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High Court of Solomon Islands |
IN THE HIGH COURT OF SOLOMON ISLANDS
Criminal Case No. 329 of 2005
REGINA
v
GILLIET TAFILANGA SENIOR,
FELIX DAOKALI AND HARRISON UBUNI
Date of Hearing: 2 May – 3rd May 2007, 7th May 2007, 9th May – 11th
May 2007, 14th May – 17th May 2007, 22nd May – 25th
2007, 29th May – 31st May 2007, 1st June 2007, 14th
June 2007, 20th June 2007, 22nd June 2007.
Date of Judgment: 11th September 2007
For Crown: Mr Malaki Unagui & Mr Ricky Iomea
First Accused: Ms Gabrielle Brown
Second Accused: Ms Miriam Lidimani
Third Accused: Mr Heath Barklay
JUDGMENT
1. FAUKONA J: The three accused, Gilliet Tafilanga (Senior), ("A1"), Felix Daokali ("A2"), and Harrison Ubuni ("A3") have been jointly charge for murder contrary to section 200 of the Penal Code. That on the 19th day of February 2005, at Kwaimanafu bridge, Central Kwara’ae, Malaita Province, did murder Robert Augwata, also known as Robert Folo’ota.
2. By virtue of Section 21(a) of the Penal Code the first accused Gilliet Tafilanga senior (A1) is charged as a principal offender, and by subsection (c), the second accused, Felix Daokali (A2) and the third accused, Harrison Ubuni (A3) are charged for murder as aiders or abettors, principals in the second degree.
Law on Murder
3. The offence of murder is define in Section 200 of the Penal.
"Any person who of malice aforethought causes the death of another person by any unlawful act or omission, is guilty of murder and shall be sentenced to imprisonment for life.
4. Section 21 of the Penal Code,
"When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it, that is to say
(a). every person who actually does the act or makes the omission which constitutes the offence;
(b)...............................................................................................................................................................................................................................................................
(c) every person who aids or abets another person is committing the offence;
(d)....................................................................................................................................................................................................................................................................................................................................................................
5. The offence of murder comprises of two crucial elements. They also form the issues before this Court. That each of the accused has resort to an unlawful act which led to the death of the deceased; and secondly, that of a malice aforethought. The prosecution must prove beyond reasonable doubt that each accused had the necessary intent (malice aforethought) to commit murder. The standard of prove as set out by law, in a criminal case, is of a high degree. The Court must be satisfied, on the prosecution evidence, beyond reasonable doubt; should there be doubt, though minimal, each accused should have the benefit of doubt and acquittal should be entered.
6. Malice aforethought is defined in Section 202 of the Penal Code as follows:
"Malice aforethought may be expressed or implied and express malice be deemed to be established by evidence proving either of the following status of mind preceding or co-existing with the act or omission by which death is caused, and it may exist where the act is unpremeditated:-
(a). an intention to cause the death of or grievous bodily harm to any person whether such person is the person actually killed or not; or
(b). Knowledge that the act which caused 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".
7. The prosecution is required to prove beyond reasonable doubt:
(a) that the accuseds intended to kill (cause death) or intended to cause serious harm (grievous bodily harm); or
(b) that they knew that death was a probable result, or knew that grievous bodily harm will likely be a result.
Law on aiding and abetting
8. The accused Felix Daokali (A2) and Harrison Ubuni (A3) were charged for Murder contrary to Section 200 of the Penal Code. By virtue of Section 21 (C) of the Penal Code, they were aiders or abettors; principals in the second degree.
11. Definitions
Aid: The ordinary meaning of aid is to give help, support or assistance.
Ross on Crime, 3rd Edition (2007)
Abet: A common dictionary meaning of abetting is "encouraging" or "countenancing"; and this is to be remembered when the words aiding or abetting alone are used.
Ross on Crime, 3rd Edition (2007)
Abet: Means: incite, instigate or encourage.
Ross on Crime, 3rd Edition (2007)
12. In Longmans Dictionary of Contemporary English 13th Impression 1991, the word aid mean to give support or help; and abet is to encourage or give help.
13. In the Case of Ligabatu v R (2006) SMCA 19; CA-CRAC 002 of 2006 (23 November 2006) the Solomon Islands Court of Appeal stated on page 7, paragraph 3, defining the two words;-
"Aiding or abetting in the context means helping or assisting the primary offender or participant William Amalo to commit the offence, in this case the murder of Brian Majaposo".
14. In the case of R v Ronny Oeta & Allen Maelalia (unreported) HC59-CRC 173 of 2003, His Lordship Palmer CJ referred to R v Alfred Maetia and Newton Misi (unreported) HC58 – CRC No. 42 of 1992 in which Muria ACJ as he then was, points out at page 7 that:
"The two provisions (Sections 21 and 22 of the Penal Code) clearly require to be proved, the presence and participation y the accused in the commission of the alleged offences".
15. From that paragraph alone there are two elements to be proved; one is the presence of the accused, and two, the participation by the accused in committing the offence of murder.
16. His Lordship at paragraph 5, page 3 quote from R v Allan, Ballantyne and Moon (1965) 47 Cr App R243 which Edmond Davis J delivered the judgment of the Court at pages 246 – 250 citing the case of Coney (1882) 7QBD 534 said,
"Now it is a general rule in the case of principals in the second degree that there must be participation in the act, and that, although a man is present whilst a felony is being committed, if he takes no part in it, and does not act in concert with those who commit it, he will not be principal in the second degree merely because he does not endeavour to prevent the felony, or apprehend the felon."
17. In the second case referred to, confirm actual participation by the accused, by taking part in the act, in concert with the first principal, even though he has failed to prevent the offence being committed, or apprehend the culprit, he is not a principal in the second degree. In this case participation is further expounded to include actual taking part in concert with first principal.
18. In Ronny Oeta and Allen Maelalia (supra), His Lordship also cited on page 4 para 5; by quoting fromn page 8 of R v Alfred Maetia and Newton Misi above, Muria ACJ states:
"The general principle of law is that a criminal offence may be subject of aiding and abetting provided the person accused of aiding and abetting know the facts constituting the principal offence and actively assists and encourages the principal offender."
19. Another element is added here that is encouragement. This is in addition to being taking part and actively assisting the principal offender.
20. His Lordship Palmer CJ also in the same case on page 4 para 6 referred to Johnson v Youden (1950) 1KB 544 and quote from page 546 – 547.
"Before a person can be convicted of aiding and abetting the commission of an offence, he must be at least know the essential matters which constitute the offence. He need not actually know that an offence has been committed, because he may not know that the facts constitutes an offence and ignorance of the Law is not a defence. If a person knows all the facts and is assisting another person to do certain things, and it turns out that the doing of those things constitute an offence, the person who is assisting is guilty of aiding and abetting the offence, because to allow him to say, I know of all those facts but I did not know that an offence was committed, would be allowing him to set up ignorance of the Law as a defence."
21. Another element is added in this particular case and that a person aiding or abetting the principal offender must know the essential or necessary matters or facts which constitute the offence.
22. In R v Gray (1977) R Cr App R244 at 246, Lord Reading CJ, (quote from Criminal Law of Solomon Islands, page 412 para 5) said:
"It is not necessary that man, to be guilty of murder, should actually have taken part in a physical act in connection with the crime. If he
has participated in the crime, that is to say, if he is a confederate –he is guilty, although had no hand in striking the fatal blow. It must be borne in mind that the mere fact of standing by when the act is
committed is not sufficient. A man to become amenable to the Law, must take such part in the commission of the crime as must be the result of the concerted design to commit the offence."
"The authorities clearly show that for a person to have aided and abetting the commission of an offence, there must be established that he is present (actual or constructive); that he knows the facts necessary to constitute the offence, and that he is actively encouraging or in some ways assisting the other person in the commission of the offence."
24. From those authorities cited, the elements which has to be proved are as follows:
1. Both accused were present (actual or constructive).
2. There was a concerted design to commit the offence, or knowledge of the facts constituting the offence, that is, it must be shown both accused know what the principal was doing.
3. There must be participation in some form, by encouraging in one form or another, and that is both the accused intended to encourage and willfully encourage the commission of the crime, actively assisting and encouraging the commission of offence; that they are confederate and not merely spectators.
The Prosecution Case
25. The accused are charged together on one count of murder contrary to Section 200 of the Penal Code. The Crown alleges that on the 19th February 2005, these accuseds, together with others, gathered at Kwaimanafu bridge, Central Kwara’ae in Malaita Province. The purpose of the gathering was for the accused, Gilliet Tafilanga (senior) to demand compensation from the deceased and his relatives.
26. At this gathering, the accused Tafilanga (Senior) (A1) was armed with a small axe and a sling; the accused Felix Daokali (A2) was armed with a bush knife; and the accused Harrison Ubuni (A3) was armed with a war club, alafolo.
27. Whilst gathered at the bridge the accuseds shouted certain insulting words aimed at the deceased, Robert Augwate and challenged the deceased to come and fight with them.
28. When the deceased approached them at the bridge, a physical confrontation ensued between the deceased and the accused, Felix Daokali, assisted by the accused, Harrison Ubuni. During this confrontation the accused, Gilliet Tafilanga (Senior), fatally cut the deceased with an axe on the right chest. The Crown alleges that, that axe wound caused the death of the deceased.
29. The accused Gilliet Tafilanga (Senior) is charged for murder as the person who actually caused the death of the deceased. He is a principal offender by virtue of Section 21(a) of the Penal Code.
30. The accused, Felix Daokali and Harrison Ubuni are charged for murder as aidors and abettors and are principle offenders by virtue of Section 21(c) of the Penal Code.
The Defence Case:
First Accused (A1)
31. The first accused Tafilanga Senior (A1) denied being armed with an axe. He denied having any motive to kill or cause grievous bodily harm to the deceased or any particular person. He has maintain his innocence from his record of interview and his dock statement.
32. He says the fight started with the deceased approaching the group and straight away attacking (A2) with his hook-knife. He was also hit and cut by the deceased with his hook-knife twice. He also says that stones were thrown by the deceased’s group and Tafilanga junior sustain injuries as a result of that.
33. He says the deceased head towards him and the deceased attacked him with the hook-knife on his arm and then again on his head. Others also coming towards him and he fended off the deceased after the second cut from the hook-knife. He had no intention to attack or to kill or to cause grievous bodily harm.
34. When he was warding off further attacks by the deceased, Alick and Jimmy came towards him. Alick approached from behind and raised a tomahawk to him. As he pushed the deceased’s hook-knife away and ducked. Alick must have struck the deceased. There is possibility Alick Anofo’oa inflicting the blow as he aimed at Tafilanga Senior; or if it was Tafilanga, he did it in self defence or he lacked the requirement to kill or do grievous bodily harm.
Second Accused (A2)
35. On Saturday, 19th February 2005, the second accused, Felix Daokali (A2), and the first accused Tafilanga Senior (A1), left Namorako village and went for a walk down onto the main road and to the Kwaimanafo bridge.
36. When they reached the main road they detoured and walked down to the Kwaimanafo bridge in search of some betel nut. Along the road towards Auki direction, they heard laughing and noises coming from the bridge and decided to go and find out who was at the bridge. The bridge was a venue for young boys to gather and meet, eat betel nut, smoke and tell stories during the evenings of weekends when the vehicles ceased traveling on the bridge.
37. Whilst on the main road the first accused (A1) and the second accused, (A2) met Robert Pama (PW6), Jmmy Anofo’oa (PW11) and Richard Oromae (PW9)). They were traveling back to Kilungwasa village. A few minutes later two brothers, Hickson Afia (PW10) and Festus Hatari (PW3) came upon the two accused. The two brothers were on their way to Talakali to catch a boat to Honiara.
38. After the two brothers left, the two accused walked on until they came to the bridge. At the bridge there were young boys laughing, making noises, shouting and yelling jokes. The third accused, Harrison Ubuni (A3), was amongst the other boys at the bridge.
39. The second accused (A2) had his shirt off and thrown over his shoulder. He took a knife from where the boys were sitting to cut his home tobacco. He went three to four meters onto the bridge on the sea side of the bridge, sat down and cut his tobacco. The first accused was standing at the entrance of the bridge. By then Fuana and his two sons, arrived from the southern direction and briefly spoke with the first accused (A1).
40. The second accused, Mr Daokali (A2) called Jonathan Manu {PW7)who arrived with his father, Fuana, to go to him onto the bridge. During a brief conversation with Mr Manu, the second accused heard Mr Manu shouted out "daddy, it’s only me, you cut me". Screams came from where the boys were at the southern end of the bridge. The deceased had approached and attacked Mr Daokali, with his hook-knife and cut the second accused, Mr Daokali, on his left wrist and shoulder top (left arm). The second accused then grabbed Manu in an attempt to sway them both away but everything happen so fast, that this did not eventuate. After he was cut, the second accused then moved towards the southern end of he bridge and escaped to Namorako village. The second accused did not use the knife on the deceased, but if he did, it would be in self-defence from an assailant. A2 denied armed with a bushknife. He denied throwing stones at PW6 and PW11 when they escaped.
41. The second accused denied throwing a stone at Mr Hatari that night. The accused admitted meeting them but in a friendly and peaceful manner. He also denied picking up the bushknife he used to cut his tobacco and denied using it to cut the deceased leg.
Third Accused (A3)
42. On the evening of 19th February 2005, this accused, Mr Ubuni (A3), was at the Kwaimanafo bridge with others. Following the prosecution version that there were challenges to a fight, swearing, aggressive loud behaviour, the deceased then approached the group.
43. This accused denied attacking the deceased at first instance with his war club. He denied starting the fight. If he had done so his name would have been the first on the list when PW1 reported the matter to Police on 25 February 2005. If this accused plays a prominent part of the story his name should not be omitted mentioning to the Police when the report was first lodged. Mr Ubuni (A3) also denied armed with a war club – alafolo.
44. It was the deceased who was the aggressor. He was armed with lethal weapon – a hook-knife. Walked across the bridge, approached the accused and others. He approached with help, real help, an armed men.
45. When the deceased arrived and attacked A2, he ran from the scene, the accused Mr Ubuni (A3) was right behind. A3 then fleeing the scene with A2.
46. The accused (A3) did not know what the principle offender had in mind. He did not know A1 was armed nor he knew there was intention on his part or any one’s part to kill or cause grievous bodily harm to the deceased.
47. He denied taking part in the fight whatsoever – he escaped from the scene and had no knowledge of what anyone else had in mind.
48. He denied aiding or abetting Tafilanga (A1) to murder the deceased, and did not aid or abet a murder.
49. In the alternative should the Court believe the prosecution version, then the starting point is the deceased was the aggressor. He moved towards the group with his hook-knife and started swinging his hook-knife. Being scared and fear the accused swung once with his war club at the deceased who was approaching with a dangerous hook-knife.
The deceased was angry. In self defence he swung at the deceased with a war club once. After one swung, he ran for his life.
50. He did not continue the attack. He did not pursue the deceased while he fought with A1 and A2. He did nothing whatsoever. After one swing he escaped and knew nothing of what had been going on behind. His action was lawful.
Undisputed Facts
or
(b) Air and fluid collection around the right lung compressing the lung tissue until breathing is impossible and death ensues.
52. There is no dispute that all the accused were present at Kwaimanafu bridge on the evening of 19th February 2005. And there is no dispute that when the deceased arrived on the bridge a fight ensured and all the accused were part of the group present on the bridge when the fight started.
53. There is no dispute in regards to the hook-knife, Exhibit 2 used by the deceased during the fight. There is no dispute that one of the bush knives (Exh.6) was in the hands of A2 immediately prior to the fight. He was using it for cutting his tobacco.
54. There is no dispute as to lighting. It was a moonlight evening.
Accused 2 and 3
The Evidence in relation to presence, shouting, swearing and challenging
55. Having said that, I will now move on to assess the evidence whether the actions taken by A2 and A3, and their involvement prior to the incident has been proved.
56. There is no dispute that both accused were present at the Kwaimanafu bridge before and during the incident, on the date in question. I accepted the fact that the bridge is a public infrastructure accessible by public at will; where leisure is shared and fork lore stories were told with laughter and comfort, with smokes and betel nut sharing. However, common sense must come into play, should noises go beyond what community around would reasonably expect is unacceptable. The bridge is 3-1 metres wide according to PW5’s sketch map.
57. Question one may ask is why both accused were there with A1. Did they have a fair knowledge of a plan to execute on the deceased.
58. According to A2’s dock statement A1, 2 and 3 were being together prior to the incident playing cards at the young boy’s lodge at Namorako Village. However there is no evidence to support that that meeting was to discuss the fate of the deceased. I accepted they were merely playing cards.
60. Mr Anafo’oa (PW1) recognized one voice out of others is amazing. He is an old man who lived in the area where all the accused also dwell, and know each other well, yet could not recognize other voices. From where he heard the voices, which is at PW2’s house is close to the bridge. He could easily recognize who shouted, yet he picked one voice and that of A2.
61 I accepted that there were shouting, swearing and challenging words used to intimidate and provoke the deceased. I accepted the evidence that A3 involved in shouting and swearing and may be with others. I could not accept A2 did involve in shouting and swearing and challenging. The reason being PW18 was right on the bridge among all the boys when those words were shouted. He points straight at A3 and Alai. He is a better witness on this issue. He did not mention A2 shouting and swearing at all. I doubt that A2 could have done it.
62. If I were to accept that both A2 and A3 did shout, swear and challenge, is that implicated that both were embarking on an initial stage of a plan to carry out what was in the mind of A1. Had they been awared and had knowledge of the fact of what A1 had in mind to do. There was no evidence of any prior meeting or consultation which A1 had impart in regards to his intentions. There was no evidence to show that there was a plan and A1 was using the boys to initiate his programme of action; and in doing so cause the boys to shout, swear and challenged the deceased.
63. A2 denied in his dock statement having knowledge of what A1 had in mind, if he ever had one. Final submission on behalf of A3 also mentioned A3 had no prior knowledge of what might A1 had in mind. In the absence of evidence to substantiate this issue can the court draw some inferences that could have been the initial step in executing what A1 had in mind. I’m afraid it is not safe to draw any inference. The evidence is merely one from PW18 and no more.
bridge, nothing could have happened. Use of these words are much earlier and cannot be used as aiding and abetting in an incident which happened later.
Actual Involvement
Accused 3:
65. Immediately before the deceased and PW1 arrived on the bridge, three accused and the following boys were present on the bridge in particular at the southern end. The boys are Tafilanga (Junior), Ronny Seda, Alfred Alai, Jonathan Manu, Frank Daukalia, Richard Oromae and Fuana. Richard Oromae have to escape early after noticing something drastic will happen; that the manner in which the deceased approached the boys was likely to cause an episode.
66. As far as Mr Ubuni (A3) is concerned, the prosecution called four witnesses who said to have been present at the time of the incident. They are Jones Anafooa (PW1), Alice Fonaota (PW2), Jonathan Manu (PW7) and Frank Daokalia (PW18).
67. PW1 Mr Anafo’oa stated that he left PW2’s house with the deceased. He was not armed, but the deceased was with his hook-knife. Both men walked to the main road, approached the bridge from the northern end and walked across it towards the accused and the other boys. Upon arriving, the deceased asked A2 why they were shouting and swearing at him. He was actually standing in front of A3. All of a sudden, A3 striked him with his war club (alafolo) at a slight vertical angle. PW7 who was standing close, one metre from the deceased, raised his stick and defended the war club. Fortunate for the deceased the war club did not find its point of contact, but the stick used by PW7 was broken.
68. PW7 confirmed that piece of evidence. Unfortunately for him the war club landed on his hand and his middle finger was fractured.
69. PW2 told the Court that she arrived at the scene later. She did not see the first encounter when A3 strike the deceased with the war club. She stood about 7 -8 metres behind PW1 and the deceased. But she could see A3 with a war club.
70. PW18 who was also present at scene told the Court he was on the bridge with six other boys. They were Tafilanga (Senior, A1), Tafilanga (Junior), Alai, Daokali (A2), Ubuni (A3), Ronny and himself. Whilst on the bridge, A3 challenged the deceased that he will twist his beard and swore at him to eat his shit. When he was shouting he was in possession of a war club.
71. Then Fuana and his two sons arrived. His sons are Jonathan (PW7) and Oromae (PW9). There was a conversation between A1 and Fuana in regards to compensation in which Fuana’s sister failed to give to A1.
72. Not long after that the deceased arrived. On arrival, he attacked A2. When the deceased cut A2, PW18 then escaped to his aunties house.
73. It is apparent, therefore that PW2 and PW18 did not eye witness when A3 strike the deceased with the war club. PW18 only saw A3 with the war club prior to the entire incident and PW2 saw A3 with the war club probably after the alleged strike. It would be most proper to brush aside their evidence, particularly in relation to A3’s involvement.
74. What credibility would I then give to PW1 and PW7 and how credible are their evidence. PW1, Mr Joses reported the incident to Police (Auki) the day after the killing, that is on 20th February, 2005. The Police Officer who recorded the report on Police Daily Diary record book is Timothy Apesi (Dw1). The names of the suspect supplied by PW1 were, Gilly Tafilanga (Senior, A1), Gilly Tafilanga (Junior), Felix Daokali (A2) and Ronny Seda. The name of A3 was not mentioned as suspect. However, A3’s name was mentioned in PW1’s statement given to Police four days later on 24 February 2005, also in Court. Mr Apesi’s (DW1) confirmed in Court that when PW1 reported the incident the only names PW1 supplied were the names above and Ubuni’s name was not mentioned.
75. If A3 did start the fight how could PW1 missed his name. He should be the first on the list of suspects. It may be an initial report to prompt investigations and its up to the investigators to do more thorough investigation to find out who were the suspects. It may have been the practice in investigative process but a person who stands out clear to have started the entire episode should be the first to be noted and reported. Did PW1 forgot. If he was close to the deceased and the accused, with the assistance of moonlight as he stated; A3 should not be forgotten. He should be the first suspect reported to Police. A3 comes from the same area as PW1 - his name should not be omitted or forgotten by PW1.
76. Why should this be then? The only option is that PW1 did not see him do anything. I have reminded myself that this is a clash between two families who have not been in good terms previously, right up to the time of the incident. An interval of four days before PW1 stated in his statement to Police and mentioned A3’s name. There was sufficient time to talk over and discuss things before giving statements to Police.
77. In the light of that, I must disregard PW1’s evidence in relation to A3’s involvement.
78. Now we left with PW7. This witness’ brief evidence in Court in regards to A3’s involvement as stated above. When cross-examined by Ms Brown in regards to his statement recorded by Police on 24/2/05, in particular in relation to the fact that when the deceased arrived at the scene, he attacked A2 and the fight started. PW7 said that statement was a typing error. Further cross-examination that followed, the witness denied giving any statement to Police. He denied the Police ever read his statement back to him. He denied signing the statement. He told the Court that his signature on his statement was forged. The Police has made it up. He only saw his statement three weeks ago before called upon to give evidence in Court.
79. Police Officer, Wilson Auga (PW16), who recorded the witness’ statement was called, he confirmed that he recorded all that the witness had said. Read what he wrote back to him, he seems to understand and then signed. Part of the statement recorded by Police was tendered to Court by the Police Officer as an exhibit "Def Exhibit 1".
80. I have read the part of the statement that was tendered as Exhibit. It truly reflected that the deceased started off the fight by attacking A2 on arrival. It was later, that A3 attacked the deceased, and not as the witness stated in this Court.
81. The wild changes of evidence by PW7 cannot be reconciled by this Court. He seemed to blame the Police Officer for everything. Changes of evidence is dangerous and this Court cannot rely on it. He is not a credible witness at all and this Court cannot rely on him.
82. Upon evidence alone, I find the prosecution has not prove the case against A3 beyond reasonable doubt.
83. If I would accept the prosecution’s version that A3 did one single strike on the deceased, would that act alone amount to aiding or abetting? PW7 in evidence said after A3 strike the deceased with his war club, he moved out and escaped. If A3 escaped after the strike whatever happened later would definitely be in his absence. He had left the scene already. Therefore he cannot be aiding or abetting the principle offender by encouraging, assisting in any physical manner or confederated with him to kill the deceased.
84. I find there is no evidence against A3 and find him not guilty of murder and acquit him accordingly.
Involvement of Accused 2 (Felix Daokalia)
85. This accused was alleged to have accompanied the other two accused, together with the other boys and were present at the Kwaimanafu bridge prior and during the incident which alleged to have occurred on 19th February 2005.
86. Before the incident on the bridge PW6, PW9 and PW11 left Ruu Village intended to go to Kilungwasa Village, the home of PW1 to visit him. They were following the main road and were walking in the northerly direction.
87. Just opposite Hikisi’s house they met A2 and A1. All of them said upon seeing A2 and A1 they escaped. They were afraid because A2 was armed with a bush knife and A1 was armed with an axe. PW9 escaped back home from where they came from and PW6 and 11 escaped to PW1’s house. Whilst they were running away A2 and A1 threw stones at them. There was no mention of throwing of any stones by PW9 because he escaped back but PW6 and 11 said A2 and A1 threw stones at them whilst escaping in a northward direction crossing Kwaimanafu river. All witnesses saw A2 armed with a bush knife.
88. Little later PW3 and his brother Hickson Afia (PW10) left Hickson’s house and intended to travel to Talakali Village. To get to Talakali they have to cross the Kwaimanafu bridge. Just as they got onto the main road and started to walk in the northerly direction towards the bridge, they met A2 and A1.
89. According to PW3, as soon as A2 and A1, saw them approaching, A2 threw a stone at him and landed on his upper chest. This was witnessed by PW10 and 18. PW3 then picked up the very stone and put it in the pocket of his short. PW18 did not see A2 armed with a bushknife at that time.
90. These incidents attempted to reflect two things. One, that the atmosphere did not appear to be peaceful and some act of violence had already immerged foretelling that more probably coming. Not only that, it also implicated that A2 had already been seen vicious and likely he might involve in something more serious.
91. After PW9 escaped to Ru’u Village he returned with his father and brother, Jonathan Manu (PW7) onto the main road again. He did relay what happened earlier to his brother (PW7) and father so they returned. As they approached the bridge they were blocked by A2 and A1 and A1 was demanding money for compensation. PW9 said that he also saw A3 on the bridge, and they wanted to fight them. A2 approached them with a knife.
92. According to PW7 as soon as they met A2 and A1, A1 approached them and talked to his father in regards to $200 compensation. Not long after A2 grabbed PW7’s shirt by the neck/collar and pulled him up. A2 was silent then. He did not say anything.
93. Not long after the deceased arrived and PW7 called out for him. At the same time A2 released his hand.
94. The deceased asked why they were swearing, but A2 did not reply. At the same time A3 strike the deceased with a war club and the fight started.
95. While standing and watching PW7 saw A2 cut the deceased’s leg with his bush knife, then the deceased retaliated and hooked A2’s hand with his hook knife and A2’s knife and shirt fell off. Then A2 moved to where A1 was standing and A1 got his axe and cut the deceased’s chest.
96. PW9 left the scene as soon as the deceased arrived. He did not see whatever happened after. PW18 also saw A2 with a bush knife before the incident.
97 PW1 who was right behind the deceased said that after A3 hit the deceased with his war club, A2 cut the deceased’s right leg with his bushknife. At the same time the deceased swang his hook knife and cut A2’s right arm and his bush-knife fell off.
98. PW2 who was about 7-8 metres behind PW1 and the deceased told the court that she was yet to arrive at the scene when the episode
started. On arrival she saw the deceased swayed his knife at A2. At the same
time she saw A1 got up very instantly and cut the right chest of the deceased. She did not mention that A2 cut the deceased leg with
a bush knife in examination in chief.
99. From the evidence four prosecution witnesses saw A2 armed with a bushknife before the incident. They are PW3, 6, 9 and 11. The prosecution witness (PW7) did not mention prior possession of a bush knife by A2 even during and after he was grabbed by the neck by A2. However, later he saw A2 cut the deceased’s leg with a bush knife.
100. PW18 had never seen A2 with a bushknife prior and even during the fight. He said as soon as the deceased arrived and cut A2, at the same time he escaped.
101. PW1, PW2, PW6, PW7, and PW11 are prosecution witnesses who saw the accused (A2) cut the deceased leg with a bush knife.
102. How credible are their evidence. PW2 did not state in examination in chief that A2 cut the deceased leg with a bush knife. She said when asked by Ms Brown during cross-examination that the deceased swayed his hookknife at A2 as a retaliation. She did not mention what sort of retaliation, and for what. When cross examined by Mr Barklay she said A2 first cut the deceased leg before the deceased retaliated. One wonders why such an important piece of evidence not at a first instance coming from the examination in chief. If defence counsel never bother to ask such question this witness will be silent on a very important issue in regards to the actual involvement of A2. From that perspective, evidence of PW2 is doubtful.
103. PW7 cannot be relied on in this issue. When he was cross examined by Ms Brown in relation to his statement given to Police on 24/7/05, which he said that as soon as the deceased arrived at the scene, he attacked A2 and the fight started. PW7 said in court that the statement is a typing error. Its an important issue in A2’s case. As I have said earlier, the witness denial of making a statement, and deny police ever read his statement back to him and told the court that his signature on the statement was forged by police, or that the police make it up. That he only saw his statement three weeks ago before giving evidence. His evidence is so discredited with wild changes. This court cannot rely on him.
104. PW16 a police officer who recorded PW7’s statement confirmed to court that he recorded all that the witness had to say. He read back what he wrote to the witness and explained and understood. PW7 agreed and then he signed.
105. The evidence of PW16 down size the evidence of PW7 to a level of unreliability. His wild changes of evidence cannot be accepted by this court.
106. This court is left with the evidence of PW1, PW6 and PW11. And I tend to belief their versions. A bushknife was within the reach of A2 when the deceased arrived on the scene. There is no doubt his accessibility to the knife is more evident. I do not belief that he left it on the floor of the bridge when the deceased arrived. Therefore the use of the bush knife by A2 is more probable than not.
107. The question to be asked is, did he use the bushknife to cut the deceased’s leg as to be viewed as assisting and abetting the principle offender to cause grievous bodily harm or kill the deceased, or that he used it to defend himself from the aggressiveness by the deceased.
108. In view of the evidence on the entire incident there were isolated fights. It is a one on one fight. There is no concerted act in which A2 could be seen as assisting the principal offender, or acted in a manner making it possible for the principal to have an open chance to inflict the fatal blow. No confederation shown by evidence. No encouragement is also shown by evidence. No assistance shown by evidence.
109. There is also no any evidence to show that A2 is doing what he did, acknowledging the fact that he knew or having prior knowledge of what the principal offender intended to do. The only evidence that suggest that A2 and A1 were together prior to incident was when both walked from Namorako Village to the main road. Its coming from A2 dock statement. Any prior meeting so that A2 could play the role he did according to any prior knowledge of the principal offenders intention is not available to this court.
110. I am convinced by the evidence of PW1 when cross examined by the court in which he said as follows:
Q. Before Ubuni (A3) attacked with the alafolo, did you hear him mention anything to A1 or A2?
A. I did not hear anything.
Q. Before A2 attacked the deceased did he say anything?
A. No.
Q. When he (A2) moved out did he say anything to A1?
A. No.
Q. So it was a silent fight?
A. That is a true thing.
Q. You didn’t hear anything like "killim man ia, kilim man ia?
A. No.
Q. Did you see at anytime, two of the three accused at any time or all of them attacked Robert at the same time?
A. Ubuni came first, Daukali second and then Tafilanga last.
Q. What I mean by "kabanim" or in company, is whether any two or three of them attacked Robert at one time together?
A. No.
111. It is clear therefore that there is no encouragement or assistance or acted in concert by A2 to suggest A2 or even A3 aided or abetted the principal offender to cause grievous harm or kill the deceased. I find the prosecution has not proved its case and satisfied the court beyond reasonable doubt. Therefore find A2 is not guilty of murder.
112. Having found A2 not guilty and acquit him accordingly. I need not venture into considering the issue of self-defence.
Case of Accused 1 (Gillet Tafilanga)
113. The accused Gillet Tafilanga was charged for murder as the principal offender by virtue of Section 21 (a) of the Penal Code. The prosecution alleged that he was the one who fatally cut the deceased with his axe on the chest. The axe wound was the cause of the death of the deceased. The prosecution has to prove the two major elements mentioned on page 3 of this judgment beyond reasonable doubt.
114. The medical report stated that the deceased died as a result of a chest injury measured at 7.5 centimeters long and 6.8 centimeters in depth. The report said that the injury would have caused a massive blood loss leading to hypovolaemic shock and death, or air and fluid collection around the right lung compressing the lung tissue until breathing is impossible and death ensues.
115. The accused denied in possession of an axe prior, during or after the incident. He denied inflicting the fatal wound that caused the death of the deceased. He admitted in possession of a catapole the evening of the incident, and that was merely to shoot flying foxes.
116. In all criminal cases the defence has nothing to prove, unless otherwise directed by law. However the prosecution has a legal duty to prove its case beyond all reasonable doubt. The onus is on the prosecution.
117. The issue is what actually happened on the bridge that cause the wound which the deceased subsequently died of. In this case the prosecution adduced evidence through eighteen prosecution witnesses. Seven of them according to their evidence were present on the Kwaimanafu bridge, the very spot of the scene, prior and during the course of the incident. Those witnesses are PW1, 2, 6, 7, 9, 11 and 18.
Events prior to the incident
118. Prior to the incident on the bridge, several prosecution witnesses had seen A1, was armed with an axe. PW3 who was with his brother PW10 met A1 and A2 on the road near his brothers house. He saw A1 was armed with an axe. He describes the axe as with short handle, about one and half feet long. In fact it was a small size axe. He also stated in evidence hearing A1 said, that his axe will be blood stained that evening. That conversation was not heard by anyone else except between themselves. He did not mention anything about a catapole possessed by A1.
119. PW6, 9 and 11 also saw A1 armed with an axe prior to the incident. Their description of the size of the axe are almost similar to that of PW3. PW1 estimated the handle of the axe about one foot long.
120. Beside seeing A1 being armed with an axe PW6 and PW11 saw A1 also armed with a sling or catapole. PW9 did not mention anything about catapole being possessed by A1. The possession of catapole is not an issue as A1 has admitted in court he did in fact in possession of a catapole that evening of incident.
121. From the evidence, A1 was seen with an axe on three different occasions. Each occasion was separated by some interval. First PW3 and his brother PW10 when they met A1 and A2 near the PW10’s house. PW3 saw the accused in possession of an axe. Later PW6, 9 and 11 met A1 and A2 when they saw A1 was in possession of an axe.
122. After the first encounter PW6 escaped home and told his father Mr Fuana and his brother (PW7) to return to the bridge. As soon as they arrived on the bridge they were blocked and an encounter ensued. Immediately soon after the deceased arrived the fight started, and that was when PW7 saw A1 used the axe.
123. On the contrary PW18 was also among the accused men and others, who were also present prior to the incident. In evidence he stated denying A1 being in possession of an axe prior to the incident. He did not see A1 with an axe. He only saw A1 in possession of a catapole. PW10 also did not see A1 armed with an axe. He was accompanied PW3 to travel to Talakali. Both PW3 and PW10 met A1 and A2, but PW10 did not see A1 with an axe.
The Actual Incident
124. During the actual incident there are three prosecution witnesses who testify in court that they witness the actions of A1. The witnesses are PW1, 2 and 7. PW6 and 11 escaped at the first encounter with A1 and A2. Both escaped to PW1’s house. They were not present on the bridge when the actual incident occurred, and so they saw nothing.
125. PW9 escaped the scene as soon as the deceased arrived with his hook knife. He did not see or witness the whole entire incident even at the starting point.
126. PW18 stated in evidence that as soon as the deceased had arrived and attacked A2 by cutting him with his hook knife he escaped. He did not see what else happened behind him. The attack on A2 is just the beginning of the fight. And that was when he escaped. He saw nothing more than just that. He did not see A1 cut the deceased with his axe.
127. This court therefore left with three prosecution witnesses to assess. They are PW1, PW2 and PW7. How credible are the witnesses and how credible are their evidence.
128. PW7 told the court that after blocking A3’s war club he was standing very close and saw A2 moved to where A1 was standing. At the same time A1 got his axe and cut Robert’s chest. I have already discredited the evidence of PW7 in my previous assessments on the cases of A2 and A3. When he was cross-examined by Ms Brown in relation to his statement recorded by police on 24/2/05, in particular a portion related to the fact that as soon the deceased arrived at the scene he attacked A2 and the fight started. PW7 said that portion of statement was a typing error. Further cross examination revealed the witness denied given any statement to police. He denied the police never read his statement back to him. He denied signing the statement, and told the court that his signature on his statement was forged by police, and police had made it up. He only saw his statement three weeks ago before called upon to give evidence in court.
129. Police officer, Wilson Auga (PW17) who recorded PW7 statement was called and he confirmed in court that he recorded all that the witness had said. Read what he wrote back to him and he understood and then signed. Part of the statement recorded by police was tendered to court by the police officer as exhibit "Def Exhibit 1".
130. I have also read the part of the statement as exhibit and I belief what the police officer recorded. It truly reflected that the deceased started off the fight by attacking A2 with his hook knife on arrival at scene, and not as the witness stated in court.
131. The wild change of evidence by PW7 cannot be reconciled by this court. He seemed to blame police for everything. Changes of evidence cannot be relied upon. He is not a credible witness at all and this court cannot rely on his evidence.
132. PW2 stated in court that she was 7-8 metres behind PW1 when she witnessed A1 got up instantly and cut the right chest of the deceased with his axe.
133. When cross examined by Ms Brown concerning her statement made to Police on 20/2/05 which she stated she was 7-8 metres behind the deceased and PW1. As she looked infront she could see a figure squatting. The figure stood up and threw an object to the deceased. Having gone through very intense cross examination she finally stated that police had made typing error when recording her statement. She also said police did not record what she specifically stated. The error refer to by the witness was in regard to the squatting figure who stood up and threw an object at the deceased.
134. The police officer Hamilton Toremane (DW3) who recorded PW2’s statement on 20/02/05 was called by the defence as witness. He told the court that he recorded everything PW2 told him. At first she mentioned a figure squatting, and threw an object. After recording the statement it was read back to the witness. Having understood the content she signed and then the recording officer DW3 signed. DW3 stated in court that PW2 did not mention to him the name of the figure and the name of the object thrown at the deceased.
135. Some minutes after signing the statement, PW2 told DW3 the name of the figure squatting. It was A1.
136. From the first statement recorded by DW3 on 20/02/05 there was no mention of an axe, though name of accused was mentioned few minutes later after signing of the statement.
137. An additional statement recorded on 24/02/05 PW2 stated that she saw A1 lifted his right hand with an axe, about one foot long, and cut the deceased. That was the evidence which PW2 maintained in court.
138. There were inconsistencies in PW2’s evidence. Firstly in relation to the distance between her and PW1 and deceased. Her statement to police she said 8-10 metres away. In court she said 7-8 meters away.
139. This is important, though differences in distance is not a big margin. A difference in two meters makes a difference especially when determining whether a person could see through that distance in a moonlight night.
140. Secondly PW2 stated in her statement recorded on 20/02/05 that she actually entered the bridge. Additional statement recorded on 24/02/05 said she stood at the northern end of the bridge 8-10 meters away and watched.
141. These inconsistencies also arise during cross examination. Until then the answers are still remain uncertain.
142. In regards to change in statement in relation to a figure squatting and threw an object, the figure becomes A1 and then the object becomes an axe in additional statement. And finally in the evidence before this court A1 cut the deceased with an axe. These statement including additional ones were recorded by the same police officer (DW3) who was called to give evidence.
143. Those inconsistencies renders PW2 as not a credible witness this court would rely on.
144. Another area of inconsistency was when PW2 and PW16 travelled from Arabala Village to the main road by vehicle, PW2 who sat at the open back of the vehicle saw A1 walking on the road with an axe stain with blood. PW16 who was sitting in the cabin with the driver also saw A1 but was not armed or in possession of an axe. He merely saw him holding his shirt and funning himself with it.
145. I tend to belief what PW16 said. He was right in front in the cabin and could see clearly when the vehicle flashed on its head lights upon A1
146. These inconsistencies has tarnished the credibility of PW2. I cannot rely on her evidence or reconcile with. She is not truthful of what she said. Perhaps she might be present but could not be able to figure out who was actually involved in what. Of course its night time, though there was moonlight. However when one stood a distance away he could not be able see clearly and witness the exact happenings. Her evidence cannot therefore be relied upon.
147. So this court is therefore left with one prosecution witness, that is, (PW1). He said he was a meter from the deceased when A1 bend low stretched up and cut the deceased on his chest with an axe.
148. Can this court convict A1 upon the evidence of one prosecution witness alone. How credible and truthful is evidence of PW1.
149. One instance which weaken the strength of PW1’s evidence is when he reported the incident to police, Auki, on 20/02/05, the day after the incident. He missed out the name of A3 whom he told this court had started the fight.
150. The police officer (DW1) who received and recorded the report in police diary record book stated in court that names of suspects supplied and reported by PW1 were A1, A2 and two others, excluding the name of A3.
151. Why should PW1 exclude the name of A3 as suspect, the very person whom he said had started the fight. He should be the first on the list of suspects reported. This call into question whether PW1 was present at the scene or was present but could not able to see each and every happenings. That therefore left some doubts on to the evidence of PW1.
Corroboration
152. So what other evidence are available that this court may consider to corroborate the evidence of PW1 which has already been partly weaken. The only other evidence this court consider as may be corroborated to PW1’s evidence is that of PW15 the driver of the vehicle which transported the deceased to the hospital. On their way he stopped the vehicle and the deceased told him that he was cut by A1 with an axe. I have made a ruling that that was a dying declaration.
153. Will that dying declaration supported the weaken evidence of PW1 to add more strength to the prosecuting case. PW15 also mention in evidence that the deceased and another person were sitting at the back seat behind the driver in a double cabin vehicle. That person was never called to confirm what PW15 heard from the deceased, or any other person traveling in the vehicle to confirm what PW15 heard from the deceased. Having said that the prosecution case has not advanced in strength at all.
Production of Exhibits
154. An exhibit is a document or an item produced for the inspection of the courts. It must be relevant to the case. In this case the most relevant item is the axe the prosecution alleged used by A1 to inflict the fatal wound on the deceased’s chest.
155. The defence argued that the fatal wound was caused by a tomahawk inflicted on to the deceased by mistake or accident from PW14.
156. Had full and deligent investigations been done the axe is expected to be produced. Being the major subject in this case it would best examined and assessed by experts to ascertain whether it was used to inflict the fatal blow. In the absence of its production the court has not been assisted much.
157. In the case of R – v – Peter Kaimanisi (Unreported Criminal Case No. 42 of 1994. Palmer J in Page 4 para 5.
"At this point of time I wish to raise a matter concerning the use of exhibits. It is not clear to me whether, the skirt was made available to the police in the course of investigations. Also, the bra of the complainant which was alleged to have been torn. If these were available, then they should have been retained and produced as relevant exhibits".
158. All the court has available is the medical report which was tendered by consent, as Exhibit 8. However should the reporting doctor is called he could have assisted in imparting an expert opinion whether the wound sustained by the deceased was caused by an axe or a tomahawk or something else.
159. Having fully assessed the prosecution evidence I find there is no evidence to prove that A1 has any intention to kill (cause death) or intended to cause serious harm (grievous bodily harm). There is no evidence that he knew that the death was a probable result, or knew that grievous bodily harm will likely be a result.
160. The evidence adduce by prosecution is not convincing and has not proved the two major elements above beyond reasonable doubt. I must therefore find accused (A1) not guilty of the charge and acquit him accordingly.
THE COURT
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