. Those he saw running after Brother Sado near the abololo tree were Geddily Isa, Peter Carradine (Pitakaka) Ronny Cawa and Willie Meto (Hence). Owen Isa said he stayed back in the bunker but said-

"That was when I saw every one of them going down, then I thought to myself, after I heard Brother Sado died, "it must be these men who killed him".

Geddily Isa also gave evidence. On the night of Brother Sado’s escape, he also told Brother Sado if he escaped again they would beat him. At about day light he heard shouting coming from the bunker. He saw Jeffrey Kibo and Owen Tino throwing stones on Brother Sado who was lying on his back at the dry river bed.

He saw Hence, Pitakaka and Cawa with plenty of other boys. Cawa was with him at the bunker, while both Pitakaka and Hence were standing about the Vatuloki path at the river bank.

William Hence said in court that he saw Brother Sado at the prison tree on the particular night of his escape. He heard some say to Brother Sado "Don’t run away, if you try to run away we will kill you".

Later he said he returned to Pite in the morning and saw Brother Sado being beaten. He questioned the boys.

"How are we going to kill him dead" to which they replied "he will only like kill him, punch him because he wanted to runaway so that he would learn his lesson".

Whilst he admits punching Brother Sado and using his knee in Brother Sado’s side, Hence says he left the boys punching Brother Sado and went to Vatuloki to make security arrangements.

He did not mention Pitakaka in his evidence in chief, but in cross examination, hen asked about his reference to Pitakaka in his record of interview with the investigating officers, he stated,

"because they (Ronny Cawa and Pitakaka) came first, and he didn’t actually see what they did... because he thought that he didn’t see their involvement in beating that man... because their names were familiar with him, and they came first so he mentioned their names".

On that I am satisfied Pitakaka was present at Pite at the time when Brother Sado was apprehended after escape the 2nd time.

For Kibo was also there and he, too places Pitakaka at Pite about the time of the killing. I accept Kibo’s evidence on that aspect. However Ms Swift correctly points to mere presence as insufficient to prove criminal culpability.

The Crown case is that the latter beating evinced the common purpose to kill Brother Sado. To this end the Crown points to the earlier beating, the fact of Brother Sado’s escape that night and his recapture and the warning common to those who gave evidence (but expressed by Hence where he said in court – "he told the boys (at Vatuloki) that were there – oh, this man is going to die if he wants to escape but if doesn’t want to escape, he will live".

I do not agree with Ms. Swift’s argument, if I have understood her correctly, that this evidence (by the co accused about the warning commonly heard uttered and admitted by some) cannot be used as "evidence against" Pitakaka in the sense of Varley’s case (R v. Varley 75 CR. App. 12 241, CA; Archbold 2003; 8-208) or evidence which supports the prosecution case in a material respect which undermines the defence of the co-accused (Pitakaka).

For the fact of the statements having been make cannot be said to be evidence against Pitakaka (it is not alleged nor was there evidence that it was made by Pitakaka), rather it falls to be decided, in my view, as evidence "which tends to show that an accused had a motive for doing the act alleged or for doing it with the intention asserted by the Crown. When such proof is given it constitutes" a link in the chain of evidence "led to establish the matter in contention" (per Lush J. in R v. Hesson (1878) 14 Cox cc 40 at 44; Ross – Crime – 2nd Edition Law Book (0. 2004 quoted at 642 on evidence of motive from which intent may be inferred – 13 1720).

For this common purpose arose from the expressed understanding that this man is going to die if he wants to escape.

That leaves, however the issues of whether knowledge of the warning to Brother Sado (with its implicit intention to kill) was known to Pitakaka, whether he actually was a party to that final beating and if so whether Pitakaka knew of or was callously indifferent to the resultant death which ensued. For Pitakaka was at Pite, as I have found. Knowledge of the warning against escape was given in evidence by Owen Isa. Geddily Isa says Brother Sado was threatened with a beating if he escaped again. Hence heard some men say to Brother Sado "Don’t run away, if you try to run away we will kill you". Hence came from Vatulaki on the morning of the killing. Ronny Cawa and Pitakaka were already at Pite. (Of course Hence’s statement in his record that Ronny and Pitakaka beat Brother Sado cannot be evidence against either named co-accused). Vatuloki is quite close to Pite. Mr. Weir does not suggest that Pitakaka must be presumed to have been aware of that common threat to Brother Sado after the recapture, at night, but the evidence on which Mr. Weir relies, from Kibo leaves me in no doubt that when Kibo met Ronnice Cawa, Pitakaka, Willie Meto (Hence) Owen and Geddily Isa on his way to Vatuloki to collect the spade on Cawa’s order, to dig a grave while those others were leading Brother Sado down, they were leading Brother Sado to his death. When Kibo came back (it could only have been a short time later) he gave evidence of the co-accused beating Brother Sado. He saw Pitakaka kicking and hitting Brother Sado to the mouth, and describes what the others were doing. I’m further satisfied that Kibo’s fear reflected a realisation that these five co-accused meant real harm to Brother Sado for Brother Sado’s chest was then covered by blood, while blood was coming from his mouth. In the time it took Kibo and the others to excavate sandy soil sufficient to enlarge the grave from knee deep to waist deep, Brother Sado had been killed. His body was brought to the grave by Cawa, Pitakaka, Owen Isa, Geddily Isa and Will Meto (Hence) and some other boys. The body was carried in a canoe for convenience and rolled into the grave. I accept the evidence of Kibo on this.

I’m further satisfied that Pitakaka even were he ignorant of the earlier common statements made about the result of any further escape attempts, must be cognisant of the events unfolding about him on the morning of Brother Sado’s death. For there was no issue over the fact that Brother Sado was outside his prison tree, that he was beaten and as a consequence he died. Why he died may shortly be related to the underlying suggestion running through the evidence, that he was suspected as a spy but that immediate cause was his escape. Pitakaka was described by Harold Keke as Ronny Cawa’s brother. That at the very least, suggests that Keke recognised a close relationship between the two. Cawa had, while Brother Sado was still alive Cawa directed the evacuation of a grave and detailed Kibo to fetch his spade from Vatuloki. Pitakaka was one of the group accompanying Brother Sado to the stony ground near Michael’s house and adjacent to the Vala tree. There he was beaten by Pitakaka and those others as deposed to by Kibo. From that area, the deceased was taken, again by Pitakaka and those others to the grave.

It remains for me to say that I accept the evidence of Kibo on these important points. His story is collaborated by those who gave statements earlier, to the investigating police in the material respect of the beating to death (ignoring the fact that co-accused named Pitakaka as a perpetrator). Kibo’s evidence describes a beating by this co-accused, as he was returning with his spade to the grave site. Whilst no time estimate as such was advanced, the time taken to excavate that additional material from the site may not have been long and Kibo has Pitakaka accompanying the others and the body to the grave. For all these reasons I’m satisfied beyond reasonable doubt that Pitakaka intentionally assaulted Brother Sado with the others well knowing that Brother Sado would suffer death. The intent may be inferred from the latter motive made explicit by Cawa’s behaviour so described by Kibo. Motive, whether the underlying motive to punish Brother Sado as a spy or for escaping is also apparent on the evidence of Kibo.

The earlier part of the trial was taken up to a large extent with laying the foundation to show the relationships underpinning this Guadalcanal Liberation Front. The hierarchical standing of the members was recognised by the AFP officers, especially Officer Stafford who had been in country quite some time. That hierarchy was notorious and was accepted by the various defendants. The titular head, Harold Keke give evidence. It was plain Ronny Cawa was the second in command and while others were designated commanders in the case of Pitakaka it is probably fair to call him a subordinate accomplice of Ronny Cawa. Pitakaka nevertheless has been shown to independently beat Brother Sado for I accept Kibo’s eye witness account of the events of that fateful morning for no evidence has emerged of coercion by Cawa for instance or Pitakaka acting in self defence. Whilst not raised I have addressed the possibility of both defences and reject them.

Of course Ms Swift says I should reject the evidence of Kibo for that it was sufficiently unreliable to give the Court pause and the court could not in the circumstances be satisfied beyond reasonable doubt.

For Kibo didn’t recognise Pitakaka rather identified him in court. His appearance and demeanour in court must raise the possibility of a demonstration of his untruthfulness and fabrication. Further he had the improper motive to fabricate a story against these co-accused for he was a member of the GLF, liable to prosecution for his part in the killing.

(I should say at once, for fear I haven’t made it plain before that I draw no adverse inference from the accused’s silence when invited by police to make comment.).

Again I do not need to ascertain the truth of all the facts raised by the evidence in the trial that are in issue. I need to be satisfied beyond reasonable doubt of the accused’s guilt before I can lawfully convict. I say this, for Ms Swift has been careful to point out that this court "can, without falling into appellable error reject this dock identifications of the accused Carradine". For it is not only that issue but all essential ingredients of the offence which need be proved beyond reasonable doubt. (Harold Keke anors v. Regina Court of Appeal judgment 25 May 2006).

But I must carefully weight the evidence given by Kibo for Ms. Swift suggests a motive for Kibo to lie; that his involvement in this killing may make him liable to prosecution so that blaming others and skilfully skirting about his actual participation are real issues raised by the evidence. It behoves me them, to carefully consider Kibo’s evidence in the light of Ms. Swift’s warnings.

Frankly, I cannot see any real substance in the "identification" issue. The defence case has been to inculpate Kibo to a greater degree which has a concomitant, the very fact of familiarity amongst those at Pite and Vatuloki (only minutes away) as one would expect having heard the circumstances of their living together, others having been driven out. There is nothing in that submission for Kibo knew Pitakaka. That is clear from his evidence and from the surrounding circumstances. His demeanour and that of Allan Sarevo, changed according to the any number of factors not least the fact that the five defendants faced these two accusers for considerable periods of time. Because of factors whether guessed at or quite beyond our comprehension, it has always been an axiom that verifiable facts generally out- weigh panache and demeanour by itself does not necessarily undermine the usefulness of the recitation. In this case where narration of the story is so important I need to be particularly careful to distinguish if possible between meanings and nuances which sometimes can be culturally specific (per Kabui, J. in R. v. Keke anors CRC 25/04) when language can be a barrier to communication. It is clear that Justice Kabui’s attempt to point this out has not been fully understood or appreciated in this court or else where but "understanding" often reflects the position of that person interested in an outcome, and where as in this trial, the outcome reflects high stakes, disputation over the meaning to be drawn from the narration is to be expected. I do warn myself that the narrator (Kibo and Seravo) may well seek to provide the court with what the narrator thinks the Court wants to hear.
So for Kibo Ms. Swift says-

"Any interpretation of this evidence creates a situation where Kibo could have been charged with a serious criminal offence in relation to the death of Brother Sado. Kibo had an intense interest in avoiding criminal prosecution and a clear view of the personal advantage he may gain by ingratiating himself with the authorities who may be able to reward him fort his assistance. It appears from the statements made by the Crown in court, that no prosecutions were intended for Kibo, that Kibo has been successful in this ingratiation"

That is a very high view to take of Kibo’s position. It should be remembered that the background of these villagers is one painted by the earlier witnesses and Harold Keke of a tightly controlled, belief dominated GLF (ironically "human rights" figured large) imbued with a coherent societal meaning, so that it may be said a departure from those tribal characteristics would be apparent. In Kibo’s case, he has narrated in court a story of a beating of Brother Sado on the fatal day very much in accord with that given by those co-accused who spoke to the police. He is of that group who held Brother Sado at Pite so that his story may be said to also exhibit the societal meaning accorded it by these co-accused who spoke to the police. This societal meaning is apparent from Cawa’s 1st record of interview. An out side transgressor, Brother Sado has entered into their territory and suffered the penalty.

Kibo did not, however, waiver from that eye-witness account of what took place, evidence given in chief when he was accused of directly killing Brother Sado by dropping a rock on his chest. He denied it. There was no equivocation.

I accept his eye witness account of these co-accused’s particular involvement in the beating of Brother Sado which must have led to his death. My comments about scrutinising Kibo’s evidence against the background of his involvement with this GLF group equally applies to Seravo’s evidence for he has been shown to have equivocated over matters not fundamental to the issues in question.

On those matters which include of course, the defence criticism of Seravo’s apparent differing accounts, the issue is credit. I have had the benefit of sitting through all the evidence in court. It is thought that a jury is best placed to assess the weight to be given particular witnesses evidence because of that benefit, but in practice where the judge sits alone, it is equally important to give reasons why he has taken a course. As the Court of Appeal says, "no judge would properly convict on any criminal charge if he still nursed any real doubt whether he had came to the correct conclusion". (For an appeal court left with wrestling cold and meagre words, has not the benefit of sitting through the trial). Defence counsels insist neither of these two witnesses should be believed on the material issues surrounding the bearing and those seen to be involved. Again Ms. Swift and all counsel were adamant that the denials in Seravo’s case and the dissembling in Kibo’s case about their part in the GLF greatly undermines their credibility and consequently I need to exercise extreme caution if I were to rely on either of these two witnesses.

To that purpose, the first defendant, Cawa called Allen Bosage to given evidence that Sarevo was his commander. For Bosage who is in custody awaiting trial on GLF related crime, did give that evidence. He was at Ghoraubau at the time, although he did not go to Pite at the time of Brother Sado’s death. He said he lived with Allan Sarevo. This was not put to Allan Servao in cross examination so that it may be this witness, Bosage’s evidence was taken to refute the issue of Seravo’s membership of the GLF. Mr. Weir suggests Mr. Bosge’s assertion that he lived with Allan Seravo should indicate, the doubtful veracity of Bosage’s evidence, altogether. Of course living at Ghoraubau with Allan Seravo has nuances of meaning but, with Allan Seravo’s evidence about accepting orders to go to Pite to fast and pray coupled with the proximity to Cawa the 2nd in charge of the GLF there is little doubt in my mind Allan Seravo was a member of the GLF.

If I accept a positive virtue of loyalty and obedience to the GLF, a theme which runs through the records of interview and Harold Keke’s evidence, then Seravo and to a limited extent Kibo may be said to have evinced a rejection of that precept, by speaking "against" these co-accused in court. Yet their evidence as to the events of the day in question and leading up to that day does not materially differ from the stories affecting Brother Sado given by the co-accused who spoke to the police. The actors were the same, the place was consistent with the evidence of these two and the death followed a beating.

So far then as Seravo is concerned, I accept his eye witness account of the beating at that time preceding the fatal day. I also accept Kibo’s eye witness account for the same reasons as those given earlier.

It remains to address the cause of death, for Dr. Dodd, the forensic pathologist found that ultimately blunt force trauma caused death, from his examination of the skeletal remains exhumed from the grave.

Ms. Swift discusses the Crown suggestion that earlier injuries contributed to the death of Brother Sado for that possibility is too tenuous a link so that the court is left with death ensuing with in some 3-5 minutes of the application of such trauma. The evidence to which she points is that given in cross examination, which follows-

"Just going to cause of death. If I just confirm its your expert opinion that death was the result of perhaps one two three or four...?... to chest area?

So the – and that indicated by the symmetrical nature of the factors around both sides of the ribs?

And that quite conceivable that the injury which lead to death could have been caused by one massive blow to the chest area?

And I think you liken the injury – I think you said the injuries were similar to injuries you seen in car accident?

And but that remain the injuries that are caused by one heavy blow against the steering wheel?

So all of the injuries that led to death could – would have been caused by throwing a large size rock of boulder down on to the chest area?

And how many steps would you say you would have taken if it was caused by stepping on the chest?

So you can state that (sic) if was not the result of individual punchers or kick?

I can imagine several kicks or punchers to separate areas possibly broken one, two ribs but the overall part and is one of chest impression.

This, it was said from one, two or three large blows to the centre of the chest are. After such a blow, the person would only survive for 3 minutes at the maximum.

And how long would death have taken to occur as a result of a massive compression with caused death?

If it was a single event or two or three that it will quickly I would expects a death could be in a moment – several moments or may be a little longer.

And the evidence from the injuries to the skeleton indicates that the massive compression took place in a short period of time?

So it’s clearly not the case that death as a result of verge injuries occurred over the period of 12 hours?

It’s possible several individual ribs might have been broken prior to this incident and isolation potential very survival – possibly could survive as reflectors.

So there couldn’t be individual injuries over a short period of time that caused death?

The argument throughout was that such heavy blunt force trauma required to cause the massive crushing injuries to the chest had not been witnessed by the Crown witness Kibo and those beatings detailed by both Seravo and Kibo improbably caused death.

For Kibo saw Brother Sado walking to the valu tree on the morning of his death. He did not see, as Mr. Weir says "the completion of the beating" for he was beyond sight at the grave. But the implication from the evidence that the Crown seeks to draw is the logical effect of the beatings witnessed led to the death of Brother Sado although that blunt force trauma depicted had not been witnessed by the Crown witnesses. Of course Kibo has been accused of carrying out the stoning which on the doctors evidence could have resulted in the massive injuries, but for the reasons I have given I do not accept those accusations. What is plain from the Crown case is the understanding in the individuals that death would be a probable consequence that morning. In the circumstances, where the rock hypothesis put to the doctor was not the only hypothesis which may have led to the man’s death, this court should not speculate. The facts point to the purposeful beating of Brother Sado, a beating which caused his death. Whether rocks were used or he was stomped, upon the ground would be speculation and unnecessary.

I should say that I am satisfied of the identity of the remains exhumed from the grave site, remains of the late Brother Sado that the grave was identified on information given by Hence to investigating officers and Kibo in court also pointed to the grave site from photographs.

Briefly, the defence case for Owen Isa is that on the evening prior to his death, Sado attempted to escape and was recaptured. Although not directly involved in Sado’s recapture, Isa confronts Sado shortly afterwards at the base of the Abololo tree. Isa slaps Sado once in the face and kicks him once on the leg as a punishment for attempting to escape. Sado is then placed in the prison tree for the night. Isa is on duty at the bunker near the prison tree from 12 – 2 during which time nothing further happens to Sado. At the end of his period of duty Isa goes to sleep in the bunker.

Early the next morning Isa is woken by shouting in the camp. He learns that Sado has again tried to escape. As other GLF members leave the bunker to recapture Sado, Isa remains the bunker on standard "alert" duty. He is not aware of any order to kill Sado and believes Sado will simply be brought back to the prison. It is at this time that Sado is beaten to death, an event in which Isa does not participate and of which he has no knowledge. Sado’s death is the result of a spontaneous beating following a second escape attempt in which Isa is not involved".

In my earlier reasons, more detail was set out, reciting what Owen Isa had said in court.

In his record interview, (at 8, 9, 10, 11 of the transcript, exhibit 26) he says.

"Q 50. Green:

Isa:

Q 51. Green:

Isa:

Q 52. Green:

Isa:

Q 53. Green:

Isa:

Q 54. Green:

Isa:

Green:

Isa:

Green:

Isa:

Q 55. Green:

Isa:

Q 56. Green:

Isa:

Q 57. Green:

Isa:

Q 58. Green:

Isa:

Q 59. Green:

Isa:

Q 60. Green:

Isa:

Q 61. Green:

Isa:

Q 62. Green:

Isa:

Q 63. Green:

Isa:

Q 64. Green:

Isa:

Q 65. Green:

Isa:

Q 66. Green:

Isa:

Q 67. Green:

Isa:

Q 68. Green:

Isa:

Q 69. Green:

Isa:

Q 70. Green:

Isa:

Q 71. Green:

Isa:

Q 72. Green:

Isa:

Q 73. Folau:

Isa:

Q 74. Green:

Isa:

Q 75. Green:

Isa:

Q 76. Green:

Isa:

Q 77. Green:

Isa:

Q 78. Green:

Isa:

Q 79. Folau:

Okay, How may days did you question Sado?

This one day.

One day?

One day, not take a day is take a hour.

Did you, did you beat him?

Yes, we beat him.

How long did he get beaten?

Maybe then when he want to escape all night, so all night we beat them. Then we throw in jail and lock up then on morning. We take them out and beat them then.

Who beat him?

Eliajha, Eliajha.

Eliajha, yes?

With Kali, Kali.

Kal?

Gedi, Gedi.

Your brother?

Yes, with Robert, Robert.

And yourself?

We...no I’m just alert at the time.

You’re the guard?

Hold the gun. Then I let Peter, Peter Carradine.

He beat?

Yes.

Beat him?

With Ronny.

And Ronny beat him?

Yes, with Willie Meto.

Did, who was doing the questioning?

Ah, pardon?

Interrogation who did the interrogation?

Ronny

Alright then what happened after that?

After that we these three finished. Then we beat them. Then we this was off, dead and take them and bury them.

You beat him to death?

Yes.

Did you help beat him to death?

No.

No, you were just a leader?

No, I was just on alert.

Did you help bury Sado?

Yes.

Where was he buried?

Pite

On the beach?

Yes.

Was he wearing his Tasiu clothes?

No, we took out all his cloth and cover him with lavalava.

What is it?

Piece of calico.

Calico?

Calico.

Custom cloth?

Not custom. His own calico. We take it out from his basket then we cut them then we bury them.

So, no clothes?

Yes.

Wrapped in Calico?

Yes.

Did he have his necklace?

No we take it out all his uniform.

All his uniform off?

Take it and we put on the church at Ghorambau.

His possessions are still there?

What?

Are his belongings still in Ghorambau church?

Yes. His stick, walking stick still there".

Mr. Weir concedes the sworn testimony Owen Isa gave in court "details comfortably with his story to police. When interviewed back in September 2003 with one glaring exception; Mr. Kibo has now, some several years later, been added to the list of potential assailants who pursued and beat Brother Sado to death that morning".

Both the earlier statement and the later testimony in court describe his role of being on alert, or sentry while this beating took place. The transcript says, (15 August 2006, pp 56, 57)-

"Now, you’ve said you did duty from 12 till 2 and then you went to sleep in the Banker, (sic) Bunker, and then you woke up early and hear shouting and you saw some boys run down, and when did you them run down too?

Because everyone was staying at the Banker (sic) Bunker so when there were shouts every one of them rand down – ran down to stream where there is dry water.

If you stayed at the Banker (sic) Bunker you can see them when they ran out but there is a slight bent there.

So, when you were in the Banker (sic) Bunker and you saw all the boys running, did you know what was happening?

Yes, I only shouts and they said there’s "Brother Sado" and they said to, "Hold him, hold him?"

That, I didn’t hear any order to kill Brother Sado except what I heard Ronny Cawa said that "To hold Brother Sado as a Prison of War".

At the conclusion of his examination in chief, Isa is asked what he thought would happen to Sado when he was caught following his second attempt to escape [17/8/06, 1470-1480D42, p3]:-

"I thought they would bring him back to the prison. I did not think that they will kill him".

Owen Isa was carefully questioned about his earlier record of interview, particularly the sentence where he detailed a beating after "these three finished" (Cawa, Pitakaka and Hence) in these terms – "then we beat them, then we this was off dead and take them and bury them." His explanation in relation to the use of the word "we" was to the effect that it was inclusive of all GLF members (Brother Sado had died because of a beating by GLF members) but that he did not actually witness those who beat Brother Sado to death. Nor did he participate in the beating.

Mr. Weir categorises his use of "we" in his interview as "...a desperate and selective use of language in an attempt to minimise or dissociate himself from the beating of Brother Sado in the face of his admissions...".

For in his interview Owen Isa also used "we" when speaking of the events of the preceding night when Brother Sado – "may be then when he want to escape all night, so all night we beat them. Then we thrown in jail and lock up then on morning. We take them out and beat them then".

His court testimony admitted to a slap of Brother Sado on the night he was recaptured and also a threat that Brother Sado would be killed if he tried to escape again. Of course that threat, couched in the phraseology of the personal pronoun (plural) admits of the weakness that his counsel was able to elicit throughout his evidence in chief, that it was equivocal of his direct involvement.

Nevertheless, I am satisfied, for his evidence given of the threat, manifest earlier than the beating which led to Brother Sado’s death, was known to Owen Isa when he awoke that morning to see others running to hold Brother Sado following yet another escape. Whether he made the threat or, as is implied by the continuous emphasis on the inclusive use of "we" in his testimony, it was made by someone else in his hearing, knowledge of the threat may fairly be attributed to Owen Isa. Even where full allowance is given him and he cannot be found to mean, when speaking in answer to Q63/212 of his interview – then we beat them – that he participated (for he later denied beating Brother Sado to death) he was "on alert". In other words he was security to this group of GLF carrying out what, on his own evidence was a beating which led to Brother Sado’s death.

This is not a case where I need consider his earlier interview in the light of his later evidence, whether untruths arise for simply Owen Isa knew of the threat to Brother Sado were he to escape again, and it evinced no surprise when Brother Sado died for as he says, he "though it must be these men who killed him". Those men were GLF.

Notwithstanding reiterating Ronny’s statement "you will hold him as a prisoner of war and not kill him". Owen Isa saw him dead, yet when asked in court, evinced no surprise at the death contrary to the 2ndin- charges injunction, but when asked, said "I felt sorry for him but I can’t say".

It was no accident that he remained on alert while these others pursued and killed Brother Sado. He intended to remain on alert and said so. I’m satisfied that conduct, considered in the light of what preceded earlier that night, is conduct pointing to assisting or abetting principals of the first degree. (R v. Coney (1882) 8 QBD per Cave J). It may be likened to that earlier phraseology of Scottish justices in the 18th century accustomed to tribal and clan feuds, "for there was damnum minatum – a damage or evil turn threatened – and malum secutum – an evil of the very kind predicted shortly afterwards following". (Scott 1815)

(1) (That should not be read to mean other than a reiteration of Owen Isa’s statement and is not admitted to necessarily show that those named persons who ran down killed Brother Sado).

(2) It is for me to decide whether to infer that Owen Isa was a party to carrying out that expressed intention to kill and the degree of probability in this case is high (per Mason CJ at para. 16 – Walton v. The Queen [1989] HCA 9; (1989) 166 CLR 283 quoting with approval Jessel MR’s ratio in Sugden v. Lord St. Leonards Case)

It remains for me to deal with the various records of interview given by the Defendants (except Pitakaka) in the light of all the evidence and determine whether in all fairness, they should remain in evidence. As I have said, Cawa’s admissions were made in context of his role as Harold Keke’s lieutenant in the GLF. The Court of Appeal dealt with appropriate considerations when dealing with this particular record of interview which had come before Kabui J. in a previous trial (Harold Keke anors v. Regina Criminal Appeal 8, 9 & 11 of 2005; judgment dated 25 May 2006).

In the exercise of my discretion, I admitted the record on the trial and satisfied that no good reason has arisen in the course or conduct of the trial to warrant reconsideration of that decision.

The same is said for those other records amounting to confessional statements of the other defendants.

Mrs. Pasikala – Fa’asau also criticises both the evidence of Sarevo and Kibo as unreliable. I have dealt with their evidence elsewhere but take this opportunity to say that a court of first instance should be careful not to allow responses by the individual co-defendants whether to counsel’s objections, or witnesses evidence, to cloud the courts responsibility to judge the issues on the evidence, and to ignore the emotion sometimes engendered in the court proceedings. This is especially so where, in this trial some four defence counsel and the principal prosecutor bring to the court Australian attitudes of robust debate which are not necessarily understood in the context of Melanesian behaviour, and which left me short on more than one occasion. But nevertheless, I have put that from my mind when approaching the evidence.

It was argued that Geddily Isa’s record of interview should not be taken at face value, for he has given plausible explanation in court for the apparent inculpatory material.

As argued this court must decide on the particular facts found in each case, not put "a blanket reliance on Justice Kabui’s observation in Cawa’s case". I have careful regard to that and am satisfied that the information given police at the Iron Bottom Sound on 3 October 2003 clearly inculpated Geddily Isa in this killing and amounted to an admission.

His explanation given in court for not pointing to Jeffrey Kibo or Owen Tino as those throwing rocks was that he had forgotten their names. At trial he named Jeffrey Kibo, Owen Tino, Amoni, Elijah and Kali. At the time of the police interview he was specifically asked about those involved. He did not mention Kibo and he did not say that he saw any boys throwing rocks, after which Brother Sado appeared dead. The interview was held closer to the event and I am satisfied reflected Geddily Isa’s recollection at that time. It was given spontaneously and the answers did not include any detail of Kibo stoning Brother Sado, detail which one might think would have been given police at the time, (even without the boys name) for it is to an extent exculpatory and something which one might expect would remain in his mind had Geddily Isa witnessed it.

Kibo’s evidence satisfies me that Brother Sado was seen alive whilst undergoing a beating while Kibo went on to the grave site. Brother Sado was delivered shortly afterwards, dead. The Crown seeks to imply that those seen beating Brother Sado were responsible for beating him to death. On the evidence that I have heard and seen, I am so satisfied. There is nothing in Geddily Isa’s evidence in his interview which distances him from that final beating. I do not accept his later evidence in court which seek to lay the blame for that final beating on persons not mentioned earlier. In his testimony in court, whilst describing standing watching Kibo and Tino dropping stones on Brother Sado, he said he had heard a commotion and ran towards the abalolo tree where the stoning took place. Yet that evidence is in contrast to the greater part before the court where a series of events led to the eventual death. It also may be contrasted to that earlier recollection given by Geddily Isa to the police. The "detail" to which counsel refers as throwing light on the bare facts of the earlier record of interview is quite a different explanation which relies for its veracity not on the basis of his earlier record but on my disbelief of Kibo’s evidence. I have explained why I prefer Kibo’s evidence on the material fact of those seen beating Brother Sado.

Of course Geddily Isa only admits to striking Brother Sado on the arm on an earlier escape attempt but I accept Kibo’s description of Geddily Isa’s actual involvement in that final beating. His knowledge of an intention to kill Brother Sado was made plain by his answer in court, when asked to recollect various questions and answers by police officer O’shea about Ronny Cawa’s order to kill Brother Sado.

He said "That which I said Ronny gave us the order. I did not hear it in my own ears. Why I said I heard it is because I heard it from others who said it to me. That’s why I said I hear it"

I need not find who told him, but I am satisfied Geddily Isa has reasonable belief to accept that an order to kill Brother Sado had been given. He was aware of it, and was a party by his actions. Malice aforethought, as with those others I have dealt with is exhibited for that Geddily Isa on his own part and those others for their part, had that fore knowledge that the acts of beating Brother Sado on this morning would probably lead to his death or at the very least grievous bodily harm. He is party to the joint enterprises as a principal in the first degree.

Verdict: Cawa guilty of murder
Hence guilty of murder
Pitakaka guilty of murder
Owen Isa guilty of murder
Geddily Isa guilty of murder

But if thou shouldst be dragg’d in
scorn
To yonder ignominious tree
Thou shall not want one faithful
friend
To share the cruel fates’ decree
(Shenstone)

High Court of Solomon Islands

Regina v Cawa [2007] SBHC 6; HSCI-CRC 315, 329 of 2004 (15 March 2007)