Regina v Ome [2008] SBHC 107; HCSI-CRC 436 of 2004 (17 October 2008)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal case No. 436 of 2004

BETWEEN:

REGINA

AND:

JOHN OME

AND:

DAVID SUITI

AND:

AMOTA SAMODAI LUINA

AND:

WILSON KAKOMAE LUINA

AND:

ALICK LUINA

AND:

JOHN BAURA

The High Court of Solomon Islands

(GOLDSBROUGH J)

Date of Hearing: 23 September - 13 October 2008
Date of Decision 17 October 2008

Mr Kausimae for the Crown Ms Brown for Suiti
Mr Baker for Ome
Ms Lidimani for Amota and Wilson Luina
Ms Paulsen for Alick Luina and John Baura

JUDGMENT

On 16 September 2000 Abuna’ai Village in East Kwara’ae, Malaita Province was razed to the ground. Substantial damage was caused to buildings and other property by fire. The village, for all practical purposes has now ceased to exist.

On 15 September 2000 the son of the person whose property was damaged in Abuna’ai travelled from Honiara to Auki on Ramos III. Perhaps by chance, on the same ship travelled some of the accused in this matter. The son travelled because he had heard romours of pending trouble.

This trial concerns four of the six accused of arson at Abuna’ai Village. Two of the accused, John Ome and David Suiti, failed to answer their bail and attend court for their trial and warrants have been issued for their arrest. Of the remaining four, John Baura was acquitted and discharged from this trial at the close of the prosecution case after the prosecution conceded that there was no evidence before the court.

Whilst in an ideal situation, the trial of these six accused should take place together when they are all present, this is not the case here because of the failure of John Ome and David Suiti to answer their bail. Warrants were issued for their arrest on the first day of the hearing and remained unexecuted two weeks later, after a voir dire on the admissibility of the statements made by the present four accused had taken place and concluded as a preliminary matter. Given that these four accused have been awaiting trial since being charged in 2004 and that the prosecution have been unable to locate the missing accused during the two intervening weeks, both the Crown and defence counsel submit that the trial of the present four accused should proceed without further delay. It is correct to say that even if the missing two accused are located presently, a new trial date will not be immediately available. Given that it may take longer than that to find the absconders, it appears to this court that the submission that this trial can take place in these circumstances is only fair to people who are now prepared to stand trial and who have already waited four years.

Amota Samodai Luina, Wilson Kakomae Luina and Alick Luina are all brothers. They are from Kwasibu Village, East Kwara’ae and they together with their father (referred to in court as simply Luina) have been in dispute with the victims of this arson and the previous landowner for a very long time.

It is the prosecution case that, through the motive of this long standing dispute, these three together with others, some of whom were never charged, burnt down Abuna’ai Village.

There is no direct evidence to this event. All that is produced in evidence is circumstantial. It is said that the motive exists, that the means was available to these accused and that the opportunity was there.

This is not a case where identification and recognition is an issue. Perhaps through the long standing land dispute but also because these participants mainly inhabited the same surrounding areas, they are well known to each other. Villagers who were witnesses share the same ability to recognize the accused. Identification, then, is not referred to again for these reasons.

The motive I have already referred to. As part of their case as presented through cross-examination, for none of these three accused gave any evidence or called any witnesses or made any unsworn statements, it was asserted that they may not be the only people to have a motive to damage this property. Whilst this never formed part of the prosecution case, that no-one else had motive, I have no hesitation in accepting that other people may have had similar motives. Because it was never part of the prosecution case that no-one else may have had a motive, this does not in fact assist the defence in any way. It will rarely be the case that the Crown in a prosecution where it is alleged that there is motive, seek to demonstrate that no other may have a concurrent motive. Motive is only one part of a complex equation which alone goes to prove only motive.

Evidence of opportunity arises because of the presence of the accused, or at least some of them, early in the day of 16 September 2000 at Kona Village. The victim family, Fangidua, had already moved from Abuna’ai village ahead of 16 September 2000 because of what they say were threats. The traveller referred to above, Stephen Mani, a son of Fangidua, found his family at Kona Village after he arrived in Auki on the Ramos III. It was there, according to his evidence that Amota and Kakomae Luina, in the company of others, confronted family Fangidua, caused some of them to run away in fear, and left the scene uttering threats that they intended to proceed to Abuna’ai Village and to burn it down.

The evidence of Stephen Mani was that this took place with his father Fangidua and brother John Suifasia present to begin with although they ran away before it ended. This may explain why neither of these two gave any evidence of the threat uttered by some one amongst the group as the group left. No evidence of the specific threat came from either Fangidua or John Suifasia, but I do not conclude because of that lack of evidence that the threat was not made by a member of the group or members of the group. Stephen Mani did give evidence that his father was there at the vehicle when the group left, yet his father did not tell the court about the threat.

Fangidua gave evidence to the court that he left Abuna’ai on 13 September 2000 after a visit from the family Luina where, he says, threats were made. The threat, he said, were not of arson but more general against his family and their occupation of the disputed land.

The evidence that Alick Luina was present with his brothers at the Kona village incident was elicited from Stephen Mani during cross-examination. It is no less evidence of that fact because it arose in this way, although it raises the question, as referred to by counsel, as to why it was not part of his evidence in chief.

A further incident took place prior in time to the burning of Abuna’ai at Foubaba Village. Evidence of this did not come from any of the Fangidua family but from occupants and temporary visitor to Foubaba Village. A group including the missing accused John Ome arrived at Foubaba Village talking about going to bum down Abuna’ai Village. Saul Samani in evidence said that the threat came from a man not presently accused. He did not identify any of the present three on trial. From his evidence I have little doubt that such threats were made, but not by any of these three accused. Another witness from Foubaba Village, Tony Ramoitolo, gave evidence to the effect that the missing accused David Suiti told him that the group were going to Abuna’ai but not what they were going to do there, although some reference was made to them possessing a container of petrol In any event that evidence, even if David Suiti said those words, is not evidence admissible as against these three accused of the truth of the assertion that there was petrol in the container referred to by David Suiti. This witness did identify Alick Luina as being part of the group, although his evidence was to the effect that Alick did nothing in an aggressive way or contributed anything other than being there and remaining quiet when others spoke.

A further witness from Foubaba Village gave evidence that he was aware of the arrival of a group and saw them talking to Tony Ramoitolo. He was unable to give any further evidence of what may have transpired or of any conversation or identities of participants.

Evidence was presented by the Crown of a cab driver and his brother assistant who transported a group of man from Auki to Foubaba Village in this same area, at around the time people who arrived on the Ramos III must have travelled from Auki into this area. Whilst that evidence may indicate it was this group that were the passengers, it was in no way conclusive of that fact, and cannot be relied upon to support any finding of that as a fact. No evidence was contained therein as to identity or conversation. It could have been any group of men taking the same or a similar journey.

The victim family members were told on 17 September 2000 of what had taken place at the village of Abuna’ai. A ceremony was then arranged, referred to by counsel in this trial as a reconciliation ceremony, to take place on 18 September 2000. The evidence before the court, accepted by the defence, is that this was arranged by the witness Simon Anisi in consultation with others. For the purposes of this judgment it is not necessary to set out the relationship between the family Fangidua and the family Luina to this man. He was, it appears to be conceded by all but him, a member of the Malaita Eagle Force, to which association it is said that John Ome and others belonged.

Prosecution evidence of the ceremony was extensive, although contradictory. Evidence that it was a reconciliation came from the organizer, Simon Anisi and others present including police officer and the two families.

Objection was taken by counsel of Amota and Kakomae Lunia of this evidence on the ground that as a matter of public policy it should be excluded. It was submitted that if a traditional customary reconciliation has taken place, it should be contrary to public policy to permit reception of evidence of the same in a criminal trial over the same problem, since to allow the same may have the effect of undermining custom rather than seeking to support custom.

That submission itself is flawed. It is flawed in the sense that it seeks to exclude evidence at a stage when it has not been established that what took place was indeed a traditional reconciliation ceremony. In this case it was made at a stage when the only evidence of the ceremony was from one person who gave evidence that it was not a traditional customary reconciliation ceremony but a ceremony brought about by the force of the gun.

It is further flawed in that the present ceremony was arranged not by traditional chiefs and the wider community in accordance with the customs practiced in the area of the problem but by leaders, or so it is said, of the Malaita Eagle Force, an organization not necessarily noted for its observance of traditional authority or custom.

The danger of such a misconceived submission, in my view, is to achieve that which it ostensibly seeks to avoid. The submission itself debases the value of custom in a traditional society. In different circumstances, where there is evidence from traditional chiefs, traditional leaders and the whole community generally of a genuine ceremony of reconciliation between former disputants now no longer in that position, then a court may well determine that to open up the wounds healed in a customary way serves no good purpose. Custom should be respected by the courts. I need no persuasion in that regard. Yet only true, accepted custom, and where there is evidence of its truth and acceptance, deserves such respect.

For those reasons I did not accept this ground of submission and did hear evidence of the ceremony. I remained alert to the possibility that further evidence may be received which might suggest the preliminary view based on what I had already heard may be incorrect, and to the possibility that the decision should be reviewed, but no such evidence was produced to me.

A further ground of objection to the evidence was submitted. This amounted to the suggestion that an out of court statement made by an accused admitting an offence was itself inadmissible. No authority was provided in support. The evidence that the prosecution sought to tender was of implied admissions made during the ceremony by the Luina family that go to show guilt. I am not aware of any authority that an out of court statement other than those made to persons in a position of authority, freely made is itself somehow inadmissible. In my view there is no rule of evidence that supports this submission.

This issue, of alleged admissions made during this ceremony and the objection taken to the evidence, raises itself a further issue, relating to counsels’ professional obligation to the court in the conduct of a criminal trial. In submissions, it is said that it was not the accused who made these admissions. It is said in submissions that the admissions were not made by Amota Luina but by John Ome. There is evidence that the admissions were made by John Ome contained in the prosecution evidence. There is contradictory evidence that the admissions came from Amota Luina. Whilst I accept that it may be said I take a narrow view of these matters, instructions must be that either I did not say this, or that I did say this, which may then lead to counsel submitting that what I did say is inadmissible. The question is that it may not be proper to take a position that translates into I did not say this but if I did it is inadmissible.

On a similar note, before moving back to the substance of the trial, during the voir dire there were questions put to a police officer suggesting that another officer, the witnessing officer, did not actually witness the interview as his evidence suggested. So instructed, counsel is obliged to put this version of events. Later, the witnessing officer himself was not similarly questioned. His evidence was of threats and future promises made by the interviewing officer, which evidence later led to the exclusion of the statements as having been improperly obtained. Yet, if instructions were that the officer was not there, he could not then be said to have witnessed this misbehaviour and questions along those lines were in conflict with the position that the officer was never there in the first place. An allegation that a witness is lying cannot and should not be made other than with clear instructions. It certainly should not be put other than on clear instructions. Faced with those clear instructions it becomes the responsibility of counsel to adhere to those instructions and not to question on any other factual basis. This does not preclude counsel from cross examining fully but does restrict counsel to the same factual basis. Was he there or was he not there?

For counsel to examine witnesses with questions that are not based on instructions as to the facts of the events from the client leads to these absurd results. Not only does it serve to illustrate a lack of professional ethic but it demonstrates the reasons why these professional rules exist in the first place. If a court is faced with diametrically opposed questioning based on different factual premises, there is every danger that the resultant version left to the court is of an accused simply resorting to any method to secure an acquittal. The failure of counsel then reflects of the client, not necessarily through the fault of the client. In this case as the evidence of the officer who was said not to be there was relied upon to support a finding of exclusion that did not happen here.

Evidence of the ceremony from the Fangidua family consistently supports a finding that Amota Luina represented the family at the ceremony and explained what the family had done, expressed sorrow for it and offered shell money in recompense. Evidence from others at the ceremony, not part of the Luina family but of police officers and members of the MEF suggests that John Ome represented the Luina family in this matter, and that any admission cannot be presented as from and of the Luina accused.

There was also evidence from the ceremony that the shell money given to the family Fangidua was shell money that had been stolen from them from their store at Abuna’ai. This evidence goes to support the facts of this case in that it suggests that the ceremony was not a true reconciliation ceremony. It is not part of traditional custom to give back as reparation something you yourself have stolen from the other party. It further supports that prosecution suggestion that whoever gave the shell money must have been at Abuna’ai or had association with whoever stole the money from there.

The contradictory evidence led by the prosecution on the ceremony as to who presented the shell money was not questioned by the prosecution. There was no suggestion that any witness was now telling a different story to a previous version given. This is indicative that the prosecution takes the burden of disclosing material adverse to their case seriously and is to be commended. It lead me to the conclusion that I cannot be certain that it was Amota who spoke on behalf of the Luina family but still leaves Amota present and part of the group. As to the shell money, I am satisfied on the evidence and so find that the shell money presented to the family Fangidua was indeed their own shell money. This forms a further link between the burning of Abuna’ai and the Luina family.

Circumstantial evidence is good evidence, but care must be taken to ensure that the conclusions drawn from the inferences available are fully supported to the extent that a reasonable person can only come to those conclusions. Inferences not supported will dictate that the case has not been proved to the necessary standard of beyond reasonable doubt. Where a different reasonable conclusion is available, for example, the case cannot be said to have been made out beyond reasonable doubt.

I find that earlier in this day a group of men including these three accused was about in this area. In Kona Village the group included Amota, Alick and Kakomae Luina. In Foubaba village it included Alick Luina. In both instances it included other of the missing accused. I further find that references were made by the group to going to Abuna’ai (Foubaba) and to burning Abuna’ai (Kona).

I find that Amota Luina and Kakomae Luina and Alick Luina attended the ceremony at Auki Police station on 18 September as part of the group which presented shell money to the Fangidua family. I find that words were said on behalf of that group indicating what they were responsible for the burning at Abuna’ai Village and further find that there was included in those words a warning for the Fangidua family not to go back to Abuna’ai as they were still being observed and liable to further violence.

It is beyond dispute that Abuna’ai Village was razed. Given my finding above it is clear that these accused together with others comprised a group that was in the area, indicated their intention to go to Abuna’ai, indicated their intention to burn Abuna’ai, shortly before it was burnt, and then subsequently attended a ceremony at which peace was to be restored following the Abuna’ai burning and other incidents of violence.

It is therefore difficult to conclude other than that these three accused were responsible with others for this burning. Earlier I made reference to the notion that others may have a motive for this crime, although there is no direct evidence of that. But there is nothing to show that any other group made threats, as these, in advance of the burning and then attended at the later ceremony to discuss the same events. I agree with the suggestion that one might attend a ceremony not being directly involved in the offence, that is clear from the observer police officers, who no one says were involved in the offence. So it could have been that a family Luina member was there only as observer and not as previous participant, but that only assists where no previous association with the earlier group is in evidence.

It is the totality of the evidence that supports a finding of guilt, not the individual component parts in isolation. In this instance there is evidence that these accused participated in the Kona Village incident where the future threats were made, at Foubaba Village where the expressed intention was to go to Abuna’ai Village and subsequently at the ceremony in Auki where admissions were made as to the burning. Taken as a whole this is overwhelming circumstantial evidence of being involved in the arson of Abuna’ai Village.

I have considered all the possible alternative conclusions counsel sought to draw to my attention in determining whether a finding of guilt was the only rational and reasonable conclusion.

In the event the three accused remaining on trial now are convicted of the offence of arson as charged. I shall hear submissions from counsel on sentence. Until such time as counsel are ready, having heard from Crown and defence counsel, each of you is remanded in custody pending sentence to Wednesday 22 October 2008 at 2.00 p.m.

Dated this 17th day of October 2008

Justice Goldsbrough

THE COURT