R v Oritalea [2010] SBHC 36; HCSI-CRC 305 of 2008 (9 July 2010)

HIGH COURT OF SOLOMON ISLANDS
(FAUKONA J)

Criminal Case No. 305 of 2008

R

V

JOHN BIKINEMU ORITALEA

For the Crown: Ms Joel and Mr. Coates
For the Accused: Mr Nori

Date of Hearing: 14th – 18th June 2010, and 23rd June 2010
Date of Judgment: 9th July 2010

JUDGMENT

FAUKONA J: The accused John Bikinemu Oritalea is charged for one count of Murder contrary to Section 200 of the Penal Code and second count of Robbery contrary to Section 293 (1) (a) and (b) of the Penal Code.

2. The particulars of the offences are that on 22 December 1989, at Bahi hill the accused being armed with an offensive weapon, together with his onetalk Kalisto Geniufaria did rob James Symes, at the time of robbery did use personal violence to James Symes and murdered him.

3. The accused denied the charges upon arraigned on 14th June 2010, hence a trial is ensued.

The Facts

4. From previous visits to Lavuro Plantation, the accused learned the workers were to receive their wages on Friday, 22nd December 1989.

5. The accused then planned with his onetalk Kalisto to travel to Lavuro on the morning of 22nd December 1989, being armed, with the purpose of robbing the deceased and to take the labourers' pay.

6. In the morning of 22/12/1989 the accused and Kalisto took a Taxi Reg. Number 7000 driven by Alick Wane (Crown witness) and left Honiara main Market and headed west and were dropped off west of Bahi hill on West Guadalcanal.

7. After being dropped off both men proceeded to Bahi hill and cut a tree and placed it across the main road, and then took up their ambush positions.

8. The accused with Kalisto then waited for the deceased. When he arrived at Bahi hill, he stopped to remove the stick. The accused approached him and killed him.

9. Both men then escaped with the labourers' pay. The following day at night both men took a canoe and paddled to Tambea. From Tambea they walked to Prawn Farm and later traveled to Honiara on the next morning by logging company vehicle.

10. Evening of the same day both men left Honiara by boat and traveled to Malaita.

The Prosecution Case

11. The accused was the one who planned and organized the trip to Lavuro, after having knowledge that the labourers will get their pay on 22/12/1989. He met his onetalk Kalisto at the main market and traveled to Bahi hill on West Guadalcanal together in a Taxi Reg. No. 7000. They dropped off at Bahi area, cut a log and planned to ambush the deceased. When the deceased came and stopped to remove the log they attacked him with a sharp instrument. They killed him and robbed him. Both men fled together and the accused left his hat at the scene. They fled using a canoe to avoid the road and being detected at the crime scene. They then traveled to Tambea, then to Prawn Farm and then to Honiara, and later in the evening of the same day they traveled to Malaita together.

The Defence Case

12. The accused admits taking a Taxi Reg. No. 7000 with Kalisto from Honiara to Lavuro in the morning of Friday, 22/12/1989. The purpose of going there was to look for sea shells and to play dice at Lavuro. He admits wearing a hat but deny carrying any offensive weapon. Both men dropped off west of Bahi hill near the beach and both went straight to look for shells. Two to three hours later a taxi arrived on the road and Kalisto went to see. When he went he took the accused hat and said he would return. Kalisto did not return until late in the evening and the accused did not bother to ask for his hat because it was already night. About 7 or 8pm at the persuasion of Kalisto, both took a canoe and paddled from Lavuro to Tambea. The accused did not know whether Kalisto had asked for the use of the canoe. They arrived at Tambea late at night. Kalisto then went to Savua Sale's house and bought food and smoke. Kalisto then changed his clothes but not the accused. Late at night both men walked along the road to Honiara as far as the Prawn Farm where one of their onetalks was staying. Next morning they took a vehicle to Honiara. On the evening of the same day they left to Malaita.

13. In this case there was no direct evidence from any witness claim to have personal knowledge, that the accused was seen carrying out the unlawful acts. The Crown evidence against the accused is wholly circumstantial.

The Law on Circumstantial Evidence

14. Circumstantial evidence is evidence from which the desired conclusion may be drawn, but which requires the tribunal of fact not only to accept the evidence presented, but also to draw an inference on it[1].

15. In Blackstone's Criminal Practice, page 167, paragraph 4 it says:

"..........Circumstantial Evidence is evidence of relevant facts that, facts from which the existence or non-existence of facts in issue may be inferred. It does not necessarily follow that the weight to be attached to circumstantial evidence will be less than that to be attached to direct evidence. The tribunal of fact will be likely to attach more weight to a variety of individual items of circumstantial evidence, all of which lead to the same conclusion".

16. And on page 1675 paragraph 4 it states:

".........It is also necessary before drawing the inference of the accused guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference."

17. In Archbold, 42nd Edition, para 9 -1 it says:

"...........and where such testimony is not available, the jury are permitted to infer from the facts proved other facts necessary to complete the relevance of guilt, or establish innocent. It must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another. It is also necessary before drawing the inference of the accused guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference".

18. In the case of Police v Pio[2], Justice Wilson stated:

"When I speak of circumstantial evidence, I mean generally, evidence from which the fact to be proved can be inferred. Circumstantial evidence, as distinct from direct evidence (such as evidence of an eye witness), has been defined as evidence of minor facts of such a nature that the mind is led, by a process of reasoning, to the conviction that some other fact (the fact to be proved) may be inferred. Circumstantial evidence may be as strong as (in fact, it may be stronger than) direct evidence. It may be weak."

19. In R v Duddley Pongi[3], Muria CJ stated at page 5:

"The Prosecution Case is substantially based on circumstantial evidence. As such the Court must be very cautious when considering the case as presented 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 an inference of guilty from the totality of the facts which are proved beyond reasonable doubt."

20. In the case of Regina v Tome[4], the judge described Circumstantial Evidence and said:

"Circumstantial Evidence is not a different species of evidence. Circumstantial Evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts. It is traditionally contrasted with direct or testimonial evidence, which is the evidence of a person who witnessed the event sought to be proved." (Shephered v The Queen (990) 170 CRC 573 per Dawson J at 579)'.

21. In the case of David v State[5], the judge put it in simple word saying:

"In a case substantially dependent on Circumstantial Evidence the question to be asked is: do the proven facts lead reasonably to only one conclusion that the accused did all the things constituting the elements of the offence? If yes, the accused is guilty. If no, the accused is entitled to an acquittal."

22. In the case of Sutarake v State(6) the Curt of Appeal at page7:

'It was necessary for the prosecution to show beyond reasonable doubt that there was on the evidence no reasonable hypothesis consistent with the innocence'.

23. The bare possibility of innocence should not present to court from finding the accused guilty; if the inference of guilt is the only inference open to reasonable man upon a consideration of all the facts. In other words, the guilt of the accused must be the only rational inference open to the court to find in the light of the evidence. In David and Pongi's case above the emphasis is a very significant point in law that the facts must be proved and they lead reasonably to one conclusion that the accused committed the offence.

24. As usual the burden of proof in this Case is borne by the Crown, to prove its case beyond reasonable doubt. In doing so the Crown adduce evidence to support the charges by calling 6 witnesses and tendered 2 exhibits. The first exhibit consists of 34 statements, which are tendered by consents and 21 photographs of the scene of crime, 12 photographs of the deceased's body, a canoe and 2 paddles. Further, a sketch plan of the scene of crime, 4 maps of the distance from Honiara to Lavuro, copy of the NBSI Cheque cashed by the deceased amount to $9,500.00 and the medical report by Dr. Roy Goonewardene.

Identity of the Accused

25. The Crown relies on a number of witnesses to prove this element. The evidence of Alick Wane, the driver of the Taxi Reg. No. 7000 stated that on 22/12/1989, he drove his brother, the accused from Varacreek to the main market. The accused then went to the market, after some time, returned with one Kalisto. Both men told Wane to drive them to Lavuro to play dice and look for shells. He drove them and dropped them off at the seaside on the main road at about 8.30 to 9.00am, and then returned immediately.

26. That evidence is consistent with the accused sworn evidence in Court. Therefore render it unnecessarily and irrelevant to venture further in identifying the taxi, its Registration No., and the number of passengers traveling in the taxi. The accused himself by sworn evidence affirmed that there were three of them in the taxi, the driver Mr Wane, Kalisto and himself.

Drop off time at the vicinity of the scene of crime

27. The next issue that is contended is in relation to the time the taxi could have dropped the accused and late Kalisto at the seaside west of Bahi hill. Time in this case is of essence and very significant to the defence case. The evidence of Wane and the accused suggested that the taxi could have dropped them off at the seaside spot about 8.30am or 9.00am in the morning.

28. That is consistent with the statement of Fred Langly who drove in the morning from Verahue village to Honiara on 22//12/1989. At Aruligo he saw a taxi Reg. No. 7000, light blue in colour, drove westward at about 8.00am. Estimated drop off time at west side of Bahi hill should roughly be 8.30 or 9.00am.

29. Not only that, the statements of James Rapasia, Sister Daniella and Sister Serilla Pita also affirm that on the same day, in the morning, whilst stopping at east side of Bahi hill to exchange driver, they saw a taxi Reg. No. 7000, drove westward at about 7.45am. After a while it returned with only the driver. Estimated drop-off time at the seaside of Bahi hill should roughly 8.00 am or 8.30 am.

30. These evidence points to the fact that the accused and Kalisto were in the vicinity of the crime scene at about 8.00 to 9.00 am on the day of the incident.

The Evidence of Ledi Teha and Rossa Ledi in relation to time

31. The sworn evidence of the couples who lived at Naro village west side of the Bahi hill, and were sitting at the verandah of their house. Both saw a Taxi Reg. No. 7000 drove passed their village at about 11am to 12 midday according to Teha, and Mrs Rossa said it was about 11.30am. This was in the morning of 22/12/1989.

32. The couples' evidence are inconsistent with the statements of the rest of the Crown witnesses, as well as the accused, in relation to a possible time the taxi drove passed their village and dropped the accused and Kalisto at the seaside spot within the vicinity of the scene of crime.

33. Both couples continue to state that after about 15 minutes the taxi return with only the driver. 15 minutes later the Suzuki driven by the deceased drove passed their village heading westward towards Bahi hill.

34. What may transpire from the evidence of the couples is three fold. Firstly, their evidence in relation to time is inconsistent with the rest of the Crown witnesses. Secondly, it may be a point relevant to draw strong inference, that 15 minutes after the taxi had returned, the Suzuki driven by the deceased drove past, thereafter there was no vehicle drove passed the couples' village. From that evidence, a conclusion can be drawn that there is probability that those traveling in the taxi, dropped off somewhere close to the scene of incident, and could have been responsible for the death of the deceased. And thirdly, the couples' evidence in relation to time is of significance and supports the defence two taxi theory.

Further evidence of identification

35. The admissibility of John Sikaumae's deposition statement was granted after he was declared unfavourable witness to the Crown pursuant to Sections 162 and 163 of the Evidence Act. In his evidence he says that on 23/12/1989, he saw Kalisto and the accused at Block No. 6 whilst walking along the road. He knew both men well as they were regular visitors to Lavuro Plantation on their dice gambling trips. Both men were quite far about 50 yards away, but he could see them clearly, because it was just 6.30pm.

36. That evidence implicated that by 6.30 pm on Saturday, 23/12/1989, the accused and his friend Kalisto were still around Lavuro and within the vicinity of the crime scene.

37. To the contrary, the accused by his sworn evidence, denied being around Lavuro area on 23/12/1989, in the evening. He says that Kalisto and himself have left Lavuro on the evening of 22/12/1989 about 7.00 or 8.00pm and paddled to Tambea. From Tambea they walked to Honiara as far as the Prawn Farm. Then next day in the morning they left by a vehicle owned by a logging company to Honiara.

38. To rebut the accused evidence, the Crown rely on a number of witnesses. One is Mr Birai who said that he had three canoes. On 24th December, at about 6am, he found out one of his canoe was missing. It must have gone missing on Saturday night of 23/12/1989.

He said the canoe was last seen on the evening of Saturday, 23/12/1989. Mr Nori questioned in his submissions, who was the last person who saw the canoe. Was it Mr Birai himself, or one of his family members, or who else. Mr Birai's statement created an open gap inviting suggestions that whoever last saw the canoe is not known, may be himself but without precision, or by someone beyond his family, or may be by someone unknown. Such open evidence is prone to many intervening factors which may divert and weaken the evidence in proving the facts required.

39. Mr David Tolo gave statement to Police that he saw a canoe at Tambea beach on the morning of 24/12/1989, about 5 am. He did not mention the actual time the canoe landed or pulled ashore. Again it is an open statement which certainly require answers. The canoe could have been on the beach since the morning of 23/12/1989, or floated out and washed ashore again when the witness saw it in the morning of 24/12/1989. There was no evidence related to the time and the date the canoe arrived at Tambea beach. The accused gave evidence that he and Kalisto arrived at Tambea late in the night of 22/12/1989.

40. Another Crown witness who gave statement was Vanua Sale. Sale met the accused and Kalisto at his house on 23/12/1989. In his hand written statement there was no time stated of the meeting. Could the time be late night going towards morning on 23/121989, after both men arrived on the beach. If that is the case, then that surely confirms the accused evidence that he and Kalisto arrived at Sale's house on late evening of 23/12/1989.

41. These evidences in themselves are vague and have created gaps which in my humble view entirely discredit the statement of Sikaumae that he saw the accused and Kalisto at 6.30pm on 23/12/1989. Further it discredit the statement by Birai that his canoe was last seen on 23/12/1989. He did not mention who last saw it on that date. Its an open statement. The canoe could have went missing since the night of 22/12/1989.

42. Whilst the statements of Sikaumae, Birai, Tolo and Sale may not benefit the Crown much, the statements of Watehau and Kwon clearly stated that the accused and Kalisto boarded a vehicle driven by Kwon at a point along the West Guadalcanal road and traveled to Honiara. Watehau was one of the passengers on the vehicle who recognized accused and Kalisto as from Kwaio. The vehicle actually picked the accused and Kalisto on 24/12/1989 at about 8.45 am to 9.15 am.

43. Overally there are loopholes in the Crown witnesses evidence which are vague in regards to date and time. In such circumstances it is safer to accept the accused evidence on dates and timing.

44. Despite the gaps and vagueness the evidence in fact placed the accused within the vicinity of the scene of crime. Is there any evidence that links and placed the accused at the scene of crime. The Crown adduced evidence concerning a hat that was found at the scene of crime and alleged it belongs to the accused.

Evidence concerning the hat found at the scene of crime

45. Was the hat found at the scene of the crime belonged to the accused. John Sikaumae in his statement said that the hat found on the crime scene was the one the accused used to wear during those times he went to Lavuro. When he saw the accused on 23/12/1989 he did not wear that hat. He strongly can tell the hat found at the scene was the one usually worn by the accused.

46. A Police Officer S.K. Dafolo, a onetalk of the accused, stated in statement tendered to Court that he was involved in the investigation of this case. On 24/12/1989 he was at the crime scene. At the scene Sikaumae showed him the cap-hat. He immediately recognized that hat used to be worn by the accused at times he met him in town.

47. The issue about the hat is not a complicated story. The accused have had his side of the story. That when Kalisto left him on the seaside he grabbed his hat and went off to see the taxi that just have arrived. In the evening Kalisto arrived without his hat and he could not bother to ask for it because it was getting dark.

48. An important question was raised by Mr Nori in his submissions; did the accused wear the hat that was found at the scene of crime. Two Crown witnesses identify that the hat belong to the accused prior to the incident. How far back they saw the accused wore the same hat is a question that requires answers. There is no evidence from Dafolo or Sikaumae of a recent occasion where the accused was seen wearing the same hat. At least a day or two or better still the morning of the date of the incident. And nothing coming from Crown witness Mr. Wane who transported the accuse and Kalisto to Lavuro to identify the hat.

49. If Itafaka's statement confirm that the accused had never been to Lavuro in the months of October and November 1989, was he there in the previous month or even the previous year. The accused in his evidence vaguely remembers when was the last time he was there before the incident. However, he agrees may be he was there in 1989 or even 1988. The question is did he wear the same and one hat on every occasion he went to Lavuro for his dice trips; so as to confirm to Sikaumae's statement that each time the accused went there he wore the same hat. Again it is quite difficult to say that a person had been wearing the same and one hat for one or two years. It is not possible especially for those who move around much of their times.

50. Let's return to Mr Nori's question then. Was the accused shown the hat?. In fact it was never shown to him. How best would the Crown prove that the hat was worn by the accused at the scene of crime and that he was the last before he dropped it whilst involved in the offending.

51. Twenty years ago forensic proof may not be as advance as today; but simple finger print process may be of great assistance to the Crown. In this case nothing was done.

52. The fact that the hat has never been shown to the accused for identification, or even produce in court as exhibit for identification purposes. In the absence of any forensic or finger print report it would be difficult to link the accused to the hat that was found on the scene of crime. The evidence adduce by the Crown is insufficient to link the accused to the hat. I have pointed out the difficulty faced by Itafaka and Sikaumae. Mr Sikaumae went further and said when he saw the accused on 23/12/1989 he did not wear a hat. Was he so sure the accused wore his hat before or immediately before the incidence. He did not see the accused immediately before the incident and would be incorrect to assume he wore the same hat again, as in the previous months or year.

53. Nevertheless the accused then throw in some light that his hat was taken by Kalisto who returned to him on the beach after six hours of absence. The Crown capitalized on that piece of evidence and submits that it was consistent with the presumptions adduced by Sikaumae and Police Officer, Dafolo. The Defence has nothing to prove, even to prove his innocence. Proof rests entirely on the Crown on the standard as required.

54. The evidence by accused may in some cases consistent to the Crown case, but not always, and not in this case. The accused version is totally different, that it was Kalisto who took his hat and left.

55. Thorough investigations in this case could have done better with more forensic or finger print reports on the log used to block the road, the car itself, the bag that contain all the money and papers which were left on the scene of crime. Those evidentiary reports may have assisted the court greatly in the absence of direct evidence. To enable it draw inference that strongly link the accused presence to the crime scene. At this point, the Crown evidence is so seriously weak even to draw inference from. I find this element of identification is not proved beyond all reasonable doubt.

The Accused has malice aforethought

56. Malice aforethought or intent is a crucial ingredient in the offence of murder which must be proved by the Crown beyond reasonable doubt. The Crown must prove that the accused has intention to cause the death of or a grievous bodily harm to Mr Symes. See R v David Kwaoga[6], R v Ellison Orinasikwa[7]. Aforethought is defined by Section 202 of the Penal Code. According to our law, malice aforethought is established if either of the two elements in paragraphs (a) or (b) of the section are proven beyond reasonable doubt.

57. Intention is a state of mind, can never be proved as fact, it can only be inferred from other facts which are proved[8].

58. To prove the accused has intention to murder and rob Mr Symes, the Crown rely on a number of witness statements tendered to the court by consent.

59. The statement of Peter Itafaka said that the accused and Kalisto used to go to Lavuro on previous occasions to play dice. It was then they heard the information about payment of labourers on 22/12/1989. So they planned to return to Lavuro on 22/12/1989 with the motive to kill and rob the deceased to get the wages of the labourers. The statement continue to say that Mr Itafaka did not see the accused at Lavuro in October and November in 1989, but Kalisto was there in those two months.

60. Mr Itafaka did not precisely mention the last month he saw the accused there. By referring to previous occasions it may mean previous months or years. If the accused was not at Lavuro in October or November then how would he has prior knowledge of the labourers' pay. In such circumstances it would only be proper to think that Kalisto was the one who had prior knowledge of the pay day and who may have in him the intention. He would have initiated the trip to Lavuro.

61. It does not end there. Actions and behaviour prior and after the incident contribute to the general analysis to ascertain whether such intent was present, and was strategically carried out accordingly.

62. If the accused alleged to have possessed malice aforethought, or intent, and therefore plan to execute his motive to rob, there must be evidence that he actually prepared and equipped himself to carry out his plan. Evidence that the court may rely on to make inferences.

63. From Honiara Kalisto and the accused were transported by a Taxi Reg. No. 7000 driven by Crown witness Mr Wane to Lavuro. In evidence, Mr Wane denied that neither the accused nor Kalisto were in possession of any knife of any size or any offensive tool. He saw both men with only their bags. Nothing of any plan to kill and rob was discussed in the vehicle. All he heard was both were talking about dice gambling and picking of sea shells at Lavuro.

64. The medical report reveal that the fatal stab wound was inflicted to the chest penetrating the right ventricle. The wound was caused by a sharp instrument about 1 - 1½ inches wide. I have the privilege to observe the photographs taken of a number of abrasions and wounds the deceased sustained. My reading of the medical report and the abrasions and wounds appears that there could have been more than one lethal sharp instrument used. And of course the knife used to cut the stick used to block the road must be a bush knife. This has been confirmed by Sikaumae. At this juncture, it would have been better to call the Doctor to clarify and be cross examined of the abrasions and wounds, whether they were caused by the same instrument or not. The Crown opted not to.

65. If the accused motive was to kill and rob the deceased, then where did he get those sharp instruments from. Would they be just picked up some where in the bush as suggested by the Crown. A motive to kill and rob needs careful planning and proper preparation. You cannot pick any instrument to assist you in your mission from no where.

66. In reality there was no evidence at all that the accused and Kalisto were armed with necessary weapon which were used to murder the deceased with. There is also no evidence to prove that the murder weapon found at the scene of the crime was a knife carried by the accused. There was no evidence that the abrasions and wounds were caused by the same and one instrument.

67. The Crown also rely on the statements of Police Officers who were part of the investigation team. They are Rifasia, Sokeni, Fafita, Tagini and Talu. They discovered that there were two hideouts, a log used to block the road, a hat, a pair of sunglass, blood pool on the far right near the end of the log, and a thick blood stain on the road. They discovered that it was not an accident but a plan homicide. The conclusion of the Police Officers drawn are opinions or suspicions of what could have had happened. In this case the court is looking for evidence to prove whether the accused and Kalisto were the real culprits, who were a motivated by money, hence plan to kill and rob, and the ambush scenery were part of their plan to carry out their motive. No knife or alleged sharp instrument used was exhibited in Court.

68. Based on those evidence the Crown has failed to prove beyond reasonable doubt that the accused possess the evil mind to kill and rob the deceased. There was no evidence that links the accused to the scenery discovered by those Police Officers. Their statements consist of mere suspicions which in evidence does not link to the accused at all.

The Accused caused the death of Mr Symes

69. The medical report is quite clear about the cause of the death of Mr Symes. It was caused by a sharp instrument 1 -1½ inches wide. The sharp instrument was inflicted to the deceased's chest penetrating the right ventricle.

70. By that evidence alone the Crown concluded that the death was caused by the accused. The Crown argued it is not necessary to show, the accused was in possession of the fatal instrument whilst traveling in a taxi because they would have picked any sharp instrument along the road or in the bush.

71. If it is desirous of the Court to draw inferences on the Crown evidence, because it lacks direct evidence, then the evidence the Crown rely on must be credible and worthy of consideration. Those evidence must contain circumstances which upon inference, draw a final conclusion that no other option is open, that in all circumstances point to the accused who is responsible for the death of Mr Symes.

72. That requires evidence which must, in some way, link the knife found on the crime scene, which caused the death of the deceased, to the accused. Not only that but other circumstantial evidence that the accused was seen with the sharp instrument prior to, or after the incident. Whether he was in possession of the sharp instrument in the car, or that he was in possession of a sharp instrument picked somewhere else prior to the incident, or given to him by someone.

73. To conclude that the accused inflicted the fatal wound on the deceased without linking the sharp instrument to him is not evidence but suspicion. The medical report does not link the accused to the sharp instrument that caused the death of the deceased. There must be evidence that links the two. And that evidence must come from the Crown, circumstantial or otherwise, to enable the Court to draw inference and decide whether the accused is responsible for the death of the deceased.

74. No one would deny that taking the life of another is condemned by our laws as unlawful and unjustified. In this case, is it the accused who by his own act caused the death of the deceased. Another piece of evidence is the statement by Laefemarua describing the clothes the accused wore on the night when he and Kalisto arrived at his house. He said the accused wore a short trousers and a long hand shirt. The accused had agreed to that and further stated that he never changed his clothes since they left Lavuro, or even when they heard the incident, but Kalisto did. This piece of evidence is quite significant because if the accused did involve in inflicting the fatal wound on the deceased, by normal course of things, blood would have stained on his clothes especially the long hand shirt. This could have been a strong circumstantial evidence if proved. There is no evidence to prove the accused was not telling the truth. Apparently there is no evidence that I could draw inference on to conclude that the accused is solely responsible for the death of the deceased. The evidence adduced does not prove beyond all reasonable doubt and I find this element is not proved.

The theory of two taxis

75. The evidence of Ladi Teha and Rossa Ladi who were quite adamant that the taxi they saw about 11.00 to 12 midday on 22/12/1989, was the taxi that transported the accused westward of their village. That was inconsistent to the rest of Crown witnesses in regards to time. The Crown argued there was no two taxis. It was only one. There was confusion among the witnesses in relation to time.

76. Mr Nori argued that the two witnesses do not seem to back down. And the difference in time as stated by the two and the rest of the Crown witnesses is three hours. It would make no difference if little time difference is stated which can be accepted as error or confusion. What both witnesses said in Court confirms the accused evidence that there was the second taxi arrived on the road west side of Bahi hill. This was about three hours after they have arrived on the beach. This was the taxi his friend Kalisto attended to and left until he returned after 6 hours.

77. It appears that the evidence of the two Crown witnesses confirmed the accused evidence of two taxi theory, which placed the situation difficult to draw inference because others who arrived in the second taxi also present at the vicinity of the crime scene. And that the accused and Kalisto were not the only persons at the vicinity when the alleged crimes were committed.

78. Other circumstances that may render inferences difficult is that the scene of crime is right on a main public road, where public access is free flowing. Inference can be drawn from circumstantial evidence provided that there are no other co-existing circumstances which will weaken or destroy the inference.

79. The evidence of Mr and Mrs Ladi could have been expectedly the best. They lived on the eastern side of Bahi hill which only take 15 minutes to walk. They could have closed the timing gap making it easy to draw inference. However, they failed drastically. They only saw one taxi that day. Four other vehicles that drove passed their village was not seen at all and its amazing and very mysterious.

Escape from the vicinity of the scene of crime

80. The accused in evidence said that Kalisto cut a wooden paddle with a knife. When he was cross-examined as to where Kalisto got the knife from, he said he did not know. The Crown strongly believe that both men were in possession of a knife. They used the knife to cut a log with and also to cut the wooden paddle with. The question is where did they get the knife from. Crown witness, Mr. Wane, denied in Court that both men were in possession of any knife. If they had in possession of a knife they must have obtained it from anyone living in the vicinity of the crime scene, or they might have picked it from the bush; there must be some evidence relate to that. In this case there was none. Therefore the theory of two taxis is an option that seem to close that gap.

81. The accused also stated in evidence that he did not know whether permission from the owner of the canoe was granted for them to use the canoe. It would appear there was no permission sought. The journey by the accused and Kalisto to paddle someone's canoe to Tambea at night, then walked as far as the Prawn Farm, and later to Honiara the next morning. And in the evening of the same date both men boarded the same boat to Malaita. All along they were together.

82. The accused said in evidence that traveling to Malaita was not planned. He said he was scared of what happened in the area they have been to and was quite suspicious of Kalisto.

83. The return trip from Lavuro to Honiara and then to Malaita was rather suspicious. Indeed it was. They have to travel under cover of darkness and avoid walking back along the road because they would be detected. Certain events on their return had been discussed in this judgment. The question is, is evidence of flight the only circumstantial evidence available to be considered to prove the accused guilt. Evidence of flight is merely part and partial of all the circumstantial evidence the Court has to consider. And all have to point to the accused with no other possibility. One among the entire evidence is insufficient to prove beyond reasonable doubt that the accused had committed the offences.

84. The Charge of Robbery

I accepted that the death of the deceased was caused by a sharp instrument measured 1 - 1½ inches wide which penetrated through his chest and into the right ventricle. The issue is, is the wound inflicted by the accused. I have thoroughly discussed this already in this judgment. I have found that the knife that caused the death of the deceased was not link to the accused. There is no evidence to prove so. The knife was never exhibited in court for the purposes of identification or for the purposes of forensic proof. As such there is no evidence I could infer from.

85. I acknowledge the sum of $9,500 went missing or lost. Is it the accused and his friend Kalisto attacked the accused and robbed the entire money. No evidence led to this. The circumstantial evidence the Crown rely on in regards to plan, ambush and attack and use of the money have been thoroughly discussed earlier in this judgment. Other circumstances that might assist the Crown of the accused behaviour after the incident has already been discussed as well. No forensic evidence or fingerprints of the bag containing the money or other papers that will implicate the accused.

Money in possession by the Accused

There is no evidence that the accused used or in possession of the money obtained from the crime. Sale's statement makes it clear that it was Kalisto who bought food for both of them. He gave $10.00. This was consistent with the accused evidence in court. The Crown argued that if the accused has no money he would not travel to Auki on the boat. The accused explain that he had a friend on the boat so he was allowed to travel free. Free transport is a common practice in Solomon Islands especially when one of the friends is working on a boat.

$9500.00 is a lot of money those days. There should be evidence to prove possession and used of the money. Meantime one may assume that boat fare and truck fare from Honiara to Auki and to Atori worth a fortune, in fact not. This cannot be used to ascertain the accused had possessed a lot of money to implicate he must have acquired from the proceed of the crime. In those days the fares were not that high. On the whole there is no evidence that possession of any suspicious amount is proved against the accused.

86. I have considered thoroughly all the circumstantial evidence the Crown rely on, and I found there is no evidence to link the accused to the scene of crime. Being within the vicinity of the crime scene is not enough. There must be some evidence that links and connects to the crime as alleged, and that evidence must be proved beyond reasonable doubt, whether by active participation or by actually involved in the commission of the crimes.

87. Having considered all the entire evidence in this case, I do not find that there is any proof of fact beyond reasonable doubt that lead reasonably to one and the only conclusion, that the accused did fully responsible for committing the offences as charged. I find the accused is not guilty of the charges and therefore entitled to acquittal.

Orders

1. Find accused not guilty on both counts.

2. Acquit the accused of the charges of murder and robbery.

3. Accused be released from remand forthwith.

THE COURT

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^[1] Peter Murphy, A Practical approach to evidence, 3^rd Edition
^[2] [1999] WSSC 50 (12 April 1999)
^[3] (Urep. Criminal Case No. 40 of 1999)
^[4] [2004] SBHC 115; HC-CRC 259 of 2003 (2 April 2008)
^[5] [2006] PGSC 22, Sc 881 SCRA 75 of 2003, (22 November 2006)
^[6] (Urep. Criminal Case No. 22 of 1998).
^[7] (Unrep. Criminal Case No.18 of 1998)
^[8] R v Ward (1987) 85 Cr.App R71 at P.75