Regina v Kama [2008] SBHC 52; HCSI-CRC 358 of 2007 (7 November 2008)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 358 of 2007

REGINA

V

JOSHUA KAMA, JOE FAKANI, PETER KWAITAKA
AND PHILIP KORO

Date of Hearing: 4 August 2008 to 3 September 2008
Date of Decision: 7 November 2008

R. Christensen for the Crown
G. Brown for Joshua Kama
A. Pasikala-Faasau for Joe Fakani
C. Baker for Peter Kwaitaka and Philip Koro

DECISION AFTER TRIAL

Cameron P J

1. The four accused are jointly charged with the murder of Paul Osi. The two accused Peter Kwaitaka and Philip Koro also face a charge of doing an act intended to cause grievous harm, while the other two accused Joshua Kama and Joe Fakani are charged with assault occasioning actual bodily harm.

2. The evidence establishes that Paul Osi suffered a fatal stab wound to his abdomen on the night of 21 October 2006 while at Rove, Honiara. He died later that night from injuries caused by that stab wound and while at the National Referral Hospital in Honiara.

3. I find from the evidence that the events leading up to this tragedy were as follows. In the late afternoon and early evening of 21 October 2006 Michael Bennett held a twentieth birthday party at his parents’ house, situated near the intersection of the main road running between Point Cruz and White River and the road leading up to Ngossi. This T intersection will be referred to as the Ngossi junction.

4. Various young people were invited to and attended this party, some of whom were and had been drinking alcohol that day. The accused Philip Koro was at the party, with his friend Alick Kabui. I am also satisfied that the accused Joshua Kama and Peter Kwaitaka were at the party as well. The three accused who attended the party, as well as Alick Kabui, were from the Ngossi area.

5. Philip Koro and Alick Kabui left the party to purchase cigarettes. A few minutes later, around 7 pm, there was an altercation in the lane behind Michael Bennett’s family house. I am satisfied that this was between some of the local boys from Rove, including Paul Osi, and Philip Koro from Ngossi. The altercation involved an argument during which Philip Koro was punched and in effect chased back to Michael Bennett’s house by the Rove boys. Paul Osi, following this, apologised to the host Michael Bennett.

6. As a result of this incident, Michael Bennett’s mother ended the party, and the three accused who had attended were dropped off by vehicle to Ngossi at a point near the Australian High Commission residence, which was close to were they were staying.

7. A little later that evening two of the accused, Philip Koro and Peter Kwaitaka, returned to the Rove area by foot. I am satisfied that Philip Koro was armed with either a handsaw or a small kitchen knife and that Peter Kwaitaka carried a rusty bush knife.

8. Upon reaching the area near the Ngossi junction, the two accused went to the same lane at the rear of Michael Bennett’s house, and there outside a Chinese store they encountered Paul Osi. There was then a second altercation, once again involving Paul Osi and Philip Koro. I accept the evidence of Rex Bennett that as Paul Osi was approached, both the accused looked cross. I accept that the two accused then swore at Paul Osi and he was then punched by one or both of them, causing him to fall. Both the accused were armed as indicated. Following this, the two accused walked away, continuing to swear at Paul Osi, and walked through the yard next to Michael Bennett’s family house and out to the main road between Point Cruz and White River. Paul Osi, in the meantime, ran back to his own house.

9. Michael Bennett then tried to calm the two accused down, as he said they looked angry and were both armed. I accept his evidence as to this, and infer that both were in a belligerent mood. Michael Bennett’s attempts to persuade them to accept another lift home from him in the Hilux were unsuccessful. Both accused at this point had crossed the main road to its seaward side, and were walking along towards the Goodview Store, which is across the main road from Michael Bennett’s house and diagonally opposite the Ngossi junction. At this point there was noise coming from the junction, and I accept Michael Bennett’s evidence that the two accused focused on this noise and in walking towards the Goodview Store were walking in the direction of the noise.

10. The evidence establishes that George Mendai, who lived in the same house as Paul Osi, saw Paul Osi return home, throw his plate of food down, and run out, and that he ran out to the main road alongside the Ngossi junction at a point approximately opposite the Goodview store. At about this time Philip Koro and Peter Kwaitaka, who were on the seaward side of the main road and thus on the other side from Paul Osi, had reached the area outside the Goodview store.

11. It is clear that both sides were shouting at each other across the main road. I accept the evidence of Timothy Vildam, who followed Paul Osi, that at this point Paul Osi was shouting at the two accused and holding stones, and that the two accused were shouting back, showing their knives, and shouting "this is your knife".

12. I also find that stones were thrown by Paul Osi at the two accused, who were attempting to dodge them and advancing out towards the middle of the main road from Goodview and in the direction of Paul Osi.

13. I do not accept the Crown’s submission that Kwaitaka and Koro were solely responsible for the aggression outside Goodview store. Paul Osi was clearly enraged by the previous assault on him and chose to leave his house and return to the main road, and arm himself with stones, in order to confront his aggressors. It is to be recalled that having assaulted Paul Osi, the two accused, although armed, were content to walk away following that assault, and there the matter may have ended had Paul Osi not reappeared.

14. I mentioned that before Paul Osi and the two accused confronted each other on the main road in this way, Paul Osi had requested another Rove boy, Mark Temulani, to go and get some Rove boys from the Children's Part along the main road towards Point Cruz. This was clearly to provide reinforcements. The evidence establishes that he did this, and that Mark Temulani returned with five other Rove boys from the park. At that stage the stone throwing as described was occurring.

15. About 15 minutes after Paul Osi left his house for the main road, his uncle George Nolley followed him there. He lived in the same house and had seen Paul Osi come in, throw his plate down, and walk out. George Nolley gave evidence that when he got to the main road a person holding a knife came towards him from the seaward side opposite him, and tried to "chop" him with the knife. He said he blocked the attempt with his arm. He identified this would be attacker as the accused Joe Fakani, but it is clear from a body of other evidence that it was the accused Peter Kwaitaka who approached him armed with the knife. I will return to this incident, which forms the basis for the charge of unlawfully attempting to strike with a weapon with intent to cause grievous bodily harm, later in this decision.

16. At approximately the time of the incident involving George Nolley, the evidence establishes that other boys from Ngossi arrived at the area of the junction. They came as a group consisting of a number of young men, including the accused Joshua Kama and Joe Fakani, and Alick Kabui as well.

17. There was evidence from Mark Temulani, which I accept, that this group of boys from Ngossi looked ‘angry, cross’ and that they ‘rushed towards the boys’. There is also evidence from Christopher Baeoro and others that Joe Fakani shouted ‘don’t shoot, no shoot’ to the Rove boys who had been throwing stones, which evidence I also accept.

18. Ben Subu was one of the Rove boys who had been summoned from the Children’s park at the request of Paul Osi. He gave evidence that when this additional contingent of Ngossi boys arrived, he (Ben Subu) was holding a stone at the time. He said that when Joe Fakani yelled out ‘don’t shoot’ he threw the stone away. He said he was then punched and kneed by Joe Fakani, and that Joshua Kama "whipped" him with a stick, hitting him on the right side of the forehead and drawing blood. This incident forms the basis of the charge of assault occasioning actual bodily harm, and I return to it later in this decision.

Murder Charge

19. As to the charge of murder, the Crown acknowledges that it relies heavily on the evidence of George Mendai, the brother of the deceased Paul Osi. His evidence was that he was with Paul Osi when they ran back to the lane behind Michael Bennett’s family house following the attempted cutting of George Nolley. He stated that after that, they ran back to the place on the road where they had previously stood, namely the area from which the stones had been thrown. As they were running back to this same spot, George Mendai said he saw Joshua Kama standing with two or three other boys from Rove, one of whom he recognised as Wasi McPride. He said shortly after this, Joshua Kama and Joe Fakani walked towards he and Paul Osi. He said that Joe Fakani then pushed him on his right shoulder, having asked ‘was it you that was shooting?’ While he was being pushed, he said he looked and Joshua was standing beside Paul Osi. His evidence was that he heard a sound "like someone punched Osi". The witness described the sound by banging his chest. He stated he saw the action of Joshua Kama’s hand going, and then Osi was bending down. He said the hand "banged, it was if he was punched him". He demonstrated on his own body the area the hand banged, and it was described as his ‘midrib’. He stated he and Osi were close when this happened. He stated that he and Osi had been approached from behind by the two accused.

20. I find that the area of contact on Paul Osi as described by George Mendai is consistent with the medical evidence of a single stab wound to the abdomen of Paul Osi. I am satisfied from the evidence of Dr. Baerodo that Paul Osi did suffer a single stab wound to his abdomen, which was approximately 2 centimetres in length and 1 centimetre in width at the entry point and was some 10 centimetres deep. I am satisfied that this injury in turn caused massive bleeding and that this resulted in the death of Paul Osi. I accept the doctor’s evidence that the wound was consistent with Paul Osi being struck with a sharp instrument such as a knife and with "relatively strong force".

21. Following this incident, George Mendai’s evidence was that he and Rex Bennett helped Paul Osi up to a nearby house, where he then saw an injury on Paul Osi. He was then taken to hospital. I accept George Mendai’s evidence as to this.

22. I accept the evidence of George Mendai as to what he said he saw in relation to Paul Osi being "banged". From the evidence as a whole I am satisfied beyond reasonable doubt the incident described by George Mendai was when Paul Osi received that fatal stab wound. I accept that after being "banged" Paul Osi was bending over and then had to be assisted to the nearby house with an injury. This is consistent with the time he was "banged" being the time when he suffered that fatal wound.

23. However, the main issue raised by the defence on the murder charge is one of identification. In his police statement and his unsworn statement in Court, Joshua Kama denies being armed that night other than with the stick he said he picked up to strike Ben Subu. Joshua Kama also denies that it was he who approached Paul Osi from behind and then fatally stabbed him. I add that none of the Crown witnesses gave evidence that they saw Joshua Kama that night armed with a knife or any other weapon, other than the stick with which he admits striking Ben Subu.

24. As to identification, George Mendai's evidence was that he did not know who Joshua Kama was prior to the night of the incident, and that he did not speak to him that night.

25. George Mendai said in evidence that Joshua Kama looked the same that night as he did at this trial. When asked to elaborate on what he looked like on the night in question, he simply said "the hair was short". He was unable to describe the clothes the person he said was Joshua Kama wore that night. I find that the incident occurred after dark, that there was limited lighting on the main road at the time of the incident, and that George Mendai had been pushed such that he nearly lost his balance at the very moment that Paul Osi was stabbed, preventing him getting a clear view of what occurred.

26. While I find that Joshua Kama was at the party that night, and that George Mendai heard Michael Bennett using the name Josh in conversation, there is the possibility that George Mendai mistakenly assumed that a particular person was Joshua Kama when he was not. A party was going on with a number of guests and it is to be recalled that George Mendai neither met nor spoke to Joshua Kama that night.

27. While George Mendai unhesitatingly and voluntarily identified Joshua Kama during the trial out of four accused sitting in the dock, limited weight is to be attached to that for obvious reasons, including the fact that George Mendai may have been told prior to entering the Courtroom the position in which that accused was sitting. This identification is also tempered by the fact that in the long term preliminary inquiry in the Magistrate’s Court, at which Joshua Kama was present as one of the accused, George Mendai was unable to identify that person and told the Magistrate’s Court that Joshua Kama was not in Court that day.

28. George Mendai gave three written statements to the Police following the incident, the first on 21 October 2006 on the night of the incident, the second in the afternoon of the following day 22 October 2006, and the third on 7 November 2006.

29. In his first and second written statements, George Mendai did not name Joshua Kama as the person who had attacked Paul Osi and banged his chest. Nor did he name Joe Fakani as the other person present at the incident. This has some significance because after his first statement to police, he later that night, along with some other Rove boys present that evening, accompanied the police to Ngossi where arrests of the accused took place, including the arrest of Joshua Kama. It is clear from the statement of Staff Sergeant Rofumana that the purpose of taking with him persons present that evening was to identify the perpetrators of the alleged crimes so that arrests could then be made. If at that stage George Mendai had recognised the person Joshua Kama as Paul Osi’s attacker, then he surely would have learnt his name from the other Rove boys present, who I accept from their evidence, knew Joshua. The fact that in his second statement the next day he did not name Joshua as the attacker of Paul Osi suggests that he was unable to recognise Joshua as that person when the arrests were made the night before.

30. George Mendai attempted to explain himself in Court by saying that at the time of the first statement he was not feeling well and was unsettled because of the loss of his brother, and that during the taking of the second statement he was tired. While I accept this, it does not in my view satisfactorily explain why on such a crucial point as the identity of Paul Osi’s attacker he did not name Joshua Kama. To the extent that George Mendai suggested that the statements were not an accurate record of what he said to police, I reject those assertions entirely.

31. It was only in his third statement to police of 7 November 2006 that George Mendai named for the first time Joshua Kama as the attacker of Paul Osi. Significantly, this was the day after George Mendai and other key Crown witnesses had attended a reconstruction of events at the crime scene, at the instigation of the police. It is clear from the evidence that prior to and during that reconstruction there was ample opportunity for discussion between those who had witnessed the events of 21 October 2006. In light of this and his previous failures to identify Joshua Kama as his attacker, I attach limited weight to his belated naming of Joshua Kama.

32. There is also another significant factor in the taking of statements by the police. On the afternoon of 22 October 2006, the day following the incident and following the police taking statements from all the witnesses, they then interviewed one of the suspects, Philip Koro. That record of interview shows the following questions and answers:

" Q 64.Q Police witness saw you come across from Goodview Store along the road and hit the deceased with you (sic) hand and they saw you pulled out something like a sharp instrument from his chest/belly what will you say.

A I did not go close to the boys who shot me.

Q.65 Q. Witness stated that after you pulled out something sharp and you ran back, the deceased bend down holding his belly and said that you kill him.

A. No that is not true".

33. This suggests that even after taking statements from the key witnesses, including George Mendai, police had no positive identification of Joshua Kama as Paul Osi's attacker.

34. As to Joe Fakani, the Crown says that it was he, in the company of Joshua Kama, who pushed George Mendai while Paul Osi was stabbed. Once again it is the evidence of George Mendai that the Crown principally relies upon as to this. George Mendai stated that he recognised the person who pushed him as Joe Fakani as he had seen him on a previous occasion playing rugby and heard his name before that night. He describes him as having dreadlock hair on the night of the incident.

35. Significantly, in neither of George Mendai’s first two statements to Police, made on 21 and 22 October 2006, did he name the person who pushed him. It was only on 7 November 2006, the day after the police organised reenactment of the scene, that he named Joe Fakani as that person. Additionally, as to the long form preliminary inquiry in the Magistrate’s Court on 3 April 2007, he agreed in this Court that he had told the Magistrate he did not see the person who pushed him.

36. In evidence at this trial, George Mendai denied that it was Rex Bennett and Philip Palmer (both also Crown witnesses) who had told him that it was Joe Fakani who had pushed him. An extract from his statement to police on 7 November 2006 was then put to him, which stated:

"In fact, I heard only his name Fakani, but my first time to see him that night ... he is known by Rex and Philip as both knew him for some time. Both informed me that I was pushed off by Fakani."

He then conceded in evidence that what he said in his statement was true.

37. Significantly, neither Rex Bennett nor Philip Palmer gave evidence of having seen Joe Fakani push George Mendai, and nor did any other witness. From the evidence I infer that George Mendai was pushed but did not actually recognise who it was that pushed him. I conclude that it has not been established that it was Joe Fakani who pushed George Mendai.

38. Returning to George Mendai's evidence that it was Joshua Kama that banged the chest of Paul Osi, for the reasons given I find his evidence as to the identification to be weak. I now consider what corroboration there may be to support his assertion.

39. The first point of significance is that none of the other Crown witnesses gave evidence that they saw Joshua Kama strike Paul Osi. Philip Palmer gave evidence that he saw Joshua Kama and Joe Fakani approach Paul Osi and get very close to him, and the next thing he noticed was that Paul Osi fell down. Following that, he said he saw those two accused walk away. He acknowledged that he did not see what the two accused did to Paul Osi. Simon Naitoro gave evidence to the effect that he saw Joshua Kama and Joe Fakani standing in front of Paul Osi, but he was not paying attention to them and did not see anything occur, except for Paul Osi being led back straight afterwards. Mark Temulani said he saw the three boys who had been around Ben Subu move to Paul Osi. He said that he did not see what they did, and only saw Paul Osi run from them holding his chest.

40. None of this supporting evidence, even if accepted in its entirety, is sufficiently strong to bolster the evidence of George Mendai to the point that I can be satisfied beyond reasonable doubt that it was Joshua Kama who attacked Paul Osi.

41. The Crown in submissions asserts that in respect of Joshua Kama and Joe Fakani, there is no evidence that places any other persons near Paul Osi at the time the injury was caused, or a time before this. This is not entirely accurate as, for example, there is the evidence of Mark Temulani that he saw three persons approach Paul Osi. In any event, the question posed by the Crown that if Joshua Kama and Joe Fakani did not do it then "who then could be responsible for the stabbing of Paul Osi?" invites me to infer by a process of elimination who is responsible. I do not consider the facts of this case are sufficiently clear to enable me to do this. The Crown acknowledges, as it must, that

"the evidence establishes that there were a lot of people in the area and a lot of different things happening at once. In these circumstances, it is not surprising that different witnesses saw different aspects of the incident and not other parts." (para.1.17 Crown’s closing submissions), and that "what occurred happened quickly. It happened with many people in the area and with a lot of different things happening at once" (para. 19 Crown’s closing submissions).

42. I agree with that part of the Crown’s submissions, and it leaves open the possibility that Paul Osi’s attacker was not Joshua Kama, and that the person who pushed George Mendai was not Joe Fakani. I add that there is nothing in the evidence of what occurred subsequent to the stabbing of Paul Osi that affects this conclusion.

43. In the circumstances, the Crown has not established beyond reasonable doubt that it was Joshua Kama who inflicted the fatal blow, or that it was Joe Fakani who assisted the attacker by pushing George Mendai out of the way.

44. As the identity of those perpetrators has not been established, it necessarily follows that the charge of murder against each of the four accused is not proved. I add that liability under section 22 of the Penal Code cannot attach as it has not been established that the killing was the result of any unlawful purpose being carried out by the four accused.

Unlawfully Attempting to Strike with a Weapon with Intent to Cause Grievous Harm

45. I now return to the second charge against Peter Kwaitaka and Philip Koro of unlawfully attempting to strike George Nolley with a bush knife with intent to do grievous harm.

46. It is recalled that George Nolley said that he had successfully blocked an attempt by Joe Fakani to cut him with a knife. This was at a time that George Nolley had gone down to the main road because of his concern for the well-being of his nephew.

47. I am satisfied that there was a confrontation between George Nolley and another who carried a bush knife. I am also satisfied beyond a reasonable doubt that it was not Joe Fakani who carried the bush knife but Peter Kwaitaka, the latter admitting in his dock statement that he was the one who had carried the bush knife.

48. Peter Kwaitaka said in his dock statement that he had waved the bush knife at George Nolley in order to frighten him off. This is, of course, completely at odds with the evidence of George Nolley, who said that a person armed with a knife had said to him "come here this is your knife" before advancing towards him. He said he then had to parry an attempt to chop him by using his left hand to physically block the hand of the man which held a raised knife, and which had been lowered to chop him. This was said to be from a distance that was "very close". George Nolley’s evidence was the knife then fell to the ground, and that another man then moved towards him, holding a weapon in his right hand. He said that this second man became unbalanced, at which time the person who had swung the bush knife picked it up from the ground. He said that these two persons were the same two that he had seen in front of the Goodview store.

49. George Nolley’s evidence is corroborated by several witnesses. Bartholomew Noli said he saw the two who were at the Goodview shop come towards George Nolley, and that one called to him saying "iu kam dis knaef fo ui". He saw this person with a knife, swinging the knife up and down, and the other person was holding something like a weapon. Both looked cross and were shouting.

50. Bartholomew Noli said he then saw the man with the knife raise it to chop Nolley, at a distance he described as between himself and the interpreter sitting alongside him in Court. He said the man chopped with the knife and Nolley defended himself and blocked the attempt with his left hand, and the knife fell to the ground. The other man, who was making small punching movements and holding an object in his hand, "wanted to punch Nolley" but slipped and fell.

51. Rex Bennett and McPride Wasi both gave evidence to the effect that they saw Peter Kwaitaka try to chop George Nolley with a knife, and both Philip Palmer and George Mendai identified the two involved in this confrontation with George Nolley as Peter Kwaitaka and Philip Koro.

52. When one considers the evidence of George Nolley along with those corroborating versions, I am left in no doubt that it was both Peter Kwaitaka and Philip Koro who advanced on an unarmed George Nolley with menace and with intention to cause him grievous harm. I completely reject the assertion that this was simply an attempt to frighten him off so that those two could escape the scene. Their actions show otherwise. I accept the evidence of George Nolley, corroborated by several witnesses, to the effect that Peter Kwaitaka got to within striking distance of him and then chopped at him with a bush knife, which blow was then parried by George Nolley. The inevitable inference which I draw from this and the stated threat to harm is that Peter Kwaitaka was in fact unlawfully attempting to strike George Nolley with the knife, and that in attempting to do so had the intention of causing him grievous harm.

53. I am also satisfied that Philip Koro was acting in concert with Peter Kwaitaka – I find from the evidence that he followed him to where George Nolley was, that he was armed, that he was making punching movements with his hand, that he displayed belligerence, and that when the knife held by Peter Kwaitaka fell to the ground he tried to advance on George Nolley but slipped and fell. In my view Philip Koro encouraged and assisted Peter Kwaitaka to carry out the attempted striking of George Nolley, and is therefore liable for the offence under section 21 of the Penal Code. In so concluding, I have not overlooked the apparent concession by George Nolley in cross-examination that the second man (who I find was Philip Koro) never come close him or threatened him. Despite this, the evidence as a whole satisfies me, beyond reasonable doubt that Philip Koro encouraged and assisted Peter Kwaitaka in carrying out the attack.Both were armed, both approached an unarmedGeorge Nolley with threatening gestures, a threat of harm was called out, and there was an attempt to cut him followed by another attempt to advance upon him.

Assault occasioning Actual Bodily Harm

54. I return now to the third charge relating to Ben Subu. Joshua Kama and Joe Fakani are charged with assaulting him, thereby occasioning him actual bodily harm. Ben Subu gave evidence that he was at the junction holding a stone when Joe Fakani yelled out ‘don’t shoot’, at which time he threw the stone into a banana patch. Joe Fakani and Joshua Kama then advanced upon him, and he was first punched and kneed by Joe Fakani who was pulling him by his shirt towards him. Joshua Kama then hit him on his forehead with a stick at a time that he was struggling to get up. This caused bleeding, and continued to be painful for a week.

55. There is corroboration of this account from the evidence of a number of witnesses. Felix Galo said he saw Joe Fakani use his fist to punch Ben Subu in the mouth, then knee him, followed by Joshua Kama hitting him on the head with a stick. He did not know if Ben Subu was holding anything at the time.

56. Simon Naitoro gave evidence that he saw Joe Fakani holding Ben, then punch him, and then Joshua Kama hit Ben Subu on the top of his head with a stick. Amos Male’s evidence was that he saw Joe Fakani punch Ben Subu, and then Joshua Kama whipped Ben Subu on the head with a stick, breaking the stick in the process. He said that Joe Fakani was standing behind Ben, holding him, when Joshua Kama did that. McPride Wasi’s evidence was that he saw Joe Fakani hit Ben Subu with his hand, and did not accept the suggestion that Ben Subu was bending down when first approached by Joe Fakani. He also stated that he did not see Ben Subu throw any rocks. Rex Bennett’s evidence was that he saw Joe Fakani punch Ben Subu with this hand, and did not accept the suggestion that Ben Subu was bending down when first approached by Joe Fakani. He also stated that he did not see Ben Subu throw any rocks. Rex Bennett's evidence was that he also saw Joshua Kama whip Ben Subu on his head with a stick, and that this was while Ben Subu was bending down and Joe Fakani held him. Jay Rex Bennett’s evidence was that he also saw Kama gave evidence of seeing Joe Fakani holding a boy and Joshua Kama whipping him, maybe with a stick. Mark Temulani gave evidence of seeing Ben Subu being hit with a stick. While he agreed that Ben had some stones in his hands and was going to throw those stones, he disagreed that Ben was held onto just as he was going to throw stones. Billy Tuhatonu gave evidence of Joe Fakani swinging a boy around and Joshua Kama whipping him, and Christopher Baeoro gave evidence to similar effect.

57. In his unsworn statement, Joshua Kama said that he had returned to the junction area after having been dropped off at Ngossi because he was following his friend Alick Kabui who was drunk. He also said that another reason for going was that he wanted Peter Kwaitaka and Philip Koro, who had walked down ahead of him and Alick, to come back. He said when he got to the junction area there was stone throwing so he picked up a stick to defend himself, that he saw a boy with a stone in his hand intending to throw it even after Fakani had yelled out, ‘hey no shoot’, that Joe Fakani then grabbed that person and swung him around, and then he (Joshua Kama) struck him in the midrib area with the stick he was carrying. He said that the blow landed on Joe Fakani’s hand before deflecting onto the person’s body. In effect, then, his evidence was that he and Joe Fakani were trying to bring an end to the stone throwing and calm the overall situation down.

58. Joe Fakani gave an unsworn statement to similar effect, saying that the reason he went down to the junction was to retrieve his two brothers-in law Peter Kwaitaka and Philip Koro. He said he felt responsible for them. He said that at the junction he saw stone throwing, he then shouted out to those throwing stones not to shoot, and that some Rove boys then ran away but one did not and was bending down to pick up a stone from the ground. He stated he walked over while the boy was still bending down, held him and kneed him, and that while still holding him suddenly Joshua Kama hit him with a stick. He said he was not still holding Ben Subu in order for Joshua Kama to hit him. He then went directly to Peter Kwaitaka, removed the bush knife from him, bent it and threw it to the seaside. His reason for doing so was to stop anyone being cut with the knife.

59. I do not accept the dock statements of Joshua Kama and Joe Fakani were truthful in important respects. If the reason for their presence at the junction following the closing of the party was out of concern for Peter Kwaitaka and Philip Koro, then they surely would not have walked off down the road to Rove Park following their involvement as described without ascertaining the whereabouts of Peter Kwaitaka and Philip Koro. Nor would they, some 10 to 15 minutes later, have returned to Ngossi without once again checking up on Peter Kwaitaka and Philip Koro.

60. I infer from the evidence as a whole that the reason for their presence was to provide support for Peter Kwaitaka and Philip Koro in an anticipated confrontation with the Rove boys. The preponderance of the evidence was that Ben Subu was not bending over to pick up a stone when attacked by them, and nor was he continuing to hold a stone in his hand. I accept that evidence, and the evidence of Ben Subu himself that he threw away the stone he was holding once Joe Fakani had yelled out to stop shooting. I also infer that the reason Joe Fakani called for a stop to the shooting was because stones were being directed at his brothers-in-law outside the Goodview store, and not because of any desire to restore peace to the area. To the contrary, I find that Joe Fakani and Joshua Kama set upon an unarmed Ben Subu, who had not had the good fortune to run away, with ferocity. I do not accept that either Joe Fakani or Joshua Kama believed Ben Subu to be armed with a stone at the time. I find that Joe Fakani first punched Ben Subu in the face, then kneed him. I find he then deliberately held onto him in order to facilitate Joshua Kama striking him with a stick, and reject the contention that he had merely held him to knee him. I find that he knew Joshua Kama had armed himself with a stick and was intent on using it on Ben Subu. I find that he was struck on the forehead with the stick as he Ben Subu described, which evidence was supported by a number of other witnesses. I also find that this blow was forceful and cause bleeding to the forehead of Ben Subu. Finally, I reject Joe Fakani’s unsworn assertion that the reason he removed the knife from Peter Kwaitaka, bent it and threw it away, was because he did not want anyone to get cut with the knife. I infer that it was motivated by a desire to get rid of evidence which could incriminate his brother-in-law.

61. I find that it has been established beyond reasonable doubt that Joshua Kama did assault Ben Subu using a stick and causing him actual bodily harm as a result. I also find that he was actively assisted in this by Joe Fakani, who held onto Ben Subu in order that Joshua Kama could administer the blow to the head. I reject the assertion that the blow struck the hand of Joe Fakani. Thus Joe Fakani is liable for the offence as party under section 21 of the Penal Code.

62.

(i) On the charge of murder, I find each of the accused Not Guilty, and they are acquitted and discharged on this charge.

(ii) On the charge of unlawfully attempting to strike a person with a weapon with intend to do grievous harm, I find Peter Kwaitaka and Philip Koro Guilty, and they are convicted accordingly.

(iii) On the charge of assault occasioning actual bodily harm, I find Joshua Kama and Joe Fakani Guilty, and they are convicted accordingly.

BY THE COURT

HON. JUSTICE IDR CAMERON
PUISNE JUDGE