Regina v Keke [2007] SBHC 99; HCSI CRC 557 of 2004 (24 August 2007)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 557 of 2004

REGINA

v

HAROLD KEKE
AND RONNY CAWA

(Naqiolevu, J)

Date of Hearing:
Date of Judgment: 24th August 2007

For Crown: Mr. Weir
For 1st & 2nd Accused: Mr. K. Averre

JUDGMENT

Naqiolevu J: The accused are charged with the offence of MURDER of the Kwaio men contrary to Section 200 of the Penal CODE. The accused Harold Keke is charged with the first 7 counts of Murder and the second accused is jointly charged with the first accused in count 8 of the Murder of one Joseph Jackson.

FACTS

[1]. The facts of the case are that on Friday 7th of June 2002, a group of 10 men from Kwaio, Malaita who had been recruited for an operation to travel to the Weathercoast with the aim of capturing Mr Keke and return him to Honiara. These men left Honiara in a boat, a white Yamaha fibre glass boat with a 115 horsepower outboard motor. The men were armed with high powered rifles. They were accompanied by a Bougainvillean man who was at the time an escapee from Rove Prison.

[2]. The boat travelled to the Weathercoast and somewhere near Marasa ran out of fuel and was later seen at Ravu. The men were paddling the boat when an aluminum boat with six men who were members of the GLF approached the boat and there was an exchange of gunfire between the two boats.

[3]. During the exchange of gunfire, one of the occupants of the GLF boat a Andrew Piko, an uncle of Mr Keke was killed, as well as an occupant in the Kwaio boat a Mr Kalisto Ganifiri. Some of the occupants of the white boat were also injured.

[4]. During the course of this exchange of gunfire the GLF boat rammed onto the Kwaio boat and then withdrew, the men in the Kwaio boat then commenced paddling towards the shore at Ravu.

[5]. Some time after passing through the gap in the reef and approaching the shore, the GLF boat approached again and this time three Kwaio men jumped overboard and swarm to the shore in an attempt to escape. These persons were Joseph Jackson, Peter Arakoa and the Bougainvillean man Eugene Mangung.

[6]. Shortly after this the seven men in the Kwaio boat were captured and in the custody of the defendant and members of the GLF. The defendant and at least five members of the GLF were armed with high powered rifles. The defendant was alleged to be giving orders to the members of the GLF and the orders were being followed. The defendant, the crown claimed had with him a loud hailer or megaphone and was using this in giving orders and talking to persons who they had captured on the beach.

[7]. The seven remaining men were lined up near the waters edge a couple of meters from the sea. The defendant Keke allegedly then said things including, you are Malaitans, you are guilty, we are going to kill you.

[8]. The defendant is alleged to have given an order, and in response to that order, those men were shot and killed. The bodies were left on the beach where they fell, and they were not buried until Sunday the 9th of June, when they were all buried in a single grave by villagers from Ravu. They were buried with the Kwaio man who was shot at sea, Mr Kalisto Ganifiri.

[9]. In relation to the eighth count relating to the murder of Joseph Jackson, the crown says on the morning of the 9th of June 2002, he along with the Bougainvillean man Eugene Mangung were in the custody of the GLF men at Ravu. Mr Keke is alleged to be giving orders in respect of these two men and directed they be kept so they could be questioned about certain matters.

[10]. On the morning of the 9th of June Mr Keke left Ravu in the aluminum boat taking with him these two person and the body of his uncle. The two men were taken to Kolina and left temporarily in the care of the Melanesian Brothers. Mr Keke remained in the area and would bring or cause food to be brought to the household for the men.

[11]. On Tuesday 11th of June 2002, some GLF members came to the house of the Melanesian Brotherhood and said they were taking the men to Inakona for questioning. Mr. Mangung managed to escape into the bush and Joseph was then taken to Inakona Village and was questioned there, he was then tied to a coconut tree where the questioning continued.

[12]. On the 12th of June 2002, Mr Jackson was untied from the coconut tree taken to a nearby beach where he was shot by the second accused Ronny Cawa with a high powered rifle, and while he was on the ground he was then shot on his leg by another member of the GLF and was later buried in the grave by nearby villagers. ([1])

[13]. The First accused is jointly charged with the second accused with the death of Jackson in that the second accused either killed Jackson as he was following directions, on that in effect it was a common purpose, a joint enterprise where it was contemplated that the death of Jackson would occur or that he would be shot causing grievous bodily harm.

THE LAW

[14]. The offence of Murder is prescribed under Section 200 of the Penal CODE.

SECTION 200

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

Section 202 define malice aforethought as

"Malice aforethought may be expressed or implied and express malice shall be deemed to be established by evidence providing either of the following states of mind pre-ceeding 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 such person is the person killed or not; or

PARTIES TO OFFENCES

Section 21

When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say –

(a) every person who actually does the act or makes the omission which constitutes the offence;

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c) every person who aids or abets another person in committing the offence;

(d) any person who counsels or procures any other person to commit the offence;

In the last-mentioned case he may be charged either with committing the offence or with counseling or procuring its commissions.

A conviction of counseling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

[15]. ACCUSED – HAROLD KEKE

The Crown’s case is based on the fact that the accused ordered the killing of the 7 Kwaio men after they were lined up at the beach in Ravu and shot. The crown called several witnesses to give evidence on what they heard, or what took place on the 9th of June when the men were killed and the subsequent killing of the eighth victim Joseph Jackson.

PROSCUTION WITNESSESS

[16]. The prosecution witness No. 1 Nicholas Kuki gave evidence of hearing gunshots out at sea and going to the beach and saw 8 bodies lying there. He said he couldn’t recognize the men, hadn’t met them before.

[17]. Crown witness No. 2 Puruni Mariano, gave evidence that he was coming back from cutting bettlenut and saw two boats out at sea. While he was resting for about 30 minutes and heard shots in the place called Munubo and remained there until there was no more gunshot and when he got to the house he saw people run into the bush. He further saw the boat leaving with six or seven men. As it was getting dark he went home and in the morning he saw the bodies on the beach which he helped to carry for burial.

[18]. Crown witness No. 3 Augustine Lui. The witness was not present on the Saturday when the incident occurred, but arrived on the Sunday and saw bodies on the beach. He said in his evidence he saw people on the beach and Harold’s boys. He said it’s the first time he saw them. He further said that he heard Harold Keke was there, but did not know what he looked like, as he has never met him before. Under cross-examination he further said "I’ve never seen him (Keke) before but because they said he was Harold Keke that’s how I knew he was Harold Keke."

[19]. Crown Witness No. 4 Francis Kevo. This witness was at his house on the Saturday when he heard the gunshots which was coming from the sea. He was frightened and ran to the bush as he was scared. He returned on Sunday morning when he saw the dead bodies on the beach. He said in his evidence that he saw some people on the beach and further saw Harold Keke and his men. In response to the defence counsel cross-examination whether he had met Keke replied, some people say it was Keke" and proceed to describe the accused as "tall and slim" and holding a gun. In further response to cross-examination, he said "the man who people said was Keke had rasta hair. He confirmed he had never met him before, but some people told him that it was Keke.

[20]. Crown Witness No. 5 – Hugo Ninivai. The witness gave evidence that he accompanied the body of the nephew/uncle and the following morning he went back to Ravu. He went to the shore and saw Keke’s boys. Keke came forward and they went to the house in the village and he (Keke) showed him a dead body and said, "they shot that boy and they began shooting".

[21]. He further stated that Keke said, "People come and trespass and I wanted to come and hold them to get the government to pay before they can go free". He said "they are to hold them but man in canoe shot one of their boys and that was why they began shooting.

[22]. Keke did not say who did the shooting and he also showed him guns which was described as SLR SR88. Keke told him that these are the guns these people had come with. After sitting down and talking to Keke the witness said he left with the body for Kolina. When he left Keke and his supporters were still on the beach.

[23]. Crown Witness No. 6. Brother John Rahe. In his evidence the witness said two Kwaio men came and stayed with them from Sunday to the Tuesday. He was mistaken as to who the men came with to Kolina having originally said they came with Brother Hugo.

[24]. Primino Luvuna-PW 12. The witness gave evidence that he was coming down from the garden and heard gunshots. He said he came down to the seaside and was hundred meters away and looked and saw both shooting. It was almost dark. The boats were 300 – 400 meters away from the shore, he saw two boats and white one and another which was small dinghy. He testified he saw something like a white flag go up on the white boat. The men paddled to the shore, the sea was rough and the men were struggling to paddle the boat. As it was getting dark he only saw them when they reached the shore. He saw them just standing there, and not long after he heard gun shots again. He did not see who fired the shot he just heard it and he ran away to the bush. There was no evidence as to the presence of the accused.

[25]. Witness No. 11 Nathaniel Mosese. The witness gave evidence that Keke told him, "I kill them all" and further stated that Keke said "if they had not shot at him first he would not have killed them". He would have taken them prisoners and waited for reconciliation. The witness said when he asked Keke how this happened. Keke told him that the 10 Kwaio men were traveling towards them and he was using a loud speaker to tell them to go ashore but they shot at his nephew who was 15, so that is he was angry and they started firing.

[26]. The witness said that the 10 Kwaio men then jumped out of the boat and he rounded them up and brought them to the beach and he made them kneel down with hands behind their heads then he showed him a knife that he cut off Kalisto’s heart and when he cut off Kalisto’s heart it was still pumping. The witness further said that Keke told the 10 Kwaio men, "today you will see Harold Keke and you will die, he said Keke then ordered the boys to open fire.

KEKE’S ADMISSION

[27]. It is clear that the only direct evidence of the accuseds involvement in the incident is crown witness Nathaniel Mosese. The evidence if accepted by the court clearly implicates the accused by his own admission of his role in the killing of the 7 men. The evidence not only puts the accused at the scene of the crime, but his admission to the direct order he gave for the men to be shot.

[28]. The important point for consideration is what weight should the court place on the evidence of Nathaniel Moses which was not corroborated by PW10 Chris Tovoa nor by PW12 Alfred Jude who was within two meters to where the conversation took place. Jude

testified that he heard some words but not all that was said, he further described a knife being produced from a basket and shown to Mosese. Tovoa testified that he was sitting away but could see Mosese and Keke talking but was not in a position to hear what they were saying, or even remember a knife being pulled out.

[29]. The evidence furthermore is not consistent with the expert evidence presented to the court. The evidence of the cutting off the head of the victim Kalisto and the cutting of the heart which was still pumping is contrary to the postmortem report which indicate that the cause of death of Kalisto is one of multiple high velocity gunshot injury. ([2])

RELIABLITY OF ADMISSION

[30]. The evidence of Mosese is related to the conversation with the accused Keke and in effect is an admission of his involvement. Is the admission reliable? Should the court rely on the admission to convict the accused of the charge of Murder.

[31]. There is no presumption that a confession is true. In Burns-v-The Queen ([3]) Barwick CJ, Gibbs and Mason JJ said (at p 268:8)

"it would be grave misdirection to tell a Jury that there is a presumption that a confession made by an accused person is true. The Jury, in deciding whether, in the light of the circumstances of the case, they are satisfied of the truth of the whole or part of the confession must approach that question without the aid of any presumption except that of innocence".

[32]. In R-v- Green ([4]) Charles JA giving the leading judgment referred to Burns-v-The Queen ([5]) stated

"It is repeatedly emphasized in these authorities that the need for the jury to be directed that before they can rely on confessional statement they must be satisfied beyond reasonable doubt come from the

changes that the July may not recognize although these statements were made by the accused, it does not follow that they must be truthful; and that it is more important to give the direction where the accused does not dispute making the statement but says they were not true".

[33]. In the case of Judith Theresa Ward –v-Regina ([6]) the appellant on appeal to the Court of Appeal on a conviction of 12 counts of Murder and three counts of causing an explosion to endanger life or property, Lord Justice Glidewell, said

"This was and is a most extraordinary case. For almost two years before her arrest, Judith Ward on frequent occasions both did and said things which were calculated to make those who saw and heard her believe that she was a supporter of the Provisional IRA and had assisted that organization to the extent of committing serious criminal offences. It is to the credit of some of those in Northern Ireland who heard what she said that they did not believe her and too no action against her. Then, after her arrest, she admitted, apparently voluntarily, being involved in three separate offences of causing explosions, all of them offences of the greatest seriousness, of which one in particular had horrifying results. Only at trial, so far as the jury knew, did she say that the confessions on which prosecution relied were not true."

He continues at paragraph 2 on page 27:

"It is rare, but not unknown, for a person who is not subjected to any improper pressure or an inducement to confess to crimes he or she has not committed. It is even more rare for somebody, in such circumstances, to confess to crimes as grave as those for which Miss Ward stood trial. Nevertheless our criminal courts, and all whose who owe a duty to do what is necessary to ensure that the courts arrive at proper verdicts, must take account of the possibility that confessions, though not the result of any impropriety, may be untrue."

[34]. I am of the view that the admission allegedly given to Mosese by the accused Keke are incomplete and not a true account of what occurred. I accept that the confession though not the result of any impropriety maybe untrue.

[35]. The question that must be considered by the court is why did Keke say those things if they were not true. The court is this regard consider with counsel that perhaps it is to impress Mosese, or maybe to frighten him. Even to claim responsibility for actions he approved of but did not do because he was delusional, crazy, or whatever other word has been used to describe keke. What is of critical importance to this court is the evidence capable of establishing guilt beyond reasonable doubt.

Onus of Proof

[36]. The prosecution bears the onus of proving each and every element of a charge to the Standard of proof which is beyond reasonable doubt. The standard is a high one and the prosecution has the onus throughout the trial to satisfy the court beyond reasonable of the guilt of the accused.

In Woolmington – v – DPP, ([7]), Viscount Sankey LC said (at 481; 8; 95):

Throughout the web of the English criminal law one golden thread is always to be seen – that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.

In R –v- Wilson Iroi ([8]) Muria J stated at page 3

"I remind myself that the burden is on the prosecution throughout to satisfy the Court beyond reasonable doubt of the guilt of the accused. If there is doubt, slight though it might be, the accused must be given the benefit of that doubt. The overriding guiding principle in all criminal trials must be that a person charged with a criminal offence must be presumed to be innocent until proved guilty or has pleaded guilty. That principle is enshrined in section 10(2)(a) of the Constitution [......]"

In R –v- Dudley Pongi ([9]) Muria CJ stated at page 1:

"I remind myself that the onus is on the prosecution to prove its guilt of the accused beyond reasonable doubt on the evidence presented to the Court. If there is doubt as to his guilt, slight though it may be, the accused must be given the benefit of that doubt and he must be acquitted. The accused need not prove anything, in particular, he is never required to prove his innocence".

Second Accused - Ronny Cawa

[37]. The only two witness who gave evidence of the involvement of the second accused in the killing of the victim in the eighth count are: Ronald Sipolo and Michael Tovoa.

a. Ronald Sipolo.

Mr Sipolo in his evidence said he saw a man tied to a tree, when it came towards morning. He said he was told to follow them to the river and when he and the others got to the river they told us to stay near them and Ronnie would shoot, shoot him. And you say he told you to come up close and watch him shoot Joseph? Yes, when he shot him he fell down and another of his brother has a shot him in his leg and then Ronnie told us, "Go back and tell the people in the village to come and bury this man" "If you don’t go and tell them, I will shoot you all".

[38]. The witness continue and said, he stayed with that man, that man was lying down, he said "Lasa was there also, then he cut a rope from the bush and tied him because it was difficult or hard for us to carry him because he had many injuries at that time". "We felt sorry for him because it is the first for us to see a man they killed like that". And then the boys pull him and we went and bury him, and then I came back. I was very sad about that sort of thing. He further said," Ronny used an SLR, shot at the side of the chest."

[39]. In response to Mr Averre’s cross-examination " Mr Sipolo, you say Ronny Cawa shot this man Joseph? "Yes, Ronny shot Joseph" "I did not get that from my ears or mouth, but I saw it with my eyes". In further cross-examination where it was put to him that he was lying. The witness said "why I am lying to the court now". In further response to the question that Ronny did not shoot the victim Joseph. The witness responded, "I was watching with my eyes, that’s what I am saying". The witness affirms. "I am not lying, what I am telling the court, not what I was told but I saw with my own eyes. I was there then Cawa shot the man."

[40]. The witness gave evidence of the event and described that about 5 O’clock, Ronny asked us, if any of us wanted to witness the death of that man, the man tied to a coconut tree, "so we followed him and went and stood up and Ronny didn’t say anything more to him then he shot him with one bullet". When he made the shot he was still standing up. Was the second shot when he fell down". He said, "I was standing about three metres.

[41]. In response to the question under cross-examination by defence counsel. Have you told a lie to blame Ronnie Cawa for the death of Joseph, he said, "no these is something that I saw with my own eyes".He described Cawa shooting the man, he said were two shots, Lasa also fired two shots when he was on the ground. He described a shot by Cawa to the chest, and a shot by Lasa, one near the shoulder and one near the leg. This is consistent with the Postmortem Report ([10])

[42]. The evidence of the witness clearly corroborate the evidence of Sipolo. He was firm and unshaken in cross-examination. He was present at the time and followed instructions by the accused to follow him to the beach where he shot the victim. I have no doubt as to the truth of his evidence and clearly related to what he saw with his eyes.

[43]. I accept the evidence of the two witnesses, they were credible and gave evidence as to what they saw took place on the day in question.

RIGHT TO SILENCE

[44]. Both accused chose the right to silence and not give evidence at the trial. This is clearly their right which they are entitled to exercise.

In R v Sang ([11]) Lord Scarman stated at page 308&455 respectively." The right to silence means, No man is to be compelled to incriminate himself; [nemo tenetur se ipsum prodere")

Dyers v The Queen ([12]) ...it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. Not only is the accused not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt."

CONCLUSION

[45]. The court in assessing the evidence of the various prosecution witnesses is of the view that the evidence is not sufficient to convict the accused beyond reasonable doubt.

[46]. The doubt is created by the inconsistencies in the evidence and the difficulty in the identity of the accused. The only positive identification of Keke on that Sunday is by PW5 Hugo Ninivai and his discussion with Keke. I am of the view that I cannot draw any inference from the conversation. It seems to me that accused does no more than show Ninivai the body, and the guns and explained his nephew was shot and the others opened fire.

[47]. The court has carefully considered the accused admission to the murder of the 7 men. The case against the accused is largely based on the evidence of Nathaniel Mosese, who testified to what the accused said to him.

[48]. The court finds that the evidence of Nathaniel Mosese of the accused admission of the murder of the 7 Kwaio men are incomplete and not a true account of what occurred and unsafe to convict the accused of the evidence. The court in all circumstances find the crown has not discharged the onus of proving every element of the charge against the accused to the standard required.

[49] . The court having further carefully considered the charge against the second accused in the murder of one Joseph Jackson. The evidence of the two crown witness of his direct involvement in the shooting of the victim. The court finds the crown has proven its case beyond reasonable doubt.

ORDER

1. The accused Harold Keke is hereby acquitted of all the charges against him.

2. I find the accused guilty as charged and convict him accordingly sentence him to Life Imprisonment to commence from the date he was originally remanded in custody.

THE COURT

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^[1] Postmortem Report of Inakona Body No. 15
^[2] Postmortem Report of Ravu Body No. 6
^[3] (1975) 132 CLR, 238, 6 ALR 95
^[4] (2002) 4VR 471, 128 Crim R 513 (CCA)
^[5] ibid
^[6] (1993) Cr App R.1 ibid
^[7] [1935] AC462; All ER 1; 25 Cr App R 72 (HL),
^[8] Unrep. CRC No. 17 of 1991
^[9] Unrep. CRC No. 40 of 1999
^[10] Final Post mortem Report Inakona Body 15
^[11] (1979) 69 Cr AppR 282
^[12] [2002] HCA 45; (2002) 76 ALJR 1552