Regina v Fefele [2008] SBHC 15; HCSI-CRC 355 of 2004 (2 April 2008)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 355 of 2004

BETWEEN:

REGINA

AND:

FEFELE AND KWAIMANI

Date of Hearing: 25 February 2008 to 12 March 2008
Date of Judgment: 2 April 2008

Ms Kleinig and Mr Coates for the Crown
Mrs K. Anderson for A. Fefele
Ms M. Lidimani for L. Kwaimani

JUDGMENT AFTER TRIAL

Cameron PJ

1 The two accused, Alick Fefele and Lemuel Kwaimani, are charged with attempted murder, and in the alternative doing grievous harm.

2 The charges arise out of an attack on a DBSI bank manager in Chinatown. I find that on 10 May 2000 there was a vicious and sustained attack on Moses Garu at his place of work at the DBSI Bank. During that attack he suffered severe cuts to his scalp, face and neck, a chipped skull, a broken jaw and forearm, as well as severed tendons in that forearm. He was rushed to the National Referral Hospital, where he was treated by Dr. Pikacha. He lost a considerable quantity of blood, and one of the cuts below his ear was found to have been close to his carotid artery. The injuries were consistent with sharp-edged object wounds such as would be inflicted by a knife or an axe and were potentially fatal.

3 The Crown case was that 5 men in all were responsible for the attack. They were all charged and tried. However, at the close of the Crown case there was found to be insufficient evidence against 3 of the men, and only Mr. Fefele and Mr. Kwaimani were found to have a case to answer.

4 The Crown case against Mr. Kwaimani is that on the morning of 10 May 2000, he drove 3 men in his white taxi from the Malaita Eagle Force (MEF) Central Lions Camp in the Kaibia area of Honiara to the Chinatown Branch of the DBSI Bank. The Crown says that he then waited in his vehicle while the 3 men, armed with bush knives and a small axe, went into the Bank and made their attack on Moses Garu. The Crown says that the 3 men attempted to murder the victim and that after the attack they hurried to Mr. Kwaimani’s taxi, which was positioned for a fast getaway, and were spirited away from the scene. The Crown contends that by his actions in assisting the attackers in this way, he was a party to attempted murder or in the alternative to doing grievous harm.

5 The Crown case against Mr. Fefele is that he was one of the 3 men who were taken from the MEF Camp to the Bank by Mr. Kwaimani, and that he was one of the actual attackers of Moses Garu.

6 I should add the Crown contended that the motive for this attack was that members of MEF wished to kill a Guadalcanal man by way of reprisal for the killing of a MEF boy, and that Moses Garu was selected as the innocent victim. In the result, though, there was no evidence from which that motive could be inferred.

7 Lemuel Kwaimani

Part of the Crown case against Mr. Kwaimani were two statements he made to Police dated 17 November 2003 and 8 January 2004.

8 In his first statement, he said that in mid 2000 he had been the owner of a white taxi, a toyota corolla station wagon registration number A6358. He stated that on the morning of 10 May 2000, he had picked up 3 men from the side of the road in the Kaibia area of Honiara, and driven them to the DBSI Bank in Chinatown. He claimed he did not recognise the men, and saw no weapons. He was told to wait while the men got out and walked into the DBSI Bank, pulling their hoods down to their eyebrows as they did so.

9 He stated that it was only when they emerged from the Bank that he saw that they were armed with small bush knives, and that he noticed blood on them. The men returned to his taxi, one of them ordering him to drive them quickly or "we’re going to get you". He did so, dropped them off at the same place beside the road that he had picked them up from, and only later that evening learned from the broadcast news that a branch manager had been attacked by some men. He said he was too scared to report his involvement.

10 Then on 8 January 2004, at the instigation of the Police, Mr. Kwaimani made a supplementary statement. He said that rather than picking the 3 men up from the side of the road, he had that morning gone to the MEF Lions Camp in Kaibia and taken them to the Bank from there. He infers in his statement that he went to the camp looking for a wantok, and while at the camp was told by one of the 3 men to drive them to the DBSI Bank in Chinatown. He had been told by some of the "MEF boys" that Jimmy Rasta was the commander of the camp, and had observed him there that morning, standing around a barbeque with others.

11 He says that he knew the name of one of the men he transported, the nickname of another, but did not know the name of the third man. He said that when the men got back into the taxi after being in the Bank, he saw two of them had bush knives and one a small axe. He said that he drove back to the MEF Camp, and during the journey the men were saying that they had just killed a man. He said he remained at the Lions Camp for about 20 minutes after his return, during which time he heard the men repeat to Jimmy Rasta and others that they had just killed a man. His reason for not disclosing this information in his first statement was that he was scared of Jimmy Rasta and the "MEF boys".

12 I am satisfied beyond reasonable doubt that the 3 men who attacked Moses Garu were the 3 men who Mr. Kwaimani says he took to the DBSI Bank that morning. Mr. Kwaimani’s own statements refer to his observing the 3 men pull hoods down to their eyebrows, seeing them enter the Bank, seeing them when they emerged with bloodied weapons, and then hearing what sounded like a lady screaming. I accept this is what Mr. Kwaimani saw and heard. All the other relevant evidence points to an attack by 3 men with the type of weapons Mr. Kwaimani says he saw the men carrying.

13 In its case against Mr. Kwaimani, the Crown relies on a number of witnesses whose evidence was that they saw the white taxi in the vicinity of the DBSI Bank in Chinatown on the morning of 10 May 2000.

14 I refer to the evidence of Christina Raike, an employee of the DBSI Bank. She stated that as she was returning on foot to the Bank from a nearby shop, she noticed a white taxi parked in front of that office. She said it was "about two metres from the door". She could see there was someone sitting in the driver’s seat and another was in the front passenger seat, but because of the tinted windows of the taxi was unable to say whether anybody else was in the taxi. She gave evidence of entering the premises at her place of work, walking straight to the kitchen, coming back out of the kitchen and immediately encountering 3 men. She said one of them asked which room was her boss’s, and then the 3 men rushed into that room. She heard her boss cry out, and she then left the building, went to a nearby hair salon where she told two police officers what had happened, and then walked back towards the DBSI Bank with them.

15 While walking back she said she observed "The taxi that I saw before in front was no longer there but it was parked some distance away near the main road". Christina Raike drew a sketch of the taxi’s position on that occasion, (exhibit 9). She stated that she then saw 3 men running towards the taxi.

16 According to Christina Raike, on that second occasion the taxi was positioned adjacent to a building then under construction and in a short driveway that led to a main road. That road runs past the Quan Chee refuelling station as well as the Honiara Hotel. I add that the evidence as a whole indicated that the only exit way for vehicles from the area in which the Bank was situated was via this driveway, and I approach the matter on that basis.

17 A number of witnesses said they saw a white taxi parked in that driveway. Evidence was given that the registration number of the vehicle was A6358, the same registration number that Mr. Kwaimani had provided for his taxi. The evidence was that the taxi was facing in the direction of the main road I have referred to, away from the Bank.

18 Christina Raike’s evidence was not challenged by the defence. I accept it as a truthful and accurate account of what she observed. I draw the inference from her evidence that only a very short period of time elapsed from when she first saw the white taxi to when the 3 men entered the Bank. I also note Mr. Kwaimani said in his first statement that he was told to "drive down the road that passes the Development Bank" and then told to "just stop here at the Bank". I accept this is what he was told and the inference I draw is that he first stopped outside the Bank to let his passengers out.

19 I am satisfied that the taxi Christina Raike first saw outside the Bank was that of Mr. Kwaimani, that it was he who Christina Raike saw in the driver’s seat, that the 3 passengers were still in the vehicle at that point, and that it was they who entered the Bank a very short time later and made the attack. Further, I accept that the taxi she later saw in the driveway was that same taxi, and from other witnesses I am satisfied it was pointing away from the Bank and in the direction of the main road.

20 The central issue relating to Mr. Kwaimani is the extent of his knowledge and involvement in what occurred.

21 The year 2000 was during what is termed "the tensions" in
Solomon Islands. In that period, there was armed conflict between members of the Malaita Eagle Force (MEF) and a Guadalcanal faction, stemming from an attempt to evict Malaitans from the island of Guadalcanal and retaliation thereafter. The fact of this conflict is recorded in the Townsville Peace Agreement and the Amnesty Acts. During the conflict, killings were commonplace.

22 Mr. Kwaimani’s visit to the MEF Lions Camp on 10 May 2000 was during this conflict. He further admits that Jimmy Rasta, who he had heard was the commander of the camp, was at the camp that day.

23 He stated to Police that he was told to drive the men to the DBSI Bank. I accept this. He infers that he was not part of any discussion prior to this as to what was to occur at the Bank – I proceed on this basis, as there is insufficient evidence to suggest otherwise.

24 He further says that the first time he became aware that the men had weapons was when they came out of the Bank, at which stage, according to his second statement, he saw two of them with bushknives and one with a small axe.

25 I do not accept that this was the first time Mr. Kwaimani realised that the men were armed. Descriptions of the weapons were given by a number of witnesses, who described the axe variously as between 30 cm and 50 cm long, and the bush knives in the vicinity of 50 cm long. On the evidence, the men must have been armed when they first entered Mr. Kwaimani’s taxi at the camp – there was simply no other opportunity to arm themselves. To suggest that they all intentionally and successfully secreted those weapons about their persons such that Mr. Kwaimani had no knowledge of their existence until after the attack is just not realistic – the weapons were of a length which would make hiding them in their clothing while sitting in the vehicle extremely difficult. Further, it is apparent from Mr. Kwaimani’s statements his involvement was more than as an innocent driver. He had voluntarily gone to the MEF Camp that day, had been told to take the men to the Bank, did so, waited for them there, been privy to their conversation in the vehicle afterwards about they having killed a man, returned to the MEF Camp following the incident and despite knowledge of the attack had remained there for some 20 minutes, and heard further discussion as to what had occurred.

26 Also relevant is the position of Mr. Kwaimani’s taxi, initially in front of the Bank, and then much closer to the main road and pointing away from the Bank and in a position to make a quick exit from the area. Combined with this is a body of evidence that the 3 men were seen hurrying to the taxi and that when they got in the taxi then immediately sped off.

27 The conclusion I draw is that while the 3 men were in the Bank, Mr. Kwaimani re-positioned the taxi so as to be in the best possible position for a fast getaway, and that when the men returned he sped off with them.

28 I reject the assertion in Mr. Kwaimani’s first statement that when the men returned to the taxi from the Bank one of them said to him to drive fast or ‘we’re going to get you’. If threatened in this way, why did he choose to remain at the MEF Camp for some 20 minutes after he had returned there with the men?

29 I infer from Mr. Kwaimani’s involvement as outlined that the men he took to the Bank would not have been concerned to conceal their weapons from him at any stage. The fact that after the attack there was no attempt to conceal from Mr. Kwaimani either the weapons or the violence that had occurred inside the Bank is consistent with this.

30 I have not overlooked Moses Garu’s evidence that his attacker pulled out a long object (presumably a weapon) from the side of his thigh in his long trousers. I also note that Christina Raike in her evidence did not say she saw the men carrying weapons when they entered the Bank. This indicates a concealment of weapons in the initial period the men were in the Bank. Despite this, I am satisfied that Mr. Kwaimani knew the men were armed from the outset.

31 I reiterate that there is insufficient evidence that Mr. Kwaimani was part of any planning back at the camp relating to this incident. Nor is there evidence that anyone told him, either before or during the journey to the Bank, what was intended once the men got there.

32 However, it must have been abundantly clear to him that the reason for the trip was to commit violence. The fact that he knew the men were armed, had come from a MEF Camp, and had a specific intention of entering business premises during
business hours could have left Mr. Kwaimani in no doubt that violence was intended.

33 Mr. Kwaimani, as the provider of transport for these men both to and from the Bank, and in deliberately positioning his vehicle for a fast getaway, was a knowing and active participant.

34 I refer to section 22 of the Penal Code, dealing with joint offenders. This provides:

"When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence".

35 The first limb of section 22 requires a common intention to prosecute an unlawful purpose. As a knowing and active participant, the Crown has proved beyond reasonable doubt that Mr. Kwaimani had a common intention, along with the other 3 men, to carry out the unlawful purpose of going to the Bank so that violence could be committed. It is irrelevant to this that Mr. Kwaimani’s role was to be the getaway driver rather than an actual attacker. Each had a part to play in the enterprise.

36 I now consider the second limb of section 22, which attaches liability for an offence committed in the carrying out of the unlawful purpose if that was a probable consequence of that activity.

37 In considering this, I accept the evidence of Dr. Pikacha that Moses Garu suffered life threatening injuries consistent with being struck by weapons of the same type as I find were carried by the 3 men namely, bush knives and an axe.

38 The issue is whether, on an objective basis, an attempt on the life of a person or persons in the Bank was a probable consequence of their entry in order to commit violence. If not, was the infliction of serious injury a probable consequence?

39 To assess this, one must look at the surrounding circumstances. The men came from a MEF Camp; they moved as a group; they were armed with weapons capable of causing serious injury or death; it was during the time of the tensions; it was an intended entry into business premises during business hours; and it was with the intention of carrying out violence.

40 Added to that is the fact that Mr. Kwaimani knew the reputation of MEF for doing harm to others. In his second statement to Police he says of the "MEF boys" that "I know their reputation and the things they could do to people they don’t like". I accept this was Mr. Kwaimani’s view.

41 I am not prepared to go so far as to find that an attempt on the life of a person was, on an objective basis, a probable consequence of the venture.

42 However, I consider that the Crown has established beyond reasonable doubt that the infliction of serious injury on one or more persons was a probable consequence of the venture. The types of weapons which they carried were such that their use was likely to inflict serious injury.

43 The intentional infliction of serious injury on a person is to do that person grievous harm. I conclude that the Crown has satisfied me beyond reasonable doubt that Mr. Kwaimani was a party to doing Moses Garu grievous harm within the meaning of section 22 of the Penal Code.

44 He has therefore committed the offence of doing grievous harm under section 226 of the Penal Code.

45 Alick Fefele

The Crown case is that the accused Mr. Fefele was one of the 3 men who attacked Moses Garu.

46 Mr. Fefele made no statement to the Police. Only one witness gave evidence identifying Mr. Fefele as one of 3 men, two of whom carried weapons, seen running to a white car. That was Sergeant Michael Manetevua, who at the time was on patrol in this area as a constable in the Royal Solomon Islands Police Force.

47 Sergeant Manetevua’s evidence was that he saw the men "for not more than 10 seconds". He also stated "their face is facing up because they’re running towards the car so I don’t actually see their face". He goes on to say that he could tell one of the men was Alick Fefele because of "his build, his shape, and how he walk". He expands by saying "Because of his muscle shoulder. He has muscular hands and hips and I get use to his shape ever since I’m a teenager". He says that Mr. Fefele is "a little bit bow
leg".

48 Sergeant Manetevua then told the Court that he could see the side of the face of one of the men and recognised that person as Alick Fefele. He stated that his head was covered down to the level of his ear but from the ear down it was not.

49 He also stated that while looking at the 3 men he wanted to be able to identify them.

50 I accept that Sergeant Manetevua saw the 3 men as he described. I am in no doubt that those 3 men were the attackers of Moses Garu. The issue is whether the purported recognition of Mr. Fefele as one of those 3 men is sufficiently reliable for the Court to be satisfied it was him.

51 I note that Sergeant Manetevua based his recognition on the fact that he had known Mr. Fefele since he was a teenager. He was asked in evidence in chief if he knew what school Mr. Fefele had gone to and he replied "no". He then agreed that on 1 October 2003 he had given a statement to Police which contained the following:

"I have known Patrick and Alick since Primary School. They are brothers. They have the same mother and the same father. Patrick is the same age as me and Alick is older. I went to Gilo school and they went to Kulu school in Tasimboko ward. The schools are close together and they used to come to our school and we went to their school. We played sport together friendly games and all these. That was during the 1980s. Patrick used to cause nuisance at school even then."

It is apparent that the statement contradicts Sergeant Manetevua’s evidence in Court that he did not know what school Mr. Fefele went to. His explanation for the contradiction was that he was only talking about Patrick in the statement. This explanation is unconvincing because of the clear wording in the statement that "they went to Kulu school" and "we went to their school".

52 While on the face of it his conflicting accounts of his knowledge of Mr. Fefele’s schooling seems minor, it assumes more significance when his claim for recognition of Mr. Fefele was based on knowing him since a teenager.

53 Sergeant Manetevua was asked why in his police diary entries of 10 May 2000, which referred to an attack on Moses Garu, he did not record the fact that one of the men he recognised was Mr. Fefele. His explanation was that he was too scared to record that recognition for fear of what might then happen. It was pointed out to him that in a witness statement of 15 May 2000 he did so name Mr. Fefele. Sergeant Manetevua’s explanation was that he considered the witness statement as a document forming the basis of an investigation, unlike his police diary entries. The rationale for the two different approaches is not entirely convincing.

54 Sergeant Manetevua’s evidence was that of the 3 men he saw, the only person he recognised was Mr. Fefele. It was drawn to his attention that on 1 October 2003 he had given a statement to Police in which he stated:

"As soon as I saw them both I knew they were Alick Fefele and Patrick Iro".

He reaffirms twice more in that statement that he recognised Patrick Iro.

55 His explanation to the Court for these contradictory versions was to the effect that he had in his statement been too quick to assume that Patrick Iro, who is apparently Mr. Fefele’s brother, was one of the men with Mr. Fefele. In other words, Sergeant Manetevua was acknowledging to the Court that he may have been mistaken in his identification of Patrick Iro as one of the men involved.

56 It is quite remarkable that Sergeant Manetevua gave a statement to Police on 15 May 2000 in which he names only Mr. Fefele, then in a statement of 1 October 2003 he names both Mr. Fefele and Patrick Iro. Then, when giving evidence, Sergeant Manetevua recants what he said about Patrick Iro, in effect saying he may have been mistaken as to that.

57 Mrs. Anderson submitted that the reason for the recantation was because it would have been obvious to Sergeant Manetevua that Patrick Iro was not one of the accused in the trial, and that he was tailoring his evidence so as not to appear to have been mistaken at the time he identified Patrick Iro as one of the 3 men involved.

58 I do not accept that Sergeant Manetevua was deliberately tailoring his evidence in this way. I accept that on reflection Sergeant Manetevua was of the view that perhaps he had been too hasty in identifying Patrick Iro as one of the 3 men involved.

59 However, the fact that Sergeant Manetevua now acknowledges that he may have been mistaken as to Patrick Iro, despite his previous positive and unqualified identification of him in a witness statement, raises a question as to how sure he was in

his identification of Mr. Fefele. In other words, if Sergeant Manetevua was prepared at one point to positively identify Patrick Iro when he now says he cannot be sure it was him, there is a possibility he may have done the same with respect to Mr. Fefele. While I do not doubt the genuiness of Sergeant Manetevua’s evidence, a question is raised as to whether his identification of Mr. Fefele is reliable.

60 Its reliability is further called into question by Sergeant Manetevua’s own evidence that he was only able to see the side of the person’s face, and then only the lower half of that face. His evidence as to a muscular build, including the reference to a slight bow leg, does not particularly assist, as such general description could fit any number of Solomon Island men.

61 Evidence was given by Sergeant Manetevua of a conversation with Mr. Fefele during the trial and said to have occurred in the Court grounds. The evidence was that Mr. Fefele had said to him, prior to Sergeant Manetevua giving evidence, "Don’t tell the Court that you saw me". While I accept this was said by Mr. Fefele, the words are equivocal and I am not prepared to draw any adverse inferences against Mr. Fefele based on them.

62 I am conscious of the need for special caution in considering identification evidence. For the reason given, I consider there is a reasonable doubt as to the identity of the person said by Sergeant Manetevua to have been Mr. Fefele.

63 It follows that the Crown has not established beyond reasonable doubt that Mr. Fefele was one of the attackers.

Decision

64 Alick Fefele, I find you Not Guilty of the charges of attempted murder and doing grievous harm, and you are acquitted and discharged on those charges.

65 Lemuel Kwaimani, I find you Not Guilty of the charge of attempted murder. On the charge of doing grievous harm, I find you Guilty, and you are accordingly convicted of that offence.

BY THE COURT

Hon. Justice IDR Cameron
Puisne Judge