HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 355 of 2004

BETWEEN:

JIMMY LUSIBAEA, ALICK FEFELE, REX
ILA, JOHN KIKI, LEMUEL KWAIMANI
Accused

AND:

REGINA
Crown

Date of Hearing:	4 & 5 December 2007
Date of Decision:	6 February 2008

Mr McConaghy and Ms Kesaka for the Crown
Ms G Brown for Jimmy Lusibaea
Ms K Anderson for Alick Fefele 
Ms N Manning for Rex Ila and John Kiki
Ms M Lidimani for Lemuel Kwaimani

DECISION ON AMNESTY

Cameron PJ

1	In this case all the accused are charged with the attempted murder of Moses Garu on 10 May 2000. They are also charged with doing grievous harm to him and conspiracy to murder.	
		
2	All apply for amnesty under the Amnesty Act 2000. It is contended that all the requirements for amnesty are fulfilled, and in particular that:	
			
	(a)	The criminal acts were committed by members of the Malaita Eagle Force, in retaliation against the forceful eviction of Malaitans from Guadalcanal (Section 3 (1) (a) and (2)(b) of the Act); and	
			
	(b)	The criminal acts were unlawful acts directly connected with that eviction and amounted to "killing or wounding in combat conditions or in connection with the armed conflict on Guadalcanal" (Section 3(4) (b)).	
			
	(c)	The criminal acts are not excluded by the human rights subsection of the Act (Section 3(5)).	
		
3	It is apparent from the prosecution witness statements (tendered by consent) that the Crown case is that in May 2000 the accused, all Malaita Eagle Force members, received information that the day before a boy from the Malaita Eagle Force had been killed in fighting with the Guadalcanal Revolutionary Army.	
		
4	The statements suggest a plan was then hatched among some or all of the accused to kill the victim Moses Garu by way of retribution for the killing of the boy. Moses Garu was at that time a bank manager at the Development Bank of Solomon Islands, Chinatown Branch Office. He was known by the accused to be a Guadalcanal man, but had no known connections with the Guadalcanal Revolutionary Army. It is apparent from the statements that he was selected as the victim solely because he was a man from Guadalcanal.	
		
5	It is said that on 10 May 2000 some of the accused, armed with bush knives and a small axe, entered the bank during working hours and attacked Moses Garu, cutting and stabbing him and leaving him severely injured.	
		
6	I am satisfied that the acts of the accused, as members of the Malaita Eagle Force, were "in retaliation against the forceful eviction of Malaitans from Guadalcanal", and so fall under section 3(2) (b).	
		
7	I am not satisfied, though, that the alleged acts of the accused constituted "killing or wounding in combat conditions or in connection with the armed conflict on Guadalcanal" within the meaning of section 3 (4) (b).	
		
8	It was argued forcefully that this was a wounding "in connection with the armed conflict on Guadalcanal". Counsel for the accused led evidence to the effect that retribution killings were part of the Melanesian culture at the time as between the Malaita Eagle Force and the Guadalcanal Revolutionary Army.	
		
9	The evidence of Nevan Onorio was somewhat qualified. In particular, under cross examination from Mr McConaghy, he was equivocal about whether the culture of such retribution killings would extend to include an innocent civilian who was a non-member of either of the warring factions. The evidence of Mr Voto, being largely hearsay, added nothing substantial.	
		
10	I am not satisfied from the evidence, on the balance of probabilities, that killing or wounding innocent victims who were not part of the armed conflict and for the purposes of retribution formed part of the culture of either the Malaita Eagle Force or the Guadalcanal Revolutionary Army.	
		
11	Further, I simply do not accept that the wounding for retribution of an innocent victim, who was not a member of either warring faction and who had taken no part in the hostilities, can be said to be "in connection with the armed conflict". There is nothing in either the Amnesty Act or the Townsville Peace Agreement which suggests otherwise.	
		
12	The fact that the wounding was carried out by members of one of the warring factions does not mean it was "in connection with the armed conflict"; nor does the fact that it appears to have been an act of reprisal against the acts of the opposing faction. There is simply no sufficient nexus between the attack on this person and the armed conflict. It was a wounding outside the arena of the armed conflict in that it appears to have involved a targeted attack on a person who was not involved on either side of the fighting and in circumstances other than combat conditions.	
		
13	It is not necessary for me to consider the arguments advanced in relation to the subsection on human rights violations.	
		
14	I find that on the balance of probabilities the accused have failed to satisfy me that their actions fall within the wording of the Amnesty Act. I therefore decline their application for amnesty.	

THE COURT