Regina v Hoala [2010] SBHC 24; HCSI-CRC 10 of 2009 (7 May 2010)

HIGH COURT OF SOLOMON ISLANDS
(Naqiolevu, J)

Criminal Case No. 10 of 2009

REGINA

V

CYRIL HOALA

Date of Hearing: 26th, 27th, 29th April 2010
Date of Ruling: 7th May 2010

For Crown: Mr. Henry Kausimae
For Accused: Ms. L. McSpedden/G. Gray

Judgment

Naqiolevu J:

The accused is charged with the offence of Murder contrary to Section 200-202 of the Penal Code.

Crown’s Case

1. The crown’s case is that the accused was an "accessory" or a party to the killing of the deceased late Bobby Sae Nare by the group Black Sharks on or about the 11th of June 2000 on Gizo in the Western Province.

That the accused was a member of the so called Black Sharks and that he was present at the crime scene and aided and abetted in the killing of the deceased. That he had formed a common purpose with the Black Shark group to carry out some unlawful acts upon the deceased and his friends on that night.

2. The Crown is therefore relying on the "parties to offence" provisions of the Penal Code Cap 26, Section 21 and 22 as being the basis for alleging the accused’s criminal liability in relation to the said murder.

3. The Crown alleges that the extent of the accuseds responsibility, involvement or participation in the crime was one of the either "joint criminal enterprise" or "common purpose". Sections 21 and 22 are alleged in the alternative in that, should the court find no evidence in support of Section 21, it should also consider Section 22.

DEFENCE SUBMISSION

4. Counsel for the accused submit that the Crown has opened its case in reliance of Sections 21 and 22 of the Penal Code. However it asserts that the Crown Case fails at a far more intrinsic level.

The accused is arraigned for murder and it is essential to the crown case to prove that the accused committed the acts it relies upon to make out the commission of the offence, whether it be on the basis of Section 21 or Section 22.

5. Counsel submit it is not in issue that an unlawful act caused the death of the deceased. If it can be shown that the accused was an accessory or part of a joint criminal enterprise depends upon the Crown proving beyond reasonable doubt that it was this accused who either aided or abetted or was part of the criminal enterprise.

6. Counsel assert that an application of the appropriate test and taking the evidence in the crown case at its highest, there is no evidence upon which the court could convict the accused as there is no evidence that it was this accused can be found beyond reasonable doubt to be the person who is named in evidence as a perpetrator.

7. Parties to Offence

The law on the parties to an offence is clearly laid out under Section 21 of the Penal Code.

Section 21 – 22

"When an offence is committed, each of the following person is deemed to have taken part in committing the offence and to be guilty of the offence and maybe charged with actually committing it, that is to say

(a) every person who actually does the act or makes the omission which constitutes the offence.

(b) every person who does or omits to do any act. For the purpose of enabling or aiding another person to commit the offence.

(c) every person who aids and abets another person in committing the offence.

(d) any person who counsels or procures any other person to commit the offence.

In the last mentioned case he may be charged either with committing the offence or with counseling or procuring its commission.

Section 22

"Where 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".

8. The court is of the view that the perquisite for the offence of joint criminal enterprise and common purpose are presence, as recognized in relation to aiding or abetting may be either actual or constructive.

9. The term is succinctly put by the High Court of Australia, where the Honours stated, in the case of AcAcliffe-The Queen([1])

"Those terms common purpose, common design, concert, joint criminal enterprise are used more or less interchangeably to invoke the doctrine which provides means, often additional means, of establishing the complicity of a secondary party in the commission of a crime".

10. The crowns case is that the accused was an accessory or a party to the killing of the deceased Bobby Sae Nare by the group Black Sharks on the day in question. He was a member of the group and that he was present at the crime scene and aided and abetted in the killing and formed a common purpose to carry an unlawful act.

11. The evidence of the PW1 Freda Silani is that after she and the other 5 PW had spent some time talking and playing cards under the buni trees they went into the workshop and went to sleep. The witness testified after she and her boyfriend went to sleep the next thing she remembered happened was that a group of Bouganvilleans came into the workshop and bashed them up. The witness further testified that after she woke up she heard a gun shot coming from inside the workshop.

12. The witness testified that while she and her boyfriend was asleep the group threw them from the hammock, and upon being further pressed said, they remembered Cyril and had forgotten the name of the other person. The witness told the court that one called Pani hit her on both things, and one Ivan hit her on the back of the head. The witness then told the court after Cyril hit the witness he interrogated the witness about guns and asked where the guns were hidden. After Cyril hit the witnesses he continued to remain with the rest of the group inside the workshop. The group was asking the witness and her friends about the guns and they kept bashing up John Merea and Graciano.

13. The PW1 further testified that during this time the deceased was still lying on the cushion and when she looked at him, the legs and hands were shaking. The witness told the court they were then told to sit where the deceased was lying and when she tried to wake him up, he would not wake up and so she put her hand on the back of the deceased’s head and felt something wet at the back of the head; the witness then noticed her right hand was full of blood.

14. The PW1 testified they were told to go outside and when they got to the gateway where the workshop was, the group stood in a group and continued the bashing. The witness told the court that between the workshop and the main road, she saw Cyril walking in front behind the boys. The witness testified that Cyril was holding and pointing the guns at them (Merea and Graciano) while walking from behind them.

15. The PW1 further testified that she was able to recognize a Barry, Ivan and Cyril inside the workshop because they have been living in Gizo prior to the incident, she did not know the name Cyril during the incident but recognized his face. There was sufficient light inside the workshop to recognize the face of the man she later knew by name as Cyril, and she thinks the only place which Cyril lived in Gizo at the time was at the PT109 club.

16. The evidence of PW2 Clarinda Viva is that she was sleeping inside the workshop with PW1, PW3 and PW4 and the deceased when the incident happened. The witness testified that Cyril and other men came inside the workshop and woke her up by kicking her on her back. The witness told the court that Cyril was with many men who were armed with guns.

The witness further told the court that Cyril asked her what she was doing in such a place and told her to leave the workshop immediately, she said Cyril appeared angry at the time.

The witness clearly identified and recognized Cyril inside the workshop there was sufficient light inside the workshop and she had knew Cyril before as family because his dad married her aunt and they live in the same house and that he would come and go.

17. The testimony of PW3 he was staying with the group including the deceased when the incident occurred. The witness told the court he was bashed up and badly beaten with the butt of the gun by the group of armed men at the workshop that night. The witness testified he recognized Cornelius, Peri and Willie among the group of armed men inside the workshop who beat him up. The witness told the court when taken outside the workshop to the main road he was able to recognize another person he referred to as Cyril, at the main road beside the RK shop because of the light from the building that lit the area.

The witness further testified that the person he referred to as Cyril also alerted the group to stop when the police truck was approaching along the main road.

18. PW4 testimony clearly confirm the testimony of the other crown witnesses that after spending time at the Buni tree, they went to the workshop and went to sleep and woken up by the group of Bougainvilleans, armed with guns who proceeded to beat them up.

19. The witness told the court he was bitted up for a long time, before being led outside the workshop with PW3 and PW1 to the main road before being handed to the local police truck and taken to the police station. The witness made no mention of the person known to as Cryil.

Conclusion/Reason

20. Clearly it is not in dispute that a group of armed men entered the workshop on the night of the 11th of June 2000 and assaulted the group of people asleep in the workshop. The group were looking for guns which they suspected was being kept in the workshop of one Malaitan known as Mathew.

21. It is not in dispute that the victim Bobby Sae Nare died of a gun shot as a result of the invasion by a group of Bougainvilleans. The victim Bobby Sae Nare had been seen around Gizo town with a replica or a toy pistol. It is clear that the group had entered the workshop armed looking for guns they suspected to be in the building.

22. The matter in dispute is whether the accused was part of the group and formed the group acting in concert, and whether he was present at the time of the shooting and the assaults that took place.

23. Counsel for the accused had made an application for a No Case to Answer, which the court rejected holding there was sufficient evidence to have the accused put its case.

The accused after the ruling of a Case to Answer elected not to give evidence in his defence, which he is entitled to do.

24. The question for the court to determine, was the accused with the group who entered the workshop on the fateful night in question, and assaulted the group of people asleep, and was he present and the referred part of a joint criminal enterprise.

25. The evidence of PW1 is that after she was woken up with the sound of a gun shot, and thrown from the hammock where she was asleep, after she was hit by Cyril, he proceeded to interrogate her about guns. The witness testified that Cyril after hitting her remain with the rest of the group inside the workshop. The witness further testified that Cyril joined the group to "Kill" which means in pidjin to beat or bash up the two boys. The witness further told the court that she saw Cyril holding a gun and pointing it at Marea and Graciano while walking from behind them.

26. The witness confirmed she did not know Cyril but recognize him as he has been living in Gizo. The court accept the testimony of the witness to be truthful, however she seems confused due to the difficulty in understanding the English language. She was interviewed in her testimony.

27. The testimony of PW2 Claudio Vave tends to support the testimony of PW1 that the accused Cyril was present and part of the group who entered the workshop and assaulted them. The witness not only recognized him when he woke her up and questioned her as to know what she was doing there at the time and told her to go outside. The witness positively identified the accused as Cyril as she had known him before and the family because his dad married her aunty and they lived in the same home and that he would come and go.

28. The testimony of PW3 further tend to support the presence of the accused and part of the group of armed men who entered the workshop proceeded to beat up the group of people asleep at the time. The witness was able to recognize the accused he referred to as Cyril at the main road beside the RK shop building because of the light from the building that lit the area. The witness further in his testimony said that the man Cyril alerted the group as they were being lead onto the road to stop as police truck was approaching.

29. I find the witness was honest and truthful and a reliable witness and he did not overstate or exaggerate what occurred which clearly implicate the accused.

30. The court is of the view that the identification of PW2 as the accused Cyril who kicked her and spoke to her and told her to go outside is important given he is a relative by marriage and who had lived in the same home from time to time. The witness had the opportunity to observe the accused in a confined area for a period of time. PW1 and PW2 further had the opportunity to observe the accused during the period of the beating and the questioning as to where the guns are. The period is sufficient to enable the crown witnesses to recognize the accused and being part of the group. The court adopt the authority of Saeni-v-R([2]) where the court said,

"The witnesses had the opportunity to observe the accused over a period of time. They were not treated to a mere fleeting moment."

31. The court is of the view that as clear from the evidence although inconsistent in parts, but accept the circumstance existing at the time the period in which the offence was committed. The witness had told their story in a way of what had occurred on the night in question. There were aspects of their story that weren’t included and it was only after extensive questioning in examination in chief and cross examination by counsel that the witness recalled all that happened that night.

32. The court in assessing their evidence must take into consideration the limitations that pidgin has and the ability for the witness to fully express their story.

33. It is clear the issue for the court is whether the accused was part of the group of men that formed the group acting in concert, and whether he was present at the time of the shooting and participated in the assaults. The accused knowingly involved himself in a situation which reasonably foreseen or indeed contemplated that the group of armed men would exert violence upon the deceased and his companions inside the workshop that night. Clearly, the accused acted in his role as a party to the offence by his involvement.

33. Identification of the Accused

In considering the various witnesses evidence as to the identity of the accused. The court take into consideration the Turnbull principle and must warn itself of the importance of the principle. The various crown witnesses have had more than one to two encounter with the accused.

The encounter with the witness is not a "fleeting" glance but involve a period of several hours.

34. The court is of the view that the evidence of the crown to prove the required standard the identity of the accused as part of the group of men that entered the workshop and killed the deceased and assaulted Clarinda, Freda, John Merea and Graciano on the night in question and he was acting pursuant to a joint criminal enterprise and common purpose to embark on an unlawful act against the victims that night.

35. The court adopted the principle of law enunciated by the Court of Appeal in the authority of Luavex-v-R([3]) where the court stated

"In our respectful opinion his Lordships application of Section 22 of the CODE was appropriate and correct in the circumstance proved at this trial. Section 22 deems each of two or more persons to have committed an offence of which the commission is of such a nature as to be probable consequences of prosecuting a "common purpose" together. Under Section 22 the purpose must be one that is unlawful and its commission must result from forming a common intention to prosecute it in conjunction with one another. Here the purpose was unlawful because one of its key elements was that the intruders of members of the appellant’s group would enter a room that was in peaceful possession of the occupants with the intention of using forcible act or threats to subdue them. To that extent that a question "of purpose" is involved, Section 22 is subjective in its operation it depends on formation of an actual intention or purpose to do something unlawful".

36. The court is of the view that the group of armed men entered the workshop where the group were asleep with the intention of locating guns they suspect were being kept at the workshop. They proceeded to assault the occupants and question them as to the whereabouts of the gun. It is clear the group’s purpose was to, by force and threatened the occupants and which the consequence was the death of the victim. The court the principle of law in the decision of the Court of Appeal in the case of Luavex-v- That State([4])

"Applying the test there can be no doubt that the requisites of Section 22 of the CODE were satisfied. When a group of men go in the night masked, and armed with high powered firearms, intending to force their way into someone else’s room in order to do violence upon them, there is every probability that firearms will be discharged and some one or more of those present will be shot and killed. That is the reason for bringing and using guns on such occasions. Murder was thus in fact the preable consequence of carrying out the common intention of purpose .............it was something that might well happen. So it was here. The appellant was therefore rightly held criminally responsible for the murder that were committed that night, and that is so whether or not it was he personally, or one of the other among the intimidating group who fired the fatal shot or shots".

37. The court in all circumstances consider the crown has proved its case beyond reasonable doubt the accused was part of a group that formed a common purpose to enter the workshop on the night in question to carry out an unlawful act, and they should have foreseen that the probable consequence would be the fatal shooting of the victim.

The court find the accused guilty as charged and there being no other sentence authorized accused to law sent him to life imprisonment.

THE COURT

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^[1] (1995) 183, CLR 108
^[2] [2006] SBCA 23
^[3] [2007 SBCA] 13
^[4] ibid