HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 300 of 2006

REGINA

V

WILLY MAOMA, TOME FUTA, BRIAN
SUAKE, NIXON MAETOIA, DANIEL KAPINI

Dates of Hearing: 12 November 2007 to 27 May 2008 
Date of Decision: 08 August 2008

R Cavanagh for Willy Maoma,
George Squier for Tome Futa 
Edward Cade for Brian Suake
Doko Kari for Nixon Maetoia
'Amelia Fa'asau for Daniel Kapini
Edward Fitzpatrick, with him 
Ricky Iomea for the Crown

JUDGMENT

Commissioner Lewis:

PRELIMINARY

INTRODUCTION

1	This prosecution relates back to 2000 in a period euphemistically known and widely referred to as 'the ethnic tension' on Guadalcanal. The Information presented here by the Director of Public Prosecutions includes 8 counts of serious crime.

2 Each man is charged with murder of a child and two teenage boys in August 2000 and some with other offences which are said by the prosecution to have been committed at the same time and place in the execution of a joint criminal enterprise to which each accused was a party. Each accused, the prosecution alleges, were acting in pursuance of an understanding or arrangement amounting to an agreement to commit the crimes charged in counts 1,2 and 3.Three of the five accused gave evidence and called evidence. 

3 The charging of other offences on the same Information as a count of murder or counts of murder, brought against the same accused person, is not proscribed in the Solomon Islands, it is however, an undesirable practice. It is best avoided; R v Jones (1918) 13 Cr App R 86 CCA per Lawrence J at 87 and R v Hofschuster (1993) 65 A Crim R 167 per Mildren J at 175. 

4 Each accused has been separately represented. There have been 22 witnesses called by the DPP. Two defendants gave evidence and called witnesses. Two made Dock statements and called no witnesses and one merely made a Dock Statement calling no other witness. 

5	On 21 08 00 the child and two teenage boys were murdered in leaf huts above the seaside village of Savekau, Marau Sound. The five accused, all of whom are alleged to have borne allegiance to of the Marau Eagle Force, are charged with the murders together with other offences said to have happened following the murders. The prosecution alleges that the accused planned to avenge the death of a senior Malaitan relative. The accused believed the deceased boys assisted the Isatambu Freedom Movement. 

6	What immediately follows is a narrative containing the conclusions I have reached having heard the evidence of the witnesses and arguments of counsel. The findings represent my conclusions to the extent that I am satisfied about the evidence beyond reasonable doubt. What subsequently follows is the legal and factual basis for arriving at these conclusions or findings.

BACKGROUND TO THE EVENTS OF 21 AUGUST 2000
 
7	By the second half of 1998, Guadalcanal had arrived at a season of killing, bloodshed and violence which became known as the 'ethnic tension'. By early in the Year 2000 the Institutions of law and order had become badly dysfunctional. In areas of the Weathercoast and the Marau region, they had ceased to exist. Many police had deserted their posts.

8	The Marau region to the South and East of Guadalcanal became a focus for differences between Guadalcanal people on the one hand and people of Malaitan heritage including Areare speaking people and part-Malaitan residents of Guadalcanal who had been living in the villages of the Marau region on the other. 

9	By 2001, an agreement designed to 'avoid, prevent and stop…further acts of hostilities' was negotiated, drafted and subsequently executed. The agreement is Exhibit D26 (Suake) in this trial. 

10	The factions who were playing out the hostilities in the year 2000 were the Guale militant organizations, Isatambu Freedom Movement also known as the IFM, the GRA (Guadalcanal Revolutionary Army) or the GLF the (Guadalcanal Liberation Front) on the one hand and the MEF the Malaitan Eagle Force together with the Marau Eagle Force on the other hand. 

11	Antipathy between the warring factions appears to have arisen principally by reason of the fact that, some people of Guadalcanal heritage regarded people of Malaitan descent as foreign interlopers who had taken and were continuing to take lands said to belong to the tribal groups of Guadalcanal (Guales). For their part the evidence advanced is that the Malaitans were simply living their lives peacefully in the Marau Region as they had done, in some cases, for generations. 

12	The correctness of the views held between the IFM and Marau EF members are irrelevant for present purposes, I merely observe that in many cases those views were passionately held by some people of both camps. Such was the general state of relationships between the warring factions by August of the year 2000 at Marau.

13	The coastal villages of Vonu and Savekau are situated some 8 kilometres apart on the South Eastern edge of the island of Guadalcanal. They face the North-West Bay and the islands of the Marau Sound of which there are many. The geography of the area may be seen in Exhibits P1 and P21.

14	There is a winding foot trail - in Courtroom Pidjin a 'road' which makes its way from the Southernmost part of the Marau area, all along the seaside to Honiara on the Northern Coast some more than one hundred Kilometres, East and North beyond Marau. During the years of the Tension, armed militant soldiers from Guadalcanal would use the road to travel in pursuit of their objectives. It took them through the seaside village known as Savekau. 

THE HIDEOUT HUTS OF SOLOHONA AND THE NEUTRALITY OF SAVEKAU VILLAGE

15	In July 2000 there had been aggressive forays by apparently militant groups firing rounds from vessels from the North West Bay of the Sound into the coastal areas around Savekau. The gunfire was frightening to the populace, and included rounds which would light up as they passed low over Savekau village. 

16	Behind the coastal villages the land rises away North into rolling hills valleys and mountains. The mountain range behind Savekau rises to a spot height of 296 metres. Residents of Savekau who became gravely alarmed at the ordinance being fired across their village and wary, indeed fearing, the passing armed militia took refuge in the foothills to the North West of Savekau into an area known as 'Solohona' or, as a couple of witness called it , 'Hora Hora'.

17	There, in the foothills at Solohona, they built leaf huts which were basic shelter. In or about June of 2000 the refugees from Savekau moved their families and their possessions up into what has been described by many of the witnesses as the 'hideout huts'. It was in and around these huts at Solohona that events leading to this trial played out.

18	At Vonu village approximately one kilometre directly to the SSE of Savekau, similar activities were occurring. There, the villagers moved to the foothills above Vonu and established a hideout resembling the one at Solohona. The witnesses Barnabas Sirai and his wife Ruthsilia Barnabas and their family moved to the hideouts above Vonu to escape the building fear and violence gripping the region. 

19	At Savekau, there seems to have been at least 8 huts, when one accepts the hand made drawing in the evidence, Exhibit P13. There were more than 20 people who took refuge in the area from the life they had been enduring in Savekau village. The defendant Maoma and the some twelve witnesses he presented, swear that some at the hideout huts were senior Guale militants. 

20	A pillar of the prosecution case has been that the villagers of Savekau retained a neutral position - being neither pro Malaita nor pro - Guale. Each of the residents of the hideout huts was cross-examined closely about his or her loyalty to and or his or her membership of Guale militant groups.

21	All denied membership and loyalty to Guale groups. They were asked about the reputation of others in the hideout huts for allegiances to the militant Guale groups. No witness presented by the Crown acknowledged that any named hideout hut residents supported Guale militants. 

22	One witness, presented by the prosecution, Ruth Barnabas, when cross-examined by Maoma's counsel said that Guadalcanal militants 'lived' in Savekau village. When asked the militant residents' names she replied that she didn't know. In re-examination she corrected herself and said that 'we only saw militants walked past and then they go away (sic)'. I conclude that she did mean that militants walked through the village and did not live there. 

23	Much time in cross-examination of witnesses presented by the prosecution, was spent by counsel for the accused men, alleging named people whom the accused said were leaders or members or supporters of Guale groups. They received in the main a preponderance of negative responses, some disclaimers of knowledge and no confirmation from the prosecution witnesses that those named people, associated with Savekau, were Guale supporters.

24	Later during the defence case, the accused Maoma called twelve witnesses who named the Savekau villagers alleged to be GLF or IFM militants and gave examples of their pro-Guale violence towards Malaitan people and Areare speakers of the Marau Sound. Maoma's witnesses were in direct conflict with the evidence of the former residents of the Marau Sound on the issue of allegiance to or membership of, the Guale organised militant groups. 

25	As the prosecutor pointed out, most of the residents of the hideout huts were part-Malaitan by birth, Areare speakers or full Malaitan born citizens of the Solomon Islands but who had Guale lineage and therefore qualified, since they had Guale lineage for acceptance by those who would discriminate against them. The prosecutor posed the questions why would pro-Guale people need to leave the villages for fear of Guale militants if they were supporters of the IFM? 

26	One such witness was a Chief of Savekau, Kesty Babaua. He is a part Guale and part Malaitan person by descent, a prominent resident of the hideout huts and a highly material witness in the present case. He and his wife and children denied that he was a Guale Militant. Some witnesses called by the accused Maoma said that Kesty Babaua was a well-known GRA commander. That charge he denied. His signature in the Marau Peace Agreement appears under the heading 'Chiefs ' was because he was Chief in a Guadalcanal area - not under provision made for example 'Signed on behalf of the Marau Eagle Force' [see Exhibit D 26 (Suake) pages 19 and 23) or Isatambu Freedom Movement

27	I find that Kesty Babaua was a village Chief of Savekau village at the material times - but he maintained that he was neither a person of authority in, nor a supporter of, either militant group. I accept his evidence I consider him to be an honest witness doing his best to recount events as they happened so long ago.

28	The significance of 'genealogy' as it has been described by witnesses in this case is that the Malaitan part Malaitan and Areare speaking peoples had taken and held land which the Guale people claimed they were not entitled to. 

29	The 'ethnic tension' was said by some to have commenced as a result of Guale militants driving the Malaitan peoples from land which they held on Guadalcanal into the relatively barren islands of the Marau Sound. I have concluded and I am satisfied that a driving out of Malaitan and Areare speaker was done by militants. I have concluded that Waimamaru Camp on Marapa Island in the Sound was temporary home to villagers taking refuge from Warahara, Niu Houa, Komu PaiPai and Suu villages - and probably others including Poposa, Komuta'a. 

30	It was submitted by counsel for each accused that the residents of the Hideout huts ought to be found to be unreliable witnesses whose evidence I should reject. It was submitted by the accused men, that the evidence placed before the Court by the witnesses presented by the accused Maoma, showed plainly that there is a probability not just a reasonable possibility, that many, if not all of the mature residents of the hideout huts at Solohona at least had Guale militant leanings and were assisting the Guale cause in the Marau region if not directing it . 

31	While it was undoubtedly the belief of all the accused that the hideout-hut residents, it was certainly not the fact in my judgment that the people from Savekau at the hideout huts held other than neutral positions .

32	I conclude from the whole of the evidence that the Savekau hideout hut residents were neutral and, as the prosecution have it, 'walked a fine line between the two opposing militant groups'. The resident witnesses of the hide out huts all denied that they were members of the GRA IFM or GLF and I have considered their sworn evidence carefully. Evidence was called by the accused Maoma about neutrality. I consider the evidence under the heading Maoma's witnesses later in this judgment. 

THE VIEW BY THE COURT OF SAVEKAU VILLAGE AND THE HIDEOUT HUTS

33	The Savekau hideout huts had been erected in an area adjacent and close to a garden, which, before the Tension, had supplied the Savekau village below with a food supply. It continued to supply the occupants of the hideout huts with adequate food needs during the time under consideration. 

34	A formal View at Trial of the hideout huts was taken. It was conducted on the basis that I was able to better inform myself as to the questions being raised, to follow the evidence and to apply it but not to replace the evidence with the view. The scene I saw was not the same as the way things had been in 2000. The bush had grown over and the huts were gone. 

35	On 4 December 2007, this Court walked through the village of Savekau and ascended the twisting and climbing path beyond the village to the area in which the hideout huts had been built in mid 2000, and conducted a 'View'. 

36	The bush was devoid of big trees but had flourishing grasses and close young timber growing. It was hilly, steep and rocky. Although witnesses referred to the paths as 'roads' as they put it, the way was narrow and difficult and sometimes merged into the bush - not identifiable as paths or tracks at all. The canopy was extensive. A main feature of the area was the creek and tributaries which flowed through a gully as can be seen in Exhibit P13. The huts were built on either side of the creek.

37	The settlers of Solohona had set up their huts for the duration of the Tension in the manner set out in P13. The route taken by the Court ascends to Solohona, the remnants of a construction one encountered on the climb up the path from Savekau was the 'boys' sleeping hut' on a ridge - that is, one hut of the Kennedy family in which, I am satisfied, the three now deceased boys, Jonathon Talanimaina Kennedy, Fox Mono and Sebastian Abele slept. The next hut, as the exhibit shows is the 'Kennedy's' hut which is the hut in which Charles Kennedy and his wife, daughters and small son, Paulton, slept beyond which was the third Kennedy building, the small kitchen [see Exhibit P13].

38	At the View, I took care to preclude any taking of 'evidence'. There were no huts remaining by 2007 only the bare outline of floors and walls covered in the remnants of old timber and rocks used in their construction.

39	Counsel helpfully presented a drawing of the area after consultation between the Prosecution and the Defence. Each side accepts that the exhibited plan P13 reflects as nearly as possible, the location of the hide-out huts of the inhabitants of Solohona on 21 August 2000.

40	I gained a strong impression of the steepness of the slopes, the direction of the approach the Court group used and the distances and lines of sight from one hut to another and I have attempted to reflect those impressions in these findings. So much is the threshold to the events which led to the charging of the accused.

THE CHARGES AND THE PLEA OF EACH ACCUSED.

The charges and the plea accompanying them are:

Count	
Maoma	
Futa	
Suake	
Maetoia	
Kapini	

1. Murder
Fox Mono
S200 Penal Code	
Not Guilty	
Not Guilty	
Not Guilty	
Not Guilty	
Not Guilty	

2. Murder
Jon Kennedy
s 200 Penal Code	
Not Guilty	
Not Guilty	
Not Guilty	
Not Guilty	
Not Guilty

3. Murder
Sebastien Abele
s 200 Penal Code	
Not Guilty 	
Not Guilty	
Not Guilty	
Not Guilty	
Not Guilty	

4. Attempted murder
Charles Kennedy
s 215 Penal Code	
Not charged	
Not Guilty	
Not charged	
Not charged	
Not charged	

5. Unlawful Wounding 
Kesty Babaua
s 229 Penal Code	
Not charged	
Not Guilty	
Not charged	
Not charged	
Not charged	

6..aggravated
roberry
Kesty Babaua s 293 Penal Code	
Not Guilty	
Not Guilty	
Not charged	
Not charged	
Not charged	

7. Aggravated robbery
Warren Manemala
s 293 Penal Code	
Not Guilty	
Not Guilty	
Not charged	
Not charged	
Not charged	

8. Going armed in Public s 83 Penal Code	
Not Guilty	
Not Guilty	
Not Guilty	
Not Guilty	
Not Guilty	

The particularity of the charges is as follows : 

COUNT 1

MURDER contrary to section 200 of the Penal Code

Particulars of Offence

Willy Maoma, Tome Futa, Brian Suake, Nixon Maetoia and Daniel Kapini on 21 August 2000 at Solohona Marau Sound, in the Guadalcanal Province did murder Fox Mono

COUNT 2

MURDER contrary to section 200 of the Penal Code

Particulars of the Offence.

Willy Maoma, Tome Futa, Brian Suake, Nixon Maetoia and Daniel Kapini on 21 August 2000 at Solohona Marau Sound, in the Guadalcanal Province, did murder Jonathon Kennedy.

COUNT 3

MURDER contrary to section 200 of the Penal Code 

Particulars of the Offence

Willy Maoma, Tome Futa, Brian Suake, Nixon Maetoia and Daniel Kapini
On 21 August 2000 at Solohona Marau Sound, in the Guadalcanal Province, did murder Sebastian Abele.

COUNT 4 

ATTEMPTED MURDER contrary to section 215 of the Penal Code

Particulars of the Offence

Tome Futa on 21 August 2000 at Solohona Marau Sound, in the Guadalcanal Province, did attempt unlawfully to cause the death of a person namely Charles Kennedy.

COUNT 5

UNLAWFUL WOUNDING contrary to section 229 of the Penal Code

Particulars of the Offence

Tome Futa on 21 August 2000 at Solohona, Marau Sound in the Guadalcanal Province, did unlawfully wound Kesty Babaua

COUNT 6

AGGRAVATED ROBBERY contrary to section 293 of the Penal Code

Particulars of the Offence

Willy Maoma and Tome Futa on 21 August 2000 at Solohona, Marau Sound in the Guadalcanal Province, each being armed with an offensive weapon, to wit a knife, did rob Kesty Babaua,

COUNT 7

AGGRAVATED ROBBERY contrary to section 293 of the Penal Code

Particulars of the Offence

Willy Maoma. Tome Futa, Brian Suake Nixon Maetoia and Daniel Kapini on 21 August 2000 at Solohona, Marau Sound, in the Guadalcanal Province, each being armed with an offensive weapon, to wit a firearm did rob Warren Manemala.

COUNT 8

GOING ARMED IN PUBLIC contrary to section 83 of the Penal Code

Particulars of the Offence

Willy Maoma, Tome Futa, Brian Suake, Nixon Maetoia, and Daniel Kapini, on 21 August 2000 at Solohona Marau Sound, in the Guadalcanal Province, did go armed in public without lawful occasion in that manner that caused fear to persons namely Kesty Babaua and Warren Manemala.

Each of the accused has pleaded not guilty to each of the offences charged against him. 

THE PROSECUTION CASE 

The Prosecution case charged against each accused man, is one of participating in a joint criminal enterprises and committing offences, some individually and some jointly. 

41	The prosecution case is that the 5 accused together with 7 other men met on Marapa Island in the Marau Sound. The accused Willy Maoma organised the meeting. The men were all armed with high powered military weapons. Some possessed weapons already, some were given them. All were wearing military clothing and all were members of the Marau Eagle Force ('Marau EF') a military group affiliated with the Malaitan Eagle Force ('MEF').

42	The men then travelled in a small boat powered by an outboard motor from Marapa directly to a village known as 'Vonu' on Guadalcanal mainland.

43	On arrival at Vonu the men were split into two separate groups following the directions of Maoma. One group was sent to Vonu village to kill a man by name Barbabas Sirai. The members of other group were instructed to walk from Vonu to Savekau village – a village which was partially abandoned as a consequence of the Savekau villagers fear of violence, it being at the height of the Ethnic Tension.

44	At Savekau the Maoma group continued on through the village of Savekau and began a climb to some hide-out huts built by the villagers in the hills above Savekau in the hope that that they would be safe from violence.

45	Just before the group arrived at the hideout huts. Maoma split the group in two. Maoma, Futa and Suake went to the hut known as the young boys hut where Fox Mono, aged about 18 years, Jon Talanimaina Kennedy aged about 12 years and Sebastian Abele aged about 16 years were sleeping. Maetoia and Kapini took an indirect route and came at the area of the huts from a different direction. All were still armed.

46	The three boys, Fox Mono, Jon Talanimaina Kennedy, and Sebastian Abele, had no known affiliation with any military group on either side of the ethnic divide. They were blameless, asleep and unarmed. Futa Maoma and Suake entered the hut and shots rang out. 

47	Sebastian Abele was seen to jump out of the hut and to run toward the bush. More shots were fired at him.

48	Maoma Futa and Abele were seen to come out of the hut. The Prosecutor acknowledges that the Crown cannot say who pulled the trigger and so the case must be seen as one of joint common purpose as it is a joint enterprise.

49	The shots woke villagers in the hide out huts. Some ran off. Maetoia and Kapini herded people together. The prosecutor alleges that the two were either involved in a joint criminal enterprise with Maoma Futa and Suake or that they were aiding and abetting Maoma Futa and Suake. Their conduct after the deaths of Maoma and Futa shows their clear involvement.

50	Jon Talanimaina Kennedy was heard by witnesses to cry out to his father, Charles Kennedy for help, but Charles Kennedy in fear of the 5 armed men was unable to help his son.

51	Tome Futa pointed his gun at the head of Charles Kennedy and pulled the trigger three times. The weapon failed to discharge. Suake then stepped in and stopped Futa from trying again by saying 'don't shoot him he's alive'. Kennedy was questioned about militants and asked where Kesty Babaua lived.

52	The group then approached Kesty Babaua's area. There Maoma shot at him - three rounds travelling and hitting the ground just in front of Kesty Babaua's feet at a time when Kesty Babaua had his three grandchildren standing just behind him.

53	Maoma and Futa approached Kesty Babaua and asked of the whereabouts of Tony Suava, who Futa told Kesty Babaua, had a 'red mark' on a list. Kesty Babaua told the men that Tony Suava had gone

54	Then, Futa struck Kesty Babaua on the head and shoulders with a rifle butt. Babaua's head began to bleed at the point of the blows.

55	Futa then produced a knife and inflicted a wound in the vicinity of the throat of Babaua. The wounding constitutes the charge in count 5 in the Information.

56	At the time of wounding Babaua, Futa was speaking of the murder of a man saying 'you killed an old man, you sent militants to go and kill an old man'. The prosecutor says that the words suggested that the killings were pure revenge.

57	Futa then said that he would kill Kesty Babaua unless he got some money. At that point Ruth Kesty the daughter of Kesty Babaua went to the hut of Kennedy and got some money and brought it to Maoma and Futa. The Prosecution says that these actions constitute the facts in count 6 which involves Maoma and Futa.

58	The accused then moved to Warren Manemala who was nearby and had watched some of the incident involving Kesty Babaua.

59	Maoma, in the presence of Futa and Suake asked Manemala if they were hiding Guale militants. Manemala replied that they were not.

60	Brian Suake spoke to Warren Manemala's wife Nancey Ngelea, and said to her that Warren should not talk too much or he would become 'no.4' (or the fourth to be killed)

61	Maoma, Futa and Suake were then approached by Kapini and Maetoia who were still armed. Kapini approached Warren Manemala and raised his gun pointed it at Warren Manemala and said 'you are one of them'

62	Maoma said to Kapini 'do not do anything' and Kapini lowered the rifle.

63	Kapini then said to Manemala 'you must give me money'. Manemala felt he must do so since they were armed. He borrowed $160 from Charles Kennedy and handed it over to Kapini. When he did, all 5 accused were present. The prosecution says that those facts constitute the proof of the charge in count 7 in respect of which all five accused are charged.

64	The five were at Charles Kennedy's hut. They were offered betelnut and they asked for food. They were given betelnut by Charles Kennedy and some food from the Kennedys' motu.

65	Maoma and Kapini said that they would take the head of Mono and Abele back to show others. Kennedy persuaded them not to do so.

66	The five accused then left saying 'we will come back tonight to search for other boys'.

67	The Kennedys went in to the boys huts and found Fox Mono dead in his bed - he had substantial wounding to the head and left arm. Jonathon Kennedy had been shot in the leg and had sustained an arterial wound from which he died of blood loss a short time later. Sebastian Abele's body was found in the bush a short distance from the boys' hut with a wound to the chest and to an arm.

68	The bodies of the boys were buried a short distance away. The people from the hideout huts then left to go other villages, away from trouble.

69	Some witness will give evidence of seeing Savekau going up in smoke. They were able to say from later visits that most of the village of Savekau had been destroyed.

70	The prosecutor suggested that identity would not be an expected issue since the five accused men were all well known to the witnesses as they had lived side by side for years - some had gone to school with them.

71	The prosecution say that then RAMSI entered the Solomon Islands and further investigations of the matter were commenced. Statements were taken from potential witnesses.

72	In July 2005, warrants were issued for the arrests of the five men and in April 2006 all five surrendered to Police at the Police Headquarters at Rove, Honiara.

73	Of the five accused Maoma exercised his right to remain silent as did Brian Suake. Futa was interviewed along with Maetoia and Kapini.

74	Maetoia was interviewed on 03 04 06. He told police that he and Kapini together separated from the others before reaching the hideout huts. At day-break they heard shots. They waited a further period of time and then went to the huts to join the others and go to the beach. He said he had brown clothing and a hood. He was armed to protect himself if attacked. He said Kapini was also wearing a hood. He said that he told Charles Kennedy not to be frightened and went into Kennedy's house and was given some food. He heard no threats made towards Kesty Babaua or Manemala by anyone and saw no violence to them. He said that he later heard that money was taken. He knew at the time that his grandfather had been shot. He believed that his grandfather had been shot by GLF and that the people from Savekau had been GLF Members. He heard that Manemala had picked up his grandfather's killers in his, Manemala's boat. He said to police that he did not know why the boys had been shot and he said that Charles Kennedy had told him that they had been shot. He told police that he had not overheard any discussion about the operation. He said that other men had been in the same boat and had been dropped elsewhere to go to another village. He said to police that he had not heard anyone say anything about 'taking heads' and didn't see Futa point his rifle at Manemala. Maetoia said that he did hear Daniel Kapini ask Manemala for money. He said that Manemala had previously demanded money from Daniel Kapini and threatened to have the GLF kill Daniel. He said that Willy Maoma was in charge of the operation.

75	Kapini was interviewed by police on 03 04 06. Kapini admitted going to Savekau but said that he and Maetoia left the others as they were about to enter the hide out huts. They waited for an hour and then they entered the hideout huts area. They went and saw Charles Kennedy and he spoke with Manemala as he, Kapini 'had had problems in his family about Manemala who had demanded $600 from his brother'. Kapini took it back from Manemala on 21 08 00. Willy had received $500 back. He denied being a member of the Marau Eagle Force but 'acted as if he was in it'. Kapini told police that he had taken a gun with him that night because he was scared of Willy. Willy, he said, was wearing a hood.

76	Prosecution say that the Forensic Pathologist, Dr Dodd, had had bones exhumed from graves near where the hideout huts had been and taken to Honiara where he conducted autopsies following which he concluded that :

.	Fox Mono suffered extensive blunt trauma force to the skull, jawbone, right hemi-pelvis, left collarbone and left forearm bone, which caused fractures.

.	Jon Talanimaina Kennedy suffered a gunshot wound to the right lower leg, which shattered both bones in the leg and death could result from blood loss.

.	Sebastian Abele suffered blunt force trauma to the skull and a facial injury caused by a sharp instrument such as a machete. He also had holes in his clothing consistent with bullet holes and Dr Dodd felt that he could not exclude gunshot injury.

77	The Prosecution in its opening address, submitted that these were cold blooded killings in which all five accused were involved, various other offences were committed by this group of armed men with a view to punish this village for the earlier killing of one of their relatives. That killing had nothing to do with the three innocent young boys.

A SUMMARY OF THE DEFENCES PRESENTED BY EACH ACCUSED.

78 Set out in barest outline, the defence which each accused presented at trial in the order of their appearance in the Information, now follows.The defences are considered in greater depth later in the judgment.

WILLY MAOMA

Maoma pleaded not guilty to each count charged against him in the Information namely those in counts 1,2,3 and 6,7 and 8. He denied being a leader or participant in any joint criminal enterprise with his co-accused or any other person in August 2000 or at all. He swore that he killed no-one. He swore that he fled the area of the hideout huts and went on foot to Vonu village following gunshots he heard shortly after his arrival at the huts. Maoma said that he had had no contact with the witnesses Charles Kennedy or any of the Kennedy family or Kesty Babaua. He swore that the interaction he had had with Warren Manemala was to put the proposition to Manemala, which he said was the basis of his errand and that of his companions, namely, that the women from Waimamaru on Marapa Island be given permission to have access to the garden at Solohona to get a supply food for the Mailata part-Malaitans and Areare speakers at Waimamaru, a camp for refugees living on Marapa Island having fled from villages on the main Island of Guadalcanal. Maoma then called 12 witnesses whose evidence predominantly related to the credibility of the 'hideout hut witnesses' presented by the prosecution and relating to the activities of the hideout hut residents, Kesty Babaua, Warren Manemala and the deceased boys Fox Mono and Sebastian Abele.

JOB TOME FUTA

Futa pleaded not guilty to each count charged against him in the Information, namely counts 1 to 8 inclusive. He denied being a participant in any joint criminal enterprise with his co-accused or with any other person. He swore that he had not been told and that he had no knowledge of any plan to commit any criminal act. He swore that the reason for his presence at Solohona was that he had been directed by one Jude Hariu and Tony Suava to negotiate peacefully with Savekau hideout Chiefs, Kesty Babaua and Warren Manemala concerning use of the garden near the huts in order to feed those refugees at Waimamaru, Marapa Island driven from the villages of Wadahara, Niu Houa, Mariau, Su'u and Komuta'a by Guale militants in the then 'tension time'. Futa swore that he had been issued with a .303 Lee Enfield rifle and had had a briefing on how to operate the weapon from a man named Jude Hariu. Futa swore that he believed that he needed a gun for self-protection because Savekau was one of the strongholds of Guale militants and there was a real risk of an encounter with them. He swore that at the hideout huts above Savekau at dawn on the morning of 21 08 00, he met Kesty Babaua, Warren Manemala and Nancey Ngelea. He gave evidence that he had been given Betelnut and a small knife with a yellow handle by Kesty Babaua to clean the fruit. He said that he had been talking with Warren Manemala and Kesty Babaua when he heard gunshots nearby. He says that he ran off down a track past Savekau village and on to Vonu where he was collected by boat in company with the other four accused in his party and others from Marapa Island who had come with Kahunimae, who had headed for Vonu. He says that the vessel then returned them to Waimamaru. He swore that their arrival time at Waimamaru was approximately 11:00am. He swore that he handed back the weapon issued to him by the man Jude Hariu to Hariu himself. He swore that, while it had been alleged that he had attempted but failed to shoot the witness Charles Kennedy, that he had not been anywhere near Charles Kennedy nor near the Kennedy huts that morning. He denied that he had harmed or had offered harm to Kesty Babaua - as he has been charged with doing in counts 5,6,7 and 8 in the Information. Futa swore that he had not learned that the three boys, Fox Mono, Sebastian Abele and Jonathon Talanimaina Kennedy had been killed until the 'end of 2000'.

BRIAN SUAKE

Suake is the brother of Willy Maoma. He pleaded not guilty to the charges brought against him on the Information in counts 1,2,3,7 and 8. He gave evidence but called no witnesses. He said that he had left the villages of Warahara and Komuta'a following an attack on his brother Ratu by identified Guale militants and ultimately after staying in other places on Guadalcanal he made his way to Waimamaru with his family. He swore that he had been sent to Solohona by Jude Hariu who armed him with a .303 rifle and instructed him how to operate the weapon. He said that Jude Hariu briefed him and told him that he was to go to the Savekau hide-out huts in company with his co-accused for the purpose of speaking with Warren Manemala and Kesty Babau to persuade them to allow the women from Waimamaru to get food from the garden at the area of the huts. He disclaims any criminal intention or conduct on his part and asserts that it was he who, when he saw Futa pointing a weapon at the head of Charles Kennedy (contrary to Futa's account of events), pushed the barrel of the weapon away and admonished Futa. He did not kill nor did he know that the three boys were to be killed and knew nothing of any agreement to do that. Suake said that he thought that the two gunshots he heard as he climbed to the hideout huts were fired by Guale militants.

NIXON MAETOIA

Maetoia pleaded not guilty to counts 1,2,3,7 and 8. He was not charged with other offending. He made a statement from the Dock and called no witnesses. In his defence, in barest outline, Maetoia told the court that he was called from his bed in the early hours of 21 08 00 and told to join a boat on the beach at Waimamaru. Having done so he was given an SLR rifle. The vessel took him straight to Vonu. He was making his way to the Savekau hideout huts following Maoma, Futa, Suake when he and Kapini (who was following him) became scared and stayed back – not following the co-accused. He says that he heard shooting and after about an hour and a half after the shooting he and Kapini went looking for the others. Maetoia says that he was told by Charles Kennedy that his, (Kennedy's) 3 boys, had been killed. He said that Kapini had been standing some distance away when he told Maetoia of their deaths. Maetoia says that he and Kapini then joined Maoma, Futa, Suake, Manemala and his wife Nancey Ngelea, who were in the vicinity of the huts of Kesty Babaua. There, he said nothing to anyone and left and returned to the vessel sent to collect them at Savekau. He was taken back directly to Waimamaru and left his SLR weapon in the vessel.

DANIEL KAPINI

Kapini pleaded not guilty to counts 1,2,3,7 and 8. He was not charged with other offending. He made a statement from the Dock and called three witnesses, Billy Akwasi, John Kapini (the father of Daniel) and one Anthony Suava. Kapini's defence in barest outline is that he was collected by Maoma at Poinkeni village, Mauiapa Island, directed to join a group in a boat. He says that he was supplied with a firearm and the vessel took him to Savekau and the group went up into the bush. Kapini says that he was scared and hung back in company with Maetoia instead of continuing with the others. He says that after about 30 minutes he heard gunfire. 20 or 30 minutes after the gunshots he and Maetoia continued up into the bush. He saw Charles Kennedy but saw none of Kennedy's family. He said that he was not at Kennedy's house. He saw a group including Maoma. He saw Warren Manemala and others in the area of Kesty's hut. Kapini demanded the repayment of a debt from Manemala. He said that he believed the debt was due to his brother Moses Kapini. He claimed that he had a right to demand payment. Kapini says that he did not fire his weapon and knew nothing of the events of the night relating to the Kennedys and Kesty Babaua. Kapini said that he wore 'ordinary clothes' a jacket with a hood but did not wear charcoal nor did he wear the hood over his head. Kapini says that he at no time offended against the law. Kapini says that he left the SLR weapon in the boat. 

DOCK STATEMENTS MAETOIA AND KAPINI

In the presentations of their defence, Maetoia and Kapini chose to make a statement from the Dock to convey to the Court what it is that they have to say about the charges.

At the conclusion of the trial, the statements of Maetoia and Kapini been carefully weighed into account and accorded the weight I consider the statement is entitled to in comparison with what is established by the sworn evidence. 

The statement is not evidence, however, and may not be treated in the same way as evidence given on oath. The Dock statements are not subject to cross-examination.

THE ANTAGONISTIC DEFENCE OF SUAKE 

The way the sworn evidence has panned out in the cases of Maoma, Futa and Brian Suake, it is clear that both Maoma and Futa deny going to the Kennedy huts but the accused Suake in his evidence places Futa in the presence of Margaret and Charles Kennedy but not in the location of their huts. 

Suake's evidence, is that Futa had the weapon he was carrying pointed at the head of Charles Kennedy in the presence of Margaret Kennedy, Charles's wife, at the junction 45 metres from the Kennedy huts.

The path from Ata's hut [see plan exhibit P15] makes a junction with the path from Kennedy's huts to the area in which Kesty Babaua's huts are located. Those huts are about 45 metres from the Kennedy's kitchen towards Kesty Babaua's hut. 

Suake places the Kennedy children in the Kennedy Kitchen, 40 or 50 metres away at the time he first sees Futa with Charles and Margaret Kennedy. 

There are quite profound factual differences between the evidence of Maoma and his co-accused Futa and Suake. Suake giving rise to an 'antagonistic' (or cut-throat') defence as between each of the three accused who have chosen to give sworn evidence. 

THE LEGAL EFFECT OF ANTAGONISTIC DEFENCES AND THE NEED FOR SOME CONFIRMATORY EVIDENCE OF A CO-ACCUSED

The evidence of a co-accused (here in the Maoma/Futa/Brian Suake context) is admissible in the case as a whole. It is admissible for and against the accused. 

Where the evidence of an accused is unfavourable to that of another or other co-accused, such as in the present case, a danger exists that the co-accused may have an axe to grind. The Court is therefore obliged to observe the difference in the evidence and observe the warning that the co-accused may have the axe to grind [Cheema [1994] 1 WLR 147] . I observe that warning.

The need therefore is to consider the surrounding evidence and determine whether the evidence of the co-accused is supported by independent confirmatory evidence, confirming the claims of the accused in a material particular. 

The warning is only applied when considering the case against the accused (here Maoma) and then on the basis that the co-accused may have an axe to grind. The evidence of the accused is to be no more carefully scrutinized than the evidence of any other witness in the case.

NON SHIFTING ONUS OF PROOF

79	In this trial the prosecution carries the onus of proving beyond reasonable doubt each element of the counts charged against each accused. There is no shifting onus. In count 8 I consider the notion of negative averment in connection with the offence of going armed in public. I shall say more about the effect of the negative averment later in the judgment. When I use the expression 'satisfied' in this judgment I mean 'satisfied beyond reasonable doubt' .The accused carries no onus nor burden of proof.

THE CHARGES AND THEIR ELEMENTS.

80	COUNTS 1, 2, and 3 – MURDER

Murder is defined in section 200 of the Code as:

“any person who, of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder…”

section 202 of the Code provides:

“malice aforethought may be express or implied and express malice shall be deemed to be established by evidence proving either of the following states of mind preceding 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 the 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 that 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.

“Grievous harm means any harm which amounts a maim or dangerous harm or seriously or permanently injures health or which is likely to so injure health, or which extends to permanent or serious injury to any external or internal organ, membrane or sense.”

“harm” has its own definition. It means any bodily hurt, disease or disorder whether permanent or temporary”.

The elements of murder are such that, in cases such as the present, the prosecution must, in order to establish the guilt of a person charged with murder, 

.prove beyond reasonable doubt

.that the accused intended

.at all material times 

.to cause the death of 

.or grievous bodily harm to 

.the deceased

.or knew that the deceased would be killed

.or inflicted with grievous bodily harm

.and was responsible for the death of the deceased.

81	ATTEMPTED MURDER 

Count 4. – (charged against Tome Futa only)

(a)	Provision for 'attempts' is made in Part XXII and Part XXXIX of the Code as follows:

'215.	 Any person who – 

(b)	attempts unlawfully to cause the death of another ; or 

(c)	with intent unlawfully to cause the death of another does any act, or omits to do any act which it is his duty to do, such act or omission being of such a nature as to be likely to endanger human life, is guilty of a felony, and shall be liable to imprisonment for life.

'378.	when a person intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence. It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfillment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention. It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence'.

The elements of the offence of attempted murder require that :

.the prosecution must prove

.beyond reasonable doubt,

.that the accused,

.intended at all material times

.to commit the offence of murder, ( that is to kill (bring the life of the victim to an end) or commit grievous bodily harm on the victim and,

.commenced to put his intention into execution,

.by doing an overt act

.(meaning an act necessary to complete the offence) and

.the intent of the accused is not fulfilled.

FUTA: CHARGE OF ATTEMPTED MURDER

82	I propose to deal with the charge of attempted murder brought against Job Tome Futa immediately.

83	In the present case, witnesses say that Futa presented a firearm to the head of Charles Kennedy in the presence of members of Kennedy's family and pulled the trigger three times (although the precise number of manipulations of the trigger, varies in the telling).

84	There is no evidence from any interview with Futa by police. Futa denies the charge has given sworn evidence and denies being with Charles Kennedy in the circumstances alleged against him or at all. 

85	The evidence of Futa's co-accused Brian Suake however places Futa approximately in the circumstances complained about by Charles Kennedy except that the location at which the pointing of the weapon held by Futa is displaced by the evidence of Suake by about 35 metres from the location described by Kennedy but has only Margaret Kennedy present. I warn myself about Suake in the necessary way. [see this judgment at page 197 supra and see the direction in R v Cheema]. 

86	Having regard to the whole of the evidence I am satisfied that Futa was at the rear of Kennedy's sleeping hut in the presence of Kennedy and his wife Margaret and daughters, Phyllistas, Pritas and Verna Ovilau and Paulton Kennedy his baby son.

87	I am satisfied that Futa came to the group and presented a gun which he was carrying at Charles Kennedy's head and pulled the trigger at least once. 

88	As he pulled the trigger, Brian Suake entered the area and seized the barrel of the weapon and pulled it away from Kennedy and admonished Futa, saying words to the effect 'leave him he's alive' 

89	The Crown must prove that Futa at that moment was possessed of an intention to kill (cause the death of ) Charles Kennedy. Intention to kill or inflict grievous bodily harm is an element of the offence. 

90	I conclude that there has been no satisfactory proof of the intention of Futa at the moment of his pulling the trigger, directly or by inference on the evidence as it stands – there is no reference to Futa's state of mind at the time of the attempt or at all - nor can it be inferred from the present circumstance. Even if there were evidence of intent, the existence of the requisite intent cannot convert into an attempt, an act which is merely preparatory. R v Rowley 94 Cr App. R 95 CA and see Regina v Kennedy Bela (2004) HC CRC no. 100 per Kabui J at page 3 and following.

91	I agree with Kabui J in Bela that intent is a principal ingredient in the offence of attempted murder and that it may be inferred from the established facts in the case if those facts allow of such an inference to be drawn in the particular case. 

92	Assuming briefly for the purpose of argument that the weapon allegedly carried by Futa was capable of being fired, even once, manually and not automatically, by a pulling of the trigger, the pulling of the trigger amounts to doing an overt act within the meaning of section 378 above. 

93	Were it were the case that Futa knew that there was no round in the breach of his rifle and that the rifle could be safely triggered. If that statement of fact were to be accepted then it would assuredly not amount to an attempt for it would negate an intention to kill or inflict grievous bodily harm - but only if Futa's evidence were to be accepted as a reasonable possibility. 

94	I have no doubt at all that Futa raised and presented his rifle at Charles Kennedy's head and pulled the trigger at least once perhaps more than once. 

95	I am unable to say that I am satisfied beyond reasonable doubt that it was Futa's intention at the time of pulling the trigger that Charles Kennedy should receive a fatal bullet when one considers the evidence.

96	Futa does not say to the Court that he was just pretending to fire a loaded weapon - Futa says that the incident of pointing a gun at Charles Kennedy did not take place because he was never in the situation described by the witnesses. For reasons that I will set out later I find that Futa was present at the Kennedy family sleeping hut in the presence of Kennedy and Kennedy's wife and children.

97	There is no proof that the weapon contained ammunition ready to fire. There is evidence of either three unsuccessful manipulations of the trigger of the weapon or less (depending on which of the witnesses' evidence the court accepts), with no resultant discharge of the weapon 

98	Provided always that direct or indirect evidence of Futa's intention to kill (cause the death of) or inflict grievous bodily harm on Charles Kennedy has been established by the prosecutor beyond reasonable doubt, then an impossibility of achieving the desired result would not stand in the way of a conviction. 

99	But what if for example, a circumstance was contrived by Futa and by some quirk of black humour Futa, knowing that the rifle held no ammunition, decided to frighten Kennedy?

100	The Crown must prove intent and actus. Intent may be inferred from, for example, an admission by Futa to police or indeed to any cogent credible witness –there is no evidence of such an admission and no admission by Futa of holding such an state of mind during evidence in this Court, however, the Crown carries the onus of proving an intention to kill. I conclude that the prosecution has not done so 

101	I understand section 378 of the Code to mean therefore that in circumstances where in fact, it is physically impossible for the accused to commit a particular crime, an attempt to commit that crime has nevertheless been proved if the Crown establishes:

(1)	That the accused intended to do the acts with the relevant state of mind which together would comprise the intended crime (that is, if the facts and circumstances had been as he believed them to be, he would have committed that crime) and,

(2)	that, with that intention he did some act towards the commission of that crime which went beyond mere preparation and which cannot reasonably be regarded as having any purpose other than the commission of that crime.

102	I find that the prosecution has not established the requisite intent of Futa beyond reasonable doubt. The Crown has not proved the requisite intent to kill was possessed by Futa. I find the accused Tome Futa, not guilty on count 4.

UNLAWFUL WOUNDING (the Code section 229) – count 5

103 	Section 229 of the Code provides:

'229. Any person who unlawfully wounds another is guilty of a misdemeanour and shall be liable to imprisonment for five years.

“wound” has a meaning defined in section 4 of the Code : 

“wound” means any incision or puncture which divides or pierces and exterior membrane of the body, and any membrane is exterior for the purpose of this definition which can be touched without dividing or piercing any other membrane.

104	The elements of the offence of unlawful wounding are therefore:

.	the prosecution must prove beyond reasonable doubt, 

.	that the accused, Job Tome Futa

.	at Solohona,

.	on the 21 08 00,

.	unlawfully ( that is without lawful justification or excuse)

.	wounded,

. 	Kesty Babaua.

105	Futa is the only defendant charged with wounding. The defence of Futa is plain - he spoke without acrimony with Kesty for some time, Kesty offered him betel nut and a knife to cut the fruit, and as he cut the fruit, he heard a shot. He ran into the bush and as he did there was another shot fired. And he left the area. 

AGGRAVATED ROBBERY (the Code section 293) – counts 6 and 7

106	The Code provides as follows:

“293. (1) Any person who – 
being armed with any offensive weapon or instrument , or being together with one person or more, robs….any person. Is guilty of a felony…..”

107	The Elements of the offence of aggravated robbery are 

.	the prosecutor must prove beyond reasonable doubt that,

.	all accused (here in a joint criminal enterprise),

.	at Solohona,

.	on 21 08 00,

.	armed with an offensive weapon namely (count 6. a knife, count 7 firearms - the nature and quality of the weapons – whether 'offensive' or not, to be determined from the circumstances)

.	together in company with all four co-defendants,

.	robbed (count 6. Kesty Babaua – count 7 Warren Manemala)

GOING ARMED IN PUBLIC (the Code section 83) – Count 8

108	The Code provides as follows:

“83. Any person who goes armed in public without lawful occasion in such a manner as to cause fear to any person shall be guilty of a misdemeanour, and his arms may be forfeited.”

109	The elements of 'Going armed in public' are that the person must be shown by the prosecution beyond reasonable doubt to have done the following things:

.	gone in public, (here, the accused were all moving in public areas)

.	armed (the word 'armed' bears its ordinary usage that is to bear arms to carry or to possess (quaere 'knowingly') a weapon - here, rifles and a shotgun.

. 	conducting themselves in such a way (if Manemala and other witnesses are to be accepted, the accused were offering threats of violence)

.	without lawful occasion – the phrase 'without lawful occasion' requires the defendant to prove on the balance of probabilities that he had a lawful occasion to go armed in public see Criminal Procedure Code s.202 which provides for negative averments:

“202. Any exception exemption proviso excuse or qualification, whether it does or does not accompany in the same section the description of the offence in the law creating the offence, and whether or not specified or negatived in the charge or complaint may be proved by the defendant, but no proof in relation thereto shall be require on the part of the complainant.”

.	and by that means 

.	caused fear to Kesty Babaua, Charles Kennedy and Warren Manemala (there is evidence from the preponderance of the hideout hut dwellers of being in fear and certainly Kesty Babaua, Charles Kennedy and Warren Manemala depose to being in fear).

JOINT CRIMINAL ENTERPRISE

The enterprise

110	The prosecution alleges that the five accused men entered into joint criminal enterprise. At the conclusion of the Crown opening address, I asked the learned Crown Prosecutor to spell out the enterprise alleged.

111	With the consent of the accused the Prosecutor handed up a document which I have to say, really doesn't answer the question of just what the Crown says the joint unlawful enterprise was. 

112	The document commences by setting out the law applying to joint offences (section 21 of the Code), then the law applying to joint offenders in the prosecution of a common purpose (s.22 of the Code). The document concludes by reciting as follows:

“all defendants were armed with firearms looking for individuals who they believed had been involved in the death of one of their relatives. In the prosecution of that purpose it was a probable consequence when carrying firearms that grievous bodily harm or death would be caused to persons in the village.”

113	Since the document does not reveal just what the alleged unlawful joint enterprise (understanding or arrangement between the members amounting to an agreement to do an unlawful act or acts) was, it is necessary to look further in the Crown opening address to establish the unlawful objects of the agreement.

114	It is clear from the opening address that the Crown allegation of the existence of an unlawful agreement between the five accused is intended to be confined to the three counts of murder alleged in the Information as counts 1, 2 and 3. 

115	I conclude from what the Crown Prosecutor has said in his opening address, that the terms of the unlawful agreement alleged are, that the understanding or arrangement,

.	is confined to counts 1, 2 and 3

.	included all five accused,

.	was joined by all five, 

.	included an intent to cause death or grievous bodily harm to the persons whom the five accused held responsible for the death of a relative. 

.	where-ever and when-ever they found the persons at the hideout huts on 21 08 00 whom the five accused held responsible for the death of the relative and,

.	the agreement was reached between them before they reached the hideout huts 

.	in particular they were looking for the man Tony Suava.

116	The opening address of the Crown Prosecutor, which has been included in this judgment set out in full [at heading 2. (above)] as the basis of the understanding or arrangement which constitutes the joint criminal enterprise alleged here which the five are said to have made between themselves. 

117	The prosecution relies on the provisions of sections 21 and 22 of the Code to secure convictions. The Crown alleges that Maoma, Futa, Suake are guilty under section 21(a) (b) or (c), Maetoia and Kapini under s 21(b) or (c) of the Code. An alternative Crown case is that all five individuals are caught by the provisions of section 22. ('probable consequences').

118	In the present case, counts 1, 2 and 3 are supported by much direct evidence of activities peripheral to the issue of whether it was the accused men or some of them or indeed one of them who directly caused the deaths of the three boys.

119	In his closing address the Crown Prosecutor submits: 

“6. There is no direct evidence that any of the 5 defendants shot or beat any of the three dead boys. There is evidence to suggest that Futa attempted to murder Kesty Babaua and inflicted the wound on Kesty Babaua ….. 

“43. Because of the way they acted together, it can be inferred that there was an agreement arrangement and planning amongst them. The fact that they were all armed undertook weapons training for two hours as admitted by Maoma, had all met and been instructed by Jude Hariu, a signatory to the Marau Peace Agreement as a unit Commander shows some degree of planning. It should also be noted that Jude Hariu was the son of the deceased Shadrach Hariu and in the context of the times I submit that any operation would not have been a negotiation but a revenge attack on the village blamed for the death, Tony Suava. It was also suggested by Futa that Jude Hariu remained at Waimamaru camp as 'he had anger in his heart and he might do something different'. 

THE JOINT UNLAWFUL UNDERTAKING (JOINT CRIMINAL ENTERPRISE)

120	It is well established that where there is an allegation that a joint criminal enterprise exists, it is necessary for the Judge (not the jury) to consider the evidence and to be satisfied that there is some evidence of 'preconcert'. 

121	If the judge decides there is evidence of preconcert, then the effect of that finding enables the Jury to treat any evidence of things said and done in the furtherance of the joint criminal enterprise by one accused as being admissible against another or other co-accused.

'When two or more persons are bound together in the pursuit of an unlawful object, anything said or done or written by one in furtherance of the common purpose is admissible in evidence against the others. The combination implies an authority in each to act or speak on behalf of the other.' Tripodi v The Queen (1961) 104 CLR 1 at 7

THE ALLEGED UNLAWFUL UNDERTAKING BETWEEN THE ACCUSED

122	The Crown allegation of joint criminal enterprise as between the accused men is that the accused were all in agreement that they would travel to Savekau hideout huts armed, and there they would look for individuals who had been involved in the death of their relative Shadrach Hariu. The Crown alleges that the accused had agreed to look for Tony Suava - that Tony Suava was the 'chosen victim of the day'. Kesty Babaua spoke of it 28 11 07 p.84]. Maetoia said that Tony Suava 'had a red mark' [29 11 07 p. 12]. 

123	Maetoia confirmed to police in his interview that they were looking for Tony Suava [interview p.146] In Maetoia's case however, the interview with Maetoia is an out of court statement, not evidence against the co-accused nor admissible against them on any other basis because by the time the interview happened, the conspiracy (if there ever was one) was at an end. 

124	Isaac Rao refers to Suava. He says Futa asked him 'where's Tony Suava'…. 'I answered him saying Tony's gone to town' [22 02 08 p.32].

125	I treat therefore the alleged unlawful undertaking of which all the accused are alleged to have been intent on achieving was that, they had an intention to avenge the death of their relative by looking for Tony Suava and avenging the death of their relative by 'dealing with him' that is by inflicting grievous bodily harm or death on him. 

PRECONCERT

126	I am satisfied that there is equivocal evidence of preconcert. It is

.	the accused travelled together following a briefing,

.	each was armed,

.	the accused travelled to Vonu and Savekau hideout huts in darkness,

.	at least three reached the Kennedy huts together,

.	the accused or at least three were reliably observed together, armed, near the boys' sleeping hut 'less than five minutes' after the first of two shots were heard and one boy was seen to jump from the boys' sleeping hut.

127	The purpose of the journey, however, may have been to negotiate use of the garden for food.

128	Generally speaking therefore, the words said and acts done in the furtherance of the joint criminal enterprise by one accused in this case are admissible against the co-accused where those words or acts are not otherwise embraced and subject to proper observation of the warning about accomplices having an axe to grind. 

SECTIONS 21 AND 22 OF THE CODE

129	The prosecutor calls on sections 21 and 22 of the Code as an aid-in-proof of the charges here.

130	The interaction of sections 21 and 22 of the Code is that section 22 becomes operational and the prosecution will rely on the extended concept of joint enterprise based on common purpose where the offence charged is not the same as the enterprise agreed upon.

131	Insofar as counts 1, 2 and 3 are concerned, the offence charged is not the same as the enterprise agreed upon. Therefore insofar as counts 1, 2 and 3 are concerned the prosecution will rely on section 22 of the Code.

132	To establish the presence of a Joint criminal enterprise it is convenient now to consider the evidence.

FACT FINDING – JOINT CRIMINAL ENTERPRISE AND GENERALLY

133	I am satisfied from the whole of the evidence that on the early morning of 21 08 00 that the three young men Jon Kennedy, Sebastian Abele and Fox Mono were sleeping in the boys sleeping huts' at the Savekau hideout huts of the Kennedy family and that:

.	at or about dawn on 21 08 00 thereof the five accused were in the vicinity of the Kennedy huts in possession of firearms of various kinds.

.	I am also satisfied that Charles Kennedy, his son Paulten his wife Margaret and their daughters, Philistas, Pritus, and Verna Olivau were sleeping in the Kennedy sleeping hut about 10 – 15 metres from the boys sleeping hut together with an aged and infirm lady referred to as 'Beulah'.

THE ACCUSED MOVING FROM KENNEDY'S HUTS TO KESTY'S AREA

134	I find that after the shooting at the boys' sleeping hut and following Futa's assaulting Charles Kennedy the five met and came together in front of the Kennedy family huts - on the path in front of the Kennedy's hut and the boys' huts on the stream side. [see exhibit P15] some time after the gun pointing by Futa.

135	I find that one of the five accused called out for Kennedy on four occasions to come out of the hut. I am satisfied that Charles Kennedy was reluctant to go to them but on the fourth call he relented and went to them. 

136	I am satisfied that one of the five told him to show them other huts around the place in which 'you hide your boys'. Kennedy said that they were aggressive to him as they had been at the time of their arrival. He showed them the path and returned to his hut and sat with his family in the kitchen hut.

KENNEDY GIVES MONEY TO RUTH KESTY AND RACHEL VATALU

137	A third shot was heard by Kennedy about 10 minutes after the second - further away, where Kesty's hut was at the time when Kennedy was sitting in the kitchen after the intruders had gone. [15 11 07 day 3 p235].

138	I am satisfied that once Kennedy returned to his hut, the next event was that Ruth Kesty, came to Kennedy. She was shaking and frightened. She had a conversation with Charles Kennedy. As a result of the conversation Charles Kennedy gave her $500.00. She left.

139	Not long after Ruth Kesty had come, I find that Rachel Vatalu came to Charles in his hut and had a conversation with him as a result of which Charles gave her $180:00. [day 16 06 12 07 p. 32]. Ruth heard Jon Kennedy screaming while she was getting $500 from Kennedy.

THE FIVE ACCUSED RETURN TO KESTY'S HUT

140	 I find that the five accused returned to the Kennedy's kitchen some time later. The family were in the kitchen. They asked Kennedy for betel nut and food and for a smoke. Kennedy gave them the food.

141	Maoma stood immediately outside the kitchen by a log and the four others sat inside on the floor of the Kennedy kitchen and ate, chewed and smoked. At that time Kennedy heard Jon Talanimaina Kennedy call out for help from the boys hut. Kennedy told him to wait, terrified by the presence of the five accused. 

COUNSEL FOR MAOMA PUTS ACTIVITY OF MAOMA INCONSISTENT WITH MAOMA'S CASE

142	I am satisfied that Willy Maoma was present at the huts. Maoma denied in his evidence of ever being at the Kennedys. It was put to Charles Kennedy who said of Maoma 'Willy Maoma was standing where the boys were sitting close to my kitchen at that time [day 4 15 11 07 page 261]

THE CLAIMS TO TAKE THE HEADS OF SEBASTIAN AND FOX

143	I find that Willy Maoma said that he had killed Fox and that he would cut Sebastian Abele's head off to take it 'back to the island' to show it to the group. Daniel Kapini said that he would chop off Fox Mono's head. I find that Kennedy said 'my boys yesterday and the other days were smart. Today they just lay down in bed, so just leave them and I will bury them.

144	I find that the five accused left the Kennedys huts and as they did, one said 'we will come back in the night to look for other boys who are not present this time.'

KENNEDY GOES TO HIS SON JON

145	At the time of the five accused leaving, I find that Charles Kennedy went to his son Jon and tried to save him but the child died from loss of blood following his injuries. Charles Kennedy saw Fox Mono was in the hut with severe head injuries and apparently dead laying on his right side with a gross wound across his face.

146	The evidence given by Charles Kennedy was not substantially shifted by the processes of cross-examination or the evidence of the subsequent witnesses 

THE RULE IN BROWN AND DUNN AND THE CONSEQUENCES OF PUTTING A MATTER INCORRECTLY OR NOT AT ALL

147	Mr. Cavanagh counsel for Maoma, put to Charles Kennedy [see day 4 15 11 07 at 263.2+] three propositions inconsistent with Maoma's sworn evidence in which Maoma said: “I have no idea about Kennedy's hut that morning”. [see day 48 31 03 2008 07] 

148	First, counsel suggested to Charles Kennedy that Maoma while going along to Kesty Babaua's area, had asked Kennedy where Kesty's house was, second, counsel suggested that Maoma had said to Kennedy as they walked towards Kesty's hut 'please don't be afraid of us' and third counsel asked where 'Tony Suava' was.

149	I adopt the approach suggested by the Court of Appeal in Foley [1998] 105 A Crim R1 (on a failure to put a matter to a witness whom the matter affected) – it should have been put so that the witness could have the opportunity of dealing with the suggestion; and that the witness has been deprived of the opportunity of receiving it. There will be exceptional cases where it is necessary to go further for example where there seems to be a tenable case of recent invention.

150	I do not consider that this case is one where I need direct myself further on the matter. I will however treat the accused Maoma's evidence as diminished in weight by reason of the inconsistent case putting off

IDENTIFICATION ISSUES

151	Photoboard identification and any possibility of an identification parade were simply out of the question when the investigation of this matter by Participating Police Force and RSIP officers commenced after the arrival of the RAMSI force years after the incidents. The delay in commencing an investigation, being occasioned by the then prevailing hostilities and continuing violence. 

152	The witnesses in this case have all testified of their relationship to and their associations with the five accused. However, there are always risks and hence I have considered the accounts in light of the factors listed in R v Turnbull [1977 OB 224 at 228-231] the guidelines and the need for special caution.

WHAT THE ACCUSED SAY ABOUT THE ALLEGATION OF JOINT CRIMINAL ENTERPRISE

153	Maoma denies the allegation that there was a joint unlawful arrangement or understanding amounting to an agreement. Maoma claims the trip was to negotiate for the use of the garden at Solohona - he denies ever being in the area of the Kennedy huts he says that in reaching the top of the climb to the huts he had immediately encountered Manemala and Nancey Ngelea, spent a little time with them. Shots rang out and he ran off when heard them. He carries no burden of proof but I do not accept him as reliable in any respect. 

154	Futa denies that any unlawful agreement existed between the others and himself. He says that he got to the top of the climb and saw Manemala and Nancey Ngelea and Willy Maoma in Kestys area and then had non aggressive conversation with Kesty. He took betelnut with Kesty until he heard shots and ran off into the bush. I regard Futa as an unreliable witness. 

155	Suake says that he and Futa were at the Kennedys huts. He says that he stopped Futa pointing his gun at Kennedy. Suake says that he arrived after Maoma and Futa at the end of the climb and saw Futa with his gun at Charles Kennedy's head and Margaret Kennedy was talking loudly telling Futa not to do anything to her husband [21 04 08 day 63 p.55] Futa says that he ran to them and stopped Tome from shooting. At that time, Suake says that the Kennedy children were in their huts which were over 30 metres away from where Futa was pointing the gun at Charles Kennedy.

156	Maetoia says that he and Kapini dropped back from the others because they were 'scared'. Approximately one hour and about twenty to thirty minutes later whilst away from the other accused they heard gunshots after they dropped back they heard gunshots. They then remained where they were until 'daybreak'. The passage is very difficult to follow. I understand Maetoia to be saying that he and Kapini waited until daybreak and then went up a path past Ariel Ata's.[see Exhibit P13]

157	Kapini. His evidence is he did not know where he was going. Although he asked Maoma he was not told.

DIRECTION ON SECTIONS 21 AND 22 OF THE CODE

158	A direction apposite to section 21(a) (b) (c) and (d) of the Code is that given by Hunt CJ at Common Law in R v Tangye (1997) 92 A Crim R 545 per Hunt CJ at 556 – 557. I adopt the direction here.

“the Crown needs to rely on a straightforward joint criminal enterprise only where – as in the present case – it cannot establish beyond reasonable doubt that the accused was the person who physically committed the offence charged. It needs to rely on the extended concept of joint criminal enterprise, based upon common purpose only where the offence charged is not the same as the enterprise agreed.

So far as a straightforward joint criminal enterprise is concerned the jury should be directed along these lines:

(1)	The law is that where two or more persons carry out a joint criminal enterprise each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused.

(2)	The joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or agreement need not be expressed and its existence may be inferred from all the circumstances. It need not have been reached at any time before the time the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime.

(3)	A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time the crime is committed and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the time is committed and a readiness to give aid if required is sufficient to amount to encouragement to the other participant in the joint criminal enterprise to commit the crime. 

(4)	If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission.

159	That covers the situation of the 'straightforward' joint enterprise alleged here, but here the Crown needs to rely on an 'extended' joint criminal enterprise because it is unable to establish beyond reasonable doubt that the accused was the person who physically committed the offence charged.

160	Section 22 of the Code provides:

“22. 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.”

161	I conclude (as Mr. Cade for Suake has suggested in his helpful address), that the joint criminal enterprise alleged in counts1,2 and 3 ought really to involve only the two men Maoma and Futa. 

162	I am not satisfied that the others were a party to the section 21 type joint criminal enterprise. I cannot be satisfied, given in the case of Maetoia and Kapini and in the case of Suake by reason of what he said and did afterwards. 

163	I extract the headings from Mr Cade's submissions that Suake:

.	wore civilian clothes

.	was armed with a low powered rifle,

.	intervened to prevent Tome Futa shooting Charles Kennedy,

.	whispered to Nancey Ngelea that she should 'tell her husband not to talk too much, three boys are already dead'

.	stepped between Daniel Kapini's gun and Warren Manemala

.	told the other accused that 'they were wrong and should leave the area'.

164	Mr. Cade urges that Brian Suake's conduct amounted to dissent not encouragement. It is he says to be compared with that of Maoma who will be seen to be aggressive and a leader. 

165	From the whole of the evidence, I have no doubt that it was an understanding amounting to an agreement formed between the two of them Maoma and Futa – in the lead of the climbing men some distance separating them from Suake who had turned to see where Maetoia and Kapini were, when he heard gunfire.

166	I am convinced that an agreement was formed between Maoma and Futa quickly just as they came on the boys' sleeping hut - with little or no forward planning just murderous intent shared between them. It was on the spur of the moment and between them, they shot and killed the two Fox Mono and Sebastian Abele and grossly injured Jon Talanimaina Kennedy. 

167	The evidence of preconcert is that both men were identified and placed in the immediate location of the sleeping hut and coming down to Kennedy's less than 5 minutes after the first gunshot. There were two shots fired. The injuries to the deceased were grievous and indicated that both blunt and sharp instrument or instruments had been used on two of the victims. 

168	The witnesses had three men coming down to Kennedys on the path. Maetoia and Kapini are seen at Kennedy's huts but much later than Maoma, Futa and Kapini.

169	The agreement made between Maoma and Futa was, I conclude, that they would both kill or cause grievous bodily harm to the occupants of the boys' sleeping hut.

170	It accords with their trip as outlined by the prosecutor that they would go and “look for individuals whom they believed had been involved in the death of one of their relatives”. – I accept as a reasonable possibility however that the accused set out there to negotiate the use of a garden for food for the Waimamaru Camp. 

THE EYE WITNESSES

Generally

171	Wherever and whenever a witness has given evidence about the events it has been necessary I have borne in mind that:-

.	these events are said to have happened nearly 8 years ago at the time of writing,

.	the witnesses will have in many cases admittedly have spoken conversationally with other witnesses about particular incidents and the event in general. Experience dictates that such conversations will probably have had an effect on the witnesses memory of events and perhaps they will have adopted the account of the other as their own thereby distorting the account they give,

.	the account they have given of events will in any event be distorted by the passage of time perhaps be rendered unhelpful,

.	some will have attempted to eliminate painful memories from their minds,

.	some may have exaggerated their account of what happened.

172	I have had regard to those possibilities in assessing the reliability of all witnesses including those of the accused and adjusted the reliance I have placed on the evidence of the witness accordingly.

173	I acknowledge that with the passage of time and given the frailty of human memory of events such as these that it is necessary to constantly be alert to such matters as are listed above – especially where identification is an issue and where the case is one which depends (as regards counts 1, 2, 3, 7 and 8) on circumstantial evidence to determine guilt or innocence of the offence charged innocence. I will consider identification and circumstantial evidence shortly.

COUNTS 1, 2 AND 3 (THE 'MURDER COUNTS')

174	There were no eyewitnesses in relation to these counts. The prosecution must rely on circumstantial evidence for proof of the charges. The only persons who may be said to be witnesses to murder and who gave accounts of what they saw are Charles Kennedy and his wife Margaret and his daughters. If their accounts are true, what they did see?

175	Charles Kennedy [transcript 14 11 07 p. 196] says that at between 5.00 to 6.00am when it was nearly light he was at his hut lifting up his small son Paulten Kennedy and he heard the sound of a high powered gun from the direction of his sons' hut. He looked towards the hut and saw his son Sebastian Abele 'jump' from the boys' sleeping hut and as he did, Kennedy heard a second shot. [14 11 02 day 3 p.196.9]

176	Charles Kennedy then turned his attention to his children and his wife, and supervised their leaving the hut 'by the back door'. Then Tome Futa whose father Kennedy had known well as a friend and fellow church goer came in front of Kennedy with a gun.

177	When Futa appeared in front of Charles Kennedy and his family, I am satisfied that Futa was known to Charles Kennedy. Kennedy knew Futa's father at Mariau village. Futa pointed a gun at Kennedy's head and pulled the trigger. The weapon did not discharge. Brian Suake then appeared and pulled the gun down. 

178	I find that Futa was holding a gun which Kennedy demonstrated was 'about a metre long' coming to him and standing in front of him. Futa pointed the gun at him and pulled the trigger at least once. Then Suake came and pulled the gun down saying as he did so 'leave him- he's alive'.

179	Kennedy said to Futa words to the effect, 'why don't you shoot me – the chance for you to shoot me is over.' Kennedy's wife Margaret gives a different account, but I accept that what Charles Kennedy said is so.

180	Futa and Suake walked off. Both were in 'ordinary clothes and unmasked'. Futa and Suake then, 'not a long time later - may be it was a short time', met their three friends – Willy Maoma, Nixon Maetoia and Daniel Kapini. Charles Kennedy knew Maoma, Maetoia and Kapini. 

181	I find that Kennedy knew Maoma especially well - a young man whom he had known as his 'best friend'. Maoma denied the 'best friendship' – Suake said that they 'could have been best friends [21 04 08] Kennedy knew Maetoia who was related to Maoma. And he recognized Kapini as one he'd known along with the others since Kennedy went to work at the Marau clinic in 1978.

182	I am satisfied that Charles Kennedy was doing his best to honestly and accurately state what happened. It was daylight and the light was improving as the day continued. He was to see more of the five as the morning progressed. I have applied the requisite 'Turnbull' [R v Turnbull [1977] QB 224 at 228 –231] 'guidelines for identification' with care to avoid error in considering the identification made by Charles Kennedy. 

183	The identification centring around Charles Kennedy's identification especially applies to the issue of the presence or absence of Maoma, Futa, Maetoia and Kapini who deny being at the Kennedys although the Kennedy family have the five present at the Kennedy huts on two occasions – first seeing them as they joined Futa and Suake and later returning as a group of five a little after the incidents at Kesty Babaua's area. I find that the accused did return to the Kennedy huts from Kesty Babaua's area.

184	Futa's co-accused Suake says that he saw Futa pointing the weapon at Kennedy and that he moved to pull the rifle down and to admonish Futa. I bring Suake's evidence into account. Futa of course denies that the incident at Kennedy's happened. 

185	The problem with Suake's evidence about the 'gun being pointed at Charles Kennedy by Futa', is that Suake locates the place where Kennedy says Futa pointed his gun at Kennedy at the junction of the paths from Kennedys' huts to Kesty's huts and the path up from the creek past Ata's about 35 metres away from the Kennedys huts. 

186	Suake claims that the Kennedy family – apart from Charles, were back at the Kennedy huts - which practically excludes Kennedy's family from seeing anything of the incident. I do not accept Suake on where the incident happened. I accept Suake that the incident did happen (but behind the Kennedy hut – not at the junction of paths)

187	I am satisfied that for all the differences of description between the Kennedy family about Futa's actions in pointing the weapon at Kennedy and pulling the trigger (and there are several), I am satisfied that Futa was present at the rear of the Kennedy huts and did point the gun at Kennedy and did pull the trigger of the weapon and that Suake joined him there in the presence of the Kennedy family and pushed the gun down or away from Kennedy. I do conclude that is not reasonably possible that the incident happened at the junction as Suake says.

188	Margaret Kennedy says [transcript 20 11 2007 p. 446] that she heard a gunshot from the side of the boys (Fox Mono. Jonathon Talanimaina Kennedy and Sebastian Abele) hut and then she and her children saw the boys Brian Suake, Willy Maoma and then Tome Futa come out from the hut carrying guns [447]. She says she knew them. She told of how she knew them. She is the only witness of seeing anyone come out of the boys' sleeping hut.

189	The force of Margaret Kennedy's evidence of what she said she saw at [446] was diminished in cross-examination by counsel for Maoma, Mr. Cavanagh [475 - 477] and Futa, Mr Squier [496]. 

190	Mrs. Kennedy maintained her position that while she had not seen them shooting - “I didn't see the boys on that pathway I saw them when they appeared…so I do not know which way they went” . She then conceded to Cavanagh that the first time she had seen the boys that morning was when they were on the pathway or in the bushes.

191	Futa's counsel suggested that Futa was sitting 'chewing with Charles Kennedy' at the time of the first shot at [496]. Margaret Kennedy's answer was 'I don't know'. On any view of the whole of the evidence, that just cannot be - in spite of his counsel's suggestion to the witness, Futa denies being with the Kennedys. Co-accused Brian Suake and Charles Kennedy have Futa present 'less than 5 minutes' after the first shot but pointing a rifle at Charles Kennedy's head.

192	Mr. Cade for Suake cross-examined Margaret Kennedy at [511] on the topic of her first sighting the men. She maintained that she first saw the men 'when she was at the back of the (Kennedy's) sleeping hut . . .

193	Ms. Fa'asau asked Margaret Kennedy about what she saw after the first gunshot - Ms. Fa'asau's question was :

Q	“but you did not see them actually shoot your sons?
A	“As we heard the gunshot from their hut and then we looked and see them coming down from their house towards us.”

194	I conclude from the evidence that Margaret Kennedy's evidence establishes only that she heard the shot, she looked out, she saw the 'three boys' come down from the hut towards where she was standing with her family at the rear of the family hideout hut sleeping area. She adds (when questioned by counsel for Maetoia) 'three boys showed up first then two later' [22 11 07 523]

195	I am satisfied from the whole of the evidence and inspite of the denials of Maoma and Futa, that the three of them Maoma, Futa and Suake were in or at the immediate vicinity of, the boys' sleeping hut as the first shot was heard and that Charles and Margaret Kennedy first saw the three when they were on the path from the boy's hut to the Kennedy sleeping hut. 

196	The appearance of three armed men in an area immediately adjacent to a hut from the vicinity of which, at least two shots had been heard less than five minutes immediately before they appear in view on a path leading from the hut in which a young man is found dead from serious cranial injuries, another is found dying from a gross gunshot wound to the leg and a third boy is found dead outside the hut with gross facial injuries is the strongest of circumstantial evidence connecting the appearance of the three men with their involvement in the injuries and death. 

197	Philistas Kennedy in August 2000 was twenty years of age. She says quite directly that at the time she first saw the accused men she was unaware that there had been killings [23 11 07 p.19]. 

198	She was awakened in the early morning by gunshots. She was told by her father to be calm and she stayed in the hideout hut. She saw Maoma, Futa and Suake in the kitchen of her family hut and the two men Kapini and Maetoia on the footpath (the one from Ata's hut to the Kennedy hut – see P13). 

199	She knew them. Willy was a close relative [23 11 07 p.8]. She and her family visited the Futa family and vice versa and Suake she knew because he was married to her Aunt Kensuna [23 11 07 p8]. They were armed . Maetoia she knew as a close relative. He was armed. Kapini she knew as her family visited his family. Kapini was armed on the morning of the gunfire.

200	It appears from her recollection she first saw the three when they were in the kitchen of the Kennedy hut and the others were on the path above the Kennedy hut.[11].

201	She says that Maoma, Futa and Suake asked the Kennedys for food and they were 'hurrying Charles Kennedy' to show them Tony and Kesty's huts [12]. Just then Maetoia and Kapini were standing on the footpath pointing their guns in the air. One then fired his gun. Then they left. Philistas says that her father didn't go with them he just 'showed them the road and came back' [12].

202	Philistas Kennedy says that she saw the body of Sebastian lying on the ground next to the boys hut, [2311 07 p.20] and that she saw Maoma taking a necklace from the body of the deceased Sebastian Abele. When she saw him taking the necklace he was about six and a half metres from her and in between the kitchen and the boys hut. [23 11 07 p.25]

203	The important thing is that Philistas says nothing of Futa presenting his rifle at her father and yet she must have been there if one accepts her timing of the sequence of the events time from all the other evidence of the incident.

204	Philistas also places the 'taking heads' conversation at a place between the kitchen and the boys' hut not as the other witnesses seem to have it. 

205	Phillistas was frank enough to agree that her recall is quite unsound, but how, (if the events did take place as she has them) could she forget the frightening sight of Futa presenting his rifle to the head of her father and pulling the trigger – perhaps three times? Her mother Margaret and her father tell of Futa pointing the weapon he carried at Charles Kennedy's head at [ 20 11 07 – p. 452] and Futa's co-accused Suake says he saw the incident and put a stop to it.

206	I believe that Philistas was attempting to recall things as they happened. I accept her as an honest witness. I judge her to be mistaken about the sequence of events and place no reliance on her saying the men ate at the Kennedys and went to Kestys. As to the absence of her recall of Futa with his rifle pointed at her father's head, I find that she is wrong about that. The significant thing about that incident is that it shows a lack of prompting of her memory or discussion by anyone with her before she gave evidence. 

207	I do not accept the evidence of Philistas's sequence of things. Philistas [23 11 07 p.13] says that when the boys came back, Tome and Willy said they would 'take the boys heads'. Willy said that he would 'take Sebastian's head' and Daniel said he would 'take Fox's head' and dad said no you've done enough by killing them' [23 11 07 p 13+]. Neither the timing nor the substance of Philistas's account of what happened aligns with the other Kennedys. No witness has Futa personally claiming that he will 'take the boys heads'.

208	Philistas also gave evidence of seeing Willy Maoma go to Sebastian's body lying on the ground near the boys' hut, and remove a necklace. [23 11 07 p 20.] In cross-examination by Mr Cavanagh for Maoma she said that the boys were wearing 'helmets'. That cannot be. No other witness or piece of evidence supports that assertion. I place no weight on it. 

209	Pritus Kennedy says that she was about eighteen years of age in August 2000. She remembers the day. She was with her family in hideout huts at Solohona 'hiding from the Marau Eagle Force'. She heard a gunshot. She was frightened and was crying she went to the back of the hut. 

210	There she saw two men who were approaching. She said that she recognized them as men she knew to be 'Tome and Suake'. [27 11 07 p.747]. They were armed. Tome pointed a gun at her father and it made a sound but didn't fire [749]. Suake said 'don't kill that man - he's alive' . She says that she saw three men Maoma, Maetoia and Kapini coming from the direction of the boys' hut. She knew the three she says.

211	Pritus does not say that she saw the three exiting the boy's hut. She does say that she later went to the boys hut and saw Fox Mono's body and that his head had an injury. [753].

212	She adds that she saw the body of Sebastian and that her bother Jon had a leg injury that her father treated Jon and she was there when Jon died. Pritus acknowledged to Mr Squier of counsel for Futa that she'd told police that a man had pointed a gun at her father but she couldn't remember his name, however she added under cross-examination that she saw Tome on the 21 08 00 and that he had then pointed a gun at her father.

213	It is significant to note that during the cross-examination by counsel for Maetoia that she had not seen Maetoia at the Kennedys she said that 'I saw came (sic) out from the boy's direction and that's where I first saw him'.

214	I believe that she was an honest witness attempting to recall what she saw. I am not satisfied that she could have seen Maetoia at the time she claims. 

215	Verna Olivau says that she was living in hideout huts in August 2000 because she was afraid of the 'tension'. She says that at that time she was 13 years of age. She says she was living in a hut with her father and mother and family. She says that she was awakened by a gunshot at daybreak [28 11 07- p.807] she and her family went out to the back together. 

216	There she saw 5 men with guns. She named the men as the accused. She says that she heard Jonathon Kennedy cry out 'dad dad you come and help me' [810] she was asked which of the men had gone off to Kesty's area by Mr. Cavanagh and she said that Daniel stayed back, the others went off to other places and later returned. She maintained that Daniel stayed behind at the Kennedys while the other four went away throughout her evidence.

217	Verna's evidence differs so much on that score that I place no reliance on her evidence about Daniel staying behind. At the time she was 13 years of age. She is not a reliable witnesses about what she saw.

THE DEFENCES

THE OPERATION OF THE RULES RELATING TO ADMISSIBILITY

MAOMA

218	In Maoma's case he gave evidence on oath. He admitted an innocent presence at the Savekau hide-out huts to negotiate access to the garden. He maintained that he was never in a situation of conflict with any person.

219	Maoma's evidence is that he did not see the Kennedys nor was he at the Kennedy huts. He acknowledges meeting with Manemala and Nancey Ngelea but says that he did not see Charles Kennedy.

220	He says that he did not see Maetoia and Kapini arrive at Kesty's huts and that he ran off when he heard shots.

Maoma made no statement to police he declined to do so as was his right. His evidence is evidence for and against each of his co-accused for all purposes.

FUTA

222	Futa gave evidence at trial. There is no caution statement in evidence. Futa said that he was present at the Savekau hideout huts where he saw Maoma, Manemala and Nancey Ngelea, he talked, chewed betel nut and smoked with Kesty and was never in a conflict situation with any one present. He said that he did not see Kennedy at any time nor was he at the Kennedy huts. He ran when he heard shots.

SUAKE

223	Suake made a statement to police and he gave evidence at trial. He presented a 'cut throat' defence and implicated Maoma and Futa by contradicting their evidence. His evidence is admissible for all purposes for and against himself and his co-accused. His statement to police is not admissible for or against anyone but himself. He has Maetoia and Kapini arriving at Kesty's, but some time late than he arrived. 

MAETOIA

224	Answered questions put to him in a lengthy interview with police. At trial made a Dock statement. Neither document is admissible against his co-accused unless the statement is adopted by the co-accused.

THE DEFENCES AND METHOD OF PRESENTATION BY EACH ACCUSED

MAOMA 

(Charged with all 8 counts in the Information).

Interview by police

225	In Maoma's case, no interview with police took place. Pre-trial, he chose, (as of course was his right), to remain silent. I noted that, he along with the other accused presented themselves to the police in Honiara, voluntarily. 

Presentation of his defence

226	Maoma chose to give evidence. The consequence of that choice was therefore to subject himself to close cross-examination by a very experienced prosecutor. I have weighed those factors into account when reaching the verdicts concerning Maoma. 

Examination in Chief – Willy Maoma

227	Maoma was sworn [day 48 page 2964]. He said that at around midnight on 20 08 00, a canoe came to Waimamaru from Niu Island. It contained three men. Jude Hariu, Allen Kahunimae and a third man the driver 'Morris'. 

228	Jude Hariu was a Commander of the MEF looking after those at Waimamaru camp. Allen Kahunimae was the Commander of the MEF looking after his own people. 

229	Maoma's evidence is that there were a number of mainland Guadalcanal village communities taking refuge from their mainland villages at Waimamaru Camp on Marapa Island, including villagers from Warahara, Niu Houa, Komuta'a and Su'u villages. 

230	Maoma said that Jude Hariu told him that the Commanders wanted the 'security' from Waimamaru (the accused) to go to Savekau hideout huts that morning on a 'negotiation trip'. That evidence of what was said was clearly hearsay and I give it no weight. 

231	Maoma said that they set out on the trip at 2:00am from Waimamaru camp armed. Maoma was carrying a light machine gun (see Exh P2 the page headed LMG Ultimax 100) given him by Jude Hariu. 

232	Maoma and his co-accused were taken to Simeruka (quaere 'Siwaeruka') island, where a group of men under the command of one Allen Kahunimae were put on board the canoe – an open canoe fitted with an 40 hp outboard motor ('OBM'). They then travelled to the coastal village of Vonu (see Exh P1). 

233	Maoma's evidence is that he had reached the hideout huts and once there the first person he met was Warren Manemala 'behind three huts'. They sat down on a log. Maoma said that Tome and Brian then arrived came up and stood behind them. 

234	Maoma asked to see Kesty (Manemala's uncle) As they spoke Maoma saw Manemala's wife Nancey Ngelea coming up the hill. Maoma says that he knew her. He and she shared a joke about her being overweight. They shared betelnut. Manemala called his uncle saying 'Kesty Kesty'. The three, sat chewing betel nut and, he says, that went on for about 20 minutes. 

235	Then Maoma says that he heard shots. He on hearing the shots, he fled the place straight into the bush in front of him. He says that he ran until he found a stream and then he turned and followed the stream until he came to the path which took him all the way to Vonu.

236 	At Vonu, Maoma says he was 'first back'. His recollection is that the time of his arrival at Vonu was about 7:30 am and that it was daylight. Tome Futa and Brian Suake turned up about 5 minutes after him. He says that he was later collected from Vonu with the other four co-accused by the OBM canoe in which they had travelled to Vonu. 

237	Maoma's evidence is that he had heard reference to the burning of Savekau. He said that he played no part in the burning of the village. He says that he wore 'Blue 'Yakka' (or khaki)* long pants and a 'blue 'Yakka' (or khaki)* ' shirt with Bluntstone safety boots - industrial wear - during the morning of 21 08 00.

238	He said that in July 2000 he had left Honiara and he had travelled to Marapa Island . At the time of his traveling to Marapa he had been working for Gold Ridge Mining as a drilling Mechanic. He said he left Gold ridge because he had, along with others had been 'road-blocked' by the GRA and had been airlifted to Honiara. Prior to Gold Ridge he said that he had worked as a mechanic for the Solomon Islands Government in several Departments.

239	His evidence is that he went to Marapa when he had news of that his uncle Shadrack Hariu had been shot dead by GRA militants on a trip to Niu Houa to collect food from the garden there. At that time he said that his mother, father, brothers and sisters were living in the Marau area at Warahara village (his own home), but when he went to Marau they were already at Waimamaru Camp. 

240	He said that the main reason for his returning to Marau was to protect his family because there was 'no police to provide protection' [day 48 page 2977] he said that he had heard that from a policeman in Honiara and he knew there was trouble in Marau because the GRA had already killed ('attacked') his bother Alfred Ratu in 1999 at the time when he, Maoma, was working at Gold Ridge. He had, he said, gone from Honiara to visit Alfred in hospital to see if the story of Alfred's injury was true. 

241	Maoma says that on the morning of 21 08 00 when he arrived back at Waimamaru camp he had handed the weapon he had been carrying on the trip to the hideout huts to Jude Hariu [day 48 page 2975]. He said that in early August he had been on a rescue operation of a ship the MV Aokolova which had been captured by GRA militants at Koaka bay South of Vavasu. He said that he and the others had rescued the boat without injury.

242 	Maoma swore that on 21 08 00 he had not hurt anyone nor had he ever done so [day 48 page2976] He said that he had not heard that three boys had died at the hideout huts on 21 08 00 and that he could not remember having been to Savekau village before 21 08 00.

243	Maoma says that he came to see police in Honiara at Rove in April 2006 to clear his name of this allegation that he had killed Fox Mono. He said that it was before 2006 as he now recalled (having been asked to reconsider the date by counsel) on an occasion - only one occasion - when he was accompanied by Ariel Ata and two other men who had come to ask compensation from him because they said that he had killed Fox Mono. He says that he told them that he had not killed Fox Mono that he had been there that morning but for a different purpose.[day 48 page 2979].

244	He says that he went with them to the police station because the demand they were making of him was not straight and the police had told Ata that he had no proof that he had done it.

245	He says that the next time he heard that the police were looking for him was in 2006 about the death of the boys.

246	He says that he saw none of the boys with him on 21 08 00 with a 'short gun'. I recall it as being asked whether he saw a 'shot gun'. In my view it matters little perhaps the shot gun was short. (Kapini says that he had a shotgun but that is an academic question since Kapini has made a Dock Statement which is inadmissible against the sworn evidence of Maoma).

247	Maoma was asked directly whether he had fired any shots that morning. He answered “ I heard two while I was running towards the bush and I heard one when I had entered the bush, but I'm not really sure if it was one or more than one'.[day 84 p. 2980]

248	Maoma denied entering the boys' sleeping hut or hurting anyone in the boys sleeping hut which he had heard about in evidence. He said that he had had 'no idea about Kennedy's hut (sic) on that morning'.

249	His evidence is that he had been with Manemala for between 15 and 20 minutes on the morning of 21 08 00 and that during that time Futa and Suake were with him. He says that no one was hurt during that time.

250	He says that he heard the evidence of the locality of Ariel Ata's hut but that when he was coming in to the hideout huts from the climb up the hill he did not see it and when he left the huts he ran into the bush and again didn't see it.

251	His evidence is that on the morning of 21 08 00 he heard no one say anything about burying boys nor cutting off heads nor shooting boys and that the first time he learned that the boys had died on 21 08 00, was towards the end of 2000 when he was at Waimamaru Camp [day 48 p. 2981]. He went, he said, back to Honiara towards Christmas 2000 in order to see his wife and son. His wife had not followed him when he went to Marapa because she had a job at the Central Hospital in Honiara.

252	Counsel drew Maoma's attention back to the ascending of the ridge to the Hideout huts. Maoma said that he had led the others up and over a ridge and down (indicating a slope of about 10 degrees to a group of three huts on the ridge slope where he saw Manemala behind three huts and that the path he was on was behind the huts though he had poor recollection of that matter. The huts were on the left of the path and there was about 6 – 7 metres between each of the huts.

253	He says that when he arrived at where Manemala was, Futa and Suake arrived about one minute behind him. There was no sign of Maetoia and Kapini in the vicinity of the huts then.

CROSS-EXAMINATION BY MR KARI [day 84p. 2994]

254	Maoma said that he did not realize that Nixon Maetoia was not keeping up with him on the climb to the hideout huts.

255	He said that he met Warren Manemala between five o'clock and half past five when it was 'not really daylight'.

256	He disagreed that he met Warren Manemala 'after' shots were fired. He said he and Tome and Brian Suake had been with Manemala for 15 to 20 minutes before the first gunshot. [day 84 p.2995]

257	He said that after Manemala called for Kesty he didn't see whether Kesty came out or not because he was facing the other way on the log on which he was sitting.

CROSS-EXAMINATION OF MAOMA BY MS. FA'ASAU, COUNSEL FOR KAPINI

258	Maoma disagreed with the suggestion by Ms. Fa'asau, that Kapini had been picked up by the OBM Canoe in which Maoma and the others were travelling at Poinkeni on the Island of Mauiapa and not at the village of Waimamaru on Marapa Island. He disagreed with the suggestion that when Kapini was picked up by the OBM canoe, that Kapini had been in company with Allen Kahunimae and Nicholas Maesua. [None of this was put to Allen kahunimae during Ms. Fa'asau's cross-examination of him] Maoma said that Kapini was collected by the canoe from Waimamaru at first.

259	Maoma was prepared to agree that the vessel went to Simeruka and picked up the boys of Allen's group among whom were Nick Maesua and Luciano Kopei.

260	Maoma agreed with Ms Fa'asau's suggestion that Kapini had been living at Poinkeni in 2001 but said that Kapini was not living there in 2000 since Kapini 'was un-married in 2000'.

261	Maoma agreed that Kapini had a 'married uncle' named Billy Akwasi who lived at Poinkeni around 20 08 2000 but he was unaware that Billy Akwasi was married to Kapini's aunt Winny Sia.

262	Maoma denied the suggestion put to him by Ms. Fa'asau that he had passed a message to Billy Akwasi to 'tell Daniel to go to Simeruka to wait for him (Maoma)'. Maoma responded that there was no such message passed by him because Daniel was at Waimamaru looking after Daniel's father and himself.

263	I note that Akwasi said nothing about receiving a note from Maoma in his evidence nor was he asked about such a note by anyone in cross-examination nor does Kapini mention the note in his Dock statement.

264	Maoma agreed that Kapini's family (mother father and brothers lived at Waimamaru around August 2000) because the house which Kapini's family lived in was near to Maoma's family's house and they lived closely together.

265	Maoma disagreed that Daniel lived at Poinkeni and again disagreed with the suggestion that Kapini got on the boat at Poinkeni which is a place on Mauiapa (Beagle Island) [see P1 and P21] - however Maoma did agreed that boys - other than Kapini, got on board at Simerauka. 

266	It was suggested by Ms Fa'asau that a man by the name of Francis Liumai went with Maoma and the others. Maoma answered 'I did not see him'.

267	Maoma agreed that he could not see Kapini as they moved to the hideout huts. He disagreed when asked whether he had seen Rachel Edi and Simon Mono at the huts saying 'when I got there I saw Warren'.

268	He disagreed with the suggestion that after he, Maoma, had been with Manemala for an hour or an hour and a half that Kapini arrived in Kesty's area –he said 'when I was there I didn't see Kapini at all' - as he had said to Mr Cade in cross-examination.

269	It was suggested that, notwithstanding his denial of seeing Kapini, that Kapini had demanded money from Warren Manemala. He disagreed saying 'that one I don't know anything about.'

270	It was also suggested that Daniel Kapini had not pointed a gun at Warren Manemala's in Maoma's presence. I took Maoma's answer to be that since he wasn't there so he didn't know.

271	Maoma agreed that while Kapini had carried a gun that morning which he had been given on the boat at Waimamaru, Kapini was not wearing charcoal on his face.

272	Ms. Fa'asau suggested that the gun was returned by Kapini to Maoma who disagreed with such a proposition saying that it was left with the others in the boat with Jude Hariu and Allen Kahunimae. I noted that in the evidence of Kuhanimae, nothing about the return of the weapons was put to Kahunimae at all even though he was asked questioned extensively about guns.

273	Maoma disagrees with the suggestion that the vessel dropped Kapini back at Poinkeni. I noted that no such proposition was put to the witness Kahunimae in cross-examination of Kahunimae by Ms. Fa'asau. 

274	Maoma said he knew that Kapini had worked at Tulagi and that he would meet him from time to time between 1992 and 1999 in Honiara but never at Marau in that time.

275	Maoma agreed (returning to the topic of the climb from Savekau to the hideout huts) that he never once stopped to talk with Daniel Kapini and that he had not once given Kapini instructions at Vonu but he 'believed and hoped' that Kapini had heard what Jude Hariu had told them at the briefing at Waimamaru.

276	He said that Kapini did not have a hood over his head on the morning of 21 08 00 but that he didn't really notice whether there was a hood attached to the jacket Kapini was wearing.

CROSS-EXAMINATION BY MR. FITZPATRICK FOR THE DPP

277	The prosecution suggested that Maoma had organized four people (aside from himself) to make themselves available for the events of 21 08 00. Maoma denied the suggestion.

278	He also denied that the MEF Commanders (Kahunimae and Jude Hariu) had come just to ask him to organize the men to make themselves available. 

I note what Kahunimae says of this in his evidence in chief he says that he was awakened by Willy Maoma, [day01 p. 41] a commander of the MEF as well as Kahunimae, and that Willy told him that he was to go to Vonu with Lucian Kope by the 'MEF boat 'that Suake, Maetoia and Kapini were at the boat when he Willy got there [p.16] and someone he only knew as 'Francis' and then they went straight to Vonu and met no other boys on route to Vonu where Willy split them into 2 groups and when asked to name who was going away from him he said Suake and Willy, Daniel, Tome and Nixon Mae. Willy was carrying and LMG (Ultimax)100 shown in exh P2. At [54] in cross-examination Mr. Cavanagh he says that no-one was the leader of the 5 people . at [77] he told Mr. Squier that Godfrey Kove, Lucian Kope, James Kaeti and Nicholas Maesua were with him Kahunimae. Then, to counsel for Suake he said 'a pigeon gun is the kind of rifle that could be bought at a Chinese Store before the tension - .22rifle with a bolt action. [85] To Fa'asau he says that he cant remember whether Kapini and Maetoia were first back at the beach where you were.[95] 

279 	Maoma said that we were all there and that Jude came to the security house and it was not Maoma who was the organizer nor was he given, he says, the responsibility of going in front. Maoma did however acknowledge that he took the responsibility to 'go in front . . because I knew it was important to sort things with Warren Manemala and Kesty Babaua' .

280	Maoma said that he didn't know what thoughts Jude Hariu had about revenge – it was not something else that made him go to the hideout huts [day 84 p 3013].

281	When asked why he went to the hideout huts he explained that his people at Waimamaru were hungry, they'd run out of food, and their first attempt to get food from the garden at Niu Houa ended with Shadrach Hariu's death.

282	The reason Maoma took control he said was because he was on good terms with Kesty – a bond with Kesty's family' [day 84 p. 3015]

283	While he acknowledged that he had been on an operation before he said that he had had no training and did no training of others. He had he conceded been shown how to use the LMG he carried and he had been shown how to use it by Jude and Allen on the night they came to Waimamaru – though he had never fired it. They showed him on the beach by fire light between the hours of 1200 to 2:00 am.

284	The commanders he said would not allow them to use any bullets. He said that he was shown how to cock the weapon and told not to fire it.

285	He said that all of the 5 were wearing plain clothes that night and that no one was wearing charcoal on their face, no one wore a hood with the eye holes cut out.

286	He told the prosecutor that he carried an LMG and of the others one carried a 'Greener' which Maoma thought was a shot gun although he was not sure about guns, that he didn't keep the gun and he didn't have a licence for one.

287	He says that he believed that Savekau village was the stronghold for GRA militants of which Kesty Babaua and Warren Manemala were active members. [day 84 p.3020] Maoma said that while he agreed that this was at the height of the tension he was going to negotiate for the gardens.

288	Maoma denied that he was going on a revenge attack on the GRA because of what had happened to Shadrach Hariu and denied that this was an attack to drive people from the Savekau Village and area of the hideout huts.

289	He said that he had not been to Savekau before 21 08 00 and on that night it's possible that a man named Francis Liumae was on the boat.

290	He denied any suggestion that Liumae was a guard he was using. He denied the suggestion that he had told Allen Kahunimae to go Vonu and kill Barnabas Sirai or that he intended to lead the co-accused up to the hideout huts to kill Anthony Suava.

291	He denied that he had told people what to do on the road from Vonu to the hideout huts. He denied that he had told Maetoia and Kapini to break off and go to the huts by a different route so that people in his group would come in from 2 slightly different directions so that people would be stopped from escaping.

292	It was suggested to Maoma by the prosecutor that Charles Kennedy was on best friend terms with him. He denied the suggestion saying that he heard Kennedy say in the trial and that Kennedy ' made it up'.

293	Maoma said that he heard counsel for Brian Suake suggest that he was in the Kennedy area as well as Brian Suake and Tome Futa. Maoma in response denied ever being there and said that he didn't go to the young boys sleeping hut.

294	He denied the specific suggestions that he together with Futa and Suake had used weapons on the boys and that Fox Mono was killed with a rifle butt used to smash Fox Mono's head saying 'I do not know' - or that he had knowledge that Fox Mono's arm was broken.

295	He denied that Sebastian Abele had a broken arm and a 'machete' slice across his face. He said that no one had been carrying a 'machete' that morning and that he didn't see Tome Futa with a knife.. He said he didn't organize the attack on the hide-out huts.

296	Maoma said that the witnesses, Charles Kennedy, Margaret Kennedy, Phylistus Kennedy, Pritus Kennedy and Verna Ovilau were lying when they said in evidence that they had seen Maoma at the Kennedy huts. [day 84 p 3026]

297	Maoma denied shooting Sebastian Abele as Sebastian jumped out of the building and ran away.

298	He said that he did hear Jon Kennedy, a 12 year old boy screaming for his father to help him. He denied hearing it on his return from Kesty Babaua's again.

299	He agreed that Tome Futa had been with him, standing behind him when he was sitting down on the log in Kesty's area with Warren Manemala. He said that Tome was holding a .303 weapon. He said that that night Nixon had an SLR and Daniel Kapini had a 'pump action shot gun'.

300	He denied seeing Futa trying to shoot Charles Kennedy by pulling the trigger of his weapon three times and added 'on that morning I didn't see Kennedy.'

301	The prosecutor suggested to Maoma that he must have heard his brother Brian Suake's counsel say in Court during the trial that Tome had pulled the trigger of Futa's weapon three times in order to discharge it at Charles Kennedy in his (Maoma's) presence.

302	Maoma's response was 'for myself I have no knowledge about that'. 

303	The prosecutor said that he saw Brian Suake 'intervened here to stop that happening'. Maoma denied that he was there.

304	It was suggested of Maoma that he had a 'blood lust' that day - 'just to kill someone' but that Suake had tried to calm things down. Maoma denied that to be so.

305	It was suggested that Kennedy was questioned about militants being in the hideout huts and that was the real reason for the presence of Maoma and the others. He denied the suggestion and repeated that he had not seen Kennedy that morning.

306	The prosecutor suggested to Maoma that Maetoia and Kapini joined Maoma and Futa and Suake at the Kennedys. Maoma denied that to be so. He repeated that he was not present at the Kennedy huts. It was suggested that he and the others were there looking for Tony Suava whom Maoma believed to be responsible for killing Shadrach Hariu. Maoma denied the suggestion. He said that he was not present at the Kennedys and that he had not seen Kennedy and therefore had not asked Kennedy where Tony Suava was.

307	It was suggested to Maoma by Mr. Fitzpatrick of counsel that all five of the accused had gone to Kesty's area and that he personally had shot at Kesty and Ruth Barnabas and the bullets hit the ground just in front of Kesty Babaua who had his 3 grandchildren gathered behind him at the moment of shooting. Maoma replied that none of those things he saw or did because he had not been at Kesty's area that morning in those circumstances.

308	The prosecution case was put in detail to Maoma and it is fair to say that the allegations about what had happened in Kesty's area were denied by Maoma one after another.

309	Maoma was asked by the prosecutor why it was that, if negotiation about use of the garden to obtain food was the purpose of the visit why was it necessary to carry the weapons Maoma responded 'they were for our safety because that one was a GRA stronghold for the militants. That is why we had to go early to avoid being ambushed like in Niu Houa' [day 48 p.3030].

310	Maoma said no weapons had been fired at them. When he was asked whether he was suggesting that it could have been Maetoia or Kapini who shot the boys and that he didn't know where Maetoia and Kapini were, Maoma responded 'I was thinking at that time that the GRA militants were firing at us'.

311	He agreed that it was 'just a coincidence' when he was asked whether the 3 boys were the only ones who died that day and that it happened to be the very day that the five including himself had come to the hideout huts at the same time that the three boys had died. [day 48 p. 3031].

312	Maoma was asked if he heard that Tome demanded $500.00 for Kesty's life. He denied hearing that and added 'I was sitting down but I was facing towards the sea'. The prosecutor suggested that Ruth had got the money and given it to Futa who gave it to you. Maoma denied knowledge of such an incident.

313	Maoma was asked whether Maetoia had said to Kesty 'you get the three pigs that were killed on the floor and eat them'.
Maoma replied I didn't see Nixon Maetoia when I was staying there. [3032]

314	Maoma denied that his group were there to kill people in revenge for the death of Shadrach Hariu and to teach them a lesson and that Suake had said “you're all wrong” to Maoma and to the other three accused to which Maoma said 'I do not know because I did not see that'.

315	Maoma denied the suggestion that as those words were said he first met Manemala and Nancey Ngelea came running up the hill afterwards running and added that he was already seated on a log when Nancey arrived.

316	Asked if Nancey said to him (Maoma) – 'don't shoot its only me and my children' Maoma says 'yes they were speaking but I didn't hear them'.

317	Maoma agreed that he had joked with Nancey and that the conversation with Warren was pleasant. The prosecutor suggested to Maoma that, far from being pleasant that Maoma had said to Manemala 'you're the one who has taken the militants in and given them food ?' and that Manemala said 'if you come I'll feed you too'. 

318	Maoma denied saying such a thing or hearing such a response. Then the prosecutor suggested to Maoma, that Kapini pointed his rifle at Manemala and demanded money. Maoma reasserts – 'I didn't see so I don't know'.

319	Maoma also denied seeing Rachel Vatalu, Manemala's mother go to get money and bring it for Kapini.

320	Maoma was asked (implicitly ) by the prosecutor if he knew why it had not been suggested to Warren Manemala and Nancey Ngelea by counsel for Maoma that Maoma had had a 'friendly chat' with Manemala. 

321	Mr. Cavanagh objected at the point of the question on the basis that, to ask it may bring an answer which would involve a breach of the privilege possessed by a client in respect of exchanges between him and his counsel. I upheld the objection but gave leave to counsel to make further submissions since the problem would clearly surface again. Following the receiving of the evidence submissions were made and the ruling is at page 64 infra.

322	The prosecutor continued and suggested that Maoma was inventing his account of the encounter with Manemala and that Manemala must have heard it had been suggested by at least two counsels. 

323	It was suggested by the prosecutor that Manemala had been present and had seen and heard the incidents which he had put to the witness concerning Kapini demanding money and pointing his gun and the production of money by Ruth Kesty and by Rachel Vatalu. Maoma denied the suggestion.

324	It was suggested to Maoma that Maetoia and Futa had a 'red mark' - that is he was to be killed - on Tony Suava [3043] - Maoma replied that he had heard nothing like that. 

325	The prosecutor suggested Maoma had heard Suake warn Nancey Ngelea to tell Manemala to stop talking and she speaks to Manemala who stops talking. 

326	Maoma replied 'I saw Brian talking with Nancey but what exactly they were talking about… (sic)' he doesn't have Nancey and Brian Suake talking – he is gone by then [see 3043.9]

327	Maoma denies saying to Nancey that she go and pack up and go to the island or that she refused and said that there was no food there.

328	It was suggested to Maoma by the prosecutor and denied by Maoma that he had said to Nancey 'go and bury those boys who were dead'.

329	When it was suggested to him by Mr. Fitzpatrick he denied saying to Grace Maeli 'you feel it ? you go and bury your brothers who are dead' – He replied 'I did not see Grace Maeli that morning'.

330	It was suggested to Maoma that (following spending time in Kesty's area) that he went to the Kennedys' hut together with his four co-accused and there ate and chewed betel nut and there he had heard the young boy scream for his father to help him, several times. Maoma denied that any of those incidents occurred in his presence saying that he had run away after he had heard the gunshots. 

331	It was put to Maoma that while they were all in Kennedy's kitchen eating from the motu, he had boasted to Kennedy that he had killed Sebastian and that he wanted to take his head as a trophy – saying that he (Sebastian) was smart and he (Maoma) wanted to show people on the island and at the same time Kapini said that he wanted to take Fox's head because Fox was Kapini's cousin. Maoma denied his presence there. 

332	The prosecutor alleged that he had taken Fox's necklace as a trophy. Maoma denied that had been said. I understood Maoma to be saying that he was not present in the Kennedys ever - that day, or at all. 

333	He particularly denied that it was a trip seeking revenge for the death of Shadrack Hariu and partly to teach the people a lesson and so that food could be easily obtained from a deserted garden.

334	Maoma denies that he saw and spoke to Ariel Ata as he left the huts and passed Ata's place. He denied saying to Ata – if you want to come to the island come during the day'…and …Maetoia saying to Gibson Pukere “those are your smart boys over there your boy's joined the militants and that's why we killed them.. In response Maoma says 'I didn't see Ata that day'….and that he had no knowledge of Maetoia speaking to Gibson Pukere.

335	Maoma denied being a commander but went to the hideout huts above Savekau because he had a bond with Kesty's family. He said that he had no knowledge of any plan to kill Barnabas Sirai in Vonu or Tony Suava in the Savekau huts.

336	He admitted meeting Ariel Ata at the Town Ground when Ata was in company with two other men. It was suggested that one of the men with Ata was Fox Mono's father but Maoma did not know that. He acknowledged that he had gone to the Police Station with them in Honiara. He also acknowledged that they sought compensation from him.

337	Maoma said that he heard quite some time after the 21 08 00 that three boys had died at the huts and that following that day everyone left the huts.

338	Maoma denied that he had had any knowledge of the fact of Savekau burning on the 21 08 00. He said that he went from the hideout huts to Vonu to depart for Waimamaru.

339	That concluded the cross-examination of Maoma by the Crown Prosecutor.

RULING ON THE EFFECT AT LAW OF A FAILURE TO PUT A MATTER TO A WITNESS

340	At [day 48 31 03 2008 p. 3037] Mr Fitzpatrick while cross-examining Maoma asked Maoma, 

'Now your account really is that you have a chat, the friendly chat with Warren Manemala and Nancey, his wife. None of that was ever suggested to Warren Manemala or Nancey Ngelea?'

Mr. Cavanagh took an objection to which I said that I would take the evidence, admitting it de bene esse and rule on the matter later. I now rule, 

The basis of the objection by Mr. Cavanagh is to the nature of the question by the Crown Prosecutor. I understood Mr Cavanagh to be saying that to allow it would be to have the effect of breaching solicitor – client privilege.

The privilege is that of the client. Maoma is entitled to waive it. I considered that the best way in which to deal with the matter was to hear counsel and rule later.

Mr Cavanagh observed that the best way to deal with the issue of why something was not put or was erroneously put is at the time of addresses is to leave it be. 

Mr Fitzpatrick, opposing , said that it was an important and serious matter and needed to be put to the witness. Mr. Cavanagh replied that the matter could be argued later since there was no jury. He said that Brown v Dunn bears upon the use to be made of evident omissions or inclusions that need to be properly argued and referred me to - R v Birks[(1990]) CCA NSWLR 677 . That authority deals with the failure by counsel to put a part or parts of the case by one party whom it affects. See discussion this judgment. 

I rule that I will not allow the question by the learned Crown Prosecutor. Submissions are able to be made on the evidence that there had been no assertion of 'a nice friendly chat between them and Maoma near Kesty's area at the log' made to Warren Manemala or his wife. That is a matter for comment submissions in connexion with the Browne v Dunn rule which are to be found at page 30 et seq infra.

THE WITNESSES PRESENTED BY MAOMA

341	There were 12 witnesses presented. All were related, some by marriage, to one or more of the accused in the trial. 

342	It is significant that there was a failure of, or an omission by, counsel for Maoma to put what he had to say about the events of 21 08 00 to any of the witnesses whom their evidence would touch, and presented by the prosecution case, except in the most general way. 

343	Counsel did say that their evidence mostly related to the proceedings issue of whether this was a case for a declaration of amnesty. Amnesty is not what this Information is about. It is about the charged counts of serious crime against the accused.

344	This trial is the trial of the charges brought on the Information. The test is of admissibility is whether the matters to which the witnesses depose, is relevant to the issues on the Information. The evidence of the 11 witnesses is clearly relevant, on that basis it was admitted. It went to the issue of whether the victims (using that word in its widest possible non-legal sense) at Solohona were members of the Guale militant groups. It appears to be the case therefore, that there was a failure to comply with what is generally described as the Browne v Dunn 1893 6 R 6 7 (and see directions on the rule at infra) to the extent that their statements about events were not put to witnesses for the prosecution.

345	The evidence of the witnesses often implicated Manemala, Kesty Babaua and almost always the two (now deceased boys), Fox Mono and Sebastian Abele as well as others in their company, in Guale militant activities. To that extent it was important that what they had to say about the witnesses presented by the Director be put to those witnesses – that they be asked whether they were members any of the Guale militant groups and in every case the evidence of those called by Maoma went to the credit of the witnesses presented by the Director.

346	There are 12 witnesses presented in Maoma's defence. I deal with their evidence in the order in which they were called.

347	I have to say that each witness did frankly describe their blood ties and in-law relationships with the accused men. Moreover, a good deal of their evidence was of a hearsay nature.

348	Both counsel for the prosecution and counsel for the accused took the rather surprising view that the evidence of militant activity was connected only with Amnesty applications. Indeed the prosecution puts the evidence of the witnesses under the heading 'Amnesty evidence' [see Submissions on behalf of the Prosecution].

349	The evidence, presented by Maoma is not 'Amnesty evidence'. If the evidence were simply Amnesty evidence it would neither be relevant nor admissible. The evidence is relevant and admissible because it has always been the prosecution case that the village of Savekau and indeed the 'hideout huts' so-called, above Savekau was 'ethnic tension neutral'. [see cross-examination of Steven Rotte by prosecutor [day 52 p. 12 and again day 52 p.15]

350	It was a pillar of the prosecution case that any cross-examination evidence and any statements by defence witnesses to the contrary which suggested that Savekau inhabitants were pro-Guale were simply not true. 

THE MAOMA WITNESSES

Steven Rotte

351	Rotte gave evidence that he was related to the accused; Maoma and Suake being his first cousins, Job Tome (Futa) his father is the uncle of Rotte and therefore Tome is his brother, and he is married to the sister of Kapini's cousin. He said that he is the cousin of Fox Mono and that Sebastian Abele's mother and his own mother were related in the Guale line. 
 
352	Rotte said that he is part Malaitan. In 1998 or 1999 he lived at Warahara – he moved as part of the Ethnic Tension. He moved to Mauiapa Island in the Sound. (see P1). 

353	He said that Kesty Babaua and one Kediman Manekari Warren Manemala and Tony Suava had demanded of him that he pay them $500 and give them one pig, failing which they would kill his father. The demand came from Kesty Babaua and was delivered by Manemala the 'boatman'. The letter was then passed around he said that at the time the letter arrived he was in Poposa village. [this was not put to any of the named men.]

354	At the time Rotte says that he was living in Warahara. He was frequently visited by militants included among them was Fox Mono, Sirai, Jon Kennedy, Sebastian Abele. They were armed when they came. They were related to him. 

355	He said that Sebastian Abele was involved in the attack on Rotte's cousin Ratu. Abele was in company with Harold Keke.

356	He said that he knew Barnabas Sirai made home-made guns because his village was old Houa next to Warahara and he would go there daily and see the guns being made by Sirai, and on one occasion had seen a test and was involved in the gun test in a minor way.

357	The prosecutor put it squarely that Savekau was neutral. Rotte said that it was not. The prosecutor suggested that he had come to blacken the names of the three boys. He said that he had not.

THE SUBMISSION OF THE PROSECUTOR CONCERNING THE WITNESS ROTTE

358 	The prosecution submits that the evidence of Rotte is affected by his Wantok relationship to each accused. He was part Malaitan and part Guale just as many Savekau villagers were, yet he says he was asked by them for compensation.

.	he said that he had boys so young as Jonathon Kennedy with guns. 

. 	he suggested that Kesty had required the villagers to wear Kabilato and grass skirts. 

.	it is highly unlikely that Sirai would make guns in Old Houa and yet live in Savekau.

.	he accused Ata of being a militant when he (Ata) was a full Malaitan on his own evidence.

.	He concluded by saying that his evidence was improbable and worthless.

David Gegge

359	Maoma is his uncle, Tome is his cousin, Suake is his uncle. Maetoia is an uncle and Kapini is an uncle. He said that he was born in Niu Houa and after lived in Warahara. He says that he ran to Honiara in 1999 from militant activity. He said that the militants who threatened him were Fox Mono, Sebastian Abele and Klement Mono. The threat was that he must join them because he is part Malaitan and if he joined they would protect him. He said that there was an occasion in Old Houa where Kesty, Manekari, Fox Mono had said that they must wear custom dress (Kabilato and grass skirts) and that they were not to break coconuts at night and not to break Sago palms. He said that Sebastian was carrying a shot gun at that time. He heard they had beaten his uncle Ratu so he left Honiara and went to Malaita. He now lives on Mauiapa Island. He said that he also recalled a meeting in Old Houa/Poposa in 1999. At the meeting the militants wanted to know about the genealogy of people. He said that the meeting was told that if they were not connected to the lineage of the Guales they would have to leave the island. On 21 08 00 he was in Malaita he said. He said that the names of the Guale militants were Michael Suava, Warren Manemala, Kesty Babaua, Kediman Manekari, Sebastian Abele, Klement Mono and Fox – the last three had guns. They, everyone in the village were militants.[none of this was put to Babaua or Manemala] He said in cross-examination that at the meeting at Old Houa, the name Keke was mentioned and it was said that if we told the militants about our genealogy and it was not connected then Harold Keke would come and beat everyone from chickens up.'

360	He told the prosecutor that he had given his statement one month before the day he gave his evidence. He said that he had not come to help his relatives. They had asked him to come and tell the Court what he had seen and he was doing that.

361	The prosecutor put to him that he had spoken of Sirai making guns in Old Houa, he said that he saw Sirai at work making guns every afternoon and evening when he (Gegge) and his friends were playing soccer. [none of that was put to Sirai]

THE SUBMISSIONS OF THE PROSECUTION CONCERNING GEGGE'S EVIDENCE

362	His evidence is not worthy of belief there were matters not put to him, for example Sirai about making guns at home. Again it is suggested that Sirai was making guns in Old Houa when his wife and children were at home with him in Savekau.

Jeziel Ako

363	This man is an older witness who is 73 years of age. He is the father of Maoma and Suake. He said that he had lived in Marau all of his life. He went to Savekau in 1942. In 1999 he said that he was living in Wadahara village where in 1999 there were 29. He said that in June of 1999 events and the Ethnic Tension caused him to run to Mauiapa Island because he was afraid of the ones who wanted money from him – he said, 'they wanted to kill us'. He said that in 1999 he was asked for $500:00 for his 'in-laws heads'. He said that he paid the commander of Makina that sum of $500:00. In cross-examination he told counsel for Futa that the ones who demanded $500 were boys and young men with guns.

364	I made a note in my bench note book that while Ako had the appearance of a very old man he appeared to be alert and understanding the questions well. He spoke slowly. At 72 he said that he knew the young men who asked for the $500 were from Savekau but couldn't say their names. – one would have thought that he could have done so. He had lived in Savekau, was a very old observer of the area and the demand was so serious that he paid up but in cross-examination he could understand and recall the in laws names –. Joe Sangu sent the demand.

365	Mr. Ako said in answer to a question by Mr. Fitzpatrick concerning the $500 'protection of in laws' money did anyone pay him any money, that 

“A.	'A lot of us will give evidence and about people getting money from them'
Q.	'you've discussed this with a lot of witnesses?' 
A 	'No. I said that others will come and say they took money from them.'
Q. 	'you've talked to others I suggest because you know what they're going to say?'
A	'No'.”

PROSECUTION SUBMISSIONS CONCERNING JEZIEL AKO

366	The prosecutor submitted that judging by the way the elderly witness gave evidence it showed his age and infirmity. He is not credible. The nature of his evidence suggested that he was attempting to assist his children.

Rose Gegge

367	Rose Gegge said that Suake is her elder brother, Maoma is her younger brother, Maetoia is her first cousin, Kapini is her first cousin and Tome is her 'auntie'. She said that she was born in Old Houa village and pre–tension time she was living in Warahara village. She said that she moved to Honiara in 1999 and she did so because her brother Ratu had been brought to Honiara after a beating which she had seen inflicted on Ratu by a man whose identity she didn't know but had been told about.

368	She recounted an occurrence at Vonu market where 'Chief Kesty had collected money to help the GRA. She said that she had contributed five dollars. She said 'Willy' was there then. She said that Fox Mono was there and held a home made gun and Brian Lindi was there. In cross-examination she said that Kesty had come to Mariau Island in 1999 to a meeting in company with Manekari and Manemala. She said she saw Jerry Kaiti that day but she didn't see Kesty Manekari or Manemala. She told the prosecutor that she didn't know that the accused were charged with three murders. When challenged by the prosecutor that she was lying she said that she was telling the truth.

SUBMISSIONS BY THE PROSECUTOR CONCERNING MS. ROSE GEGGE

369	The prosecutor emphasized that the witness was sister to Maoma and Suake. He said that she had spoken of Kesty Babaua collecting money for the GRA at the Vonu market. There is evidence that Kesty is half Malaitan. It is extremely unlikely that he would be found in those circumstances. The Court ought to treat her evidence as a 'not credible'.

Jerry Kaeti

370	He is 66 years of age and Chief of his tribe. He said that Maoma and Suake are his uncles and Maetoia is his cousin. He said that in 1999 he was in Poposa village. He said that he had concerns about militant activity because firstly he is part Malaitan on his father's side and then he went to a meeting in 1999 at Savekau. There militants spoke. Then there was another meeting at Poposa. He said that he was then present and that there he had a seen a man, Kediman Manekari, who spoke to those at the meeting about their genealogy and connection to Guadalcanal. He said that he required them to make their genealogy. Manekari said that he wanted them out of Guadalcanal. He said he would take their genealogy to Guale headquarters in Honiara. He said that the next meeting, the third meeting was held at Vonu and the same issue of genealogy was discussed. At a fourth meeting at Mariau village at the meeting Manekari had said that 

'you would have to see the Hon. Jonathon Kori to charter a ship to take you back to Malaita otherwise the militants will kill you, dogs, cats and chickens then nothing more was said.'

he said that he seen two other chiefs at all the meetings and they were Serando Herokana and Sabino Manutala.

371	In 2000 he said, he left because of the militants. He went to Marapa and stayed there for three years. He said that Kesty Babaua was at the first three meetings but that he didn't come to meeting 4. [none of this witnesses evidence was put to Kesty Babaua].

372	He told the Court that Manekari told them that they were not from Guadalcanal so they should pay $10 per family to the militants. He said that he saw young men with guns at the meetings but he could not say who they were - he wasn't close enough.

373	In cross-examination he said that he was born in Savekau and his mother was from Guadalcanal and he was connected with Guale and so he should have had no worries, but, he said, 'I had them'. 

THE SUBMISSIONS OF THE PROSECUTOR CONCERNING JERRY KAETI

374	The witness appears to associate anyone with a land dispute with militant activity. The evidence he gave was designed to besmirch the reputation of Manekari and Kesty Babaua. He was not a credible witness.

Onica Ratu

375	This witness is a sister in law of the all the defendants and the wife of Alfred Ratu. She tells the story of the beating of her husband Alfred by Keke and others in August 1998 on the vessel MV Akolova. They went to from Wadahara to Lawton Tama in Honiara. They returned to Warahara in Nov 1999 and remained until June 2000. The militants then came from Savekau and moved them. They were told to leave by Sebastian Abele, Fox Mono and Manekari. They left in canoes. She said that as they were leaving Warahara village, she saw Fox and Sebastian. She said that Fox and Sebastian shouted at her and her people and said 'why are you running away like that?' and that she replied 'you were the ones who chased us, you were militants!'

376	Ms Ratu said that there was a meeting which she had attended in Houa in1998 and the Savekau militants were there. The meeting was at Poposa. There were no guns she saw but that it was a business meeting dealing with who came from Malaita and who came from Guadalcanal. Fox Mono was at the meeting. She said that 'Seb' used to come to Poposa and to Niu Houa and Fox would come with him. Sebastian was related she said, to my father in law. She said that she had not talked with anyone about the Savekau operation because it was men's' business to talk of those things she said that as to the messages being sent the community at Warahara 'the chiefs must tell us things like that.'
She maintained that what she had told the court was the truth.

PROSECUTION SUBMISSIONS ON THE EVIDENCE OF THE WITNESSES CALLED BY WILLY MAOMA

377	The Crown submitted she was not a credible witness.

Silas Maesilia Toukoura

378	He was born in Houa. He is the brother of Maoma and Suake and regarded as a brother of Futa and was related to Maetoia and Kapini. He is, he says, of Areare descent. He said that he moved to Suhu on Mauiapa Island before the Tension and he was married to the island. He then returned to Warahara with his wife and during the Tension he chose to leave following the beating of Alfred Ratu, which he said he had not seen happen. He said that he decided to leave by reason of what had happened. Ratu and that he had worked in areas and had to pay compensation which he had learned about from other villagers. He said that Manekari had threatened him at Mariau village that everyone had to pay compensation of $500 per head and if they didn't they would be killed – great or small. He said that those threats decided him to move. He went to Niu Houa and thence to Marapa Island. He said he saw Fox Mono carrying a home made gun. He said that he knew Fox Mono because he came from Savekau a neighbouring village. He said that he saw a man by the name Andrew Te'e who had come to the village and was carrying a high powered gun. He spoke to the chief Jonston Aorau who had a gun Te'e wanted. It was an Essler (SLR). Toukoura was present when Te'e made his demand. He had seen Fox with a pigeon gun at Niu Houa. Tony Suava, Fox Mono and Lency Kesty and Oniwana and Memelina were there and they had knives but no guns.

In cross-examination, Toukoura said that he had had treatment from Charles Kennedy but he stopped at the time of the Tension because Charles Kennedy was a militant and came from Savekau village. He said that the group had a radio in its possession when it left Jonston Aorau's and the SLR was carried off by Andrew Te'e. He said later in cross-examination that Fox Mono was not present when Te'e came for the gun. He said that he was at a meeting at which Manekari spoke and said that anyone 'not connected to Guale' had to pay $500 per head and that if it were not paid they would be killed great and small and they'd go to the Minister (Hon.) and charter a ship to move them all to Malaita. 

379	He said that at another meeting at Niu Houa, Manekari had raised the issue of working on a tambu site at Tamata Hill. And anyone who had worked there would have to pay compensation.

380	He was cross-examined and he said that he didn't know why he had used the expression that some boys from Savekau had come and asked for compensation and that he agreed that he had added the presence of Kesty and Manekari at the meeting concerning Tamata hill. He said that it was less than an hour on foot from Warahara to Savekau.

381	He said that he had not come to Court to help his relatives but had come to tell the truth about what had happened. He said that he was neutral and had not joined the MEF he said that he knew Shadrach Hariu had been killed and that he didn't know whether the trouble was over a land dispute.

PROSECUTION SUBMISSIONS CONCERNING THE EVIDENCE OF THE WITNESS TOUKOURA

382	He was the brother of Maoma and Suake and regarded Futa as a brother. His evidence was of threats and Fox Mono carrying a gun – may be they gave it to (Fox) to hold? He said that he saw Warren Manemala with a gun and Kesty Babaua, Kediman Manekari and Michael Suava in the context of militant activities (as I understood the submission). He was disinclined to describe the dead boys. The Prosecutor asked that the Court find him an unreliable witness.

Richard Puanihoura

383	Puanihoura gave evidence about the radio theft in 1999 from the SSEC and Jonston Aorau at Niu Houa. He alleges that it was Tony Suava and some of his followers who took it. [this was not put to Suava by any one and Suave came after this witness in point of appearance at trial].

384	He said that those accompanying Suava were Lency Kesty, Klement Mono, Semba (Sebastian Abele), Fox Mono and Jonathon. ”He said “they are from my neighbouring village of Savekau. Only Tony had a weapon it was a .22. and bigger than the others who had home made guns.” He said that about a week after the theft he left for Marapa Island because he was frightened. The five accused are cousin brothers to me.

385	The prosecutor cross-examined Puanihoura and sought to get and got descriptions of those he had named as being with Tony Suava.

386	Puanihoura said that it was about 1.5 hours it usually took him to reach Niu Houa from Savekau. He said that he was not a member of the MEF. He said that he had given his statement about three weeks before coming to Court. He denied coming along to lie for the accused men.

PROSECUTION SUBMISSIONS CONCERNING PUANIHOURA

387	He is a cousin-brother to the accused. He associated the dead boys with times he had seen them carrying weapons. He is unreliable.

Samson Horomae

388	He said that he came from Komuta'a village on Mauiapa Island. In 1999 he was working as a deck hand on a vessel. When he received news that the GRA militants had made a demand that $2000 be paid to them. He went to Komuta'a and gave a pig worth $2000. He took it by him to Savekau village and gave it to the GRA Commander Manemala. He called the Chief Kesty Babaua and Manekari and the whole village came. There Manekari said 'it's alright, you don't have the money. That pig is OK with us! Then they called the boys to lead us back to the Savekau passage and Fox Mono and Sebastian Abele led us. He said that Sebastian Abele said 'you go back and you stay at the island and you are not allowed to come to the mainland town (Honiara) because at his time you are under the control of the GRA'. 

389	He said that he was frightened by what happened so he went to Honiara until the end of 1999 when he went to the Western Province.

390	Under cross-examination he was asked by the prosecutor of any relationship he had had with the accused and he said Maoma and Suake are third cousins, “Futa he calls me 'uncle'. Maetoia he and Willy are brothers and Kapini a cousin.” He said that he was asked to give a statement and to come to Court two weeks before he was to give evidence. He was good friends with the accused and went to school with them and had grown up with them. He said “I am giving evidence because I heard people from Savekau talking about it and maybe they are the people who have given evidence already” – for example “Gibson Pukere because she is married to Manekari.” Savekau was neutral in the tension. No-one was at Savekau. He said that Kesty is the chief so he is in on any deals we do with the GRA. He then described the deceased. 

PROSECUTION SUBMISSIONS CONCERNING SAMSON HOROMAE

391	The Prosecutor submits that Horomae grew up with the defendants and is related to them. He spoke of a demand for a pig. There he mentions the active GRA presence of Fox Mono and Sebastian Abele. He says he said that Kesty and Manikari were involved in receiving the pig on behalf of the GRA – none of that is confirmed by Marlon Sekanimara. His evidence has no credibility.

Marlon Sekanimara

392	Maoma and Suake are his second cousins and Futa is his nephew Kapini is a first cousin and Maetoia a second cousin. He said that he was living in Komuta'a in 1999. Marlon Sekanimara said that Manekari demanded compensation from him he then being 18 years). He was working on Tamata hill making a garden. He was directed he says to pay by the following Saturday at Vonu. When Manemala said that he was in company with other men. [this was not put to Manemala]

393	Seka said that he found cash of $410 and shell money. He took it and gave it to Manekari at Luka's house at Vonu. He says that he pointed at Tony Suava and said 'he is a GRA Commander' who was there in company with Klement Mono, Sebastian Abele, Fox Mono, Jon Kennedy, Kesty Babaua, Lency Kesty, Charles Kennedy, Margaret Kennedy and Gibson Pukere and Charles Maeina. He says that in 1999 Manekari came to Kouta'a and said that he had to pay $1000 per head to people at Savekau. He said that he had no money so he just ran away to Honiara. 

394	In mid 1999 he went back to his village and stayed there until the height of the tension when he went to live at Marapa. In cross-examination he admitted that he had been in the court and had been present through the evidence of Kesty and Manemala and that he had visited Daniel Kapini in the Gaol. He said in answer to Ms Fa'asau that he knew that the chief Kesty had ordered that Moses pay compensation to Manemala. Manemala was angry. He was sitting with Tony Suava with guns. The prosecutor suggested that Sekanimara had discussed the case with Kapini in gaol which he denied.

SUBMISSIONS OF THE PROSECUTION CONCERNING THE EVIDENCE OF MARLON SEKANIMARA

395	Sekanimara places weapons in the hands of the deceased and implicates everyone in the village as being GRA connected at the hand over of the $1000. The identification of Tony Suava as a GRA commander is unbelievable. It is not credible evidence.

Hudson Haro

396	This man has been a Pastor of the SSEC Church at Komuta'a Mauiapa Island for the last 10 years. Before the Tension, Pastor Haro lived at Niu Houa. He said 'I know Maoma. We're related – he's Malaitan and he's my wife's cousin. The accused Futa, my grandfather adopted his grandfather and his father. Suake is my wife's cousin and Maetoia is my in'law, Daniel Kapini is a cousin brother. In 1999 there was a Festival known as St Mary day. On that day I saw militants with guns and they went past my village. My village had more than 10 houses and the road went through my village to the village of Niu Marere. Among them was Fox Mono. He said to me they were “headed to do security for Festival day.” He was with Sebastian Abele and Max Koeavana. The three carried home-made guns in the morning.' 

397	Then there was a second incident at Komuta'a on a Sunday morning at church in 1999. Kediman Manekari turned up and said 'I have a message for Areare speaking people from Father Geve - the Hon. Jonson Koli will charter a boat and take you to Malaita. If you don't go within this week the militants will come and kill you. They would kill every living thing from man woman up to children and animals'. Manekari then left. We moved out of Komuta'a village within two days. We moved to Waimamaru. I stayed there 2 days and then took my family to Honiara. To Mr. Squier, counsel for Futa he said that he was Areare and that his mother and father were both part Areare and part Guale. He said Manekari passed on the message after the service when he addressed the whole congregation.

398	He said that during the Tension he saw boats coming and going from Savekau showing white IFM militant flags. He acknowledged that he had been in Court during part of the evidence of Manemala and for some of the evidence of Gibson Pukere. He was not at that time intending or intended to be a witness. To Mr. Cade for Suake he said that a week after Manekari's visit “they shot one of our old men,” Shadrach Hariu. He said that he didn't see the shooting but that he had been at the funeral. He said that it was either in 1999 or 2000.

399	The prosecutor Mr. Fitzpatrick questioned Pastor Haro. He agreed that he knew the accused in the Dock very well. He said that he had lived in the same village with some of the accused and that he had moved to Marapa Island when they had moved there. He said that he knew nothing of guns being delivered by a Patrol boat. He said that he had no idea whether the accused had joined the Marau Eagle Force. He was asked whether the men in the dock wanted revenge for the death of Hariu. He said at that time I don't think that happened but people were not happy that he had been killed by the GRA. He said ' yes if he died we could not say anything because we were also afraid'. He said that Hariu was buried on the Island of Simeruka. He said that he had given his statement to lawyers within the last two months. He said that he came to Court and watched the proceedings before they took his statement. He said it was usual for families to talk about things together but he said he had not discussed the matter with families of the defendants. There was extensive cross-examination concerning the three boys and in particular Fox Mono about just who he had see passing through his village on St Mary's day. The prosecutor accused the Pastor of lying to assist the accused and he said that he was telling the truth. Pastor Haro was further extensively cross-examined about the Sunday service and the appearance of Manekari with a message from Father Geve. He said that there were 30 people comprising the congregation and Manekari just stood up at the end of the service and said 'oh excuse me there is a message…..' and delivered it. The prosecutor challenged the evidence and said that Manekari never came. Pastor Haro maintained his position. The prosecutor suggested that Shadrack Hariu and the witnesses confirmed that he believed that Kesty Babaua and Grace Maeli and Ruth Barnabas were related to Shadrach Hariu and that Esta Mata was married to Shadrack's uncle. It is fair to say that Pastor maintained that his story was true.

SUBMISSION FROM THE PROSECUTION CONCERNING THE EVIDENCE OF PASTOR HUDSON HARO

400	Pastor Haro was related to each accused except Futa. The prosecution submit that he was attempting to mislead the Court about the matter and was partisan to the accused that his evidence is not credible. His evidence that the journey on the route from Komuta'a to Niumarere must be wrong. If the latter place is as described by Pastor Haro, then the route is not flat and the times taken were not achievable and the witness is misleading the Court about that matter.

Jonson Aorau

401	This witness comes from Komuharu on Mauiapa Island. He said that in 1999 he lived in Niu Houa and at that place he was the chief of his clan. He said that in 1999 he became aware of the building up of militant activities. At the end of 1999 was working as a radio operator for the SSEC church at Niu Houa. At that time a group of militants, Tony Suava, Sebastian and Klement Mono, Memelina and Fox came to the village and asked him to release to them the church radio. Tony Suava said 'I would like to take the church radio which you looked after we would would like to take it away from- to keep it from the militants'. They were holding knives and a gun – a .22 gun so I gave them the radio. When the Tension was at its height he said that he went from Niu Houa to Mauiapa Island and that was in 1999. He said that in late 1999 that he and about 15 others decided to retrieve their belongings from Niu Houa. He said that they travelled in a small boat. In the entrance from the sea into Niu Houa about 80 to 100 metres from the village, there was a gun burst which shook the boat. 'We took cover and one of the people in the boat was brave enough to turn the vessel and get them away from the entrance and out to sea.' He said that a shell or cartridge hit the head of an elderly man Shadrach Hariu, who on the return journey to Simeruka Island (see Siwairuka island on P1.) he said that they buried the elderly man at Siweruka . He said that he knew Maoma because Maoma is his nephew, Futa is a cousin brother, Suake is a nephew, Maetoia is his uncle and Kapini is his uncle. He said that they went on to Waimamaru after the shooting incident and stayed there until the Marau Peace Agreement was signed [see Exhibit D26 (Suake)]

402	Aorau said that he knew Tony Suava because he then lived at Niu Houa and Tony Suava came from the nearby village of Savekau which was about 1.5 hours walk from Niu Houa on foot. 

403	In cross-examination by the prosecutor he said that he knew the three young men who had died that they were from Savekau and that he used to go there to the SSEC church. After the Peace Agreement was signed he returned to Savekau and the only residents when he visited were Hon. Teddy Babaua, Pastor Walter Babaua and Elder Rachel Babaua. He said that he had visited the village of Potau and at the Primary school he had seen RAMSI people burning guns which were collected there. RAMSI had come in 5 helicopters. He said that he had been present in the Court room at this trial for some of the evidence of Allen Kahunimae, Grace Maeli and at that stage he didn't know that he would be a witness.

404	The prosecutor cross-examined Aorau and agreed that he was the brother of Peter Oranasaku a police officer, that he was a relative of Jonson Apeo a Supreme Commander of the MEF. Aorau said that he did not use the radio to communicate for the MEF. Mr Fitzpatrick said that he suggested that Aorau had been instructed by the friends and family of the defendant to say that Fox Mono was armed. Aorau denied the charge. 

405	The prosecutor suggested that two boys came ahead of an IFM force and Aorau had been found by them with a shotgun and the IFM were behind the boys and when they arrived at Aorau's house at Niu Houa it had been burned down as a consequence and it was the only house at Niu to have been burned. Aorau denied the suggestions. It was put to him that there was no burning of guns at Marau and no 5 helicopters and that the meeting at Marau involved only two helicopters and that he has been influenced by the evidence he heard in the Court. He denied the suggestions. It was plainly put that he'd only come to assist his wantoks (the accused) and fellow members of the MEF. Aorau disagreed.

PROSECUTION SUBMISSIONS CONCERNING JONSTON AORAU

406	The prosecutor made the points that the witness is related to all the defendants, he is also the brother of the Supreme Commander of the Marau Eagle Force. His reaction to questions during the prosecution cross-examination – 'you are abusing my rights Mr Prosecutor', was indicative of his attitude not to tell the truth. He is not reliable.

Assessment of the evidence of Johston Aorau

407	I have noted contemporaneously in my Bench note book volume 3 – 

'I consider this witness to be lying on important areas of issue. I do not give any weight to his evidence concerning major issues except where he is independently corroborated – in any event his statements were not put to the prosecution witnesses.'

I hold to that view. It was always an essential matter of instructions to prepare for these eventualities. I am surprised that the defence did not have the witnesses properly proofed and prepared long before the some two months referred to. 

THE SUBMISSIONS OF COUNSEL FOR MAOMA

408	Mr. Cavanagh appearing for Maoma submitted that the Prosecution has failed to prove Maoma's guilt beyond reasonable doubt in relation to any of the charges.

409	The accused Maoma through his counsel by way of overview, submits

1.	The prosecution has not shown from the evidence led from its witnesses, the time at which the deaths of the three boys occurred, because the evidence of the three witnesses is in conflict with each other, is biased, and suffers from memory failure due to the passage of time. 

The Court Observes

410	The only evidence on the Crown side of the arrival of the accused in the Vonu - Savekau area of the Marau Sound is from the witness Kahunimae who places the accused at Vonu whereupon they split from Kahunimae's group. 

411	2.	The proof required beyond reasonable doubt cannot be made by the Prosecution in this case by reason of the following factors (which I paraphrase):

.	delay in prosecution,

.	the deaths occurring a climate of civil strife,

.	the potential for the adoption of the account of other witnesses

.	the answering by witnesses from reconstruction rather than from observation,

.	the difficulty experienced by witnesses when estimating time,

.	the creation of false memories,

.	failure by Police to investigate the involvement of witnesses in militant activity,

.	witnesses avoiding giving detail of incidents during the Tension,

.	hatred,

.	the difficulty experienced in making accurate observations on the day.

I propose to deal with the submissions under this head as they arise - seriatim.

1.	delay in the commencement of the investigation of the deaths,

The Court observes

412	I observed that the investigation of this matter started nearly five years after the 21 08 00. It placed an already seriously implicated Police force in grave difficulty. The PPF officers were certainly disadvantaged but that alone or in combination here not a determining factor. There is some strong evidence, which was recovered by police in their work here. I will comment on the accumulation of prosecution evidence later in this Judgment. There were delays here which arose from the very circumstances created by the warring factions who now seek to complain. 

2.	Changes to the Crime scene - Reconstruction difficulties.

The Court observes

413	Scarely does an Information alleging serious crime come so quickly before the High Court that the crime scene has not been altered by the effluxion of time. The natural growth of trees and shrubs, the destruction of the huts and the masking of slopes by now fully grown trees have all played a part in making revisiting of the scene more difficult for investigating police and the Court itself. It may become a determining factor in combination with others but even considered in the light of the evidence it carries little weight. In the end the parties managed to produce a drawing said to be to scale which all sides agree represents pretty well the layout of the hideout huts in August 2000.

3. 	Delay in Prosecution

The Court observes

414	It is a truism that 'justice delayed is justice denied'. There is no doubt that the difficulty of recall has been an obvious problem in this trial. I hold the view that in a matter so serious as the present matter there is a necessity for the Court to remind itself of the necessary warnings and admonitions given juries on the approach to evidence about matters as old as the present ones. Alone, the delay may be insignificant or it may be very significant. It needs to be considered in context, coupled with other factors and in relation to the issues arising in this case it may play a part. There is an overarching need to wait and see how the case against each accused and in respect of the alleged joint criminal enterprise pans out.

4. Deaths occurring in a climate of Civil Strife

The Court observes 

415	There is no doubt that feelings among Guale and Mailaitan still run deep. This head should be read along with the heading used by counsel 'Hatred'.

5.	The adoption of other peoples' stories 

The Court observes

416	The adoption of the accounts of others inevitably creates a problem. It is, however, entirely dependent on the state of the evidence at the completion of the trial. The evidence of each witness must be analysed and assessed and that having been done, declared as reliable evidence - reliable enough to stand intense scrutiny then it must be considered together with the rest of the evidence about some matter of issue. There is no point in taking isolated examples of clear error or wilful untruthfulness in isolation, then arriving at verdicts from that incHouate position.

6.	The answering of questions from reconstruction rather than from observation

The Court observes

417	There are some examples of a real possibility of reconstruction by some witnesses presented by the prosecution. It is reasonably possible that the witness Rao is one such example seen in the light of counsel's criticisms. However, there are other witnesses produced by the prosecution, who have independently come to court and plainly spoken of their recollection of events. And the evidence of 'reconstructers' needs identification and special consideration. Phylistas Kennedy pretty clearly does not align with the rest of the family in relation to Maoma's movements. Since she does not so align the submission can equally be made that there has been no discussion about what she would say in Court at least about Maoma removing the necklace on Sebastian's body near the hut . What effect does that have on a finding by the Court that Maoma was at Kennedy's or not only at Kennedy's (since he says that he was never there) doing some criminal acts but not others?

7.	The difficulties experienced by witnesses in estimating elapsed time.

The Court observes

418	Little need be said on this head. It is difficult to pin down precisely the time events occurred when the accused were moving, but the Court is not constrained to determine with clock-driven precision as to just where and where an incident occurred. Having said that one must resort to context in determining whether the Prosecution case fits together beyond reasonable doubt - especially when it is a circumstantial case as regards all of counts 1,2 and three.

8.	The creation of False Memories

The Court observes

419	The 'necklace incident' deposed to by Phyllsitas Kennedy is again cited by counsel for Maoma as an example of a reasonable possibility of Phyllistas Kennedy being a victim of her own false memory of the presence of the accused in particular, Maoma, at or in the vicinity of the Kennedy kitchen, that she is possibly wrong about masks and helmets. Clearly she does not align with the evidence of other witnesses. The real question is whether her evidence creates the reasonable possibility from the whole of the evidence that Maoma was not present at the Kennedys. It is one example from a great body of evidence. Her evidence may be accepted in part while other parts of it are rejected.

9.	Involvement of witnesses presented by the prosecution in militant activity. 

The Court observes

420	It is axiomatic and has been repeatedly said, that there is no property in witnesses. That it happened that witnesses were presented who were members of, or who had sympathy towards, a particular militant group from the Ethnic Tension period, is a matter which needed to be explored. If the witness under consideration was a member of a particular militant group, it would of course bear on the partiality or impartiality of the witness.

421 	It is true that it would perhaps have been more desirable had there been an investigation by police on matters of partiality of any witness – as it turned out the witnesses usually were frank about their affiliations at the time of the tension – it is of the stuff that cross-examination is made . The organizations MEF, Marau EF, GLF IFM and GRA are now outlawed, but they were not at the time of the Tension. To say that there is no acceptable excuse for the failure to determine the involvement of witnesses overstates the position.

10.	Avoidance by witnesses of offering detail about what happened during the ethnic tensions.

The Court observes

422	Counsel argued that the extent to which people would go to avoid answering questions about militant activity and who possessed guns, casts doubt upon their credibility as reliable witnesses. It seems that community leaders even gave instructions to people not to talk. Mr Cavanagh cites the witness Rachel Vatalu and interpolated an extract of her evidence about that matter. “It was only the women who were so constrained,” as I understand her evidence. The Court is asked to note that fact and to infer from it the reasonable possibility that, so extensive was the practice that the very fabric of the whole prosecution case is loosened to the point where the Court should conclude that there was a patent possibility that every witness was affected by the constraint of the 'big man'. The weight of the situation is diminished when one looks at the whole of the evidence.

11.	Hatred

The Court observes

423	The submission of Maoma through counsel, is that this is a feature of the case against the accused in this trial. It is so often a feature of cases in this jurisdiction. It is a phenomenon which is routinely to be dealt with in the assessment of the balance and credibility of a witness – no more no less than other similar cases.

12.	Witness difficulty with making accurate observations on the day.

The Court observes

424	Maoma makes the submission through his counsel that conditions in the vicinity of all the hideout huts above Savekau were such that it makes the evidence of some prosecutions totally unreliable - for example the evidence of Isaac Rao, which is uncorroborated and ought to be disregarded. Rao is hard to follow. His evidence needs careful assessing. The example given by Maoma of Rao's unreliability in his ambiguous use of the word 'surrounding' and in semantics. His evidence attracts some weight but needs to be carefully compared with the evidence of others. The description of the presence of Maoma at the Kennedy hut in particular needs careful consideration. Mr. Cavanagh continues, Counsel submits that it was dark or near dark while the accused were in the vicinity of the hideout huts. I took him to mean dark but getting lighter by the second. Mr Cavanagh observed that the huts were in thick bush with trees around and a considerable distance between the huts and there was a steep slope and considerable distance between Ata's hut and the Kennedy huts. 

425	The distances have been now more accurately estimated by virtue of Exhibit P13. making the distance between Ata's hut and the Kennedys 125 metres and the distance between Kennedys and the beginning of the Kesty Babaua area about 130 metres.

426	As an example Mr Cavanagh refers the Court to the evidence of Ata and the difficulty one has in understanding his evidence (transcript 27 February pp4 &5)

Reasoning of the prosecution to provide motives for the deaths

A revenge attack

427	Mr Cavanagh submits that the motive for the attack on the hideout huts was to kill to avenge the death of one of their relatives, Shadrach Hariu. Mr Cavanagh submits there is simply no evidence that that is the case – rather is only evidence to suggest that the real reason was to negotiate a food supply from the garden for those at Waimamaru. 

The Reason for the attack on the hideout hut area was because of an individual land dispute by inference no ethnic cleansing

428	Mr Cavanagh submits that this is wrong because, for example, the witness David Gegge [tscpt 08 04 2008 11] said that if we were not connected to the lineage of Guale people then we had to ..leave Marau and if we didn't leave they would kill everyone …the meeting was in 1999 at Poposa Old Houa….”.

Mr Cavanagh added that the evidence of Kahunimae and other prosecution witnesses is that in 2000 people of Malaitan descent were forced from Guadalcanal mainland by militants who called themselves the IFM [13 11 07 45.2]

The prosecution submissions concerning the people of Savekau – 

'once a Guale always a Guale'

The Court observes

429	The submission is based on the proposition by the defence that 'the prosecution seemed to be suggesting that there were no ethnic tension problems in the Marau area' the submission is accompanied by a reference from the witness Jerry Kaeti called by the accused Maoma. Kaeti was asked questions of the reason for his leaving Poposa village and directed to the existence of a land dispute between Kediman Manekari and a man called Taupone. He was asked whether he had left because of the land dispute and he answered 'no I left Poposa because of the militants'. It was suggested that some people in Savekau were of Malaitan descent – “can you explain why you were not accepted as a Guale?” He said …”I had seven boys and I did not marry someone from Guale so they have Guadalcanal blood so that's why did not accept as a person from Guale'(sic).” The passage seems to suggest that the militants did not accept those who were part Malaitan and part Guale. 

430	Mr. Cavanagh cites an exchange with Isaac Roa as an example of an absurd level of saying that he did not know about militant activity by people living in Guadalcanal. Mr Cavanagh quotes an extract of evidence from the Chief of Savekau village, Kesty Babaua to be found in the evidence at [29 11 08 p.14-15] as demonstrating that Babaua was not prepared to show that he had any knowledge of Guadalcanal militants. His responses are not supported by other evidence (eg Ruth Barnabas, [14 11 07 p.47] and Nancey Ngelea [21 02 08 p28.4 ]) and so what Kesty Babaua says about his knowledge of militants in Guadalcanal any contentious matter must place the believeability in serious doubt. 

431	Mr. Cavanagh submits that the evidence of Nancey Ngelea is corroborated by a number of others including Rose Gegge [08 04 08 p 80] and Steven Rotte [07 04 08 p8-9]

432	Mr. Cavanagh's submission is that the prosecution case must fail if one accepts the evidence of other witnesses on the point. For example Ruth Barnabas [14 11 07 p.47] who gave that evidence notwithstanding that there she had a close relationship with many Savekau residents.

433	If one considers the questions asked of her 'and is it true that some of the Guadalcanal militants lived in Savekau village?' A. Yes that is true and then Q. what were the names of the militants living in Guadalcanal village? A. I don't know them as well. and the answers given by her. Mr. Cavanagh gives further examples of evidence supporting the proposition that people Savekau village were not neutral. Moreover there is extensive evidence that the militants were offered food, resting place and attended meetings with well known militants in Savekau village which reinforces the submission that the Savekau villagers were not neutral. The attention of the Court is also directed to the evidence of Steven Rotte and Rose Gegge. 'See submissions of accused Maoma page 40] and the evidence of Tony Suava shows a deep involvement of Savekau villagers with Guale militants.

Submissions on the evidence of the accused Willy Maoma

The Court observes

434	Counsel submits [submissions p.43.5] that the sworn evidence of Maoma was unshaken in his version of events about the 21 08 00. Mr. Cavanagh drew attention to the fact that at an early time he denied killing Fox Mono when he met Ariel Ata by arrangement at the Town Ground Honiara in 2001 and that he told Ata that he 'went that morning but did not go to kill anyone. The purpose for the trip was different' 

435	Counsel submits that the passage referred to is little evidence of Maoma doing anything threatening on the day with the exception of Kesty Babaua who says that Maoma fired a shot at him from 'the distance where I said, - near Grace's house three times'. Counsel makes the point that Kesty Babaua is not corroborated on that evidence. Counsel submits that the only other evidence of aggression relates to Maoma allegedly using a phrase 'go and bury your boys' Counsel extracts the evidence given by the witness Nancey Ngelea about that. [20 02 08 p.40]The evidence of Esta Mata coincides with that of her husband in that she says that gunshots she heard (from where she was in the garden) are consistent with Maoma only firing after he was in her and Kesty Babaua's huts area. Shots from that area, counsel submits [submissions Maoma p.49], are confirmed by Ruth Kesty.

Cavanagh's submissions for Maoma concerning the issues at trial, end at this point.

Summary of the defence presented by Willy Maoma

436	In summary I understand Maoma's defence to be that he was placed in charge and instructed at around midnight on 20 08 00 by one Jude Hariu, a 'Commander' of the Marau Eagle Force to go and negotiate with Warren Manemala and Kesty Babaua at the hideout huts above Savekau for access to the garden at the hideout huts above Savekau. The objective was to have access to their former garden so that the refugee communities of Arearea speakers, Malaitan and part Malaitan villagers now at Waimamaru camp who were running out food may be fed. He was to lead his co-accused. They were given arms by Hariu, to protect themselves from any Guale militant encounters. Maoma and his co-accused left Waimamaru in an OBM canoe with Kauhunimae and others whom they collected at Simeruka Island en route, and having reached the hideout huts above Savekau, encountered Manemala at near dawn and while speaking with Manemala and Nancey Ngelea he heard shots. He fled to Vonu alone where he was joined by his co-accused and Kahunimae and his men, transported straight to Waimamaru where he returned the Light Machine Gun he'd carried, to Jude Hariu. It was not until 2001 at Honiara that he was accused of the murder of Fox Mono by the witness Ariel Ata who was seeking compensation for the death of Fox Mono. 

WILLY MAOMA; DISCUSSION AND ASSESSMENT

437	A number of special evidenciary rules govern the admissibility of the evidence concerning Maoma and indeed the other accused. I observe them and give effect to them. They are: 

.	An accused person carries no burden of proving any matter in this trial

.	this is a circumstantial case joint and common purpose rules apply

.	this is a Joint Criminal enterprise case

.	identity, is in issue and much caution is needed [see R v Turnbull supra]

.	As to co-accused, Dock statements are not admissible as evidence 

.	admissibility his evidence is available for or against him and may be used against his co-accused (only evidence of things said and done in the furtherance of the conspiracy is admissible - i.e. that of Futa & Suake unless adopted by Futa Suake)

438	Willy Maoma carries no onus of proving any matter in this trial. The Crown carries the burden of proof here beyond reasonable doubt. When approaching the defence presented by Maoma and the co-accused one may ask - is the evidence of the accused Maoma looked at on a count by count basis, reasonably possible in light of the whole of the evidence ? - for if it is reasonably possible, Maoma is entitled to a verdict of not guilty whenever and wherever that possibility is seen to exist. 

439	Evidence (in the context of the present proceedings on Information), is material placed before the court and continues to be evidence only, unless and until it is proved by the prosecutor beyond reasonable doubt, at which time it becomes fact .

440	Evidence led in respect of what has been said by one accused in response to police formal questions of him (the record of a police interview for example), is admitted on the basis that it is evidence admissible against the particular accused who was interviewed but is not evidence admissible against his co-accused or any of them. 

441	Evidence by one accused (who has been found to be a participant in a joint criminal enterprise) concerning things said and actions done by another or other accused in the furtherance of that joint criminal enterprise is admissible against those other accused found to be participants in that enterprise or where the person accused of saying or doing something in the furtherance of the criminal enterprise, adopts things said or done as his own acts or utterances.

442	The practical effect of the rules here is that the records of the interviews by police with Kapini and Suake (the interview with Futa having been ruled inadmissible at the voir dire stage) are inadmissible as evidence against the co-accused Maoma Futa and Suake. 

443	The Dock statements of Maetoia and Kapini are not admissible as against Maoma Futa and Suake since they do not constitute 'evidence' in any event. 

444	The evidence given in this Court by Maoma, Futa and Suake becomes evidence which may be used for and against any other accused in the trial. It is evidence at large.

The Witness Allen Kahunimae

445	Kahunimae is a man who from the whole of the evidence may be an 'accomplice'. He is said to be an organizer of at least the trip to the mainland, although he deferred to Jude Hariu. He was present at the Waimamaru briefings Jude Hariu gave, (according to the evidence of Maoma, Futa and Suake how could he have been - he was collected if he is to be believed from Simeruka?). In the end, it is clear that he accompanied all five accused to Vonu. The Crown presented Kahunimae as a witness. 

446	Kahunimae's interests in the Marau EF accorded with those of the accused. I warn myself that it is dangerous to convict Maoma or indeed his co-accused (if it is admissible against the others as being in the furtherance of joint criminal enterprise) in the absence of evidence corroborative of Kahunimae's evidence - that is some evidence which is confirmatory of the evidence of the witness Kahunimae in a material particular. 

447	The dangers are that the involvement of Kahunimae may incline him to falsely implicate himself with a view to minimizing his own role or to curry favor with police. He may want to promote his own cause. He may have an axe to grind. 

448	I have to say that I was unimpressed by Kahunimae as a witness. He is a man whose evidence I choose not to rely upon in this case save and except where it not in issue and save where Kahunimae is supported by other independent evidence in a material way about some issue I dispute. 

449	Kahunimae says that he was awakened by Willy Maoma, whom he knew to be a Commander of the Marau Eagle Force. Kahunimae [day 2, 13 11 2007 p 9] says that he was to go to Vonu with others in the boat of the MEF which was then at the seaside. I understood Kahunimae's evidence to mean (although it was not spelled out), that he was awakened by Willy Maoma on 20 08 00 at Simeruka Island where he, Kahunimae was living on Simeruka Island and told to go to the seaside and get in a boat and go to Vonu. He did and there saw Willy Maoma with Moses and Daniel Kapini, Brian Suake and Nixon Mae. I note that Kahunimae does not mention Tome Futa as being in the boat at Simeruka but mentions Futa as being present later at Vonu.

450	Kahunimae says that there was a split of the groups and the Maoma group went off in a different from the one he and his group took. Kahunimae and his group went back to Vonu. The other group arrived not very long after Kahunimae's group had reached the boat at Vonu

451	At Vonu, Kahunimae and his party split from the 5 accused men and headed away in a 'different direction' to them. Maoma's evidence is that he had been directed by Jude Hariu to travel from Waimamaru to Simeruka Island and then to Vonu with his co-accused and then to go to Savekau. 

452	Maoma said that he and the other accused were to seek out Kesty Babaua and Warren Manemala in the hideout huts above Savekau. He said that the object of the exercise was - to request permission from Babaua and Manemala for Areare people to go to their villages on the mainland to work on their gardens. 

453	Now, the object of the accused men travelling to Savekau hideout huts was not spelled out by Maoma in his evidence in chief - he merely agreed with the propositions put to him in cross-examination by counsel for Suake, Mr. Cade, about what he believed to be the object of the trip to Savekau huts.

454	It was not suggested to Manemala by counsel for Maoma that there had been a conversation between Manemala and Maoma in the presence of Nancey Ngelea at the hideout huts that morning asking permission from Kesty Babaua and of Manemala himself, to get their agreement for the Areare people to go to their villages on the mainland to work in their gardens - yet that is why Maoma says he went there in company with the co-accused accused. 

455	The failure to suggest that subject to an important witness like Manemala gives rise to the question of how the failure should be treated. It calls for a consideration of the principle in Browne v Dunn.

The rule in Browne v Dunn

456	Lord Herschell's speech in Brown and Dunn infra, is well known. His lordship said: ” My lords, I have always understood that if you intend to impeach a witness, you are bound , whilst he is in the box, to give him an opportunity of giving any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice, but it is essential to fair play and fair dealing with witnesses . . . Of course I do not deny for a moment that there are cases in which[notice of intention to impeach credibility] has so distinctly and unmistakeably been given, and the point on which he is impeached and is to be impeached, is so manifest that it is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter upon which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story has not been accepted.”

Failure by Maoma to put case to Manemala properly concerning the absence of Maoma by the time Kapini's arrival and the incident with Manemala.

457	In his evidence in chief Manemala spoke of an incident involving the arrival of Kapini near Kestys huts. Manemala says that Kapini pointed his gun at him and said 'you're the one I'm looking for'. Manemala's evidence is at that point Willy Maoma said to Kapini – 'don't kill that man'.. 

Mr. Cavanagh suggested that Maoma may have said 'don't do anything to him' implying Maoma's presence when Kapini pointed the gun at Manemala. Maoma denied being present when Kapini was there.

Through the cross-examination of his counsel, Suake has Maoma present in Kesty's area when Kapini and Maetoia were present and Suake has Maoma present at the time of the presenting of the gun at Manemala by Kapini. Maoma maintains the denial of his presence at the incident of Kapini presenting his gun. Maoma maintains his absence from the Kesty Babaua area for the rest of the presentation of the defence cases. 

The second ruling concerning an objection by counsel for Maoma - to the prosecution asking Maoma to explain why the fact of Maoma's absence was not put to Manemala and Nancey Ngelea

Maoma agreed that he had joked with Nancey and that the conversation with Warren was pleasant. The prosecutor suggested to Maoma that, far from being pleasant that Maoma had said to Manemala 'you're the one who has taken the militants in and given them food ?' and that Manemala said 'if you come I'll feed you too'. 

Maoma denied saying such a thing or hearing such a response. Then the prosecutor suggested to Maoma, that Kapini pointed his rifle at Manemala and demanded money. Maoma reasserts – 'I didn't see so I don't know'.

Maoma also denied seeing Rachel Vatalu, Manemala's mother go to get money and bring it for Kapini.

Objection to the Prosecutor inquiring of the witness why his counsel had apparently failed to put Maoma's case to some witnesses. 

Maoma was asked (implicitly) by the prosecutor if he knew why it had not been suggested to Warren Manemala and Nancey Ngelea by counsel for Maoma that Maoma had had a 'friendly chat' with Manemala. 

Mr. Cavanagh objected at the point of the question on the basis that, to ask it may bring an answer which would involve a breach of the privilege possessed by a client in respect of exchanges between him and his counsel. I upheld the objection but gave leave to counsel to make further submissions since the problem would clearly surface again.

The prosecutor continued and suggested that Maoma was inventing his account of the encounter with Manemala and that Manemala must have heard it had been suggested by at least two counsel. 

It was suggested by the prosecutor that Manemala had been present and had seen and heard the incidents which he had put to the witness concerning Kapini demanding money and pointing his gun and the production of money by Ruth Kesty and by Rachel Vatalu. Maoma denied the suggestion.

It was suggested to Maoma that Maetoia and Futa had a 'red mark' - that is he was to be killed - on Tony Suava [3043] - Maoma replied that he had heard nothing like that .

The prosecutor suggested Maoma had heard Suake warn Nancey Ngelea to tell Manemala to stop talking and she speaks to Manemala who stops talking. 

Maoma replied 'I saw Brian talking with Nancey but what exactly they were talking about… (sic)' he doesn't have Nancey and Brian Suake talking – he is gone by then [see 3043.9]

Maoma denies saying to Nancey that she go and pack up and go to the island or that she refused and said that there was no food there.

It was suggested to Maoma by the prosecutor and denied by Maoma that he had said to Nancey 'go and bury those boys who were dead'.
`
The differences between Maoma and Suake over Maoma's presence or absence at the incident of Kapini pointing his gun at Warren Manemala, heralds the commencement of a need for a ruling concerning the 'rule' in Browne v Dunn (1893) 6 R 67.

Cross-examination on Evidence 3rd edition p. 211, 212 provides a formulation of the rule. 

“in the cross-examination of a witness ' any matter upon which it is proposed to contradict the evidence in chief given by the witness must normally be put to him so that he may have an opportunity of explaining the contradiction and failure to do this may be held to imply acceptance of the evidence in chief.” Newton J in Bulstrode v Trimble [1970] VR 840.

The 'rule' applies in the criminal law as well as in the civil law. It is really a 'rule of professional practice'. [Ross on Crime 2002 [2.1970]. The rule is based on principles of fairness and it affects the weight and the cogency of the evidence. [Bulstrode, supra at 847 – 8].

As to the consequences of failure or omission to observe the rule by counsel , counsel have directed my attention to R v Birks (1990) 19 NSWLR 677 where the consequences of failure to observe the rule in Browne v Dunn will vary depending on the circumstances of the case but they will usually be related to the central object of the rule which is to secure fairness .

Counsel make reference to Foley v The Queen (1998) 105 A Crim R 1. It is made clear in Foley out that 'the cases do not clearly mark out how far counsel must go in putting the client's case in order to escape valid criticism if the evidence eventually goes beyond what has been foreshadowed. We do not think it possible to suggest a universal formula or principle that will tell counsel the amount of detail that may need to be put from case to case.'

What are the consequences here? The cross-examination of Manemala by counsel for Maoma implies Maoma's presence at a significant incident - an incident concerning which, Maoma later in his sworn evidence, says he was absent. 

What is to be inferred from the clear difference between what was put to Manemala about the Kapini/Manemala incident by Maoma's counsel and what Maoma swore later was the correct position about the matter? 

I conclude that it affects the cogency and the weight of Maoma's evidence to some extent. Maoma is challenged by Manemala, Suake and the Crown prosecutor concerning Maoma's presence or absence at the Kapini/Manemala incident – indeed by Kapini himself. 

I remind myself that Maoma carries no onus of proving anything in this trial but insofar as count 7 in particular is concerned, I am obliged to consider Maoma's evidence, evaluate it and determine whether it is reasonably possible that he was not in the area at the time of the Kapini/Manemala incident.

It is necessary to bear in mind that a real possibility exists that the cross-examination of Manemala by Maoma's counsel arose for example, by virtue of a mis-apprehension of instructions or simply by virtue of forensic pressure. Caution and circumspection are needed before drawing an inference adverse to the credit of Maoma. [R v Manunta (1989)54 SASR 17 CCA per King CJ at 23]

Maoma claims absence from the Kennedy huts area. The Kennedy family say that he was present at the Kennedy huts. His co-accused Suake has him present at the Kennedy huts. Maoma's counsel, Mr. Cavanagh cross-examined Charles Kennedy in a manner which implied Maoma's presence at the Kennedy huts - [day3 page 262 15 11 07] Mr. Cavanagh suggested to Charles Kennedy that Maoma had said to Kennedy (when he was outside Kennedy's hut) the words 'please don't be afraid of us'.

Maoma dissented from the proposition that he was at the Kennedy's at any time when he gave evidence. Maoma said at that there was no occasion when he was in the Kennedy huts or saw Charles Kennedy. 

It is an issue which has been clearly joined by the Crown. It is the Crown case. The prosecution put it plainly to Maoma in cross-examination that he recently invented the account that he was not at the Kennedy huts since he wanted to avoid any suggestion that he heard the fatally wounded child, Jonathan Talanimaina Kennedy screaming for his father's assistance at a time when Maoma was at the Kennedys.

I consider that the failure to put to Kennedy that he Maoma had not been at the Kennedys, not had any dealings with them on the 28 08 00, by counsel diminishes Maoma's creditworthiness. I continue to observe that Maoma carries no onus of proving anything, but I am obliged to assess his evidence and determine whether his evidence creates the reasonable possibility that Maoma was indeed, not at the Kennedy huts.

FUTA the defence

The interview 

458	Following a voir dire the interview was excluded. There is no evidence therefore, of any formal exchanges between investigating police and the accused in this trial. I re-iterate that I make no finding adverse to the accused concerning the absence of a formal interview.

The defence presented by Futa

459	Futa elected to give sworn evidence. That he did so and submitted himself for cross-examination is noted. He called no evidence in addition to his own. His defence is summarised. He is charged with all 8 counts contained in the Information. He has pleaded not guilty to each charge.

Futa – Evidence in Chief. [day59 	p.3712]

460	In his defence, Futa said that he was 26 years old and was from Mariua village, Marau Sound, Guadalcanal. He was born at Manakaraku station. He moved to Honiara at the age of 19 years in 2000. He returned to Mariau not having stayed long in Honiara. He says that he was a member of the Putanrau village Bible Way Church in 1990 (having changed from the SSEC that year.) Putanrau village was about 15 minutes in an OBM boat from Mariau.

461	He said that on 21 08 00 he was staying at Waimamaru Camp providing security for his people. His people went there to avoid militant activities at Mariau village. He was, he said, living there with other communities – those from Warahara, Niu Houa, Mariau, Suvu and Komuta'a.

462	Futa's account is that all 5 accused men at Waimamaru camp were living in the security house at Waimamaru on 21 08 00. Futa gave evidence that at about 12 midnight on 21 08 00, a boat came. Those in it were Jude Hariu and Allen Kahunimae. He said 'they briefed us and told to that we were to go to Savekau hideout huts'. [the evidence is to be compared with that of Kahunimae that Maoma woke Kahunimae at Simeruka]

463	He said that food supplies at Waimamaru were running out and that we were to go and see Kesty Babaua and Warren Manemala, who were 'big-men chiefs' and who were representing the GRA at the time. He said 'I knew them because I stayed in Marau. We were to ask them to talk with their boys and allow our women to go in the garden'.

464	Futa said that he knew Jude Hariu and Allen Kahunimae because both men were commanders of the Marau Eagle Force then. He says that Hariu and Kahunimae gave them guns. He was he says given a rifle which Hariu told him was a .303 rifle. [see Exh P2].

465	He said that he understood that he took the rifle for safety reasons because Savekau was a stronghold of the GRA. Futa says that Jude Hariu showed him how to operate the gun. Futa then got into the boat.

466	Futa says that with Kahunimae in command they went, all five of the accused to Simeruka in a 40 hp. In addition to the five accused, Futa says was Kahunimae and Morise – a Malaitan, the driver of the vessel. 

467	Futa's evidence is that at Simeruka they collected 'Allen's boys' who were five in number and then went to Vonu village on the mainland [see Exh P1]. He says that they left Waimamaru at about 2:00am and arrived at Vonu at about 3:00am.

468	At Vonu he says that Allen and his boys went off to the left away from the five accused men and that the accused men walked off along a road which led to the hideout huts above Savekau Village,

469	Futa describes his dress as being a black cut shirt, blue Jeans and that he was bareheaded. He said that he guessed that it took about an hour and a half to walk up the road from Vonu to the huts.

470	Futa said that they walked in line. I understood him to mean 'in single file' He says that they walked '78 m apart.' That is plainly a typographical mistake. The note in the Judge's bench notebook says '7 to 8 metres' apart .

471	Futa says that at the huts it was still dark because of the forest [3724] The first thing he saw on his arrival was the three huts. Futa says that the first people he saw at the huts were Warren Manemala who was talking to Willy Maoma. Futa stood behind them next to a log they were standing at. [see Exh. P13 marked 'log'] He says that he could not hear what they were saying. Warren Manemala offered betelnut and they all took to chewing the nut. Futa saw that the huts were about 8m apart indicating in the courtroom. His indication was shown by measurement in the Court room to be 2.5m.

472	Futa says that Nancey Ngelea arrived while he was with Manemala and Maoma chewing betelnut. He says that Manemala called out Kesty Babaua's name twice, and he says, Kesty came out of a hut and he Futa walked towards Kesty and they greeted each other. 

Futa's evidence is that he and Kesty told stories between themselves for about 10 minutes – at that point Futa says that Futa started to tell him 'this is the reason we're here'.

473	While he was telling Kesty the reason for their visit, Manemala and Maoma were standing facing the sea the coast, behind the hut which Kesty had come from and which hid them from Futa's view. Futa says that at the time he was talking to Kesty he could no longer see Nancey Ngelea. He says that he and Kesty were standing on the leafy overhang of a verandah roof of the hut. There was he says no place for them to sit, so they stood.

474	When Futa was telling Kesty why they were there Kesty gave him a hard betel nut too hard to chew'. He then passed Futa a small knife with an orange handle to clean the betel nut. Kesty got the knife from a bag. Futa showed the court using his hands, how long the knife was it was agreed that Futa was demonstrating a length of about between 10 and 20 cm.

475	Futa says that as he was given a knife there was a gunshot. He says that we all went for cover. While taking cover he handed the knife to Kesty and at that instant there was a second shot. Futa says I ran into the bushes in front of me thinking that they, the GRA were shooting at us. There was a very short time between shots.

476	It is Futa's sworn evidence that he managed to find his way back to Vonu close to Savekau village. Futa's recollection is that he had been in conversation with Kesty Babaua for about 10 to 15 minutes.

477	Futa says that at the time he heard the shots, those in the vicinity were Maoma, Manemala, Nancey Ngelea, Kesty Babaua, Brian Suake who was near the log where Manemala was speaking with Maoma and Futa himself. 

478	When Manemala shouted out to Kesty shortly after Futa's arrival in Kesty's area, Futa says that he went to Kesty. At that time he says, he had no idea what was happening behind him. 

479	After the shots and his going into the bush, Futa thinks that it took him about half an hour for him to travel from the hideout huts until he reached Vonu as he was running.

480	On the road to Vonu he says that he met up with Brian Suake and that when they arrived at Vonu Willy Maoma was already there. Not long after they arrived in Vonu, Maetoia and Kapini turned up. He says that about half an hour after Maetoia and Kapini arrived, Allen Kahunimae and his group came. No-one spoke between them they being fearful of further shooting. He said that after the arrival of Maetoia and Kapini, they waited another further hour for the arrival of Kahunimae's group. 

481	When the Kahunimae group arrived there was no talking. The boat came. Futa is unable to recall who was driving it but that they all got on board and went back to Waimamaru camp. He said that he believed that they arrived back at Waimamaru camp at about 11:00am. 

482	Futa says that the guns they had had with them they left them in the boat. Which Jude took back to Niu Island.

483	Futa's evidence is that while he knew Shadrach Hariu knew he was Jude Hariu's father and whom he had met while living in Niu Houa and had had news of his death, the group did not travel to the hideout huts above Savekau to avenge his death.

484	He recounted that during the pre-journey briefing that Jude Hariu had said that he Jude Hariu was supposed to have been the leader of the 'negotiation trip' but the GRA at Savekau were the ones who had shot his dad so the Marau EF wouldn't let him go - they said he might do something different if he went because he had anger in his heart.

485	Futa said that there was no plan to kill Tony Suava it was to negotiate with Manemala and Babaua. He added that he did not see a house belonging to Ariel Ata that morning nor did he go anywhere near the Kennedy huts nor did he speak to Charles Kennedy, that he didn't point a gun at Isaac Rao nor did he see Rao that morning. 

486	He denied that he had gone inside the hut of the deceased boys (Kennedy, Abele and Mono) and had killed or helped kill them. Futa said that he had no knowledge of the Kennedy huts and had heard no reference to the deaths of the boys made by any other person. He said that he had personally made no reference to them at the hideout huts that morning. He said that he had not heard any reference to anyone wanting to take the heads of Abele or Mono.

487	Futa denied the allegations made in evidence that he had used a rifle butt to assault Kesty Babaua or that he cut Kesty's neck with a knife.

488	He denied that he had (as it had been alleged) threatened to kill Kesty Babaua unless he was given money. He denied the allegation that he had used or had heard anyone else use words to the effect that they would come back that morning and 'sweep people from the hideout area'. He said that he had first heard of the deaths of the three boys at the end of 2000.

489	As to the weapon Futa was carrying he said that he had never seen it again. He said that the police came and took the guns in 2001 after the peace was signed and that he had been at home at Waimamaru camp [which is to be compared with what Suake says which has them being transported to Niu Island to Alby Ham] when they came and that he had a Notice delivered to him which he then tendered as Exhibit D25 (Futa). No objection was taken to the admissibility of the notice.

Cross-examination by Mr Cavanagh (for Maoma)[day 59 – p.3748]

490	Futa told counsel for Maoma that while he was acting as Security there were only two guns in the possession of the men who were acting as 'security' - a pump action shot gun and a .303 rifle, which were used to protect the villagers generally at Waimamaru camp.

491	Futa said that at that time there was a rule that the guns were not to leave the Security Hut and they were not taken around the camp and shown off to the people. Eventually the PMC (the Peace Monitoring Council) came and got the weapons.

492	He agreed that the guns, two in number had been handed in at Waimamaru in 2001 by a person by name Albi Ham. Futa said that he had received Exhibit D25 not long after the guns were handed following the receipt of the document, a notice-board bearing the message 'Weapon Free Community' was erected at the camp at Waimamaru.

Cross-examination by Mr Cade on behalf of Brian Suake [day 60- p.2]

493	Futa told Mr Cade, (for Suake) that the security hut was manned day and night by men from Waimamaru but only the young boys were used to do security that is 20 years and up.

494	He agreed that Suake had participated in security duties in the hut overnight with the other men, even though he had a wife and family with him who lived in a hut further away from the beach.

495	Futa agreed that to do security was to 'more or less become a member of the Marau Eagle Force MEF' [day 60-p.4] He agreed that to do security duties at Waimamaru was not to have to go on operations to other villages on other islands.

496	He agreed that other militant members of the MEF visited Waimamaru carrying high powered police weapons. He agreed that one in security at Waimamaru had a weapon which he kept at home and that neither the shot gun nor the .303 were never fired at Waimamaru. Futa agreed that the main weapons group was kept at Niu Island (see P1)..

497	Futa agreed that they were unable to successfully grow food on Marapa and that Waimamaru had not been an established village before the people moved from the mainland and that that was why it was described as a camp not a village.

498	On the night of the 20 08 00 the boat carried Kahinimae and Hariu whom he regarded as the leaders and the driver Morris. Futa knew that because he was on security duty that night.

499	It was suggested by counsel for Suake to Futa that Suake was not in the security hut at the beach but that he was with his family, inland, and Futa says he was in 'the security' at that time. Counsel for Suake suggested that Jude left the beach and came back to the security hut in company with Suake. Futa said 'no'.

500	Futa agreed that on the beach the five accused were briefed by Jude Hariu on the purpose of the mission. He said that they were chosen to go on the mission because the grandfather of Maoma and Maetoia and Suake's grandfather had adopted Kesty Babaua's mother and 'that is why the leaders wanted us to go because of the bond.' [day 60 p.8]

501	Futa said that the purpose of their going there was to negotiate with Babaua and Manemala so that they would inform their boys to allow their women to go and take food from the gardens.

Futa agreed with counsel for Maoma that Jude said that he wanted to go but that the other leader (Kahunimae) it was not proper for him to go on a peace mission as his father Shadrach Hariu had been killed.

502	Futa agreed that they had been shown guns on the beach and one was handed to each man. He agreed that no gun had been fired on the beach then. He agreed that the guns were issued for their safety - because to get to Babaua and Manemala they would have to go along the main road which was frequented by Guale militants [day 60 p9] and he agreed that were to travel in darkness because they would be less likely to meet militants on the road which would be a dangerous encounter for Areare men.

503	Futa agreed that on the night of the 20 and the morning of the 21 08 00 that Brian Suake had been wearing civilian clothes - pants and a T-shirt and was bare headed with no charcoal on his body. He agreed that the accused got in the boat and travelled to Simeruka Island where they collected Allen Kahunimae's group and then travelled to Vonu village. There they disembarked and the Kahunimae group moved off in a direction different from that which the 5 accused took. He agreed that the 5 accused moved off towards Savekau village from Vonu. He agreed that they turned off shortly before Savekau village and headed up towards the hideout hut.

504	Futa agreed that Maoma was in front and next Futa than Suake and Maetoia and Kapini bringing up the rear. It was suggested to him that the gap between himself and Suake stretched out to 30 may be 40 m beyond the stream going up the hill and Futa denied that it was so.

505	Futa disagreed with the suggestion by Suake's counsel that at the time when he reached the top of the ridge there was gunfire he said not at that stage. He disagreed with the suggestion that after quite a few minutes that Brian Suake caught up with him at a time when he Futa was standing on the path near Charles Kennedy's area with Charles Kennedy and his family standing nearby.

506	Suake suggested through his counsel that Futa had his rifle lifted and pointed at Charles Kennedy and Kennedy's family was standing nearby on the path and that Futa had an angry or serious look on his face. Futa disagreed with all the suggestions.

507	Suake's counsel put to Futa that Suake had walked up and pushed the rifle 'away' and said 'don't shoot' and that Maetoia and Kapini came up the hill at that time. Futa disagreed. 

508	It was then suggested by counsel for Suake that Margaret Kennedy gave the four (Futa, Suake, Maetoia and Kapini) food from a motu and Futa again disagreed having already answered Willy and myself were 'all of us in Kesty's area'. 

509	It was further suggested that after they had taken food from Margaret Kennedy the four went on to Kesty's area to which Futa said 'I was already at Kesty area in the morning (sic) ' .

510	Suake through his counsel suggested that the four walked to Kesty's without stopping and that Futa went into one of the huts and that there were angry voices in there. Futa denied the allegations.

511	Suake suggested to Futa through his counsel that he had appeared from the hut followed by Kesty Babaua who was seen to have blood on the back of his head. Futa denied the allegations made by Suake.

512	Suake suggested to Futa through his counsel that Manemala and his family came up the path. Futa said that they were sitting with Maoma behind Kesty's hut.

513	Suake suggested to Futa that Kapini and Maetoia arrived on the scene – Futa said that he didn't see them and Suake suggested that Kapini pointed a gun at Manemala. Futa replied that he didn't see that and Suake went on to allege through his counsel that Brian Suake had then stood between the Kapini's gun and Warren and said 'don't shoot' to which Futa replied that he did not see that and he didn't hear that said.

514	Futa denied that he had seen any women come or go to and from Kesty Babaua's area. 

515	Suake suggested that Futa and Maoma had walked out of Kesty's area and walked off down a path towards Charles Kennedy's hut but turned off at Ariel Ata's hut . Futa denied doing so and denied that he had then gone down the hill to the stream and walked to Savekau village where Allen Kahunimae and the boat were already waiting.

516	Suake suggested to Futa through counsel that some buildings at Savekau were burning - presumably set on fire by Kahunimae and his group. Futa replied that he had no knowledge of the fire.

517	He denied the suggestion of Suake's counsel that he with the others had got in the boat at Savekau and returned straight to Waimamaru. Futa added the boat went from Vonu straight to Waimamaru. But he agreed with Suake's suggestion that the guns were left in the boat at Waimamaru.

CROSS-EXAMINATION OF FUTA BY MR KARI ON BEHALF OF MAETOIA

518	Futa said that he settled at Waimamaru camp at the end of 1999. Maetoia was there then and he was a bachelor. He agreed that he had a sleeping hut which was far away from the other huts.

519	It was suggested that he was in his hut asleep on the night of 20 08 00 and Futa replied 'no he was with us'.

520	Maetoia suggested through counsel that once the others were already in the boat and waiting that he came to the vessel and Futa disagreed and said that Maetoia had been at the briefing.

521	Maetoia suggested that there was no briefing in his presence and Futa disagreed again saying that they were all at the briefing.

522	Futa agreed that no-one spoke on the boat or at Simeruka. He said that no-one had charcoal on their person.

523	Futa agreed that it was still dark at the time they set out for the Hideout Huts and that he didn't know where Kapini and Maetoia were. 

524	He disagreed with Maetoia's suggestion that he was uphill when the shots were heard. It was suggested that the shots appeared to come from the Kennedys' area and Futa replied that he didn't know where Kennedy's area was.

525	Maetoia's counsel suggested that he with the others left Kennedys' area and went on to Kesty Babaua's area. Futa denied the suggestion. Maetoia's counsel pressed the matter and insisted that he was there and knew that there was some delay at Kesty's and then Nixon and Kapini arrived. Futa said I didn't see them at Kesty's.

526	Futa denied the suggestion when Maetoia suggested that in Kesty's area Manemala and Nancey Ngelea chewed betelnut with Maetoia and he also denied leaving Kesty's area down a track towards Ariel Ata's hut.

527	Maetoia put to Futa through his counsel that he had gone past Ata's hut and thence to Savekau village and was one of the first to arrive at the vessel now parked at Savekau passage. Futa disagreed with all that was put and said that he saw that Willy Maoma was the first to arrive at Vonu.

528	Futa disagreed with Maetoia that Maetoia had an SLR that day that they left together from Savekau Passage. He agreed that Maetoia had left his gun in the boat when they arrived at Waimamaru camp beach.

CROSS-EXAMINATION OF FUTA BY COUNSEL FOR KAPINI, MS. FA'ASAU

529	Futa agreed that Kapini had been absent from Marau Sound villages. Futa said that he had left the villages for employment Tulagi in 1992 or 3 and arrived at Waimamaru in June 2003.

530	Futa agreed that Kapini's brother James had been living at Waimamaru camp and Daniel joined him there . He said that knew the witness Billy Akwasi who was married to Daniel's aunt Lucian and that they lived together at Poinakeni.

531	Ms. Fa'asua suggested that there had been a custom arrangement with a girl at PoinKeni. Futa said that he knew nothing of such an arrangement and Danny did not marry to his knowledge.

532	He acknowledged that Poinkeni is on the island of Mauriapa on which the village of Poinkeni is situated and there is a point of land named Niumarere on the coast of Mauriapa.

533	Kapini's counsel asked Futa had he been shown by Jude Hariu how to use the '.303' rifle immediately before leaving from Waimamaru because it was the first time he'd used such a gun and he agreed that that was the first time any of the boys at Waimamaru had been shown.

534	Futa agreed that Kapini had been wearing ordinary clothes and a jacket and that he was bareheaded that morning.

535	He agreed that the bush track from Vonu was narrow and the boys went single file and that he followed Willy and assumed that those behind were following.

536	Futa agreed that since they had all been briefed at Waimamaru at Vonu there was no need to talk further.

537	He did not agree when Kapini put to Futa through his counsel that Kapini had not been at Waimamaru but had been collected at Poinkeni.

538	He agreed that at Waimamaru that the 5 accused were present but there were other boys there whose names he could not now remember.

539	He agreed that having left Waimamaru the vessel went to Simeruka and collected Kahunimae's boys which he believed (though his memory Futa said was not good) included Luciano Kofe, Francis Mau'u, Nicholas Maesua.

540	Kapini's counsel put to Futa that Kapini was not present at Waimamaru and Futa disagreed saying 'there were five of us who left Waimamaru. And at Simeruka they collected 5 boys plus Allen Kahunimae [day 59 p. 38 - 40]

541	Futa agreed that James Kaeti and Godfrey Kove and Titus Aru also joined the boat at Simeruka. 

542	Kapini through his counsel then suggested that the boat then travelled from Simeruka to Poinkeni. Futa disagreed - Kapini's counsel then put that Nicholas MaesuaI was also at Poinkeni, Futa said in answer 'what I know is Simeruka to Vonu'.

543	Kapini's counsel put to Futa “didn't you go to Poinkeni and collect Nicholas Maesua and Daniel Kapini?” Futa replied 'No….. 

544	Kapini's counsel then said 'didn't you in fact go to Poinkeni that day and see Billy Akwasi.' 

545	Futa agreed that the boat driver on the return journey was 'Morris' but disagreed when Kapini through his counsel Ms. Fa'asau that they had left Savekau heading for Waimamaru and that boat had run out of fuel at near Komuta'a [p.45.6 note this was not put to other witnesses] where all the passengers got off the boat and that two had gone to get fuel and that he Futa and the others had walked to Niumarere from where the boat came later and picked Futa up with the others.

546	Kapini's counsel suggested that Futa had not seen Kapini around Waimamaru between July and August 2000. Futa replied Danny stayed in Waimamaru'.

547	Through counsel, Kapini suggested to Futa that he saw Danny at Kesty's area at the hideout huts on 21 08 00 and that he had arrived about 30 minutes after Futa. Futa disagreed.

548	Kapini's counsel suggested that he saw Kapini demanding that Manemala pay back money that Manemala had taken from Kapini's brother. Futa denied that he had seen such a thing.

549	Kapini's counsel suggested that when he left Kesty's area Futa did not go near Kennedy's hut but descended past the hut occupied by Ariel Ata and that he would have seen people talking by the hut including Gibson Pukere. Futa denied those suggestions and said of passing Ata's hut 'I have no idea of the place you're talking about.'

550	Futa denied the suggestions from Kapini's counsel that Danny was the first to leave the huts and descend to Savekau and that then Futa went down following with the others to Savekau where the boat was waiting for them to board. Futa said, 'It was from Vonu we took the boat.

551	Futa denied the suggestion from Kapini that the boat almost ran out of fuel en route to Waimamaru and stopped at Komuta'a and dropped he and others off while fuel was obtained. 

552	She suggested that at Komuta'a that Kapini left his gun in the boat and that he Kapini walked to Poinkeni. Futa responded 'all of us from Vonu, all of us went to Waimamaru' [p. 51.9]

CROSS-EXAMINATION OF FUTA BY MR. FITZPATRICK [ day 59 p.53]

553	Futa agreed that his father Jerry Futa was a Field Commander of the Marau EF. Futa said that he Tome was not encouraged by his father to join up.

554	He said that while he was a security for the people at Waimamaru he had not been trained on how to use weapons because there were those who used weapons and those who were just lookouts. He acknowledged the presence of 2 guns in the security hut but he only learned how to use guns when Jude showed him. He said that he became 'a security' on 1 July 2000. He said that the security hut was similar in size to the Dock and at times there were maybe more than 5 were on duty with him.

555	Futa said that the trip to the huts above Savekau was not a mission, it was a 'negotiation trip'. He said that Jude had shown him how to use the gun because he was going on a mission where potentially he may be shot at and killed and he had had no training.

556	He said that the briefing was at 12:00 when the boat arrived and the training with the weapon was after the briefing and that it went on for 30 minutes.[ Note Maoma says that the training went on for 2 hours or so]

557	Futa when pressed said that he couldn't be precise - he knew that Maoma said 2 hours but Futa said 'I didn't have a watch with me.'

558	Futa told the court that the weapon is a manually operated one, a 'straight' one like a .22 that it has a magazine but he couldn't say how many rounds it took but that he knew that it was loaded with rounds. The weapon had a safety catch he said and he was shown it. He said that he had had no weapons training before the 21 08 00.

559	He said that he was chosen to go on the trip because of a bond namely that Willy's grandfather and Brian Suake and Nixon Maetoia had with Kesty.

560	He agreed that the two men Warren Manemala and Kesty Babaua were chiefs and both were GRA Militants and notwithstanding the fact that they were the enemy they would have respect for us in that bond.

561	He said that as to the death of Shadrach Hariu they blamed the GRA because the villagers from Savekau hampered the GRA and joined in.

562	He said that he didn't want revenge and nor did Jude because Shadrack Hariu was already dead.

563	Futa said that while the Police vessel carrying guns came before the 21 08 00, he had no knowledge of whether there was a large number of weapons. He did see Willy Maoma carrying a light machine gun, and in addition he saw a 'Greener shot gun and an SLR'

564	The prosecutor suggested that there were lots of guns in Waimamaru camp before the 21 08 00. Futa denied the suggestion. He further denied the suggestion that the mission was payback for the death of Shadrach and it was so they could get a trophy and show those at Waimamaru camp Futa denied the suggestion.

565	The prosecutor suggested that Kediman Manakari was a chief and higher up than Kesty or Manemala and asked why he was not the one they went to see and Futa said - it was only Kesty and Warren that we went to see.

566	Futa said that he had only heard of militant activity, he had not seen it and he heard the patrol boat firing along the coast of Marau. 

567	He said that Willy was not the organizer of the raid and he disagreed that he was in charge of arranging people. He agreed that they expected to encounter Guale militants in the area but he denied that they wore camouflage clothing nor did they paint their faces or wear camouflage clothing.

568	Futa denied that he was carrying a weapon or that his co-accused were carrying weapons which belonged to them. He said that Willy was not the commander of the exercise but he led us because at the briefing Jude said he would. He was the commander on the spot. 

569	The prosecutor suggested that the boat driver was not named 'Marris' that his name was Moses in fact he knew it was Moses Kapini - Futa said that the driver was known only as Morris to him and that he was Malaitan and he does not now know his whereabouts.

570	Futa was asked by the prosecutor, if you went straight to Vonu you didn't go from other islands you went straight to Vonu. Futa replied 'yes'?

571	It was put to Futa that Willy told Kahunimae to go to Vonu and kill Barnabas Sirai. Futa replied 'no'.

572	The prosecutor then said 'you know the purpose of this was to go and kill Tony Suava don't you?' Futa said 'no'

573	Futa denied talking with Willy Maoma and getting a story together. It was suggested that the accused had the man Francis Liumae with them and he replied 'I did not see him'. 

574	When asked how he knew how to get to the hideout huts, he said a road came from Vonu and went there.

575	It was put to Futa that having got to the top of the ridge it was near the Kennedy's. Futa said that he didn't know where Kennedy's area is.

576	The prosecutor suggested that then they went to the young boy's hut. Futa said No. He denied the suggestion that they were at the hut and he denied that Maoma did a 'clearance'- that is to kill everyone in there. He denied that he went in and he denied any knowledge of who attacked the head of Fox Mono. He denied that he had used a machete on Sebastian Abele or shot him as he ran from the huts or shot Jon Kennedy or did (something) to Fox Mono in his bed. The case was emphatically put to Mr. Futa and Futa, equally emphatically, denied what was put to him.

577	Futa was asked you accept that these boys died on this day? And he replied 'I do not know anything about that'.

578	Futa did not deny that he and 'your friends' went to 'this village on that day'.

579	The prosecutor said to him 'it's all an unfortunate coincidence isn't it?'

And Futa replied 'it happened when we were there'……'and that's why we ran away from it'.

580	Futa denied pointing his rifle at Kennedy while he was there with his family or trying to shoot him in the presence of his family three times. He denied that Suake had intervened. He denied the allegation put by counsel for the prosecution that he had put his rifle to Isaac Rao's head and said 'where is Tony' and then pulled the trigger three times.

581	Futa denied the crown case which was put to him quite extensively and with particularity - in particular [day 59 p. 100] he denied that he had put a gun to Isaac Rao's head and said “where's Tony?” (Suava), that he was intending to avenge Shadrach Hariu's death; he denied approaching Kesty Babaua in anything but a friendly way; he denied that he said to Kesty Babaua 'you are one of those who keep militants?' He denied asking Kesty where Tony Suava was, he denied then hitting Kesty on the head and back with the butt of his rifle, he denied saying to Kesty that Kesty had 'sent his people to kill Shadrach'; he denied that the use of the rifle but happened at all; he denied that he hit Kesty a number of times on the back and in the presence of Ruth Kesty, Grace Maeli, Isaac Rao, and after that in the presence of Esta Mata.

582	Futa denied that he had pulled out a knife with an orange handle and stabbed Kesty in the back and then put it to his throat; he denied blaming Kesty for the death of Shadrach Hariu; he acknowledged that there was a man by name Tauponi who was his relative; he denied that Tauponi had a land dispute with the people of Savekau and he denied that he had spoken of that land dispute with Kesty on the 21 08 00; he denied that he had said that Tauponi had a dispute with Kediman and Kesty about the land; he denies that he demanded $500 for Kesty's life at that time or and he denies that he seriously injured Kesty by reason of anger ; he denies that Ruth Kesty and Isaac Rao left and a short while later Ruth returned with $500 and gave to Futa who passes it to Maoma; [day 60 p.105.5] he denies that Maetoia at that time said to Kesty Babaua 'go and get the three pigs they killed on the floor - and eat them'- he denied that at that point Suake said to Futa and to Maoma in particular 'you guys are wrong' [day 60 p.107.3] He denied lying about a knife with an orange handle; he denied that Manemala and Nancey came to the Kesty area after he had been there for sometime, maintaining that they had been there 'all along' [day 60 p.110.9]. 

583	Futa told the prosecutor said that when he arrived on the scene it was just getting light and he saw Maoma speaking with Warren Manemala and that Futa approached them and stood behind them. And he called for Kesty twice [day 61 p.2.]. He denied making up a story between himself and Maoma.

Futa was asked if he knew Manemala personally and he said 'I don't know him personally but I know him' [day 61p.3].
Futa says that he doesn't know why Kesty was called for but when he came out he approached Kesty and spoke with him. It is put to Futa how it came about that his own counsel Mr. Squier had put to Charles Kennedy that he Futa and Suake had gone to Charles Kennedy's hut and that Kesty was there and that Kennedy responded with 'that's not true'. The prosecutor then invited Futa's comment and Futa said 'what I know is that I chewed betelnut in Kesty's area'.

584	The prosecutor suggested that Squier had put Futa's case this way:

'I suggest to you (Kennedy) that Kesty you (Kennedy) and Brian Suake were all sitting down in the middle of your area all chewing betelnut and that Tome Futa and Kesty Babaua had an argument at that time? and his (Kennedy's) response was that's not true' and that Mr Squier put it again - saying 'I'm suggesting that you are all sitting down together and you all heard gunshots for the first time that day and you all heard the gunshots at the same time? and his (Kennedy's ) response was, 'that's not true'. 

585	The prosecutor then said to Futa – 'would you like to say anything about that? 'and you replied 'what I know is I was with Kesty when the gun was fired and I ran out'.

Prosecutor put to Futa then – 'you've changed your story, haven't you?' Futa replied 'no'.

586	Futa denied that he had assaulted Kesty Babaua and that denied that Nancey Ngelea had arrived in Kesty's area he denied that Maetoia and Daniel Kapini were present and he denied that Nancey said to Suake 'Suake, it's just me and my children'. And Futa said when it was put to him that Suake had said to Manemala and said 'brother I'm here' - Futa replied “don't know about that because I was with Kesty'. Futa denied saying aggressively or at all the words 'don't move'.

587	Futa says that he knows nothing of Maoma joking with Nancey or of Maoma saying to Manemala 'you're the one who used to take militants and give them food'.

588	Futa denied being present when Kapini pointed a gun at Manemala saying 'you're one of them' and then demanded money from them. He denied seeing Rachel Vatalu that day and said that he knew nothing about her going off to get money and returns with money which she gave to Kapini. [day61 p.10.1] Futa says that he did not hear Maoma say anything to Nancey about her going to the island and her refusal as she believed that there was no food on the island. He denies that Maoma said to Nancey 'go and bury those boys who are dead'. Futa denied that at that time he knew the boys were dead. And he denied that he heard Jon Kennedy, screaming. He said that he had no knowledge of Maoma saying to Grace Maeli 'you feel it; you go and bury your brothers who are dead'. He denied the allegation that he and the four other accused had committed the offences charged jointly charged against them or any of the matters specifically put to him about the incidents in Kesty's area.

589	It was put to Futa and he denied that he and the others went from Kesty's area back to the Kennedy huts and they had intended to and did scare the Kennedys so much that they had ensured that the people would leave the area giving himself and the co accused easy access to the garden and a food supply. All these allegations Futa denies.

590	It was put to Futa and he denied that Maoma had said that he Maoma had killed Sebastian and wanted to take his head as a souvenir back to the island to show people and that Kapini said that he wanted to take back Fox Mono's head as he was his cousin. He denied hearing those things said and denied again that he had ever been to the Kennedy huts. Futa maintained that he was not at the Kennedy huts and denied that he heard Kennedy pleading with his good friend Willy Maoma to leave the heads of the boys. He denied hearing anyone say that they would come back and 'sweep them all into the sea'. 

591	It was suggested that he and the others all walked to Ariel Ata's hut. Futa denied doing that and denied that Maetoia said to Ata 'you must come to the islands and if you do, you must come during the day'. 

592	It was suggested to Futa that next Maetoia said to Gibson Pukere 'those are your smart boys over there and your boys joined the militants and that's why we shot them.' Futa denied the suggestion.

593	Concerning the issue of the surrendering of the guns. The prosecutor asked Futa about the certificate which he said he had received from the PMC after he was arrested and placed in custody, he instructed his lawyer one Shane Drumgold to retrieve the copy certificate from his wife . He did. Futa said that he got received for the first time at his home at Marau Sound in 2001. Futa said although the document [Exh D25] appears to be a photo copy it is Futa believes, an original document – it is the one given to him anyway. [day 61 p. 20] Futa said that at the time of the surrender the guns, every gun in the security houses in Marau sound were collected by Albi Ham. The two guns at Waimamaru were a pump action shotgun and a '.303.'

594	It was put to Futa that the surrender of guns happened not at Marau but at Niu Island on 19 March 2001 and neither was a shot gun or a .303. Ham surrender the guns he had collected at Niu Island namely one SLR and one SR88 - and neither was a shotgun or an.303. Futa responded 'what I know is that after collected the arms that's why they issued us with certificates.'

595	When pressed that the surrender of arms occurred in 2003 in the Marau area, Futa said that the surrender was not generally in the Marau area but that it was to Albi Ham in 2001. Futa said that he was at Waimamaru on 19 March 2001 P1) which is the day that Ham is said to have surrendered them at Niu Island, Marau Sound. 

CLOSING SUBMISSIONS OF COUNSEL FOR FUTA

596	Mr Squier helpfully sets out the applicable principles applicable to his client Job Tome Futa in this trial. I have noted the submission. I go to the essence of the case which commences at paragraph 13 of the submissions in writing delivered by counsel.

597	The essence of the submissions for Futa are that the prosecution case insofar as counts 1, 2 and 3 are concerned is comprised of no direct evidence. It is therefore a circumstantial case. Mr. Squier suggests that there is circumstantial evidence that the co-accused were in the hidehut area at the time gunshots were heard on 21 08 00.

598	Mr. Squier challenges the prosecution submission that Dr Dodd's evidence is of assistance to the prosecution. Dr Dodd says that the boys met their deaths in a combination of gunshot wounds and trauma caused by blunt and sharp objects. 

599	The only evidence of the proximity of Futa to the boys' hut is that of Margaret Kennedy. Her evidence is inconsistent with other prosecution witness and should be disregarded.

There is no evidence of malice aforethought in this case conceding that it is not unusual for an absence of an expression of intent in such cases but there is evidence of a peaceful intent – the intent to negotiate for access to the garden for a food supply because those on Marapa Island had no supply and no likelihood of one.

FUTA: JOINT CRIMINAL ENTERPRISE SUBMISSIONS

601	Mr. Squier submits that there is no evidence of a joint criminal enterprise to kill or cause GBH on 21 08, an agreement however, he acknowledges it may be inferred from the surrounding circumstances, but submits that objectively from the evidence one cannot be inferred because, such an inference would run against the evidence. 

602	The submission is that the fact of the 5 accused going from Marapa to the hideout huts armed in the early hours of the morning so as to arrive about dawn is as consistent with the intent to kill or inflict GBH on victims as it is to negotiate an agreement to access the garden for a food supply. 

603	In summary Futa was a member of a group - Marau Eagle Force formed to protect the peoples forced out of Guadalcanal by Guale militants and to provide protection for those peoples. There was an express statement of intent to negotiate for access to provide food for those at Waimamaru.

THE ASSAULT ON KESTY BABAUA

604	The key witness relating to this issue is Rachel Vatalu on the Crown case. Under cross-examination [day 42 p.30] she places the assault inside Kesty's hut while all other witnesses on the Crown side say that the assault took place outside the hut. Esta Mata says as much. The Crown submits that the inconsistencies at this point raise reasonable doubt. [Vatalu day 42 p.67 and [Esta Mata day 19 p.13 & 18].

NEUTRALITY OF THE VILLAGERS OF SAVEKAU

605	There is no doubt that, a pillar of the Crown case, so to speak, was that Savekau villagers were neutral in the Tension time and had no partisanship. Mr. Squier directs the attention of the Court to many examples of why it is that this was not so. The Court is asked to conclude that there are many statements from witnesses that the villagers of Savekau were indeed not neutral but were supporters of the GLF, GRA, IFM groups. 

606	If Mr. Squier submits that if that be the case, the denials of the key prosecution witnesses in particular the Kennedys who claimed the villagers were neutral and Isaac Rao, are not to be believed on their evidence that the village was neutral. If they may not be believed about that, then in all respects, their reliability and word about matters must be suspect.

DISCUSSIONS: BETWEEN FAMILY AND FRIENDS OF THE EVENTS OF 21 08 00

607	Mr Squier submitted that there were clearly discussions about the matters in issue in this case, but that many prosecution witnesses would not agree that they had discussed the matter either among themselves or with other witnesses except in a couple of instances and gave examples of both positions. Under a subheading he referred to 'reconstructed memory and storying' and cited instances which I note.

SAVEKAU MILITANTS

608	This heading relates to the submission by Mr. Squier. This heading relates to the submission by Mr. Squier that there is a body of evidence that connects or indeed confirms that prominent witnesses in the prosecution case were seen actively associating with and assisting militants and that the deceased boys were seen with weapons in a Guale militant context. Mr. Squier pointed out that there is much evidence of militants visiting Savekau and being given refreshment food and drink and allowed to rest in the village and indeed held meetings in the village. 

LEAVING THE HIDE OUT HUTS

609	Mr. Squier directs the attention of the Court to the evidence that once at the huts (and in accord with the neutral position held by Savekau villagers), the villagers didn't leave. Mr. Squier draws the attention of the Court to evidence of a number of witnesses who said that they had left from time to time for various purposes. I have noted the evidence mentioned by counsel.

THE EFFECT OF 'STORYING'

610	The telling of stories and the passing of evidence of Crown witnesses resulted in inadmissible hear say often-times passing for direct eyewitness evidence.

THE RECEIPT OF NEWS AND OUTSIDE VISITORS AT THE HIDEOUT HUTS

News of a shooting at Niu Houa reached Walter Babau he says. [day 39 p. 23 & 24] His evidence is to be compared with that of other residents of the hideout huts who say there were no visitors nor people leaving the huts.

WITNESSES CALLED FOR THE DEFENCE

612	Mr. Squier submits that the defence witnesses gave clear consistent evidence of the involvement of Crown witnesses in militant activity in direct contradiction of the evidence of those crown witnesses. Their evidence if accepted is fatal to the credibility and the substance of the Crown evidence. He made reference to the witnesses David Gegge and Steven Rotte

RESPONSE TO THE CROWN SUBMISSIONS

613	I note the responses. I rule on the submission contained in paragraph 67 of Mr. Squier's submissions that there is a discernable contrast between counsel's questions and the evidence of the accused and in particular that nothing should be made of that adverse to Futa. I rule that the contrasts are material and in this case can be considered when arriving at verdicts qua Maoma and Futa

THE DEFENCE OF BRIAN SUAKE

THE ABSENCE OF POLICE INTERVIEW

614	Suake declined to speak about this matter with police. It was his right. He exercised it. I draw no inference adverse to him from his having so declined.

THE METHOD OF PRESENTING THE DEFENCE OF SUAKE 

615	Brian Suake gave sworn evidence but called no other evidence. Since he elected to give sworn evidence and was therefore cross-examined. I give him credit for taking that course in the presentation of his defence. 

616	In essence Suake says that the reason that he and the others travelled to Solohona was to confer with Kesty Babaua and Warren Manemala to secure the use of the garden established so that the womenfolk from Waimamaru on the island of Marapa might be given permission to come to Solohona to grow and gather food and to take back to villagers now refugees from the mainland and living on the barren island of Marapa.

SUAKE: THE EVIDENCE 

Generally

617	Suake said that he is about 47 years of age and has no prior record of offending. He was educated to grade 6 and is now married. He is self-sufficient as a gardener/farmer. He and his wife have 5 children. The language in the home of his mother and father was 'Marau-Areare', although he was born at Warakeau village at Marau. He was the first born of 8 children. His brother Willy Maoma, his co- accused was the last born. They have not lived together since he, Brian Suake, was 25 years old. Suake's religion he says, is SSEC.

618	In 1999 he lived in Warahara. He moved from there to Komuta'a in 1999. He moved after militants attacked his brother Ratu. He witnessed the attack. Included among the Guale militants who attacked Ratu were, he said, the deceased boy Sebastian Abele together with the man Harold Keke and others. They were armed with guns. Ratu was beaten severely. 

619	Following the attack on Ratu, and to a great extent as a consequence of it, Suake moved from Waruhara to Honiara where they stayed for 5 months and returned to Warahara, remaining in Warahara until about December of 1999. 

620	Suake said that he then ran from Waruhara to Komuta'a following further threats made to their safety by Sebastian Abele. The threats he says were made in the presence of Fox Mono. He says they went from Komuta'a to Waimamaru Camp on Marapa Island. There they joined five mainland village communities who had been forced out of Gauadalcanal main island. He and some others built a 'security hut' on the beach at Waimamaru Camp. 

621	The security group was the Marau Eagle Force. He joined to ensure security for his people he said. Suake said that there were no weapons at Waimamaru when he arrived but a request was made and there was a delivery of weapons two of which were a 'pump action' shot gun and a '.303' rifle by the Patrol Boat, '04' to them to nearby Niu Island. 

622	The Marau Eagle force commanders at Niu Island brought the weapons to Waimamaru Camp. Suake says that the weapons given Security at Waimamaru camp just two - a '.303' rifle and a 'pump action' shot gun. He said he believed that the weapons had come from the Manakaraku Substation on Guadalcanal. He said that the strong young men at Waimamaru Camp were called on to join the security force.

623	Suake's evidence is that on 20 08 00, he says that he was asleep in his hut. He was awakened by Jude Hariu at about midnight. Hariu told him to go to the beach. He did. There he saw Jude Hariu, Allen Kahunimae Maoma and Futa and some others. He said that Jude Hariu gave them a briefing. Kahunimae said nothing. He named those present. He said that Jude Hariu, Futa, Maoma, Maetoia, Allen Kahuninmae and the boat driver, Moses Kapini were present. 

624	He said in his evidence that they were told that they had to go to Savekau….see Kesty Babaua and Warren Manemala there and to ask them to allow the women from our place to get food from the mainland.

625	He said that Jude produced guns from a boat on the beach and handed them to those going. Jude showed him how to pull the trigger of the .22 rifle he had been issued with. Jude then put 5 bullets in the weapon and after he loaded it he was shown how to use it. 

626	Suake says that he recognised a .303 rifle and four others additional to the one he was given. He said on that night he was wearing an orange T-shirt.

627	Suake's evidence is that they got in the boat. It was a 'ray boat'. It was fitted with a 40 hp outboard motor. Jude said to 'go'. He said there was me, Willy, Tome and Nixon and the boat driver. 

628	The boat he said then took them to Suhairato village on Simeruka Island. There, he says, Allen Kahunimae's boys got in. They were Godfrey Kove, James Kaeti, Luciano Kope, Nicholas Maesu and Titus Aro.

629	Suake's evidence is that from there 'we went straight to Vonu. We got out the driver stayed'. He said that he thought that it was at about three o'clock in the morning.

630	He said that Kahunimae's group followed a river path towards the hideout huts above Vonu. Suake said that he understood that he was carrying a gun for his own safety because he knew that there were IFM militants about. Militants used the main road to move around. He said he was there at three o'clock to avoid the likelihood of encountering militants.

631	Suake says his group moved off in single file, Willy first, Tome next, 'me', and Daniel Kapini. Willy led. They walked at a distance of about 8 metres apart. Then as they moved up, he noticed that Maetoia and Kapini were not following. He was standing he said looking back. He says that, as he turned around to resume walking up he heard the sound of two gunshots. He says that he then 'rushed up'.

632	At the top of the hill he says it was clear. His evidence is that the first thing he saw was Margaret Kennedy talking loudly to Tome Futa telling him it seemed, not to do anything to her husband. Charles Kennedy was with them they were at the junction of the path which came from Kestys and turned left [see Exhibit P13] down hill towards Ariel Ata's hut. 

633	Suake said when asked which path he had followed 'I came across a creek, we did not follow a road because the place was dark, we just went through the bushes'. He said that I saw Tome Futa point a gun – a '.303' at Charles Kennedy.

634	Suake says that he then ran towards them. 'It was not far…. it was… close' says '12.6m' (front to back of Court). Futa was one to one and a half metres. He said that “I stopped Tome from shooting because I was not there that day to hurt anyone. I came to negotiate with Kesty and Manemala..”
He said I pushed the barrel of the gun away from Charles Kennedy.. .I held it with my hand'.

635 	Suake said that at the time he did that Margaret Kennedy was standing next to Kennedy. The Kennedy children were in their sleeping hut. He said 'I left Kennedy's and went down a path towards a log in front of Kesty Babaua's where he met Willy. He says that on the 21 08 00 he did not know that it was Kesty's hut. He said Willy was with Manemala and Nancey Ngelea. Tome Futa was not to be seen.

636	Suake says that he told Warren Manemala why they were there. Kesty was not there at that time. He said that he talked to Warren and not long after that Maetoia and Kapini arrived following the path that went left from Ariel Ata's hut [see P13]

637	Manemala gave Maetoia betelnut to chew. Then Futa came over and pointed his gun ( 'pump action') I find that Futa was carrying a .303 which he pointed at Kennedy see Futa's evidence and that of Suake] at Manemala. Suake says I stood between Futa and Warren because I thought Futa would shoot and that was why I stopped him. Suake says 'I said to Danny 'don't shoot him'. I said that because I had a bond with Manemala – my grandfather used to keep (adopted) Kesty's mother. Warren is my cousin, his mother and father are cousin brother and sister.

638	Then Danny asked Warren for the money Warren took from his (Danny's) brother to pay that back. He saw no money produced he said. 

639	Suake continued 'After about 20 minutes. I saw Tome come out with Kesty. I didn't see anything happen between them only I heard talking from the hut. Suake said 'I saw the back of his (Kesty's) head was bleeding'. We couldn't talk to him because he might not feel like talking to us – his head was 'not alright'. 

640	Tome then came to Warren and said we're leaving now and we'll go back. Suake says that they followed the path towards the Kennedys from Kesty's and turned down towards Ata's hut. He says Ata was standing outside his hut with his wife and children.

641	Suake's evidence is that they went down to a stream and then reached the 'main road' and walked to Savekau. They did not stop. Kahunimae's group were already in the village. He said I saw smoke and fire on the opposite side of the river but none on the side I was walking along. We walked to Savekau passage and saw the boat in which we came. We got in and waited for Kahunimae's group to arrive and when they did the boat pulled out and went straight to Waimamaru. 

642	There Suake says, we got out and left our guns behind and he knew that the boat must have gone off to Niu island because that is where the guns were kept. I don't know what happened to the 'pump action' and the '.303'. Jude Hariu handed them back to Albi Ham in 2001 .Suake said that he actually saw the handover to Ham. 

CROSS-EXAMINATION OF SUAKE BY FUTA'S COUNSEL, MR. SQUIER

643	In cross-examination he told Futa's counsel Mr. Squier that they had missed the road and that was why they were in the bush. He looked back to see if Nixon was following. 

644	Squier put to Suake that he did not see the gun being pointed at Charles Kennedy by Futa nor did he push the barrel away. Suake said 'that's why I said it'. Mr. Squier suggested that Futa was not there and that he was mistaken and that he didn't see Futa do anything - didn't see it and didn't hear it. Suake said 'I may be wrong but I heard that woman talking as I said'

645	Referring to the incident Suake spoke of when Futa and Kesty 'came out' of a hut, Mr. Squier suggested 'you didn't see Tome and Kesty come out of a hut at all' Suake responded 'yes I didn't see that' (my emphasis) it was then suggested to him that he saw no blood on Kesty's head and Suake responded with 'that one I saw (when) I stood beside the log'.

646	It was suggested to Suake that the first time he heard 'gunfire that day was when you were in Kesty's area.' Suake responded 'No – at Kesty's area it's been a long time so I can't remember . . . No. I have no idea about gunfire'.

647	Futa put to Suake through his counsel that Kapini did not point a gun at Manemala that day. Suake said 'It happened. I stopped him'. Futa's counsel put to Suake that after gunshots rang out in Kesty's area, 'everyone ran off didn't they?' Suake replied 'No. the talking continued and we said we've got to go back now'.

CROSS-EXAMINATION OF SUAKE BY MAETOIA'S COUNSEL, MR. KARI

648	Suake agreed with most matters put to him by counsel for Maetoia. Significantly Suake agreed that Maetoia was not on duty that night and that Maetoia arrived just as everyone was about to go and missed the briefing and that Suake arrived at the hut before Maetoia. He said that on leaving as he passed Ata's hut they didn't stop. 

CROSS-EXAMINATION OF SUAKE BY KAPINI'S COUNSEL, MS. FA'ASAU

649	Ms Fa'asau Kapini's counsel suggested that Kapini wasn't around Waimamaru very much before 21 08 00 - Suake responded 'I don't know but he was staying with his brother'.

650	Suake confirmed that Billy Akwasi was Daniel's uncle and that Akwasi lived at Poinkeni around 2000. He said he didn't see guns around Waimamaru camp no one carried them around. He said that on the night of the 21 08 00 it was dark and no fire was lit for security reasons. He said that they picked up Allen's boys at Simeruka. Ms. Fa'asau suggested to Suake that he was mistaken that Daniel was not in Waimamaru that night and suggested that Daniel was collected at Poinkeni. Suake said I'm not quite sure but the boat didn't go to Poinkeni that night. 

651	Suake said that he didn't go into Kennedy's hut the incident between Futa and Margaret Kennedy and Charles Kennedy took place at a track junction. 

652	Ms Fa'asau suggested that Kapini had not pointed his gun at Manemala but had had it at his waist. Suake said 'no he raised it and that's why I stopped him'. Suake said that the weapon Kapini had was pointing at Manemala's chest. He agreed that Rachel Edi, Manemala's mother was there. He said that he didn't hear Danny say 'I'm going to shoot you' if he said it.

CROSS-EXAMINATION OF SUAKE BY DPP

653	Suake told the Court that 'I was cross when I saw Sebastian beating Ratu my brother but there was nothing I could do - he had joined the militants. We left Warahara for our safety and I couldn't blame Seb for all of this with the others. He was dead by that time - we calmed down when we saw that Ratu was alive.' Fox and Sebastian said to me 'move away from Warahara or some more of us will come and kill you.'

654	He agrees that Sebastian by his actions had destroyed the lives of Suake and his family at that time, but he said that it was simply coincidence that the killing of Sebastian and Fox had happened when he was present at Solohona hide out huts.

655	When asked by the prosecutor about Niu island he said that the only people at Niu Island were security but he said 'I don't know about Niu Island.'

656	He said that he didn't hear that Willy was the leader. He said that Jude Hariu had organised the visit not Willy Maoma and that he agreed that Sebastian was said to have been involved in Shadrach Hariu's murder. He disagreed that it was a good reason to go to Savekau hide-out huts to hunt Sebastian down.

657	The prosecutor asserted that Fox and Sebastian died 'on the day that you went to their village'. Suake said 'I don't know. I didn't see.'

CLOSING SUBMISSIONS FOR THE ACCUSED BRIAN SUAKE

658	In his ordered and helpful submissions, Mr Cade drew to the attention of the Court technical matters essential to a proper direction on the issues the elements of the offences charged and the nature of the nature of the joint allegations against his client. I have carefully noted his analysis.

659	Counsel asked me to note that a great deal of time had passed by the time witnesses were called for the hearing and determination of the Information which notoriously affected the memory of witnesses adversely.

660	At trial, there were denials and admissions of discussions among witnesses as to what happened in the early morning of 21 08 00 following the sound of gunfire at the hideout huts.

661	Mr. Cade submitted that the fact of denials and admissions of discussions as between witnesses called at trial is significant. Denials raises issues of reconstruction of evidence and admissions of discussions raises the possibility of bias.

662	Most of the witnesses and the accused know each other and therefore the credibility of prosecution witnesses was no less and no more affected by the fact of their knowledge than the knowledge of witnesses for the defendants

663	There is clear evidence of the existence of the 'ethnic tension' and that militants were armed with a variety of weapons.

664	Speculative theories about the sophistication or lack of knowledge of the actors in the trial may not be assumed for example with respect to the likely outcome of firearms instruction on safety and training – is weightless evidence.

665	The particulars of the charges of murder in counts 1,2 and 3 allege Suake to be criminally liable for murder based on the provisions of section 21 (a), 21 (b), 21 (c) and 21(d) of the Code and that dealing with each in turn he is on that basis not liable to be found guilty of murder and dealing with each in turn:

Section 21 (a)

There is no evidence that Suake:

.	did an unlawful act causing death eg firing a shot or striking a blow at or on the deceased,

.	the gunshots were described by Charles Kennedy as from the sound of an 'high powered gun' whereas the evidence of the forensic pathologist Dr. Dodd is that 

.	the circular defect in Jonathon Kennedy's clothing was more likely to have been caused by a .22 than a 5.56 mm or 7.62 mm round,[26 11 07 @ 65 67]

.	The circular defect in Sebastian Abele's clothing was less likely to have been caused by a .22 than a 5.56 or 7.62 round, [26 11 07 @ 65 67]

.	a .22 round is made of lead whereas an heavy caliber round has a lead and a copper based jacket which will turn green over time [26 11 07 @ 65 67]

.	a bone fragment from Jonathon Kennedy's leg showed a green material consistent with the jacket of a bullet which has oxidized [26 11 07 @30 31] and,

.	the fractures to Jonathon Kennedy's leg is entirely consistent with a high velocity gunshot injury whereas a lower velocity round will usually cause less traumatic injuries. [26 11 07 @ 58 59] .

666	Mr. Cade pointed out that Suake was armed with a low powered '.22' rifle commonly described as a 'pigeon gun'. There is no evidence of his having been armed with a sharp edged weapon nor is there credible evidence that he was ever in the boy's sleeping hut 

667	As to the briefing at Waimamaru camp, Suake's evidence is that he was briefed to go to the Savekau hideout huts by Jude Hariu to seek out Kesty Babaua and Warren Manemala so that the latter would allow access to the food supply in the garden at that place.

668	Suake says that they had guns because it was dangerous to travel in the Guale militant territory then – for example he was aware of the death of Shadrack Hariu at Niu Houa when recovery of food from the garden at Niu Houa was being attempted.

669	Mr. Cade submitted that, had the plan contemplated murderous activity at the Savekau hideout huts that it would have been natural for Jude Hariu to have accompanied them since it was his father who had lost his life and vengeance would have been achieved but it was suggested that he not go.

670	On the issue of ascending to the huts from the Savekau village there is no evidence that Maetoia and Kapini ascended from a direction different to that of Maoma Futa and Suake.

671	Suake should be believed when he says that he came upon the incident between Futa and Charles Kennedy that he acted that way because 'I was not there to hurt anyone or to beat anyone that day I came to negotiate with Kesty and Manemala that morning'.

672	Suake's dress on the day (a yellow T shirt – not a camouflage or a wearing of dark clothing) is consistent with an innocent intention - i.e., to negotiate for access to the garden and in addition his behaviour in preventing Charles Kennedy's death are both indicators that his intention was not to commit an unlawful act. There are numerous examples counsel submits of he went to the hideout huts innocently:

.	Suake wore civilian clothes whereas all the others wore in military clothes

.	he was armed with a low powered rifle,

.	he had no charcoal on his face or his body,

.	he intervened to prevent Futa shooting Charles Kennedy

.	He quietly told Nancey Ngelea that she should 'tell your husband not to talk too much, three boys are already dead'. Nancey Ngelea said she understood that Suake was telling her to stop her husband talking and leave.

.	he prevented another shooting by stepping between Daniel Kapini's gun and Warren Manemala,

.	in Kesty Babaua's area Suake said to the other accused 'you guys are wrong after there was reference to the killing of 3 'pigs'

counsel submits that the foregoing examples emphasised a difference in intention as between Suake and the others in the group.

673	Mr. Cade submits that Suake does not propose that a mysterious third party killed the boys – (as Maoma and Futa do) he submits frankly and directly that the boys were killed by one or more of the accused and that Brian Suake was not one of the killers and bears no criminal liability for their deaths and no criminal liability for whoever it was who killed the three boys at the Kennedy huts.

674	Counsel frankly and directly proposes that the likely killers were Maoma and Futa given their immediate presence in the vicinity of the boys' huts at the time of the shots and from remarks they made to inhabitants of the huts eg:

Maoma to Grace Maeli 'you feel it – you go and bury your brothers who are dead.'[ 06 02 08 @ 7]
Maoma to 'I am the one who killed Fox'. [06 12 07 @ 33] 

675	Counsel submits that not only did Suake make no such comments but at one point in the proceedings notably said of his co- accused that they were ”wrong” [evidence of Ruth Kesty 06 12 07 @ 33].

676	Mr. Cade submitted that there is evidence that Suake heard screams of the fatally injured Jonathon Kennedy. He denies hearing them but if his denial is not accepted that fact does not affect arguments concerning Suake's peaceful intentions that day – merely post fact knowledge of a violent event. Mere presence at the scene of an offence is not of itself usually sufficient to prove that the accused presence was intended to encourage or support the offender.

677	Mr Cade invites the Court to conclude that there is no evidence directly or indirectly implicating Suake in the deaths of the three boys and there is reasonable and plausible case which the prosecution have 'not disproved that Suake did no act to cause the deaths'. The evidence supports the allegation that their deaths were caused by Willy Maoma and Tome Futa acting spontaneously and independently of the commonly agreed mission. There is evidence that Suake was not supportive of the principal offenders.

678	The accused through his counsel that he was not liable for murder pursuant to the provisions of either section 21 or section 22 of the Penal Code.

679	Under section 21 of the Code Mr. Cade submits that there is no credible evidence that Suake aided the principal offender or offenders who with malice aforethought caused the death of each deceased.

680	Under section 22 of the Code there is no evidence from which it can be concluded that Suake with one or more persons formed a common intention to prosecute an unlawful purpose. Mr Cade then urges that merely because they underwent a briefing at midnight and set out armed in the very early morning for Savekau one may conclude that they were setting out on an unlawful enterprise. The conditions in Marau were such that there had been a death at Niu Houa when people attempted to recover their belongings and supplies and the belief was that the place to which they were headed was a Guale militant stronghold, and what is reasonable is to be assessed by considering what is reasonable in the conditions peculiar to the Marau region at that time of the ethnic tension.

681	Mr. Cade submits that the common unlawful purpose alleged here must be different to the actual offence committed under section 22 of the Code and there is evidence to suggest that the real objective was to search for Anthony Suava and there is evidence that Suake asked for Suava. The submission being that it while Suava may reasonably have been the objective of any search, the two men Maoma and Futa went off on a plan of their own formed at Vonu or later and certainly not including Suake.

682	The accused through counsel submits that if it is found that there was a common purpose there is no credible evidence that Brian Sauke was a party to it. 

683	Even if it is accepted that the matters are proven to the criminal standard there is no evidence that the murder of the three deceased boys was a probable consequence of the prosecution of a common purpose qua Suake.

684	Counsel submits the proposition that murder would be committed by an armed group who have set out to search for one particular named man is possible but certainly not probable, and see Ligabatu v R [2006] SBCA 19 CCA. It is conceivable that violence is threatened without it's being a probable consequence that some one is murdered.

685	It is finally submitted that the evidence in this trial supports the submission that original common purpose of the group setting out on 21 08 00 was to meet Kesty Babaua and Warren Manemala and negotiate use of the Garden above Savekau. It supports the submission that Maoma and Futa acted spontaneously and independently of the common agreed purpose and agreed as between themselves to kill the three deceased boys.

686	Mr. Cade submits that if it is found in the case of Suake was a party to an unlawful common purpose but one from which the probable consequences was not murder - for example, to intimidate the people of Savekau while searching for Suava then such a finding may can found a conviction for the alternative charge of manslaughter rather than murder.

687	Suake is also charged with the robbery committed on Warren Manemala. Counsel submits that while it is accepted that Suake was present when money was demanded by Kapini from Manemala and in his submission that would constitute a robbery. However, the evidence of Suake is that he “stood between” Kapini's gun and Manemala. 

688	In that respect Suake's position is borne out by the evidence of Rachel Vatalu [11 03 08 @ 12]. The court is asked to find the movement of Suake to step between Kapini's gun and Manemala happened and is utterly inconsistent with Suake formulating an intention to assist Kapini or participate in the alleged robbery and that there should be an acquittal of Suake on that basis.

CIRCUMSTANTIAL EVIDENCE 

688A	Mr. Cade from the whole of the evidence it is reasonably possible that Suake went with innocent intent to the hideout huts area because:

.	Suake wore civilian clothes ( Charles Kennedy 14 11 2007p 13) (Isaac Rao 28 02 08 p.20), (Kesty Babaua p.83) that all except Suake were wearing military clothing. (Allen Kahunimae 13 11 07 p.5 )and (Ruth Kesty 06 12 2007 at page 31). 

.	Suake was armed with a low powered rifle (Pritus Kennedy 27 11 07 p.55 …'Suake's gun was a small gun not that big'. (Rachel Vatalu 11 03 08 p.7) that Brian Suake had a 'short' gun, (Ruth Kesty 11 12 07 p.62) that Brian's gun was smaller than the guns of the other accused.

.	Brian Suake did not have charcoal on his face or body (Isaac Rao p.20 or indeed anything to cover his face - Charles Kennedy 14 11 07 p.13).

.	Suake intervened to prevent Tome Futa shooting Charles Kennedy. (Charles Kennedy 14 11 07 p.10 –13)

.	Brian Suake told Nancey Ngelea in a whisper that she should 'tell her husband not to talk too much, three boys are already dead' (20 02 08 p.15). In cross-examination she clarified her understanding of the meaning of the words that he was being 'helpful' (to her and to her husband) (21 02 08 p.5)

.	Brian Suake prevented another shooting by stepping in between Daniel Kapini's gun and Warren Manemala (Rachel Vatalu 11 03 08 p. 12) and, 

.	at Kesty's area Brian Suake told the accused that they were 'wrong' and that they should 'leave the area' (Ruth Kesty 06 12 2007 p.33) – that Brian Suake said “you guys are wrong” immediately after Nixon Maetoia made reference to the “killing of three pigs” Ruth Kits went on to say that she thought that he was “telling them to leave.”

688B	Mr. Cade submits that those parts of the evidence characterise the difference in attitude between Suake and the attitudes of the others in the group.

688C	I conclude that it is reasonably possible that this nocturnal journey was
designed, initially at any rate, to secure a much needed food supply for Waimamaru from Kesty Babaua and Manemala – that is, the plan had no unlawful beginnings.

THE DEFENCE OF NIXON MAETOIA

The Police interview

689	Maetoia was interviewed on third April of 2006.

The interview was not the subject of any challenge as to its admissibility. In the interview Maetoia told NZ PPF advisor Sarah Stewart and others that he had been awakened and asked to come by a 'boy' but he felt unwell and resumed sleeping in his hut. The boy returned and asked him to come and get in a boat at the beach. He did so and was given a weapon. From there they Vonu travelled by boat to village and thence on foot to Savekau village. I understood him to say that he and Kapini had gone into the bush and after they had climbed they remained back '100 metres before the village' the hideout huts, as I understood him because they were scared of what would happen to them if they encountered people from the 'village on top'. I took him to mean the hideout huts, because they (he and Daniel Kapini) believed that the 'people who live at Makinoa and Savekau' usually beat us'. They, the three other accused, Maoma, Futa and Suake kept moving up to the top of the hills behind Savekau. He said that they (he and the others) were all armed. He said that neither Brian nor Tome nor Willy had told him anything [Q and A 111] about what he and they were going to do. He said that the reason they went there was because it was at that place that their food and 'gardens were originally and we cant go there without guns they'd kill us if we do'[113]. When they got to the top they saw Charles Kennedy and his family who gave them food from the 'motu',. He told police that he told Charles Kennedy 'not to be afraid we didn't come here to kill you'. He said that he had seen lots of people he knew well at the hideout huts because they were his uncles and nephews and brothers. [125].

After they had eaten the two of them, (I understand Maetoia to have meant he and Daniel) – 'just went.' He said that he just waved and didn't even wait. Maetoia told police that the first he had known of the deaths of the three boys was 'when we arrived back at the place' (I understood him to mean back at Marapa Is.).

It was put to him that the police had spoken with a witness who knew him very well and who said that the witness had told police that he, Maetoia, had said to the witness 'go and look at those smart boys we have killed them'.

And that at that time Maetoia had pointed the witness to the boys hut. He said in response to the allegation [133] 'I have never said those words' he was then cautioned. No objection was taken tho the form of questioning that followed from questions 134 to 136 and so what followed becomes part of the evidence. 

Maetoia continued to answer questions as they were put to him. He said that he and Danny had stopped for some time 100 metres from the (hideout huts) place and 'went to check on them after an hour' [138]. He was asked if he had asked any questions of the villagers about 'looking for GLF or any militants' he repeated that he had not. He was asked if heard anyone else ask and he said no. By the time Danny and he arrived there the other three were at the other end of the village'. Maetoia was asked whether it was correct that he had arrived after hearing shots fired and he agreed. The quite remarkable question was asked of him 'when you went…….to the village who told you that the three boys were already dead?' and he replied 'Kennedy'. I say the exchange was remarkable because he had already been asked when he first learned of the deaths and had answered 'when we got back to that place' perhaps the officer understood him to mean the place to be the hideout huts but why 'back there?' In any event the question of him was a leading one. It had never been established that he had been told by anyone at Savekau hideout huts that he had been told that the three were dead.

Police put to Maetoia that - he had said to a wantok from whom police had a statement that following 'take the three pigs that we already shot dead and burn them and eat them'. Maetoia said 'I don't know anything about those words coming out of my mouth'.

He asked about one of Kennedy's daughters giving money to Tome or Willy? And he said 'I can't lie, I can't identify'. (which I understood meant that he didn't know whether that had happened or not).

He was asked about the presence of Charles Kennedy, Warren Manemala and Kesty Babaua at the houses away from Kennedys and he responded that he saw them and he walked down to them and Manemala's wife was crying there and I told her not to cry. When asked if he had seen the three other boys, Maoma, Futa or Suake hit or do anything bad to those in the village he said I heard stories later on'.

He said that he saw no-one taking money from any villagers. He said he heard that story later but can say nothing about that. He was asked about Willy Maoma and he said that he couldn't say about him he didn't hear it. He was asked about weapons. He said when he asked that he knew nothing about guns except that a man had shown him how to cock it and shoot it that morning. He said the gun was passed to him when he got out of the boat. He said that the shooting he heard at the hideout huts was quite a distance from where he and Danny were.. He was asked 'when you were coming down the road how many shots did you fire?'

He said 'just one'. He said he fired one shot because he could not see where those other boys were. He said that he heard Willy shout his name. He said that he knew that his grandfather Hailiu had been shot by he believed by GLF and the people from Savekau were really GLF at this time.

He said that Manemala would take his outboard and transport GLF around. He said that he knew of the fact of his grandfather's death before he went to Savekau because that's how the story went. He said that when they set out for Savekau he didn't know what we were going for but he thought that the main reason was to check out Savekau because they were always accommodating GLF. Maetoia was asked why did Maoma, Suake and Futa shoot the three boys and he replied 'that one I cant say…I didn't see that….I didn't really know that they shot them….the three boys didn't tell me after ….Kennedy didn't tell me that they shot them …up until the time we went back I didn't hear anything I heard it after we left but not from the boys.”

Maetoia said that the five were all dropped at the same place and the others 'going upwards towards the bush' he said that he didn't know who had burned houses in Savekau and there were only two which were burned. He said he heard nothing about anybody wanting to take Foxes or Sebastian's head. He said that when they got in the boat and said out all five were in the boat that he doesn't remember the driver's name and as they were going back they ran out of petrol and 'we just paddled back' He said that he didn't see the time that Daniel pointed the gun at Manemala. He said that heard something but he didn't see what happened but he heard what was said. He said that he heard Daniel demanding money from Manemala. He said that Danny told him the story before that time and it was money for a refund. The interview then reverted to the commencement of the journey to Savekau and Maetoia was asked who was the boss of the group and Maetoia replied “I think it must be Willy.” – he asked us who are you two when he dropped us and then we got out and they left. He said that the guns they had they left in the boat and he understood that they were given back at Niu Island. He said that he didn't know the members of the Eagle Force who were giving orders. He said he didn't know the name of the commander of the second operation at Vonu. He said that he was not a member of the Eagle Force. He said that he was unsure of why they had been split up in the way it occurred. “Danny and I didn't feel too good; weren't feeling confident to go because if the GLF were there they would shoot us. The interviewing police officer suggested to Maetoia that the reason the group went was to get even for the death of their granny and Maetoia said yes I think that the three might have had plans like that but he added when pressed by the interviewer,” I can't say what they went to do.” When pressed on what names were mentioned of people they were going to see Maetoia said 'Tony because he was a member of the GLF and he took a radio wireless from Niu Houa.' The charges were read and he said that he would remain silent.

THE METHOD OF PRESENTING MAETOIA'S DEFENCE

690	At the time of electing the course he would take in presenting his defence Maetoia said that he elected to make a statement from the Dock and that he would call a witness. As events transpired, he apparently was unable to produce the witness and therefore his statement from the Dock reflects, insofar as this trial is concerned, his defence. It is of course not evidence in the trial but I have given it some weight having regard to the other evidence before me.

Maetoia's Statement from the Dock 

691	

“My name is Nixon Maetoia and I am married with a 3 years 7 months old daughter. I am originally from Komuhaoro village, Mauiapa Island which is in the Mauiapa Island which is in the Marau Sound area.

I can recall that in the early hours of the 21st August 2000, somebody came into my sleeping hut and woke me up. That person whom I cannot remember told me to go to the beach or sea-side as there were some boys waiting for me there.

I got up and went down to the beach and saw a boat in front of the passage at Waimamauru camp with some boys in it. I did not witness any form of briefing or participate in any when I arrived there but somebody told me to get into the boat which I did.

We then left Waimamauru camp with a boat load of boys and headed across to Simeruka camp. At Simeruka camp, Allen Kahunimae and more boys boarded the boat. We then traveled from there directly to Vonu village.

We arrived at Vonu village sea-shore around 3.00am, and we all went ashore and followed a foot path that leads to Savekau village and arrived at the junction where the footpath splits into two. I later learnt that one goes to Vonu hideout huts and the other to Savekau hideout huts. That is where we split into two. That is where we split into two groups and I then realized that we were actually on two separate missions. I did not query anyone or say anything as we were in an area frequented by militants from Guadalcanal and I was scared.

It was still dark when we followed the bush track and headed straight to the Savekau hideout huts but approximately 100 metres away from Savekau main village, Danny and I dropped back from the other three (3) namely Willy Maoma, Tome Futa and Brian Suake as we were scared because this was hot spot for Guadalcanal militants. We felt afraid so decided to stay back whilst the three (3) continued following the bush track to the Savekau hideout huts.

About 20 to 30 minutes later after the three had gone ahead, I heard gunshots further up on the mountain. There were about three gunshots one after the other. Danny and I remained where we were till daybreak.

After the gunshots were heard, I told Danny that something must have happened to Willy, Tome and Brian and we will continue to wait and see. We waited for some more time before we decided to find out for ourselves as to what had happened to the three men.

Danny and I must have been where we were for approximately an hour when we broke away from the three men, we heard three gunshots. We waited for another 30 minutes or so before we followed the men but in a different direction.

Danny and I followed the creek till we reached a log that felled across the creek. We then followed uphill from the log and passed Ariel Ata's hut and that is when he saw us. I did not say a word to anyone at Ata's hut when we walked passed it. The bush track that we followed is on the right side of Ata's hut and is about 3 to 4 metres away from his hut.

The bush track that Danny and I followed joins up with the one that runs from Kesty's hut to the Kennedy's hut and is further west of Kennedy's hut as drawn by witness Walter Babaua.

It was at the junction of Ata's bush track and the track that leads from Kennedy's hut to Kesty's hut that we met Charles Kennedy on his way back to his hut from Kesty's place. Charles Kennedy then told me that all his boys were dead. He then called his daughter to take out the motu and give us taro. His daughter then came and gave me a piece of baked taro.

After that I looked towards the log in front of Kesty's hut and saw Willy who signaled to me that we had to leave the place. Danny and I then walked towards Willy at the log and joined him, Tome, Brian, Warren Manemala and his wife Nancy Ngelea. We all stood there chewing betel nut for a short time and I saw Danny approaching Warren Manemala and talking to him.

Whilst I was standing there I did not see Kesty Babaua and his family members at all and I never said anything about killing 3 pigs to Kesty and telling him to take the pigs and eat them as he and his family members were no way in sight.

We all then left Kesty's area and followed the track that Danny and I took and at no time did I say anything at all to Gibson Pukere. I never said to Gibson Pukere, “Go and look at those smart boys, we have killed them” when we walked passed Ariel Ata's hut to the main Savekau village and headed to the waiting boat. I did not burn any houses at Savekau main village but saw the houses were already on fire when I arrived there. We all then boarded the boat at Savekau passage and traveled direct to Marapa Island.

On our return where the boat dropped me off at Waimamauru camp on Marapa Island, I left the SLR that I carried with me that morning on the boat and it was taken back to Niu Island where the MEF commander is based.

A few days later whilst on Marapa Island, I heard that two houses at Savekau village were burnt down. I can remember also that on the morning of the 21 August 2000, I wore a brown pair of long jeans and a brown colored cut/sleeves shirt with no paint or charcoal on my face and body.”

[Nixon Maetoia 23/04/08]

Maetoia's particularised defence.

692	Maetoia says that he was never briefed nor was he instructed about what he was to do in their visit to Savekau hideout huts. After being awaken from his sleep he was told to get in a boat, He did, he was handed a rifle. 

693	The vessel went to Simeruka where Allen Kahunimae and others boarded the boat and thence to Vonu where they arrived at three am. Maetoia says that at Vonu those on the vessel were split into two groups. His group was comprised of himself and his co-accused. He asked no questions of anyone because it was a Guale militant area and he was scared. 

694	They marched single file he was behind Maoma, Futa and Suake. When they reached a point on the march about 100 metres from the top he and Kapini conferred and agreed to drop back and stay back. About 20 – 30 minutes later he heard gunshots in succession. After the gunshots he and Kapini stayed put until daybreak. They then moved up after having been still for a total of about one hour after leaving the group. 

695	After climbing in a direction different from the others they arrived at a log by a creek, they crossed the creek. There they turned up hill. On their climb they passed a hut 4 metres from the track they were using. They saw Ariel Ata at the hut. He saw them .There was no exchange of words.

696	The track they used joined a track at a 'junction' between the huts of Charles Kennedy and the huts of Kesty Babaua and his family. 

697	At that junction they met Charles Kennedy. He told Maetoia that 'all his boys were dead'. He called to his daughter to open his motu and get taro. His daughter brought them taro. Then he saw Willy Maoma in Kesty's area. Maoma signaled them to leave the place. He and Kapini joined Maoma at Kesty's area. 

698	They joined him where he was standing by a log. With him were Futa, Suake, Manemala and Nancey Ngelea. Kesty and his family were no where to be seen in Kesty's area at that time.

699	Then they all left Kestys area and followed the track down to the stream and to Savekau – as I understand the statement. At no time did Kesty appear nor did Maetoia said anything to anyone about 'killing the three pigs'. Maetoia says that he made no statements. At no time did Maetoia speak to Gibson Pukere at Ata's. He says that he didn't speak or stop as they passed Ata's house. 

700	He said that he burned no houses. He said that at Savekau he saw that some were burning. Maetoia says that at Savekau passage they all boarded the boat and went directly to Marapa Island. 

701	He left the SLR he was given on the boat they'd travelled in. It left for Niu Island. Two days after the incident at Savekau huts while he was at Marapa he heard that there were two houses which had been burned down at Savekau.

702	On the night on question he wore long brown coloured jeans a brown coloured cut sleeveless shirt and he had no paint or charcoal on his face or body.

703	Counsel informed me that he had intended to call Anthony Suava as a witness but that Suava had not responded to the summons and was not present. Counsel told the Court he would leave it to the counsel for Kapini to call him. I attach no significance to the asserting given to the Court by Mr. Kari.

CLOSING SUBMISSION FOR THE ACCUSED NIXON MAETOIA 

704	Counsel for Maetoia submits that the undisputed facts are that in the early hours of the morning of 21 08 00 the five accused met on Marapa Island, Marau Sound together with seven other men.

The accused were all armed with high powered military weapons some already had them and others were given the weapons.
Some were members of the Marau Eagle Force.

They travelled in a boat to the village of Vonu and the group split into two groups. One group was comprised of the 5 accused. They, the accused then went to Savekau village. Savekau was partly abandoned because of the Ethnic Tension. There they moved into hills behind Savekau where there were hideout huts where villagers hoped they would be safe from violence.

Maoma Futa and Suake pushed on but Maetoia and Kapini dropped back . Kapini and Maetoia later joined the other three who had gone ahead, at Kesty Babaua's area. They were offered betelnut and they chewed then left the area.

After they had left the villagers found Fox Mono dead in his bed, Jonathon Kennedy bleeding from an aterial wound to his leg and Sebastian Abele was found dead outside the hut.

The boys were buried and the occupiers of the hideout huts left and went away from the area.

MAETOIA: THE QUESTION FOR THE COURT

705	Mr. Kari characterises the issue here is whether the accused Maetoia participated in criminal enterprise jointly with the others or whether it should find that he had no knowledge of the purpose of the mission and did not know what the others had done earlier before he arrived on the scene.

MAETOIA: ANALYSIS OF THE CROWN CASE

706	Mr. Kari submits there is no direct evidence that Maetoia was present and killed the three deceased. On the issue of armed robbery, Maetoia has acknowledged that he was present but he took no part in the commission of the alleged offence.

707	Counsel suggests that Manemala offered Maetoia betelnut and Maetoia said nothing at all. see [31 02 08 p. 15-16]
Nancey Ngelea says that it was quite some time after she arrived in Kesty's area that Maetoia and Kapini showed up and Manemala's evidence is that Maetoia remained silent. Nancey Ngelea's evidence is supportive of Maetoia's statement.
Kapini supports Maetoia saying that he, Maetoia was 'friendly' and that they chewed betel nut.

MAETOIA: SUBMISSIONS

708	Mr. Kari submitted that the Court should find that his client when interviewed by police on 03 04 08 told police that he had no knowledge of any plans to kill Guadalcanal militants or those suspected of being militants.

Counsel points out that his statement reflects the police interview. He said that he was awakened in the early hours of 21 08 00, he was told to go to the beach, he was directed to get in a boat and did so, and at no time was he told of the purpose of the trip to the mainland. He said in his Dock statement that he was given a gun for his safety. Once they landed he has said that he and Kapini got scared and fell behind where they remained and it was not until their return to the island that he learned of the commission of offences.

709 	Mr Kari submits that no Crown witnesses place the accused Maetoia near the boys hut at the material time of the gunshots. They belatedly appeared at Kesty Babaua's area, after the third gunshot and passed by Ata's hut and were seen doing so.

710	Mr. Kari submitted that none of Maetoia's actions that morning show any form of encouragement or of lending support to Maoma, Futa and Suake or Kapini.

711	Counsel suggested that when Maetoia and Kapini had arrived in Kesty's area neither he nor Kapini had been present when Kesty Babaua was threatened and robbed.

712	Maetoia was present when 'Kapini threatened and robbed Manemala' but Manemala and Nancey Ngelea both say that he was friendly and offered no support to Kapini nor aiding and abetting Kapini in the commission of the offence of aggravated robbery.

713	Mr Kari concedes on behalf of his client that the accused was armed as alleged in count 8. On the other counts 1, 2, 3 and 7 Mr. Kari submits that the Crown has not succeeded in proving those counts.

DISCUSSIONS AND CONCLUSIONS CASE FOR MAETOIA

714	Maetoia is not correct when he suggests through counsel in his submissions heading ”Undisputed facts". The first so-called fact which Mr. Kari describes as being 'undisputed ' namely that Kapini was with his four fellow co-accused met at Marapa Island in the early hours of the morning of the 21 08 00. Kapini denies being there and says that he was picked up by the boat containing Maoma and the other accused at Poinkeni. Maetoia however does place Kapini at Waimamaru although he does not turn his mind to the issue.

715	Maetoia and Kapini both dropped back they say from moving to the hideout huts with Maoma, Futa and Suake. Maetoia says that he had no idea of the intention of Maoma and others.

716	The Crown styled the exercise in which the five accused moved up from Savekau village as 'splitting' with the intention of 'herding' those who tried to escape. There is no evidence of such a manouevre. Maetoia and Kapini both say that they were not involved with any plan for the night. Maetoia said that he thought that they were going to check who was in the GLF. Kapini said that he didn't know what they were there to do.

717	I have found for reasons later in this judgment that Kapini did not commit any offence of armed robbery as regards Manemala. Maetoia cannot be guilty of the crime of aggravated robbery on the person of Manela - a crime which was not committed. 

718	I am satisfied that he is guilty of the offence of 'going armed in public' – section 83 of the Code for the same reasons given in respect of Kapini.

719	As to the crimes of murdering the three boys, I am not satisfied that the prosecution have gone anywhere near establishing that Maetoia agreed to play a part or indeed played a part in any joint criminal enterprise to do so, nor am I satisfied that he is caught by the provisions of section 22 of the Code for these reasons because I have come to the conclusion that having regard to the evidence it is reasonably possible that neither Kapini nor Maetoia were aware of any undertaking or arrangement amounting to an agreement in respect of the foray into Solohona or anywhere else at all.

720	I find Maetoia not guilty of counts 1,2,3 and 7 in the Information. I find him guilty of count 8.

THE DEFENCE OF DANIEL KAPINI

THE METHOD OF PRESENTING HIS DEFENCE

721	Like Maetoia, Kapini elected to make a Dock statement. He also elected to present three witnesses to give evidence. The witnesses were John Kapini, his father, Billy Akwassi, a resident of Poinkeni, and Anthony Suava, a police officer of the Royal Solomon Islands Police.

KAPINI'S STATEMENT FROM THE DOCK

“My name is Daniel Wale but I'm also known as Daniel Kapini. I don't know my age but may be between 25 and 30 years old. I am married to Mary Sikiri. We have two sons namely Jerome Kapini age 4 and Junior Wale age 2. I lived at Poinikeni before I came to Rove.

John Kapini is my father. I am the third born in a family of 12 children. I dropped out of school after attending class 1 at St Jonn School, Honiara. My mother tongue is Marau Areare. I cannot read or write in Pijin but can speak it fluently. In relation to the English language, I can understand a little bit of spoken English but I cannot write or read in English.

A Japanese man who was Captain for one of the National Fisheries Development (NFD) fishing vessels took care of me when I was about 12 or 13 years old. We stayed in Tulagi where he taught how to be a fisherman. I then worked for NFD.

In 1993 I went back to Komuta'a for a holiday. Apart from that I would only see my family when I meet them in Honiara or when they visit me in Tulagi. Even though the vessel I was working on would pass through Marau I never had the time to go ashore.

In between late 1999 and early 2000, I moved back to Marau. I stayed with my brother James Kapini in Waimamauru but from time to time I would go and live with Aunty Winisia and Uncle Billy Akuwai in Poinikeni to be close to Mary Sikiri, whom Uncle Billy had arranged to be my bride.

In July 2000 I permanently moved to Poinikeni to assist my aunty and uncle as they were the only two left in Poinikeni village. However, I still visited my family in Waimamauru occasionally. When I moved to Poinikeni I frequently paddled by canoe to Simeruka where I was on security shift for the civilians. For this reason, I was uncertain of my whereabouts on the night of 20 August 2000, after hearing Willy Maoma (Willy) giving evidence that the boat only stopped at Simeruka after it left Waimamauru.

However, after giving it much thought I am now convinced that I was at Poinikeni that night, of 20 August 2000. This is due to the fact that on the early morning of the next day (21 August 2000) I remember Willy telling Nicholas Maesua who had slept at our house that night and me to go with him (Willy) to the main land. I enquired about where we were going to but Willy never said anything. Moreover, I also remember Uncle Billy being present that morning. Uncle Billy never went or came to Simeruka during the tension. He only stayed around Poinikeni.

When Nicholas and I went to the boat it was already full. My brother Moses Kapini was manoeuvring it. I remember sitting down next to Nixon Maetoia and a gun being handed to me coming from the direction in which Willy was sitting. We did not talk when the boat went to Vonu.

We arrived at Vonu when it was dark. Willy, Tome Futa (Tome), Brian Suake (Brian), Nixon Maetoia (Nixon) and I walked in a different direction which Allan Kahunimae and some boys walked in the opposite direction. Moses Kapini left on the boat.

We trailed behind the procession with Willy taking the lead. The path we took was rugged and narrow. I left very uneasy as we went and it grew further as I had no idea about the reasons why we were there that morning. I asked Nixon but he did not know either.

We ended up above Savekau village. Nixon was about to make his way up to the bush. I felt very scared and uncomfortable so I asked Nixon not to follow but to fall back and hide. Nixon agreed and we hid ourselves in the bush away from the path.

After a while, about 30 minutes later, we heard gunshots. The first two gunshots sounded the same were in rapid succession. There was a pause before the third gunshot went off.

We remained hiding in the bush. I wanted to go back to Poinikeni but I remembered that Moses had left with the boat while we were yet at Vonu. Furthermore, we could not leave without the others (Willy, Tome and Brian). We waited until daylight before starting out to check on what has become of the others.

It was about 20 to 30 minutes after the gunshots that I followed Nixon up a path. We were careful to walk under the cover of bushes. We came by a stream and we followed it upstream. As we made our way up, we noticed a hut to our left and we went towards it. When we got near the hut, I recognised Ariel Ata (Ata). He was there with his wife, Gladys Hobua and their children. I also saw Gibson Pukere and her children there. I wasn't troubled by Ata because he was a very good friend of my brother, James Kapini and I used to meet up with him and James in Honiara prior to 21 August 2000.

We enquired whether they saw Willy, Tome and Brian. Ata indicated that it might have been them on the top of the hill. That was the only conversation I had with Ata. 

I have heard Ata tell this Court that I asked for my cousin Clay Mono and threatened to shoot Clay Mono's head if I see him. Ata is not telling the truth. I never enquired about the whereabouts of Clay Mono neither did I threaten to shoot him (Clay) that morning. The only time I talked about Clay Mono was when I was having a conversation with his father Simon Mono, up at Kesty's but area.

Nixon and I left Ata's hut. We took a path up towards the direction which Ata had pointed out earlier. Nixon climbed faster than me and therefore he reached the top first. When I came close to the top, I saw him walking away from Charles Kennedy heading towards Kesty's hut area. When I came near Charles Kennedy I asked whether he had seen Willy, Tome and Brian. Charles Kennedy said that these three had gone to Kesty's house and pointed in that direction.

I never saw any of Charles Kennedy's family that morning and neither did I fire any gun shot outside Kennedy's huts.

Nixon got to Kesty's area just before me. When I arrived, I saw Simon Mono, Brian, Willy, Tome, Warren Manemala (Manemala), Nancy Ngelea and Rachel Edi Vatalu.

When I saw Manemala, I remembered that my family had told me that he wrongfully demanded $600 from my brother Moses Kapini at an incident in Vonu. I went across and asked him to pay me back this amount on behalf of my brother. I know and believe that under custom any of Moses Kapini's family can demand Manemala to repay back the $600 he unjustly demanded from Moses.

In Brian's evidence he said he stepped in front of me to stop me from shooting Manemala. This is not true as I never saw Brian did this.

Furthermore, I never knew that Manemala paid $160 to someone that morning. I only learnt of this when the police interviewed me at Rove on the 3 April 2006.

When I walked away from Manemala, I went and sat down with Simon Mono. We talked and I asked him about his family including Clay Mono. I never threatened to shoot his son if I saw him.

I remember seeing Kesty and his two daughters sitting in front of Derrick's hut. I never spoke to Kesty or any of his family members that morning.

When we left Kesty's hut area, I followed Brian down the path toward Charles Kennedy's hut, however we turned left just before we reached the Kennedy's huts to go down to Ata's hut.

I have heard some of the Kennedy family members evidence which say that I had entered their kitchen, ate motu and talked about wanting to cut off my cousin Fox Mono's head to take it to my island. This is not true. I never went into their kitchen or stood very close to any of the Kennedy's huts. I never ate motu or food from the Kennedy's. I never said anything about Fox Mono this morning. I would never even think of cutting off my own cousins' head. The Kennedy family members who said these things lied.

I met Gibson Pukere at Ata's hut and I asked her for some betel nut. I then followed Brian down to Savekau village.

On our way down I heard the sound of a boat engine. I looked out and saw it was Moses's boat. I went and boarded the boat and waited for the others to arrive.

I never saw anyone burn down the houses at Savekau but I remember seeing smoke coming from the village on my way down.

There was not enough fuel for the boat to take all of us back so we were dropped in Komuta'a while Moses and Francis sped to Waimamauru for fuel. In Komuta'a I left the gun in the boat and I walked across to Poinikeni. The rest of the boys were told to walk to Niumarere, which is a point on Marauiapa Island that is close to Waimamauru, where the boat will pick them up.

I remember that the boys that went that morning were, Willy Maoma, Tome Futa, Brian Suake, Nixon Maetoia, Francis, Allan Kahinimae, Nicholas Maesua, James Kaeti, Godfrey Kove, Lusiano Kopei, Titus Aru, Moses Kapini and I.

On the morning of 21 August 200, I wore ordinary clothes. I had a jacket with a hood. I didn't wear anything on my head. I did not have any charcoal on my face.

I received a certificate of surrender of firearms No. 0054 issued by the Solomon Islands Ministry of Police, National Security and Justice.

This is my story to the best of my knowledge.”

[Daniel Kapini 24 April 2008]

THE WITNESSES FOR DANIEL KAPINI

JOHN KAPINI

722	John Kapini said that he is 60 and is a Bible Curriculum Producer. He is married. He and his wife had12 children of which Danny was number three. He said that Danny had gone to be a fisherman with a 'Japanese Catcher Boat' in 1992 when Danny was about 12 or 13. The Japanese man wanted to adopt him. He left Marau and was away until 1999. He said that he was based at Tulagi. He said that in 1999 he knew of an incident between Warren Manemala and Moses Kapini. John Kapini described his understanding of the transaction.

723	I disallowed reference to Customary law. It was not a relevant matter. Ms Fa'asau said that her client's defence to the charge of aggravated robbery (section 293 of the Code was what is broadly known as 'claim of right'. 

724	On the issue of the presenting of a defence of claim of right. I stopped the witness John Kapini continuing about his qualification by reason of his age to speak about customary law on the basis that his evidence about it was, in the end, not relevant.

725	In Balou v Kokosi [1982] SILR 94, Daly CJ said:

“Counsel had argued that because counsel had not taken advantage of subparagraph (3) of paragraph 3 of the of Schedule 3 to the Constitution and passed an Act to deal with the matters set out in that subparagraph, then customary law had not yet become part of the law of the Solomon Islands. With all respect, that is a bad point and if it has any currency the sooner it is discarded the better. Subparagraph (3) is permissive; hence the use of the word 'may'. The fact that Parliament has not exercised a power available to it cannot affect in the slightest the clear words of paragraph 3(1). As from 7 July 1978, customary law has been part of the law of the Solomon Islands and must be enforced as such.”

726	The issue in this case of the accused's Daniel Kapini's behaviour towards Manemala is Daniel's and his brother Moses's sense of injustice.

727	Mr John Kapini gave evidence that his 'age' qualifies him to speak of customary law; maybe it does but it is not relevant to the real issue which is the accused Daniel Kapini's bona fide belief that he had a right to take money from the Kesty and Warren Manemala because it was owed by Manemala to Daniel's brother Moses, as he is alleged to have done on the prosecution case.

728	The law of the Solomon Islands relating to 'bona fide claim of right is that provided for in section 8 of the Code which provides:

“8. A person is not criminally responsible in respect of an offence relating to property, if the act done or omitted to be done by him with respect to the property was done in the exercise of an honest claim of right and without intention to defraud.”

729	The common law position is that since a claim of right negatives theft, it may therefore negative robbery – R v Skivington [1968] 1 QB per Parker LCJ at 170 “…a claim of right exists whenever a man honestly believes that he has a lawful claim even though it may be completely unfounded in law or in fact”. And see R v Robinson [1977] Crim L.R. 173, CA. 

730	The issue here is the claim of Kapini in his statement, that he was seized of a belief that Manemala owed his brother money in connection with the determination of a Chief at Vonu - no more, no less. 'The proposition that an intent to do no more than procure the payment of a debt which is due and payable or which the accused believes is presently due and payable by the alleged victim is not an intent to defraud by the employment of dishonest means or the means which are forbidden by the statute'. R v Kastrotovic(1985) 42 SASR 59 per King CJ at 85. (my emphasis).

731 	It matters not that the law was not as he believed it to be - Skivington supra - it is Kapini's belief which is pivotal and in the end the claim must be displaced by the prosecutor beyond reasonable doubt. Kapini has the obligation to raise the defence but there is no shifting onus the prosecution must prove that he held no such belief at the material time of Kapini's demand for money from Manemala at Kesty Babaua's huts area on the morning of 21 08 00.

732	What of the manner of his raising his claim of a right to the money? He raised it by Dock statement. It was not on oath. I see no reason why it is not a legitimate method of raising the claim. In the end I must consider whether the Crown has proved the charge in count 7, beyond reasonable doubt. The prosecutor submits that since it was raised by way of Dock statement it means that there is no evidence on the defence side and therefore the 'defence' should be disregarded. 

733	The fact is Kapini did raise the issue. He told Peter Barron Stevens the Australian Federal Police Officer Advisor from RAMSI on the 3rd of April 2006. His exchanges with Manemala at Kesty's huts. He gave the reason to the investigators then that he gives now, at trial, that Manemala had wrongly demanded money from Kapini's family. The Crown may reasonably have expected what was coming from Kapini at trial. It is the duty of the Crown to prove that the accused had no such claim.

734	In examination in chief, Manemala told the Court that Maoma had come to the area and called for Manemala to come to him, Maoma. Manemala went to where the three accused were and spoke to Maoma who asked about militants. 

735	Manemala then speaks of the arrival of Kapini and Maetoia 30 minutes after Maoma's arrival. He saw that they were armed. Kapini approached Manemala and said 'you are the one I'm looking for'. Maoma said to Kapini 'don't kill that man'. Kapini said to Manemala, 'you must give me some money'. Whereupon Manemala's mother went off to Kennedy's huts and returned with $160:00.

736	In cross-examination Mr squire for Futa asked Manemala why he was asked for $160 but Kapini didn't tell him the reason for it [Manemala 12 02 08 cross-examination Squier 1664]

737	In Ms Fa'asau's cross-examination she suggested that Kapini said pay [back the money you demanded from my brother]. Manemala dissented and said you're the man I'm looking for you must give me some amount of money.'

738	Ms Fa'asau then directed Manemala to the subject of a boat accident involving damage to an anchor. Manemala said that an anchor had been damaged on a boat owned by Freddy Kove. He then agreed with Ms. Fa'asau's proposition that the chiefs at Vonu had ordered Moses Kapini to pay $300 for the damaged anchor. Then Manemala said 'that case is not mine – it was my wife that was involved in that. Moses was angry and he was at the Vonu market that some bad words were used and so my wife was involved in that'.

739	The argument seems to come to this; Manemala says that his wife was legitimately awarded $300 because Moses Kapini was drunk and swore at her – Kapini says that after the direction from the chiefs, Manemala had demanded $600 from Moses because he wasn't satisfied with the chiefs and that if Moses didn't pay then Manemala would bring the chiefs with him.

740	The issue about the anchor, whether it was damaged, and who was responsible for damaging it or whether the anchor had nothing to do with the chief's direction but that the Chief's direction was to do with drunken Moses swearing at Manemala's wife need not be resolved. 

741	I find that the accused Kapini clearly held a firm view that his family was wronged and when he saw Manemala, he firmly had a belief that Manemala owed the Kapini's money and demanded it. The Crown must disprove the existence of Kapini's belief beyond reasonable doubt. It has not done so.

742	I find that there is unchallenged evidence from RAMSI Australian Federal Police Advisor Stevens of what Kapini was saying about Manemala as early as April 2006. I conclude that whatever the merits of the other charges in this Information, Kapini firmly held a belief that he was entitled to demand the money while pointing a shot gun at Manemala or not . 

743	A belief genuinely held in a claim of right negates any charge an element of which is stealing. I find here that there was always a genuine belief held by Kapini when he demanded money from Manemala. 

THE CROSS-EXAMINATION OF JOHN KAPINI BY THE PROSECUTOR

There was no objection from any counsel. I admitted John Kapini's evidence but it is weightless given the hearsay and given its speculative drift. I place no weight on the evidence of John Kapini.

THE EVIDENCE OF BILLY AKWASI

The witness told the court that he is 78 years of age and that Daniel Kapini is his nephew. He said that Daniel was staying with Billy Akwasi and Akwasi's wife at Poinkeni until 'after August' 2000. He said that while there, Danny would go off during the day and sometimes visit his parents at Marau. While there he married Mary Sikiri, Akwasi's niece. 

744	Mr Akwasi said that one night in August at his house, Daniel and Nick Maesua were sleeping in the boys' house. He said that he heard the sound of an engine outside and he got up and went outside and saw Maoma standing there. He said I asked Willy Maoma where he was going and he said 'to Savekau'. Billy said that Maoma told him that he had come to take Daniel and Nicholas with him. Billy says that he returned to the house but that 'Daniel stood still' - didn't move, then he and Nicholas followed Willy to the boat and after that he heard the sound of an engine and the boat was gone. 

745	Mr Akwasi said that Daniel was wearing ordinary clothes and no weapons because he had just got out of bed. He heard a rooster at three and then Daniel came back at 4 pm. He said that Danny had moved to Poinkeni because the bride price had been paid.

CROSS-EXAMINATION BY MAOMA'S COUNSEL, MR. CAVANAGH

746	Counsel for Maoma suggested to Billy that he was in error when he said that Maoma had not spoken to him in the circumstances he described or at all. Akwasi replied 'no I saw him I told you the truth'.

CROSS-EXAMINATION BY FUTA'S COUNSEL, MR. SQUIER

747	Mr. Squier suggested that the encounter at Poinkeni didn't happen. Billy Akwasi said that it did. He said that he didn't know that Futa had been there. 

CROSS- EXAMINATION BY COUNSEL FOR SUAKE, MR. CADE

748	Suake put his case, which was that there was no boat which visited Akwasi in August and Akwassi says that it did. He acknowledged that at the time of the visit he had no radio, no watch, no calendar and no diary. 

CROSS-EXAMINATION BY THE PROSECUTOR

749	Mr. Akwasi was asked about the clothing Daniel was wearing in the early hour of August at 3:00. The witness said that Daniel's shirt was a black, round neck, and he could not remember the trousers wearing. 

SUBMISSIONS BY THE PROSECUTOR 

750	Mr. Fitzpatrick dismissed the evidence as being 'of no effect and of no value'.

THE EVIDENCE OF TONY SUAVA.

751	Kapini called the Suava who said that he also went by the name 'Anthony Enoch', he said that he was from the Weathercoast village of Ngaho, the village of his father. He said that he was part Gilbertese and part Guale. He said that he is a Police Officer by occupation and has been one since 2001. He said that he is married to Grace Maeli. Before joining the police he had been the captain of a vessel known as the 'Ocean View' which travelled between Guadalcanal and the Russell Islands, Nggela and the islands of the Marau Sound.

752	He said that in 1998 he was living in the small village in the Honiara area known as 'Vara Creek'.

753	When the Tension was increasing in 1999 he was given a ticket to travel by plane to Marau. He was married and his wife went with him. Eventually he and his wife settled into a small hut at Savekau. He said that his neighbours were Kesty Babaua, Warren Manemala and John Liddy. The river flowed by his house. Charles Kennedy Ariel Ata and his wife Gladys Hobua and their sons Klement and Fox Mono also lived nearby in Savekau.

754	He knew Kesty Babaua and that Kesty was called 'chief' by the people at Savekau. He said that he was a Catholic and that he attended church services on Sundays. The village had an SSEC church and that pastor Teddy Babaua was the Pastor of that church.

755	When he arrived in Savekau things appeared to be normal, but in 2000 things changed. The changes included a visit by a Fijian man called Rabukawe came. When the meeting got underway it was handed over to Kediman Manekari to chair.

756	Suava said that he had attended the meeting. He said that he now is unable to recall what was said at the meeting, he noted that those present were a mixture of people including Areare speakers and Guales.

757	Then Keke and Joseph Sangu came and held a meeting. After their visit things changed. Following the meeting yet another was convened by a 'part Koilo part Makina man'. All the people appeared to be at the meeting and the people were told that now the men had to wear Kabilato and the women had to revert to grass skirts because the militants would be using spiritual powers and the only way to avoid the results of the spiritual fighting was to wear the protective clothing. He says that no-one wore traditional clothing.

758	After the meeting which was attended by Keke and Joseph Sangu. Sangu asked Suava and Sebastian Abele, Fox and Derek Mono and Kediman Maekari and Kesty and Derek Babaua to follow him and his boys and show him the road leading to Niu Houa.

759	From the large group who came they chose Maina, Derek Mono and Sebastian Abele. Those boys led Joe Sangu's group. Suava said that he had relatives living at Niu Houa and wanted to warn them so he chased Sangu's group and told Maina and Sebastian Abele to go ahead and warn the villagers that Joe's boys were coming. He saw them run off ahead as they neared Niu Houa.

760	Suava got to Niu Houa and saw a ship come along. He recognized the ship. It had a man at a gun at the front and it opened up on the village of Niu Houa. Suava says that he ran down the hill at that time. It was heading towards Poposa in the North see [Exh P1].

761	The ship fired twice. He watched from a grassy hill nearby and behind the village. They heard Joe's group shooting in the village. They remained because they had been asked by Joe Sangu to show him the way to Fossa. When the shooting was at end Suava says that he went to Sangu and spoke to him and said that he couldn't lead him to Fossa and then he Suava returned to Savekau.

762	Suava says that his daughter Samanatha was born on the 2nd June. He had been to the Rabuka in a meeting. Afterwards he took Samanatha to Charles Kennedy - he had helped with the birth [I note that this passage was not put to Kennedy vide day 61]. He said that he visited the clinic routinely and when he left the clinic he saw a lot of people surrounding the village with knives and spears hiding in the bush. Three came to speak to him. He recognized some. Three men came up and said to him 'get out fighting is going to happen'.

763	Suava's evidence is that he left and travelled to Makina where he borrowed petrol and went to Savekau in company with Kennedy and with his wife and child. He said that he and his family stayed two days in Savekau and then moved up to the hideouts.

764	At the time he was preparing to leave Niu Houa he says that he saw a house burning. He says that he went to Joseph Sangu and said this is not a militant village and urged him that the village was one which belonged to his wife's family that there should be no more burning.

765	The burning of houses then ceased and they returned to Savekau. When asked of it he said that he had seen Harold Keke once while in Savekau and it was at a time when Keke was passing through. He said that it was when Keke was traveling from Gold ridge and passed along the main road through Savekau to Makina. There were many with Keke. They were carrying bags they said that they had stolen at Gold Ridge. Keke and the others with him were armed with guns and knives.

766	Suava's evidence is that Solohona is about 25 minutes on foot from Savekau. He said that it was the garden area for Savekau before the Tension. He said that they had commenced building huts up there in 2000. His neighbors were Kesty Babaua his daughter Ruth, Isaac Rao, and his Suava's in laws, Derek Babaua and Lency Kesty. He said that the occupants of his hut were himself his wife and child and Kesty and his wife Esta Mata. Derek Babaua was in the next one and Ruth Kesty was in the next one. The huts were about 3 m apart.

767	He said that they moved because at night on several occasions boats had moved up Marau Sound and had fired bullets across Savekau. They moved and some other people from Savekau village followed them. Others from Savekau had moved to huts above Vonu. He said that other families at Solohona included the Kennedy family and Ariel Ata and his family.

768	He says that he had heard of the deaths of the boys. He had been there and got up in the early morning between 0400 and 0500 to go to the toilet at a pigpen 10m from the hut and around 05 00 and 0600 he heard gunfire from the direction of Kennedy's hut. Kesty signaled to him that he should run to the bush and he did so. He said he came back later and it was decided that they would leave and at midnight that night 21 08 00 they left in company with his wife and child, the Kennedys, and Patrick and Lency Kesty. There was an old lady with them who had to be carried and went out of Marau. They travelled for a week to Aola on the NE coast and then moved to Numbu. Suava says that he then came down to Mouvea the Provincial capital for Guadalcanal.

769	There he met Andrew Te'e. The Marau Peace Agreement was to be signed. One Robin Sellers leader of the IFM was due to sign the agreement representing the Commander of the IFM. Sellers was injured and couldn't sign. Te'e asked Suava to sign the agreement. Suava says that he went on Board a warship anchored off Aola and signed the agreement. He said he signed because he was a victim of the Tension representing the victims.

770	Suava said that his brother Michael Suava was a body guard for the man Andrew Te'e. 

771	That concluded his evidence in Chief. He was cross-examined.

CROSS-EXAMINATION OF TONY SUAVA BY COUNSEL FOR MAOMA

772	He said to Mr Cavanagh that he signed the MPA because it affected him and I lost my place in the Marau community and he agreed that he had signed under the heading 'ex-IFM Commanders' and he agreed that Sangu had also signed where provision had been made for IFM ex- commanders.

773	Suava said that he had signed and that was his signature 'but the original copy doesn't look like this………on the original copy I signed with the chiefs not there'. 

774	He said that he was not an IFM commander but he signed at the direction of Andrew Te'e when Roland Seleso was injured. He just said go and sign it, he said that he did what he was told that he signed for the community but they put his signature in the wrong place.

775	He agreed that he had been at the hideout huts and he had received a call to come down and help the militants and so he had come down and helped them. He said that he had helped the Militants find their way to Niu Houa because they were armed and they 'wanted us to do something for them so we did. Because everyone was Areare we had to do it'.

776	Joseph Sangu was a Wantok of Suava. And Michael Suava, his brother, he said was the bodyguard to Joseph Sangu. He said that no militants came to Solohona. He said that the people of Savekau were friendly to the Guale militants. 

777	He was asked by counsel for Maoma on the matter of the trip to Savekau by Sangu when he called you down from Solohona did the boys in the hideout huts who came to Savekau include Kesty Babaua? 'He replied 'yes' - Ata'. He said that he saw no looting by Sangu's party at Niu Houa and that he didn't have the confidence to go on with Joe we were frightened by the gunshots so we asked him to let us go back and he did. At Savekau on their return he said that they asked him if they could stay for a week he said yes and they did come to stay.

778	Futa cross-examined Suava through his counsel and said that the only militants who passed along the track through Savekau who had guns was Keke and Joe Sangu. He said that Manemala had a 15 hp OBM and would transport people around the sound but if they were carrying guns then he didn't see it. 

779	He said that Barnabas Sirai only made home-made gun 'handles'. On the issue of the boys being called from Savekau to help Sangu find the road to Niu Houa he said that he had sent Seba and Maina ahead - not to warn the people that Joe Sangu was coming but to check to see if anyone there had moved out they were forward scouts. Joe knew and approved of the proposal.

780	It was put directly to him that he didn't fear Sangu because he Suava was one of Sangu's most Senior Commanders and felt Sangu would listen to him. Suava replied 'at that time we experienced fear because we'd already experienced the shooting.'

781	He denied stealing a radio transceiver from Jonston Aorau.

782	He said that visitors would come to Solohona and one such visitor had been Vonu's chief Leone and another was a man named Vincent with his wife.

783	He said that he knew Alfred Ratu that he had not had an argument with him on board the MV Akaloa with Ratu and didn't threaten that he'd get Keke to come and kill him.

784	Te'e asked him to sign the Marau Peace Agreement and that he had done so in the capacity of 'victim' in the Marau area.

785	The evidence of Suava having concluded, Ms. Fa'asau closed the case for the accused Kapini.

Kapini's defence in summary

786	Kapini defence amounts to this – on all counts charged, that he was not aware of any plan ( if there was one) to carry out any task at the hideout huts above Savekau. He says that he was collected at Poinkeni. The evidence of his uncle Billy Akwasi and his father makes the 'Poinkeni pick-up' reasonably possible - and it verifies that fact. Kapini says that he was told nothing of the intentions of Maoma or those in the boat either en route from Poinkeni or at Vonu. He says that he became scared and 'held back', together with Maetoia. At the beginning of daylight Kapini and I 'then heard shots'. They went to the huts by route different from that taken by Maoma and the others, then, after delaying a time no idea of what had been occurring at the hideout huts Kapini and Maetoia saw Manemala. When he saw Manemala Kapini says that remembered that Manemala 'owed my brother Moses money'. Kapini says that he asked Manemala for the money. He did not, he says, point the weapon at Manemala intentionally. Manemala got the money and gave it him. Kapini says that they as a group descended to Savekau where they were collected by the driver of the vessel in which they had travelled to Vonu. Kapini says that they then left Savekau and travelled to the village of Komuta'a since the vessel was very short of fuel. Kapini says that from Komuta'a he walked across the island to Poinkeni where he lived. He says in his defence that he neither killed nor seriously injured anyone, did not discharge the firearm he had been given and left it in the boat. He admits carrying the weapon as regards count 8. 

787	During Cross-examination by Ms. Fa'asua of the witness Margaret Kennedy, Ms. Kennedy agreed that she had spoken with police officer Sarah Stewart on 06 07 2005 [day 8 page 572] and given a statement about what she knew of the alleged gathering of the five accused at the kitchen of the Kennedys when the topic of 'taking of heads' was allegedly discussed on 21 08 00.
Ms. Fa'asau said '
Q. it's true isn't it that you never told officer Stewart that Daniel Kapini said he would chop off Fox Mono's head?' A. I told Stewart.

788	Later Mr Fitzpatrick submitted [day 8 p.577] that the statement was a statement which the witness Margaret Kennedy had adopted as hers. That statement is admissible against all the accused. It is not until the statement is adopted by the witness Mr. Fitzpatrick's protest. [577] - I said that I would rule on the matter. 

789	Counsel for Kapini is obliged to put Kapini's case about the conversation to Ms. Kennedy. Ms. Kennedy adopts the fact of having given a statement to police in 2005 and her evidence here is admissible against all accused and stands to be evaluated like all other evidence but the document prepared and signed following Ms. Kennedy's exchanges with a police officer in 1995 is not evidence which admissible against any accused.

SUBMISSIONS OF COUNSEL FOR KAPINI, Ms. Fa'asau

790	Ms. Fa'asau submitted:

.	the determination of the case depends on an assessment of the witnesses. 

.	the Kennedy family were clearly lying especially about Daniel Kapini's actions.

.	relatives of the deceased may feel aggrieved about his death and have reason to lie or embellish their stories.

.	witnesses who are attempting to protect themselves or family members may not tell the truth

.	witnesses from the same family or village as other witnesses may feel the need to say the same story they have heard their family talking about. Younger ones may feel compelled to say what elder people have been saying. In a small area like the villages here, people would naturally have spoken about the events over the last seven years. They may confuse what they saw with what they have heard other witnesses have said happened. Many witnesses while believing themselves to be speaking the truth may be giving an adopted account derived from other people's stories. The stories they have heard may have been fabrications.

791	While Maoma Futa and Suake fall within section 21 subsections (a),(b) and (c) of the Code, Kapini and Maetoia under subsections 21 (b) or (c) of the Code or alternatively offences committed by joint offenders acting with common purpose. – even were the Court to find evidence of common intent to prosecute any other unlawful purpose there is no evidence that the offence of murder was of such a nature that it was a probable consequence of the execution of any I intended unlawful purpose.

792	Here the Crown case against Kapini and Maetoia is that that there was an agreement plan or common intention between the accused and others to commit the offence of killing specific individuals allegedly involved in the killing of their grandfather and the accused participated in the carrying out of that agreement to kill, by coming from a different direction to 'herd' or avoid any escapes from the hideout huts and that the later conduct of the accused after the shooting of the deceased show that Kapini was involved in the joint criminal enterprise.

793	The Crown must prove that the accused:

knew of the plan,

formed an intention to carry it out and,

was in the execution of the plan.

794	Counsel for Kapini submits that the prosecution has not produced evidence that can prove any of those elements beyond a reasonable doubt.

795	The Crown witnesses can be categorized into four groups:

.	Vonu witnesses: Kahunimae, Barnabas Sirai and Ruth Barnabas.

.	Ata's group:Ariel Ata, Gladys Hobua, Gibson Pukere.

.	Kennedy's group: Charles, Margaret, Phylistas,

	Pritus, Verna Ovilau and Isaac Rao.

.	Kesty's area: Kesty, Esta Mata, Ruth Kesty, Esta Mata, Ruth Kesty, Grace Maeli, Warren Manemala, Nancey Ngelea and Rachel Vatalu.

796	Counsel highlighted those parts of Kapini's interview with Constable Stevens the PPF interviewer which are of significance. Principally that:

.	he was the last to be collected by the boat. He was collected at Poinkeni.

.	when he asked Willy Maoma where they were going Maoma didn't answer directly but he answered in a way that led Kapini to believe that Maoma was saying 'you don't ask me just come'.

.	at Savekau Kapini 'still didn't know why we went therefor' (sic).

.	he thought to ask Maetoia why we were there and 'he didn't know either' – so '….I told Nixon to stay away from them and let them go by themselves'.

.	when he saw Manemala he saw an opportunity to recover $600 Manemala had demanded and got $600 from Kapini's brother sometime before, so I said “you repay that money and he did'. Willy was the one that had it last.

.	he did land at Vonu and he does not know why they were not taken straight to Savekau.

.	he had a gun given him by Willy Maoma the description of which was that of a pump action shot gun. As part of his clothing he wore a hood.

.	He knew nothing of what happened in the village (sic) when Maoma, Futa and Suake entered it.

KAPINI: THE DEFENCE CASE

797	The accused Kapini denies aiding and abetting the principal offenders and denies that he entered into a joint criminal enterprise, his defence 
therefore is:

1.	he knew of no plan to commit a criminal offence; 

2.	or if the court finds that he did know about a plan; there was no plan to commit a crime (joint criminal enterprise).

3.	if the Court finds there was a plan to commit a crime (joint criminal enterprise); he did not participate in the commission of the crime or the joint criminal enterprise;

4.	If the Court finds that the accused participated in a joint criminal enterprise murder is not a probable consequence of such a joint criminal enterprise.

798	Ms. Fa'asau submits that the Crown has not proved its case beyond reasonable doubt in that it has failed to prove:

.	knowledge in the accused Kapini of any plan or reason for going to Savekau,

.	conduct by the accused after the shooting of the three boys :

.	Kapini's presence at the Kennedy huts immediately after the gunshots and immediately before moving to Kesty's area,

.	that he told the Kennedy's that he would chop off Fox Mono's head,

.	saying to Ata that he would shoot the militant Clay Mono in the head and asking Ata when together with Maetoia for 'militants',

.	saying to Manemala 'you're the one I'm looking for' and Maoma's reaction to Kapini 'don't kill that man'.

799	Counsel reminded me that the accused had given a Dock Statement and when considered carefully, Kapini's statement aligns with, and counsel submits that it is corroborated by the caution statement dated April 3 2006. To corroborate means to confirm in a material particular a disputed statement in the general and the legal sense. 

800	I do not accept that an accused man can 'corroborate' himself in that sense here, but what he has told the court in his Dock statement certainly aligns with the so-called 'caution statement' he made to police over two years ago which was made to police following the passage of some nearly six years since the events of 21 08 00.

801	I have taken what Kapini has said to the Court into account in arriving at verdicts here.

802	Kapini says that he is unable to read or write. He says that he dropped out of school in year one, is fluent in Pidjin and cannot write or read English. He dropped out of school he says at an early age.

803	Counsel makes the point that if he had been minded to minimize his role in this matter it is unlikely that he would have volunteered the incident with Manemala to police. He could not have known that his answers about his not knowing of the reason of his going to Solohona would work to his advantage. The interview says counsel should be taken as highly probative of his innocence.

804	The issue of Kapini's lack of knowledge of any plan to go to Solohona to do any mission, is central to his defence. He says he was collected at Poinkeni where he was then living by Maoma and the others who were travelling in a vessel driven by his brother Moses Kapini on their way to Vonu. 

805	P1 shows that Poinkeni there described as 'Pupuanakeni' and 'Poinakeni' in P21, is more or less on the shortest route to Vonu from 'Simeruka Island', ('Siwairuka Island' in P1).

806	 Kapini says that at Poinkeni he was spoken with by Maoma and told to get in the boat. Once in the boat he was handed a weapon. He attempted to ask where the boat was headed and he was not answered. The implication is that he could not know of the contents of the 'Briefing' at Waimamaru on Marapa if he were at Poinkeni. 

807	Counsel submits that the only evidence of Kapini's state of knowledge of the task at hand is that of his co-accused. His co-accused says that he was at Waimamaru and was at the briefing and Waimamaru with them. Such evidence of course, must be treated with caution. That evidence is from co-accused. I treat it with caution realizing that it is dangerous to convict on the uncorroborated evidence of a co-accused. They may have interests of their own to consider - an axe to grind

808	Maoma places Kapini at Waimamaru on morning of 21 08 00 although he didn't speak to him. Maoma assumes that Kapini had been present at Jude Hariu's briefing. Futa places Kapini at the Waimamaru security hut that morning. Suake says that Kapini was there and said that Waimamaru was where Kapini's parents lived therefore Kapini should have been on duty there.

809	Counsel for Kapini points out the fact of discrepancies appearing in the evidence of Maoma Futa and Suake themselves:

Maoma:	said that Kapini was at Waimamaru and he assumed that he had heard the briefing from Jude Hariu.

Futa:	 says all five accused were in the security hut at midnight

Suake:	says that he was asleep in his family hut Jude Hariu woke him up. When asked again he named all co-accused except for Kapini whom he thought should have been there because his family lived there.

810	Ms Fa'asau pointed out the dangers of identification of Kapini even by his co-accused that night. The night was dark. Maoma said that they lit a fire. Futa and Suake disagree with Maoma they say it was dark.

811	I accept that the submission makes it reasonably possible that the three, Maoma, Futa and Suake are mistaken about Kapini being present at Waimamaru. Counsel submits that they may have reconstructed his presence. 

812	Counsel for Kapini points out that although Futa confidently asserted that Kapini was at Waimamaru he was unable to name all the boys who got into the boat there and he named the driver as Morris when Maoma and Suake and indeed Kapini identified the driver as being Moses Kapini the brother of Daniel.

813	Maoma initially failed to include Kapini as one who went from Waimamaru together with the 5 accused Allen Kahunimae and the boat driver who went pick up Kahunimae's boys from Simeruka. The evidence of Kahunimae is that he and Lusiano Kopei were collected from Simeruka that morning and the boat contained the 5 accused and one 'Francis'. Kahunimae is at odds with the others that there were others with him in Simeruka.

814	Ms Fa'asau asks the court to conclude that it is reasonably possible that the court cannot be satisfied just who embarked in the boat at Waimamaru that morning – only that five eventually went to Vonu.

815	Counsel points out that Billy Akwasi, Daniel Kapini's uncle, says that Maoma came in the dark at 0300 one morning and asked for Kapini. In spite of vigorous cross-examination he was not shaken. It can be inferred that it was the morning of 21 08 00 since the circumstances of Maoma's calling on Billy Akwasi were never to be repeated and so unusual.

816	Counsel points out that when interviewed there is consistency between Kapini's statement to police at the interview concerning the point at which he set out and the dock statement that he was collected from Poinkeni. Counsel submits that if he did set out from Waimamaru there would have frankly told police so. There appeared to be no sinister connotation at that time about setting out from Waimamaru rather than Poinkeni if the fact was that he had departed from Waimamaru.

817	Counsel continues that if it is concluded that it is reasonably possible that he was collected by Maoma and the others at Poinkeni then he could not have been at the Waimamaru briefing and would not have known the object of the exercise from that Waimamaru briefing.

818	Counsel further submits that the accused Kapini did not become aware of the objectives of the co-accused while traveling in the boat because:

.	Maoma says that he did not talk to Kapini at all. He saw no need.

.	Suake and Futa said there was no talking en route and the boat noise was loud.

.	At Vonu there was no talking they followed Maoma who led.

.	in his interview Kapini said that he asked Maoma and Maoma did not tell him where they were going.

.	Kapini said that for this reason he the accused asked Maoma to stay back with him and not to follow the others to Solohona.

.	Maoma acted as though he were 'answerable to no-one'.

819	Counsel submitted that it is open to ask why, if indeed Kapini was at Waimamaru on the morning of the briefing and that the briefing was, as the others say, to prepare them to go for a peaceful negotiation why would Kapini withhold such an innocent reason from police. 

820	Kapini to police in his interview with Stevens admitted demanding money from Manemala. He admitted that he had gone to Savekau and carried a gun. Therefore it is reasonably possible that he simply told the police the truth when he was interviewed in 2006.

821	Counsel for Kapini submits that the Court may be satisfied from the preponderance of evidence that Kapini was not aware of any plan and was in no understanding with the others as the prosecution have charged to pursue common purpose and or to participate in a joint criminal enterprise with them.

KAPINI: AIDING AND ABETTING

822	Next, Counsel for Kapini submitted that there is no evidence to support aiding and abetting of the co-accused murder of the three deceased. Counsel submits that the Crown opened by alleging that the accused Kapini and Maetoia, aided and abetted the killing of the three deceased boys by herding the residents of the hideout huts. However says counsel – no 'herding' materialized in the evidence. Counsel submits that in the closing address the Crown say that Kapini and Maetoia aided and abetted by splitting from Maoma Futa and Suake, going by different route to the others to stop escapees from the huts.

823	Ms. Fa'asua submits that there is no evidence to support aiding and abetting:

.	there is no evidence that Kapini and Maetoia took a different route from the other three.

.	there is evidence that they came up sometime after the gunfire was heard but there is no evidence nor can an inference be drawn that there was a plan.

.	There is evidence from the record of interview that he stayed back because he was scared and that he didn't know why the others were going up. Other than evidence Kapini also says that in his Dock statement. 

.	there is no other evidence which supports an inference that the accused aided and abetted the other three in the killing of the deceased.

Later conduct of the accused (following the shooting).

824	Counsel for Kapini submits that it has been the Crown case that the conduct of the accused subsequent to the shots heard indicate that he was a participant in the joint criminal enterprise in that he knew what was going to happen and that the crime committed was a probable consequence of the joint criminal enterprise in which he was a participant.

Kapini submits through his counsel that the subsequent examples of conduct on which the Crown relies did not occur, however, if they did occur then no reasonable inference may be drawn from the occurrences that Kapini had the requisite knowledge of an understanding arrangement or agreement to be implicated in them since there is no reliable evidence of his knowledge or participation.

Counsel commences this submission by considering the time of the accused Kapini first arriving at the scene of the offending.

'You are the one I'm looking for'

825	Manemala said that Kapini used those words. Rachel Vatalu said that Kapini was heard by her to say 'You are one of them' Nancey Ngelea said while Kapini asked for money nothing more was said.

826	Kapini told police at the interview that he had said to Manemala 'you are the one who demanded money from my family. You repay that money.'

827	The defence submits that the court may conclude that it is reasonably possible any version of the words is potentially true and relate to Kapini's holding the belied that his brother had been wronged and the opportunity to recover the money now presented itself so the seized the opportunity.

'Don't Kill That Man'

828	Maoma is said to have spoken those words to Kapini. The Crown submission is that it shows that the purpose of the mission was to kill, and that Kapini had a grudge against Manemala.

829	Counsel points out the pidgin meaning of the verb extends the English meaning and includes the meaning of 'no kilim hem' to carry the meaning 'do not assault . . . . '

Other issues in dispute

830	Counsel for Kapini submits that having regard to the evidence and when taking Kapini's Dock statement into account, the Court may regard that it is reasonably possible that Kapini did not know of any scheme, criminal or non criminal, involving those with whom he was travelling in the early morning of 21 08 00.

The degree of planning

831	The walk from Vonu to Savekau in single file (and indeed the beginning of the ascent to the hideout huts), is not amenable to only one conclusion - that it was the execution of an organised plan to do some particular thing and in particular necessarily to carry out some joint criminal act or acts.

832	Kapini's case counsel argues is that that he was never at the actual crime scene or in the vicinity at the time when the deceased met their deaths. 

833	The Crown argues that the splitting off of Maetoia and Kapini was in order to 'herd any one who attempted to escape from the huts'. Kapini's counsel submits that there is no evidence anywhere of such a plan. And nor may it be inferred. There is ample evidence on the Crown case that if it were the scheme to herd or prevent the escape of people by placing Kapini and Maetoia away from Maoma, Futa and Suake so that they may herd, any such plan utterly failed.

That the Crown case against Kapini is circumstantial

834	Counsel submits that there is no direct evidence against Kapini as being a party to the alleged joint criminal enterprise. The evidence is circumstantial - R v Dudley Pongi ( unreported criminal case no. 40 of 1999 per Muria CJ at 5-22. Also see Martin Suratake v The Queen (Unreported criminal appeal no 6 of 1994 at 7.)

835	Circumstantial evidence imposes an onus on the Crown to prove beyond reasonable doubt that there was on the evidence no reasonable hypothesis consistent with the innocence of the accused. A finding of guilt from circumstantial evidence must not only be a reasonable inference but the only rational inference to draw.

The cross-examination of John Kapini by the Prosecutor
 
836	It was put to John Kapini by the prosecutor that the incident which led to the Determination or Direction by the Chiefs was that Moses had been drunk and had sworn in the presence of Moses relatives. John Kapini replied that he knew nothing of that. I let the evidence in but it is clear that most of the evidence of the witness about what occurred and what Moses was thinking and doing at the time of doing something which invoked the power of the chief, was hearsay and/or weightless.

837	When it was suggested that it is not the law of the Solomon Islands that a demand for the return of compensation at the point of a gun, he said that he didn't know what the prosecutor was taking about. As the cross-examination proceeded, John Kapini ventured that 'afterward the chief had no power because the militants were in full control.

838	His evidence was largely irrelevant. I stopped the witness testifying in chief about customary law – though there was no objection from any counsel. I admitted his evidence about custom. It was not weightless however about the connection between Manemala, Moses Kapini, his relationship to Daniel and the fact of a hearing before a Chief before 21 08 00.

KAPINI: DISCUSSION AND CONCLUSION 

839	I take up Ms Fa'asau's submission that “the evidence of the accused was consistent and compelling”. A Dock statement is not 'evidence'. It is material which a Court may consider and bring into account giving such weight to it as it sees fit. No more than that. The statement is not tested by cross-examination. It is an opportunity afforded to an accused person to say what he or she will by way of explanation about the case. Having said that I have taken the Dock statement into account, I have weighed the evidence of the witnesses he called.

840	Kapini carried no burden of proof in this matter. His unsworn statement aligns both with his statement to police and with the evidence of his witnesses – his father, John Kapini and his uncle Billy Akwasi. I found those witnesses to be truthful men. They did not appear to me to be devious or attempting to mislead the Court. I conclude that they were doing their best to recall what happened. 

841	Having regard to what was said by those witnesses, and when one reasons about the Crown case and how the case impacts on what Kapini and what Kapini's witnesses say happened, one is driven to the conclusion that it is reasonably possible that Kapini was collected from Poinkeni in the early hours of 21 08 00 by Maoma and his co-accused and others including Moses Kapini, the driver of the vessel and transported to Vonu. 

842	I conclude that it is reasonably possible that Daniel Kapini was not at Waimamaru on the night and early morning of 21 08 -00 – that is, I cannot be satisfied beyond reasonable doubt that Kapini was at Waimamaru when Jude Hariu briefed the other accused on what they were to do at the hide-out huts and/or brief the men on how to use a rifle or a shotgun or indeed, in the case of Maoma, an LMG Ultimax.

843	It follows that if it is reasonably possible that Kapini was not at Waimamaru then it follows that it is reasonably possible that Kapini received no briefing about the objectives leading to the foray of his co-accused to the hideout huts at Solohona in spite of Kapini's efforts to get some directions from Maoma.

844	Although the evidence of Maoma is that Kapini was at Waimamaru, he also says that he did not personally speak with Kapini and he assumed that Kapini had heard Hariu's briefing. [Day 48 p.47]. Counsel notes that Maoma said that they lit a fire on the beach at Waimamaru. Suake and Futa disagree and their evidence is that it was dark at Waimamaru so that he possibly didn't see who was there.

845	It is significant that when interviewed for the first time by police on 03 04 06, Kapini told police at the interview that (on leaving Poinkeni that he didn't know where they were going or why - he said that he had asked Maoma 'where they were' but Maoma replied that he didn't know.

846	From the evidence I conclude that it is reasonably possible that there were no conversations in the boat between Kapini and any other person concerning their destination or task. It is reasonably possible that there was no discussion inclusive of Kapini on the path from Vonu to the commencement of climb to the hideout huts at which time the co-accused were 7- 8m apart in the dark and on the mainland from which they had fled following GRA militant pressure.

847	The Kennedy witnesses have Kapini back at the Kennedy hut following the five men going to the Kesty Babaua area. Kapini says he was not present in the Kennedy hut at any time. He says that he met Kennedy at the junction of the 'Kennedy area to Kesty Babaua area' path and the Aerial Ata hut path down to the creek, where he says he asked Kennedy whether he had seen Willy Tome and Brian Kennedy pointed out where Willy Tome and Brian were - thus placing him well away in time and space from the deaths of the boys and from the cries of the dying Jonathon Talanimaina.

848	The most serious charge of all against Kapini is the allegation that he made a callous claim on the taking the head of Fox Mono. He denied that charge. All the Kennedy's have him making the claim inside their hut. Is it reasonably possible that the Kennedy witnesses are mistaken? I do not think so. I formed the view that they were honest witnesses doing their very best to recall events of over 6 years ago at trial.

849	If Kapini made the brash callous claim for the head of Fox Mono it does not make him a co-conspirator for the deaths of the boys. It may make him a teller of untruths and a cruel self obsessed man, but not a co-conspirator without more.

850	At the Kesty area, Kapini says of the circumstances of his encounter with Manemala, that he remembered when he saw Manemala, a wrongful demand Manemala had made on Kapini's brother Moses Kapini for $600. He thereupon demanded that Warren Manemala repay it. 

851	Kapini does not speak of any money being obtained and given to anyone as a result of his demand made to Manemala. He does say that Maoma told him not to do anything to Manemala. He denies intentionally pointing the gun he had in his possession at Manemala. 

852	Kapini paints a verbal picture of harmony otherwise in the Kesty area - notwithstanding his raising a claim against Manemala. He denies that Suake stepped in between him and Warren Manemala. I believe that Suake did step in between Kapini and Suake. 

853	I find that Kesty Babaua had been viciously attacked by Futa in the manner Kesty Babaua describes and that he was bleeding as a result of the attack. I find that Kapini presented his shotgun at Manemala at the same time he demanded that Manemala hand over $600. I find that in fact $500 was obtained by Ruth Kesty and handed to Maoma.
 
854	I have given urgent attention to what Kapini says. While I consider him to be unreliable about some events in the Kesty area' I do think that events went the way he has them going.

855	The one matter I think is reasonably possible, indeed about which I am convinced about is that Kapini held a belief in his right to reclaim $600:00 from Manemala.

856	I conclude that Skivington supra is the law applicable to Kapini and Manemala. Lord Parker CJ at page 484 re-iterates the principle that a claim of right exists whenever a man honestly believes that he has a lawful claim even though it may be completely unfounded in law and in fact.

857	The authority is referred to in Alick Fefele v DPP (1987) CAC no. 5 of 1987 where Ward CJ in having commented upon the Lord Chief Justice's reference to the principles and in following Skivington said: 'Counsel for the appellant suggests (Skivington) means that the Court must decide the question of claim of right or right to the stealing without looking at the means by which it was taken and only to consider those when and if he does not accept it was an honest belief. That is an interpretation that strains commonsense. In deciding any issue the Magistrate must use all relevany matters available in the defence. Of course the violence here was an extension of the stealing to which claim of right was the defence but the very fact that he was Willyng to resort to such threats in order to pursue what he claimed was a genuine right must be a matter the magistrate might consider in assessing the accused's bona fides.'

858	Kapini has presented the moment of confrontation with Manemala in Kesty's area over the 'debt' as an opportunity to righteously recover what he believed was rightfully his brother Moses' money. 

859	The moment was terrifying for the unarmed compliant residents of the hideout huts (see the collection of $500 from Charles Kennedy) that has an immediate bearing on judging Kapini's bona fides. 

860	I have considered Kapini's earlier behaviour. His confident and assertive behaviour towards Manemala now, no doubt buoyed up by the shot gun in his hands, compared with the fear and anxiety which he says caused he and Maetoia to drop back earlier don't coalesce. The determination by the accused to recover his brother's debt armed with a shot gun as he was, in company of other armed men as he was - one with a machine gun which he was believed to have used to kill the three boys suggests to me that on this score he is opportunistically seizing the moment to make good the $600 he claimed.

861	I do remind myself that the prosecution must negative his claim of right and that Kapini carries no onus of proof. I accept that they have done so here. I find that having seen Manemala in what may be described as being at a disadvantage, Kapini opportunistically seized the moment on the off chance that he may get $600 back for his brother.

862	Have the 'stealing' elements of robbery been made out? The Crown must prove that :

.	the accused,

.	at the time of the taking had ,

.	a fraudulent intent,

.	to permanently deprive the rightful owner

.	of his or her property in the goods,

.	took and 

.	carried away 

.	property (cash) of another 

.	without a valid claim of right 

.	made in good faith.

863	I consider that they have been proved except and insofar as the element of fraudulent intent is concerned.

864	Kapini says that he and the co-accused were collected by the boat from Savekau. Maetoia agrees saying that they departed from Savekau passage on the journey home. I am puzzled about that part of his evidence. The co-accused say that they got in the boat at Vonu and went straight home. 

865	Kapini says that the boat left Savekau but was short of fuel and he and the others were disembarked on Komuta'a while the boat containing Moses and 'Francis' went off to Waimamaru to re-fuel. Kapini says that he walked to Poinkeni from there leaving his gun in the boat. No-one else refers to stopping at Komuta'a – not even Maetoia. I conclude that the vessel left from Vonu with Kapini on board and that he is mistaken when he says that he left from Savekaua passage.

866	I conclude that he was not a party to a joint criminal enterprise at all. Was he aiding and abetting the others?

Aiding and abetting

867	The Crown case against Kapini is also based on the concept that Kapini was aiding and abetting the others in the murder of the three deceased. The Crown opened on the concept of Kapini and Maetoia being involved in the task of 'herding' the occupants of Solohona so that no-one would be able to escape them.

868	There is no evidence which persuades me that Kapini acted in accordance with any understanding or arrangement amounting to an agreement to do anything criminal. Equally, there is no evidence which unequivocally implicates him directly or circumstantially in post-plan criminal activity. 

869	He was with Maetoia. Maetoia does not implicate him. Anything said to the police by Maetoia is not evidence admissible against Kapini at trial and Maetoia made a Dock statement about the events of 21 08 00 which is not evidence at all.

870	I have carefully noted the helpful and thorough submissions of counsel for Kapini. I am not persuaded that Kapini has been shown by the prosecution, beyond reasonable doubt, to be guilty of any offences charged against him except that of 'going armed in public' created by section 83 of the Code. While he pleaded not guilty he mounted no serious challenge to the charge.

871	On that count, Kapini has been shown beyond reasonable doubt in my view to have:

.	gone in public,

.	armed ( as he admits),

.	conducting himself in such a way ( armed at night in company during militant activity),

.	without lawful occasion (a negative averment provided for by section 202 of the Criminal Procedure Code which provides:

202. Any exception, exemption, proviso, excuse or qualification, whether it does or does not accompany in the same section the description of the offence in the law creating the offence, and whether or not specified or negatived in the charge or complaint, may be proved by the defendant, but no proof in relation thereto shall be required on the part of the complainant. On that score Kapini remained silent)

.	and by that means,

.	caused fear to any person (there is ample evidence of fear on this count -in particular Manemala) 

.	shall be guilty of an offence.

872	I find the accused Kapini guilty in respect of count 8 in the Information.

KAPINI: VERDICTS

873	I formally find the accused Daniel Kapini not guilty of the offences charged in counts 1,2,3 and 7 inclusive. I find him guilty as charged of the offence in count 8.

874	Before I leave Kapini's case I comment on Suava. I see him as an utterly unreliable man. I gained the very distinct impression that he would say anything to advantage himself. His explanation of signing the Marau Peace Agreement as a 'victim' is ridiculous. I reject his evidence.

SUMMARY AND CONCLUSION 

875	On the issue of whether there was a joint criminal enterprise between the accused, it is helpful to go directly to the defence case. Evidence from the defence case shows that the accused all appear at least to agree that they were engaging in a joint enterprise when they set off for Solohona. What was the nature of it? Was it lawful or unlawful? 

876	The dangerous trip to the hideout huts at Solohona for some serious business in the early hours of 21 08 00 involved weapons training and a 'briefing'. The task was dangerous. The five accused all acknowledge that they were armed. They were heading into what they said was Guale militant country at the height of the ethnic tension.

877	Some of the accused say the purpose of the trip was to negotiate the use of the garden to provide food for the refugees at Waimamaru. The Crown says that the defendants were armed ….looking for individuals whom they believed had been involved in the death of a relative of theirs, Shadrach Hariu.

878	Kapini says that he had no idea why he was called upon to go there since he was collected at Poinkeni on Mauiapa Island and no-one, in spite of his inquiries as to why he was called on, told him anything about the purpose of the journey. He probably was collected at Poinkeni. His Uncle says he was. My concern is whether he did know anything of the purpose of the nocturnal operation.

879	The members of the group of five were at least 'security', at most 'militants', committed to the orders of the MEF Commander. One may take the view that it would be an extremely unwise move to have a soldier in a group assigned to a dangerous task to be armed (with a pump action shot gun) and not know what he was there for. 

880	I find that Kapini commenced his journey with the others from Poinkeni. It is not clear from the evidence why he was collected at Poinkeni but assuming he was, what was the objective for the journey what was the enterprise?

881	I am satisfied that it is reasonably possible that the five were sent to get authority to use the garden. The suggestions made in the submissions of Mr Cade appeal to me as a reasonable possibility in relation to the defence of each accused. 

882	What is a reasonable possibility? It is to be measured against what is reasonable in the conditions pertaining at Marau Sound in August 2000 – conditions which included, a violent ethnic conflict, expulsions of Malaitan people from Guale territory and a difficulty with food supply . It would seem that measured by that standard it was not only reasonable but wise for the instruction briefing and departure of the five in the very early hours of the morning being as the appropriate and sensible way to go and it is as consistent with unlawful activity as it is with a desire to ensure that the group was afforded at least some protection from Guale attack. 

883	I conclude that it is reasonably possible that the common intention (at least between Maoma, Futa and Suake), was to negotiate use of the Solohona garden. 

884	The Crown relied on sections 21 and 22 of the Code to establish liability. No other basis of criminal liability was advanced. 

885	 I am not persuaded that the five men, Maoma, Futa Suake, Maetoia and Kapini had an understanding or arrangement amounting to an agreement to jointly commit a criminal undertaking. I am persuaded that Maoma and Futa did. I reason this way. 

886	The two, Maoma and Futa, were seen descending from the boys' hut to the Kennedy's sleeping hut less than five minutes after the shots had awoken and panicked the community at Solohona. Futa then assaulted Charles Kennedy. Later Maoma said “I am the one who killed Fox” according to the evidence of Ruth Kesty [06 12 07 p.33]. They were the ones who were spearheading all the unlawful activities.

887	Both men deny being present at the Kennedy huts. Suake implicates them. He places them in the Kennedy area. The Kennedy's identify Maoma and Futa - they know them well. I have been alert to the need for extreme caution where matters of personal identification arise in this matter. But I am satisfied that the relationships in both blood and family ties have eliminated any possibility of the accused being mis-identified in any of the circumstances presented by the Crown and among the witnesses here. 

888	I am also alert to the need to consider the evidence of co-accused with circumspection since a co-accused may be an accomplice and have an axe to grind about the actions of the accused in unlawful activities. Futa stands in that position as regards Maoma and Suake more so because he has run an antagonistic or 'cut-throat' defence. 

889	When Maoma and Futa reached the top of the climb to Jonathon Solohona and discovered the sleeping young boys and the child, Talanimaina Kennedy they then, perhaps without any communication other than a nod, rage, and what they believed to be a just act to avenge the death of their relative, decided to murder Fox Mono and Sebastian Abele and Jon Talanimaina then and there. I so find. 

890	The joint decision by Maoma and Futa to kill Sebastian Abele and Fox Mono is the joint criminal enterprise. It only involves Maoma and Futa. I eliminate Suake. The enterprise has its preconcert in the death of Shadrach Hariu and the opportunity which allowed of itself at the hilltop sleeping hut. Motive and opportunity were both present. I am satisfied that Maoma and Futa then with extreme fury, killed the boys.

891	On this issue I have directed myself on the matter of circumstantial evidence.

892	As to Maetoia and Kapini, I am satisfied that they were guessing as to what was going on - hiding from fear of what may happen to them. When they heard the shots they say that they delayed moving further for some time. They probably did but it was not as long as an hour – it was probably less than 30 minutes after the first shot. 

893	I am satisfied that they were afraid of being killed or injured themselves - frightened of being there, not really knowing why they were there and only being there because they were afraid of Maoma. They said so to police and to the Court. 

894	The prosecution referred to the role of Maetoia and Kapini as being either that of aiders and abettors to Maoma, Futa and Suake - that they 'herded people together – No evidence appeared of their being 'herdsmen' – They were bullies and bragging stupid men perhaps, later seeking later to promote themselves in the reflected glory of Maoma and Futa's acts, by making references to the deceased as 'pigs' in Maetoia's case and in Kapini's case by saying that he would take Fox Mono's head but not complicit by 'herding' people.

895	Maetoia and Kapini are not proved as being implicated by section 21 or 22 of the Code. Indeed having regard to the evidence, section 22 no longer has significance for them.

896	As to Brian Suake. I have revisited the evidence about Suake at the boys' sleeping hut. I am not persuaded by the evidence that he did an unlawful act or acts as regards count s1,2 or 3. There is no evidence that he fired a shot which caused injury or death to the deceased or delivered any blow or blows as the deceased met their deaths by a combination of high powered firearms and blows from sharp –edged objects and blunt objects.

897	Counsel for Suake made the points in paragraph 17 of his submissions that Kennedy heard the sounds of an 'high powered gun' and when one considers Dr Dodd's evidence concerning the probabilities of the source of the injuries to the dis-interred remains he saw, all the injuries were probably caused by high velocity weapons' 

898	I am satisfied that Brian Suake was carrying a low powered '.22' rifle at all material times. There is no evidence that Brian Suake entered the boys hut. He says that he was walking up hill and heard the sound of a gun. And when he reached the top he saw the incident between Tome Futa and Charles Kennedy and ran there and put a stop to it.

899	I am satisfied that Maoma and Futa entered into an understanding or arrangement amounting to an agreement to enter the sleeping hut and to kill or cause grievous to one or more of the occupants in the Kennedy boys' sleeping hut. This was no probable consequence of the original arrangements this was brutal murder.

900	That finding is the only rational inference to be drawn from the circumstances. There could be no other explanation. Of course the evidence is indirect. The direct evidence is that of Charles Kennedy's family. The circumstantial evidence however, is strong. The real question is which of the accused were a part of the killing. 

901	I have no doubt that Maoma and Futa were involved. Both were seen less than five minutes after the first shot was heard by Charles Kennedy. Suake was also seen within 5 minutes of the first shot. 

902	Maoma and Futa say that the point at which they first hear gunfire was some time after they had commenced engaging in social intercourse. Having regard to the Kennedy's evidence I am unable to conclude that what Maoma and Futa say is reasonably possible.

903	The law of the Solomon Islands relating to circumstantial evidence is set out in R v Dudley Pongi (unreported Criminal case no. 40 of 1999) per Muria J says at 5-22:

'the prosecution case is substantially based on circumstantial evidence. As such the Court must be very cautious when considering the case against the accused. It is the duty of the Court in such a case to consider all the evidence together at the conclusion of the case, ensuring that it can only draw and inference of guilty from the totality of the facts presented beyond reasonable doubt . . . I bearing mind the principles referred to by Mr Nori and stated in Barca (1975) 133 CLR 82 where at 104-105 Gibbs Steven and Mason JJ said: when the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as a to be inconsistent with any reasonable hypothesis other than the guilt off the accused'. Peacock v The King(1911) 13 CLR 619 at 634. To enable a jury to be satisfied beyond a reasonable doubt of the guilt of the accused it is necessary that not only should his guilt be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw'; Plomp (1963) 110 CLR 234 at 252; see also Thomas (1960) 102 CLR 584 at 605, 606. However 'an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence'; Peacock (1911) 13 CLR at 661” The case for the prosecution in the present case rests substantially upon circumstantial evidence. As such the jury must be satisfied beyond reasonable doubt that the circumstances as found to exist are not consistent with any reasonable hypothesis other than that the guilt of the accused. In other words, the guilt of the accused must be the only rational inference open to the Court to find in light of the evidence.'

904	Suake has given evidence that his pause to look for Maetoia and Kapini was interrupted by the sound of gunfire. He moved to the top of the ridge through the bush and then saw the Charles Kennedy incident.
 
905	I am satisfied that both Futa and Maoma entered the hut carrying their weapons and that the boys met their deaths - killed by the actions of one or both of the two men Maoma and Futa acting in pursuance of an agreement to kill or to inflict grievous bodily harm on the three boys.

906	Margaret Kennedy said that she saw Suake coming out of the boys hut. I make it clear that I place no reliance on Margaret Kennedy as a reliable observer. I place very little reliance on her evidence at all. 

907	I am satisfied that Brian Suake came back to the Kennedy family hut after being at Kesty's area. I accept the Kennedy witnesses about Suake's attendance. As his counsel points out however, given the way the Charges are framed and on the Crown case, his presence merely indicates ex post facto knowledge of a violent event associated with the shots he heard as he climbed. 

908	Counsel submits that his denials of returning to the Kennedys' hut is better explained by a reluctance to implicate a brother and close relative than by an inference that it conceals guilty knowledge. It must be said that Suake has certainly by his evidence made it implicit that Maoma and Futa were both present in the Kennedy area which they have denied on oath. I have given myself the accomplice warning, however, and conclude that there is of evidence corroborating Suake about the presence of Maoma and Futa in the area.

909	I note also that Suake displaces the incident of Futa pointing the '.303 'rifle at Kennedy by about 25 metres. I find that the Futa pointing his '.303 ' rifle at Kennedy did in fact take place behind the Kennedy huts and not at the junction on the path to Kesty's described by Suake.

910	I am nevertheless prepared to accept that the circumstances are such from the whole of the evidence that it is reasonably possible that Suake heard a shot as he climbed in the bush towards the ridge, separated as he was from Maoma and Futa by having looked back for the now missing Maetoia and Kapini.

911	I am satisfied that he did intervene at the Kapini Manemala incident at Kesty's area by placing himself between the shot gun Kapini held and Manemala.

CONCLUSION

912	I conclude that the boys Fox Mono, Jonathan Kennedy and Sebastian Abele met their deaths in the boy's sleeping hut in the Kennedy area of the hideout huts on the 21 08 00 at about dawn. I am satisfied that Maoma and Futa were in the very close vicinity of the open hut where the boys slept at that time.

913	I am satisfied that the Kennedy family saw Maoma and Futa near the hut within five minutes of the sound of the first shot fired, shortly after the body of Sebastian Abele was seen by Charles Kennedy moving through the air from the hut.

914	There is no other evidence which would lead to the conclusion that any other armed person or person was in the area. When the evidence is carefully considered, Maoma and Futa say that they were not in the area of the Kennedys and had no dealings with the Kennedys. I have already made it clear that I consider Maoma and Futa to be unreliable witnesses – moreover the Kennedy's place Maoma and Futa at their hut in the dawn light as does Brian Suake.

915	The indicators that the boys were attacked and in the case of Fox Mono and Sebastian Abele, killed, are firstly, that the survival of Jonathan Kennedy for some little time and secondly, Charles Kennedy's sighting of the body of Sebastian emerging from the hut and hitting the ground, thirdly shots were heard from high powered weapons and the accused were carrying high powered weapons and the accused were carrying high powered weapons.

916	The guilt of the accused Maoma and Futa of the murders of Fox Mono and Sebastian Abele is a rational inference to draw from the evidence before the Court and it is the only rational inference which the circumstances allow of.

917	I have serious doubt about Brian Suake's involvement in the alledged killings. Certainly Suake was in the near vicinity of the Kennedy huts, but his behaviour subsequent to the firing of the shots strongly indicates the reasonable possibility of his innocence. On that basis and on the basis of Suake's account of his approach to the ridge through the bush and Suake's involvement in the incident involving Futa pointing his rifle at Charles Kennedy, I find Suake not guilty of counts 1, 2 and 3.

918	I have already dealt with the charges in counts 1, 2 and 3 against Maetoia and Kapini.

919	I find Maoma and Futa guilty of counts 1, 2 and 3.

920	I find Suake Maetoia and Kapini not guilty of counts 1, 2 and 3 in the Information.

921	A schedule of verdicts follows.

COUNTS	
MAOMA	
FUTA	
SUAKE	
MAETOIA	
KAPINI	
1. MURDER
s 200 Penal Code	
GUILTY	
GUILTY	
NOT GUILTY	
NOT GUILTY	
NOT GUILTY	

2. MURDER
s 200 Penal Code	
GUILTY	
GUILTY	
NOT GUILTY
	
NOT GUILTY	
NOT GUILTY	

3. MURDER
s 200 Penal Code	
GUILTY	
GUILTY	
NOT GUILTY	
NOT GUILTY	
NOT GUILTY	

4. ATTEMPTED 
MURDER
s 215 Penal Code (Charles 
Kennedy)	
NOT CHARGED	
NOT GUILTY	
NOT CHARGED	
NOT CHARGED	
NOT CHARGED	

5. UNLAWFUL WOUNDING
s 229 Penal Code (Kesty Babaua)	
NOT CHARGED	
GUILTY	
NOT CHARGED	
NOT CHARGED	
NOT CHARGED	

6. AGGRAVATED 
ROBBERY
s 293 Penal Code (Kesty Babaua)	
GUILTY	
GUILTY	
NOT CHARGED	
NOT CHARGED	
NOT CHARGED	

7. AGGRAVATED 
ROBBERY
s 293 Penal Code (Manemala)	
NOT GUILTY	
NOT GUILTY	
NOT GUILTY	
NOT GUILTY	
NOT GUILTY	

8. GOING ARMED IN PUBLIC s 83 Penal Code (Kesty Babaua, Charles Kennedy, Warren)	
GUILTY	
GUILTY	
GUILTY	
GUILTY	
GUILTY	

922	All accused are guilty of count 8 'Going armed in public to cause fear'.

J. W. Lewis
COMMISSIONER of the HIGH COURT