Regina v Bolami [2010] SBHC 37; HCSI-CRC 331 of 2005 (28 July 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona J)

Criminal Case No. 331/2005, 454/2007 and 455 of 2007

REGINA

V

BOLAMI, NIMELIE, LEINGA AND TEVARA 2.

Date of Hearing: 4/4/2009, 27/4 – 1/5/2009, 4/5 – 8/5; 12/5 - 15/5/2009, 18/5 – 22/5/2009, 25/5 – 29/5/2009, 6/7/2009, 8/7 – 9/7, 15/7/2009, 21/7-22/7/2009, 24/7/2009, 27/7-30/7/2009, 3/8/2009, 22/3/2010, 12/4/2010, 26/4/2010, 10/5/2010 and 25/6/2010.

Date of Ruling: 28th July 2010

For the Prosecution: Mr. Barry and Ms. Taeburi
For Bolami and Tevara: Ms. MacSpedden
For Nimele: Mr. Mane
For Leinga: Ms. Waqavonovono

RULING ON NO CASE TO ANSWER SUBMISSIONS

Faukona J: The four accused were charged for a number of offences ranging from conspiracy to murder. When they were arraigned on 24 April 2009, they all pleaded not guilty. A trial was therefore commenced.

2. The charges arose from an incident which Mr. Bolami was charged for murdering the deceased Andrew Neita on 11 October 2001, at Lord Howe Island, Temotu Province. From that incident all the accused were charged for conspiring to defeat the course of justice. Subsequently Bolami, Leinga and Tevara 2 were charged for perjury for giving material evidence in a judicial proceeding in the High Court on 25 August 2003, at Lata, which they knew to be false or did not believe to be true, that Tana killed Neida.

3. At the close of Prosecution case all the Defence Counsels submitted that they had no case to answer. Submissions were heard from all the Counsels and the Prosecution.

4. In a no case to answer submission the starting point for consideration is section 269 (1) of the Criminal Procedure Code, where it states:

"(1) Where the evidence of the witness for the prosecution has been concluded, and the statement of evidence (if any) of the accused person before the committing court has been given in evidence, the court if it considers that there is no evidence that the accused or any one of the several accused committed the offence, shall, after hearing, if necessary, any arguments which the public prosecutor or advocate for the prosecution or the defence may desire to submit, record a finding of not guilty".

5. In Solomon Islands a trial Judge sits alone, and he is both a judge of facts and law. In the circumstance of section 269(1) of the Criminal Procedure Code what is the legal test to apply. Not surprisingly, I noted that there has been some confusion or some misunderstanding by the Counsels as to the test to apply in no case to answer submission.

6. To clear any hovering doubts a hint was made in the case of R v Tome ([1]) where the court states in paragraph 9:

"It is clear that the general law, enshrined in section 269(1) requires a different test to be applied when ruling on a no case submission from that which would be applied in determining guilt or otherwise at the end of the trial. That distinction must also be maintained when the trial is by a judge alone."

7. The key words in that paragraph are that a different and distinctive test ought to be applied in Solomon Islands when ruling on a no case submission, where a judge sits alone. This is a departure from the traditional test applied in this country previously.

8. The path to discover that different and distinctive test is not that winding and difficult. In R v Saomae ( [2] ) the Court of Appeal said on page 7, paragraph 4:

"Before Tome was decided it was accepted that the relevant test in Solomon Islands was that enunciated in the United Kingdom in R v Galbraith."

9. It therefore points to the fact that the test enshrine in Galbraith, and traditionally applied in Solomon Islands has to be relinquished and forego. It does not stop there, the Court of Appeal in Samoae's case further stated on page 7, paragraph 6:

"Lutu was regarded as setting out the applicable test in Solomon Islands until Tome".

10. Lutu was decided in 1986 by Ward CJ, by then the test in Galbraith should have been redundant and no longer applied. The test in Lutu overtook as precedent. More than 20 years down the line after Lutu, Galbraith still alive. That mishap should now be rewritten and the court and the lawyers ought to tune their mindset with the development of law which are an on going process.

11. In Saomae's trial the test in Tome was not applied as the trial was current at that time. Apparently from the Court of Appeal record, there was no different and distinctive test formulated in Saomae. In fact the Court of Appeal confirmed the test in Tome as relevant in Solomon Islands.

12. So what is the test then. It can't be Galbraith, it can't be Lutu. If timing is appropriate, by law of precedent, Saomae is bound to apply the test in Tome. We then therefore left with Tome as clearly and precisely expounded by the Solomon Islands Court of Appeal as the relevant test to apply in Solomon Islands.

13. It has been well stated in Tome on page 3, paragraph 7 that the test is something similar, if not identical with the law expounded in Doney -v- The Queen( [3] ). The Court then stated on page 3 paragraph 6:

".....The test called for in section 269(1) is whether or not there is no evidence that the accused committed the offence. That must mean that if there is some evidence that the accused committed the offence the case must proceed to final determination by the tribunal of fact".

14. Having said that the Court therefore formulated a similar test in paragraph 7. It is an amalgamation of Doney as majority and little bit of Galbraith.

"It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision".

15. In contrast to that, the Court finally in paragraph 10 formulated the test which is applicable in Solomon Islands:

"As is made clear by cases such as Doney inconsistencies in evidence (whether within the testimony of a witness or as between witnesses) are not relevant at the no case stage. The Court must take the prosecution evidence at its lightest and that means accepting the evidence most favourable to the prosecution when determining whether an accused has a case to answer. The test then is not whether the prosecution has proved its case beyond reasonable doubt but rather whether there is evidence capable of supporting a conclusion beyond reasonable doubt that the accused is guilty".

16. There are confusions by the Defence Counsels in regards to what test should be applied. The bulk of their submissions make reference to prove beyond reasonable doubt, and urging the Court to make determinations on the evidence which are unsafe to proceed to final determination, therefore should stop the case. According to Tome, determining guilt of an accused or otherwise should be at the end of the trial, and not relevant at the no case stage. The same apply to credibility of witnesses, inconsistencies in evidence. They are not relevant in the no case submission stage, but are, at the end of the entire trial.

17. The test formulated in Tome has been applied in this jurisdiction. Mwanesalua J had applied it in the case of R v Isaac Onga([4]), which he stated on page 1, paragraph 4:

"In R v Tome the court held that "the test is not whether the prosecution has proved its case beyond reasonable doubt but rather whether there is evidence capable of supporting a conclusion beyond reasonable doubt that the accused is guilty".

The Crown Case

18. The Crown case is that Bolami murdered Neida and that all the accused then conspired to falsely blame Tana of the murder, and thus defeat the cause of justice. Bolami, Leinga and Titus Tevara 2 then made statements falsely incriminating Tana and ultimately lied in the High Court about Tana.

19. The evidence the Crown rely on is not conformed to only direct evidence of an event but also includes the drawing of reasonable inference.

Background Facts

Events before the date of incident

20. PW9, George Teveko stated in his sworn evidence that a month before Neida died he was in Lata. He had a meeting with accused 2 and his brother John Vaike at the Prison Service at Lata. They discussed what accused 2 and his brother contemplated as a fight at Bamoi. Also at the meeting both men intended to send the witness to Maluaki and asked for a fine of $12,000 because Maluaki swore at their people. Maluaki is a member of Namona family. The witness told them that he was not able to do it. Accused 2 also told him that if they did not pay, and after he returned from Honiara he will give them a dead line.

21. The witness also said that prior to 11/10/2001 he saw Namola, Morris Leuba, John Leinga and Titus Tevara 2 making homemade short guns in their kitchens and possessing them. The same collaborates with Tevara 1's evidence who said he saw homemade guns in their village that is Bamoi. They were carried about in the village by Bolami, John Leinga and Titus Tevara 2. He saw them carried those guns in the village before the shooting on 11/10/2001.

22. In September 2001, PW25 Richard Tawalavake took over the post of PPC Temotu from accused 2. Upon checking the armoury at Lata, he discovered that the Firearms Record book was missing and there were firearms missing from the armoury.

23. On 9/10/2001, PW1 met accused 2 at Lata. Accused 2 told the witness to command an operation for him. To command a group from Bolami family, as the brothers were not capable of doing it. The dead line is Thursday and the Namona family would come and fight. Accused 2 then gave the witness a red plastic containing six ammunition shells and a cocking spare part for the 303 rifle. Accused 2 then told the witness that a short gun was already at home with his brothers, and precisely mention of Tevara 2 who was in possession of the gun.

24. On 10/10/2001, PW4 David Dagi met accused 2 at Lata again. Accused 2 asked the witness why PW1 and the boys did not lounge an assault on the Nila people. He said they would have had lounged an operation against the Nila people. He had already provided enough arms and ammunitions. He further mention that he gave further ammunitions to PW1 to go and fight against the Nila people.

25. From these evidence, it appears that what had actually transpired on 11/10/2001 was orchestrated by accused 2. He provided arms and ammunitions because he had deep seated antagonism towards the people of Nila as they are part of the Nomona family. That also led to Namola, Leinga and Tevara 2 making home made short guns. It seemed that the 303 in the hands of Bolami family was taken out from the armoury at Lata Police Station. From evidence it appears that accused 2 would have been responsible for any missing 303. 303 rifles are not permitted to be sold or possessed by any member of public. They are government supplies distributed to the police stations in the country for security and rehearsal purposes. Eventually that 303 rifle was retrieved by PW28 Fafale from Tevara 2 after the incident.

Event on 10/10/2001, morning

26. On 10/10/2001 PW1 went to Bamoi and met the chief and showed him the materials accused 2 gave him. The chief believed him. Then they held a meeting outside of Tevara 2's house. Those who attended the meeting were Tevara 1, Tevara 2, Charles Taliave, David Namola, Andrew Neida, John Leinga, Morris Bolami and PW1 himself. The discussion was about starting the operation and defending the Bamoi families. At that time too the spare part of the 303 was put in by Charles Taliave and was test fired. And it worked well. Apart from the 303 other three homemade guns were with Bolami and John Leinga.

Event on 11/10/2001, morning

27. Next morning PW1 proceeded to Bamoi village to organize things. It was about 7.30 or 8.00 am. Then they went to Neida's place at the end of the village. From there they decided that PW1 as the commander will carry the 303 rifle. Bolami, Leinga and Tevara 2 to carry homemade short guns. Ammunitions were shared and PW1 ensured that each had sufficient ammunition. Then they proceeded to the bush to the area where there were damages. According to PW1 all of them were armed except for PW2 who carried a pair of binoculars.

28. PW2's version as to what each member of the party carried is quite different. He said only PW1 and Tevara 2 carried the guns, whilst Bolami and Leinga were armed with knives and he carried the binoculars. The purpose of going into the bush was to look for Neida's pigs.

29. The party left Bamoi village and went to Vaike's plantation according to PW2, then they entered into Nila territory and saw three women in their gardens, which both PW1 and PW2 agreed on that. Then PW1 fired a single shot with the 303. Bolami, Leinga, Tevara 2 and Nokali were with PW1 at that time. After that the women escaped and the party returned to Bamoi village.

Count 1 – Murder

30. Accused 1, Morris Bolami (J) was charged for murdering Andrew Neida. It occurred on 11 October 2001, Morris Bolami (J) of Bamoi village, at Lord Howe Island in Temotu Province, did murder Andrew Neida. He denies the charge and a trial was commenced. After the Prosecution has closed its case the Defence submits that it has no case to answer.

Events on 11/10/2001 – afternoon immediately before the fatal shot was fired

31. It is most relevant and very significant to examine closely and thoroughly the evidence of PW1 Jacob Laulae, and PW2 John Nokali, as both were members of the party including Bolami, Leinga and Tevara 2, who carried out an operation to assault the Nila people.

32. PW2 said when their party left Bamoi village from Tevara 2's house to go back into the bush, it was about 1:00pm. They were all armed with guns except himself who had a pair of binoculars. This piece of evidence is equally the same as the arrangement agreed upon by PW1. Both witnesses said at the second return to the bush Andrew Neida accompanied them. He was carrying his basket and a knife. PW1 precisely stated in court that Bolami, Leinga and Tevara 2 had ammunitions. Bolami had one red shell. Leinga had one black shell short gun cartridge and Tevara 2 had a cartridge. PW2 also stated that Tevara 2 carried a plastic bag. He did not know the colour and the content of the plastic.

33. PW7 Sarah Bolami stated in court that she was returning from her garden when she saw Bolami, Leinga, Tevara 2 and Laulae all possession of rifle, there were four rifles. One whiteman gun and three home made guns.

34. PW2 stated, from Bamoi village they went to Vaike's plantation. Before they got to the plantation they had a break at Ponavi's garden and ate some pawpaw. It was there that George Taveke met them. PW1 said after they ate pawpaw they continued and before they reached the swampy area they divided. Tevara 2 and Nokali to follow one road whilst PW1, Bolami, Leinga and Neida to follow the other road. PW2 added that he and Tevara 2 followed the path that led to Vaike's drier. He also mentioned that Teveko followed. PW1 said it was at the bottom of the tave tree that they separated.

35. PW2 said when he and Tevara 2 went to Vaike's plantation they heard noises at the copra drier. The same noise was heard by PW1's group when they were at the end of the creek. PW1 described it as like someone hammering a nail on the wall. Bolami looked and he recognized Thomas Tolikenga putting up the notice on the wall. PW2's group recognized two men out of many. They were Thomas Tolikenga and Naphtali Napiapo.

36. PW2 then attempted to find PW1, Bolami, Leinga and Andrew. When he ran to find them he met PW1 between the plantation and the junction. PW1 was on his own. PW2 then went to Tevara 2.

37. PW1 stated that at that time Nila people started to sing war song, blew the corn shell, shouted and started to advance. PW1 ordered them to retreat. The men started to ran around. Bolami then forced PW1 to fire a shot but refused. They continued to retreat to a safe place to protect.

38. Before he met PW1, PW2 heard a gun short. After PW1 left he met Bolami, and then Leinga appeared and asked for Tevara 2. After that PW2 decided to go home. He followed the road to the junction and then he heard another gun shot, which was not the sound of 303 rifle. The sound was coming from the tave junction. PW2 turned to the right to follow the other road and eventually went home.

39. Bolami insisted that PW1 fired a shot. Neida was with them, walking in front. Bolami said that if anyone stopped him from shooting he would fuck his mother if he did not do it.

40. The Nila people were approaching and close to the group from behind. Tevara 2 fired a shot. Bolami also fired a shot. PW1 said he saw Bolami's gun fired but not Tevara 2. Bolami's gun did not make a loud noise. After that PW1 fired an open shot. Neida then told PW1 that he was going home to remind the people that fight had started, Leinga was present at the time.

41. Neida then started to go following the road which led to Bamoi village. PW1 did not know who went with him. At that time PW1 continued to advance towards Nila Village and then he fired the second shot but the shell jammed in his gun. Whilst PW1 and Tevara 2 struggled to get the jammed shell in the gun Bolami then appeared. PW1 and Tevara 2 advanced then stopped for a while. It was then they heard a shot fired by Bolami, it sounded like firing at a tree or something. PW1 and Tevara 2 were 100 meters away. Not long after Bolami appeared and PW1 asked him who fired the shot. Bolami in reply said Tana, Tana, Tana. Tevara 2 was present. After that Bolami left and ran back home.

42. After Tevara 2 left to get more ammunition PW1 did not see Tana. However, Tevara 2 returned. On his way to PW1 he shouted Neida was shot. Not long after they heard someone crying, he was Pastor M. Leuba. Tevara 2 told PW1 that Neida had died. PW1 ran towards the dead body and saw him dead.

43. PW1 stated he was surprised and confused and question why Neida died at a spot he open fired and then separated.

44. From the evidence so far it was quite obvious that Bolami, Leinga and Tevara 2 were armed with homemade short gun rifles with ammunitions. The ammunitions were provided by Accused 2. Evidence revealed that the guns were actually fired whilst in the bush. This was on the occasion when they carry out the operation on 11/10/2001, in the afternoon, under the leadership of PW1.

Events immediately after Neida was shot

45. PW3 the Chief Charles Taliave was in his garden. He heard nine gun shots. He was anxious of what happened so he returned home. On his way home he saw Bolami and Leinga standing on the road he followed. They were together. He saw Bolami with a homemade gun. PW7 Sarah Bolami also mentioned when she returned to the village she saw Bolami running out of Daiwo's plantation with a rifle a home made one.

46. PW10 Veronica Taonga also stated that as they ran passed the drier they saw Bolami come out of the bush. He was holding a gun. The gun was a homemade one. He was by himself.

47. Before both Bolami and Leinga parted to the clinic PW3 Chief Taliave told Bolami to leave the gun at the nearest house that is Daiwo's house. At that time Leinga was not holding anything. Chief Taliave approached the rifle and had a close observation. It smelt smoke as if it was just been fired. He was familiar with the smell because he himself had a licence for .22. This piece of evidence was in line with PW12, Elizabeth Daiwo's evidence in Court.

48. There is surely evidence that Bolami, Leinga and Tevara 2 were armed and Bolami was still in possession with the home made short gun immediately after the incident. And there was evidence that the guns were actually fired on that occasion.

Evidence as to who fired the fatal shot

49. Observation of the evidence seem to point to the fact that the gun shot that killed Neida was the last shot fired that day. After what PW1 thought that it was Bolami who fired the shot. Bolami himself appeared and said to PW1 that it was Tana who fired the shot. After that PWI and Tevara 2 advanced as far as Nipanopu's copra drier. Bolami had already left by then. At the drier PW1 heard Naptali telling Tana to escape the place and went home. Tevara 2 told PW1 to fire a shot and also asked for the 303 but PW1 refused because he had only one bullet in the magazine. PW1 then told Tevara 2 to go home and get more ammunition whilst he waited for him. On his way home he saw Neida's body lying on the road. He returned and told PW1 that Neida had been shot. PW1 then ran to Tevara 2. Not long after they heard someone crying.

50. Very important is the evidence by PW1 who said when Bolami fired his shot it made a low sound. The sound may have been similar to the one he fired earlier, when he said Bolami's gun did not make a loud noise. That seemed to go inline with evidence of PW7 Sarah Bolami when she said she heard the 1st three shots which sounded loud but not the 4th one, and the 4th one was the one killed Neida. This was at the junction. Coincidentally PW5 Tevara 1 also mentioned to his wife when returning home that they heard 4 gun shots. The 4th one would have hit someone. The gun shot sounded different. PW2 Nokali also stated that as he followed the road to the junction he heard a gun shot. It was coming from the tave junction. It was not sounded like 303. PW9 Teveko confirmed that he saw Bolami shot Neida. The noise of his gun was not too loud.

51. Quite clearly the 4th shot heard from the tave junction by PW1, PW2, PW7 and seen by PW9 described as sound low and different was the last and final shot of the day. The question is who did fire the final shot? Laulae at that moment without seeing, but could tell immediately was Bolami who fired the shot. Bolami diverted it and said it was Tana. However, PW9 Teveko actually saw Bolami shot Neida on his left chest.

52. It is more urging to examine the evidence of Sarah Bolami and Teveko. Sarah Bolami said she heard 3 previous shots and then she ran to get her sister when she heard another shot. She stopped and looked at the direction where the sound came from and she saw Neida and Leinga. They were 8-10 meters away and were close to the junction. Neida was telling Leinga to tell the boys not to shoot anyone but to shoot in the air to scare them away. Neida said he would go home and then will return. As he turned to ran to the village the witness heard 3 other shots; the 4th one killed Neida. The shot came from his left side. She did not see who fired the shot.

53. One thing is for sure that the evidence so far indicted that Neida was killed near the tave junction. This was confirmed by Sarah Bolami, John Nokali, Tevara 1 and Laulae. Laulae described it as an area that divided where he fired a shot before they separated. That is a clear indication of the tave junction. The evidence did narrow down that the person who delivers the fatal shot must be present within close proximity of the tave junction.

54. If the shot that killed Neida was 100 meters behind PW1 and Tevara 2, at the junction that was before their advancement to Nipanopu's air drier, then the distance could have dramatically increased from 100 meters.

55. If Tana was to be blamed, how fast would he ran from a distance from the tave junction to Nipanopu's air drier where he was seen and heard after the fatal shot. Of course he must escape through the bush or used other foot paths or shortcuts to avoid the main footpath or he be detected and killed. I noted we are talking about bush land and forest and not on a clear road.

56. The question is, is Nipanopu's air drier, the furthest the Nila people advanced into Bomoi territory. Did they advance that far, or did Tana proceed further as far as tave junction to deliver the fatal shot. PW5 Tevara 1 said he saw two Nila people in Bamoi area. They were Naphtali Napiabo and Thomas Tolikenga but without describing and identifying the actual spot. The Exhibits C, D and E are not of helpful. All the evidence stated was Vaike's coconut plantation and his air drier was the boundary between Nila and Bamoi.

57. Ten prosecution witnesses PW13 – 17, PW23 – 24, PW27 and PW32 – 33 stated they went to their gardens and as far as Vaike's plantation and coconut drier. They all stated they were armed but not with any gun. John Tana also were with them and returned with them but not armed with any gun. PW34 Mary Legio saw the men when they returned from the gardens and she did not see any of them carrying a gun that day, and she saw Tana also returned.

58. On the other hand four prosecution witnesses PW35 – 38 stated in Court that they saw Tana in possession of a gun. PW36 said Tana discharged his gun that morning by shooting a coconut which broke it.

59. The important question is how far were the Nila people including Tana advance into Bamoi territory. Eleven Prosecution witnesses said whilst in the garden near Vaike's coconut drier they heard gun shots. So they escaped home. That included Tana. So where is Nipanopa's air drier then? I am afraid I cannot make any assumption or speculation at this stage.

60. Well PW1 was surprised, confused and questioned why Neida was shot at the sport he had open fired (which should have cleared the place) before they separated. PW5 Tevara I said the body of Neida laid near to the tave free. It was about 15 meters away.

61. Tevara 1 continued to say that when the body was placed in the fellowship house and every body left, he and Nelson Noli were there. From there Tevara I saw Bolami and Leinga sitting at the verandah of Vaike's house. He approached them and told them that he thought Neida was not killed by Tana. He did not think Nila people had reached the spot were Neida's body was lying. Both did not say anything. After that he returned and sat down with the dead body.

62. George Bonnie PW19, a Police Officer who involved in the investigation of this case, was taken into the bush and shown the position Neida stood and the position a person whom they suspected of shooting Neida and the tree which the bullet crashed. When they said Tana shot Neida the witness thought of two things. The shooting might have happened within themselves, or by accident or intentional. His opinion was that the tree which they said the bullet crashed could have saved Neida if he was standing at the position they described.

63. Amidst the mystery PW9 George Teveko threw in some hint as an enlightment. He said in evidence that on 11th October 2001 in the afternoon, he was going to his garden which was close to Vaike's copra drier. To get to his garden he had to pass Ponave's garden. At Ponave's garden he met Laulae, Nokali, Bolami, Leiga and Tevara 2. PW2 Nokali confirmed he saw Teveko whilst at Ponave's garden eating pawpaw with the rest. Then they dispersed and went their ways. Eventually PW9 got to his garden and sat down. Whilst in the garden he saw Laulae, Bolami and Leinga returned to the junction from the copra drier. Neida was with them. Laulae was tying to fix his gun. It must be overloaded or something. After that they went to the junction. Then PW9 heard Tevara 2 called out from the copra drier three times but no one respond. Then he heard a gun shot.

64. When the witness heard the gun shot he was still standing with Nokali beside the road near his garden. After that he heard Laulae fired a shot at the tave tree. Nokali then ran towards the sea. The witness then ran back to his garden and fell down. Then he heard another shot further up. Then he started to run to where the tave tree junction was. He ran to a place but the footpath was blocked by some sticks, so he was looking for the footpath. At that point he heard people talking. It was Neida telling Bolami and Leinga to go and tell Laulae not to shoot people but to frighten them with gun shots. He was not far.

65. Neida was standing on the road that led to Bamoi village and Bolami and Leinga were standing together on the junction road, and were facing Neida whilst he was talking. Neida was not far from both. The witness could see them very clearly. They were about 15-20metres apart. Then Bolami said why you continue to talk. Do you want me to shoot you? Bolami was angry. He said if you continued to talk that way I will shoot you.

66. The witness then heard a voice from further down. Someone said shoot him dead. He heard the voice of Morris Leuba (PW8), and was coming behind Neida and them. The witness did not see Morris Leuba. When he heard the voice, the trigger was pulled and Bolami fired a gun shot at Neida on his left side.

67. The noise of the gun was not too loud. Neida struggle abit then fell down a distance away. The witness was scared and so he ran down to the lake. When he got back to Bamoi village, Bolami, Leinga and Tevara 2 had already arrived before him.

68. At the village the witness then went to Daiwo's house. By that time Bolami and Leinga had returned from the clinic. Outside of Daiwo's house the witness asked both who shot Neida. Bolami responded and said, "when we went up dad did not allow us". He did not mention anything about what happened to Neida.

69. The events that led to the subsequent shooting of Neida, was fluently narrated by Teveko. The same incident was witnessed by Sarah Bolami but perhaps from a different angle. The only difference is that she did not hear any voice and did not actually see the person who fired the fatal shot. However, as Sarah was returning home with her mother she saw Bolami running out of Daiwo's plantation carrying home made short gun.

70. From the chronology of events outline by the evidence before this Court, it does narrow down the finality and pointed to one person, that person is Bolami.

71. It does not end there PW30 Collin Noa has another interesting story. He told the Court that sometimes in 2003 he was living at Matapool at Lunga with his family. One evening in that year Bolami went to him at his house and told him he could not sleep at night. At night he could see his father (Neida) appeared to him and wave his hand to him. Bolami told him that he wanted to find a way to stop his father doing that to him.

72. In Solomon Islands as a Melanesian society, in a killing incident, the dead person's spirit normally haunts the killer until he tells the truth, or uncovers the hidden truth.

73. The conversation continued about guns which Nimelia got from Lata. Whilst the conversation was on PW30's wife was also present at that time.

74. On another night in the same year 2003, at a CC dance at Henderson Bolami met PW30 again. Conversation about revenge was revealed. However the most important part according to PW30, that Tana was the wrong man. He himself was the person who committed the crime.

75. According to the witness Bolami then relay the story how Neida was shot. They were running and Neida was in front. He had coked his gun. All over sudden his hand was on the trigger and the gun went off suddenly. It fired at the back of his father who was in front. He was using a pump action gun. At that time a girl was there witnessing what happened. The girl is Sarah Bolami. Bolami's father then sent the girl away to another island until she got married so that she could not tell the story.

76. Margaret Noa PW31 was the wife of PW30. She was present at the first incident when Bolami conversed with her husband at their house at Metapool. She told the Court that when it started to get dark Bolami started to get worried because the man he killed normally appeared to him. Bolami asked her husband what he would do to stop the dead men appearing. PW30 told him to see a Tasiu but Bolami refused or the Tasiu would report the matter to Police. The conversation was a mix of Reef language and pidgin English but she could understand the pidgin part. The witness also said Bolami told them that he was the one who killed Neida.

77. It is clear from the evidence that Bolami, Leinga and Tevara 2 were armed and in possession of firearms before, during and after the incident. It is also clear that Neida was short at the tave junction. The evidence did not place Nila people at or even close to the junction, let alone Tana. They might advance as far as Nipanopu's copra drier but not further than that.

78. Taking the Prosecution evidence at its highest which mean, accepting the evidence most favourable to the Crown, I decided that there is evidence capable of supporting a conclusion beyond reasonable doubt that the accused is guilty. I find there is a case to answer in relation to murder charge against accused Bolami. The decision reached does not conform to direct evidence alone, but also from drawing of reasonable inference from other facts of such nature that my mind is led to, by a process of reasoning.

The Charge of Conspiracy – Count 2

79. All the accused Bolami, Nimelie, Leinga and Tevara 2 were charged for the offence of conspiracy to defeat the course of justice contrary to section 116 (a) of Penal Code. When arraigned on 24th April 2009, they all denied the charge. The Court then proceeds on trial.

80. After the prosecution has closed its case the defence submitted that there is no case to answer for all the accused. The law as to the test to be applied at no case submission stage has been discussed earlier in this ruling. The prosecution then led and adduce evidence through a number of witnesses to prove the charge.

81. The relevant part of Section 116 (a) reads:-

"Any person commits a misdemeanour who conspires with any other person to accuse any person falsely of any crime to defeat the course of justice".

82. I noted on the submission by Leinga's Counsel the conspiracy is define by Butterworth's Australia Legal Dictionary as an agreement between two or more people to carry out future unlawful acts. There are two major elements in the offence; (1) there was an agreement between all the accused to do an act, which if done, is unlawful or would constitute an offence; and (2) defeat the course of justice.

83. To ascertain that there was a consensus or agreement reached by all the accused to blame Tana, it is necessary to observe what were said in evidence before the two meetings held on 12th October 2001, at the meetings, and what were said during the High Court trial of Tana at Lata, in Santa Cruz.

Events before the meetings

84. PW1 and Tevara 2 were struggling to get a jammed shell out of PW1's gun and they heard a gun shot. Not long after Bolami appeared and PW1 asked who fined the shot. Bolami in reply said it was Tana, Tana Tana. From that point on Tana's name emerged as the culprit who killed Neida. That was in line with the evidence of Tevara 1 who said that when they carried the body of Neida to Bamoi village Leuba told him that it was Tana who shot Neida.

85. Why Leuba knew at that stage that it was Tana who shot Neida. Was he informed by Bolami or was he present at a close proximity to the spot of incident and saw what happened. Perhaps a logical explanation can be drawn from PW1's evidence that he heard Leuba's voice down below saying shoot him dead and then Bolami fired a shot at Neida which killed him. If the evidence of PW1 is correct then further conclusion can be drawn from the events of the two meetings which occurred later.

86. PW3 Taliave stated in evidence that he was returning home very anxious to know what was the shooting about. Whilst approaching home he saw Bolami and Leinga were standing on the road he followed. Bolami was carrying a home made gun and looked worried. Leinga was not armed. The witness asked both about the shooting. Both told him that someone had shot Neida.

87. Taliave was the chief of Bamoi village. If both men knew it was Tana who killed Neida why hid it from the chief.

First Meeting at the COC Fellowship House.

88. On 12/10/2001 PW4 Dagi called a meeting to enquire about the circumstances of Neida's death. Those who present were Jacob, Bolami, Leinga, Tevara 2, Leuba and others. The witness asked Leinga if he had seen who shot Neida. Leinga said he did not see. At the same time Leuba told Leinga to say that he saw Tana shot Neida. Leinga did not respond but looked confused and embarrassed. Why then was he confused and embarrassed, was he forced to say something false? PW5 Tevara 2 confirm in his evidence he heard Leuba told Leinga to say he saw Tana shot Neida.

89. PW18 Nelson Noli who also attended the meeting called by Dagi at the COC fellowship house on 12th October 2001 said they started taking about how they would tell their story. And they started talking about blaming Tana for shooting of Neida. Leinga said he did not see the person who shot him but Leuba, Tevara 2 and Laulae told him that they saw him wearing cut off jeans and sleeveless shirt.

90. Before the second meeting Leuba, Bolami, Leinga and Tevara 2 had in mind to shift the criminal responsibility on to Tana. And it appears clear the idea was initiated by Leuba and Bolami. Whether that is true or not. The evidence will reveal later.

The Second Meeting Outside of Vaike's House

91. PW1 Laulae said after Nimelie inspected Neida's body he called a meeting outside of Vaike's house. Those who attended were Nimelie, Bolami, Leinga, Namola, Tevara 2 and himself. Those are the ones he could recall. Nimelie was trying to find out what really happened . He told PW1 that he must have seen Tana shot Neida, and must know. Nimelie was angry and pointed out that PW1 was the one who saw the shooting. At that time Bolami, Leinga and Tevara 2 said they saw Tana shot Neida.

92. PW4 David Dagi also attended the second meeting outside of Vaike's house. He recalled, Bolami, Leinga, Tevara 2, Laulea, himself and others in attendance. At the meeting the witness said Nimelie asked the boys why the mission was failed and why Neida was killed. He demanded to know why no one from Bamoi had seen who shot Neida. Laulae was upset and walked off. The witness also walked off.

93. It would appear, before the meeting, Nimelie had been already awared of the story that Tana shot Neida. Whoever relay the message to him was not clear. However his appearance at the meeting was in an angry manner and urged the boys who involved in the operation to blame Tana. He described the mission as failure.

94. His actions further reflected by PW19 George Bonnie when he wrote to PPC Eastern to cease Bonnie from investigating the case, because he had formed an opinion of the circumstances surrounding the scene, that he did not belief another man shot Neida, the shooting might have happened within themselves. He even went further to put in custody men from Nila village that were released by Bonnie because there was no evidence against them.

95. It is noted that Nimelie at that time was a high rank Police Officer. He was well respected in his own community and a very influential person. He orchestrated the whole operation to assault the Nila people and ensure things worked out the way he wanted. Unexpectedly the operation failed and the result was a nasty one pounded back on him. As death had been the result of the operation, Nimelie did all he could to shift the criminal responsibility to the Namona family, especially Tana. He ensured Bonnie ceased from investigating the case and ensure Tana and others were placed in custody as suspects.

96. At the first meeting it is clear from the evidence of Dagi, Tevara 2 and Teveko that Leinga denied seeing Neida's killer. Bolami according to Teveko said he would talk but in Court. However with Leuba's influence the theory of implicating Tana as the killer began to gain its root. On the second meeting Nimele was angry. He urged Laulae that he must have seen Tana shot Neida. Further he said Laulae was the one who saw the shooting. At that point Bolami, Tevara 2 and Leinga decided to say they saw Tana shot Neida. Why should they change their stories from the previous one. Nothing much heard of Tevara 2 in the first meeting. On the second meeting he joined force with Bolami and Leinga.

97. The law requires, to prove conspiracy, there has to be an agreement between two or more person to carry out an unlawful act. The expectation is that the law requires collaboration by all the accused to suggest and eventually agreed upon what to say and what to do. Consequently all the accused implicated Tana in their statements to Police recorded in 2001 and again at the High Court trial of Tana on 25th August 2003, and again in their statement to Police in February 2005.

98. The agreement the Defence counsels expected is perhaps the normal and usual kind which can be seen as formal in nature. If not a simple agreement if a meeting which the issue of blaming Tana is discussed and an eventual consensus reached to blame Tana for the killing of Neida.

99. If there should be an agreement at all, it has to be approached in a manner considering that Nimelie appeared to be authoritarian than the others. At the same time consider the circumstances that we are talking about people living in rural Solomon Islands village. Where in normal, and so often accepted and agreed to what the people they respect says. In this case we have two influential people. Nimelie was the outgoing PPC of Temotu Province and Leuba a Pastor of COC Church at Bamoi village. People of that status often unconditionally imposed whatever they want onto their people. In normal circumstance the people accepted and agreed to it. From the first meeting Leuba urged Leinga to blame Tana. Eventually all consented to blame Tana at the second meeting called by Nimelie. It would appear that Leuba and Nimelie urged Bolami, Leinga and Tevara 2 to blame Tana. This was reflected in their statements during the trial of Tana in the High Court on 25th August 2003. From the evidence available in this Court, I find they are capable of supporting guilt. I therefore find there is a case to answer for the charge of conspiracy against all the accused.

The Charge of Perjury – Count 3

100. Morris Bolami was charged together with John Leinga and Titus Tevara 2 for perjury contrary to section 102 (1) of the Penal Code. The only evidence adduced by the Prosecution to prove this charge are documents under Exhibit O. The relevant section is 102 (1) which provides;

"Any person lawfully sworn as a witness in a judicial proceeding who willfully makes a statement in that proceeding which he knew to be false or does not believe to be true shall be guilty of perjury".

101. Being the only evidence the Prosecution led to prove that the perjury alleged was committed on the trial of a charge of murder against Tana, which accused 1, 3 and 4 had gave evidence and deliberately indicated John Tana in the killing of Andrew Neida, whilst fully knowing it was not true.

102. The Prosecution utilize section 112 of the Penal Code, therefore sought the certification signed on 15th /5/2007 by Mr Nelson Laurere the Registrar of the High Court at that time. The documents disclosed under the certification were a copy of the Judgment of Regina v John Tana and others, High Court Criminal Case 175/02 and record of evidence taken by the judge during the trial when all the three accused gave evidence.

103. The Defence Counsels submitted the certification under section 112 Penal Code is not admissible. The Registrar's certification only proved the fact of the Lata High Court Proceeding in which perjury was alleged. The value of such a certificate is limited to the substance and effect of the information and trial without proving the signature of the author. At the same time Section 109 of the Penal Code requires corroboration which the Crown fail to comply. Therefore with respect to Exhibit O not to be accepted in place of direct evidence from the maker of the document (the judge).

104. Counsel refer to certain authorities as the black stones Criminal Practice, Arch bold and a Fiji Case Ram v Regina. In furtherance Leinga's Counsel refer to section 106 (1) of the Fiji Penal Code which read equivalent to section 102 (1) of Solomon Islands Penal Code. The problem here is that the section from Fiji Penal Code was not quoted for comparison purposes.

105. The Prosecution argued that Exhibit O be admitted. Section 112 does not have to make mention whether the witness was sworn or whether the evidence was material. Such question of materiality is a question of law pursuant to section 102 and the Court should determine and not the Registrar. Also, it's up to the Court to determine if the accused has made the statement so alleged against him.

106. The production of transcript pursuant to certificate of the Registrar allows the Court to consider whether the accused made the statement and whether it was material. The transcript shows that the witness was sworn. This is why Section 112 speaks of the substance of the trial. The substance of the trial must be the evidence. If the section was restricted to proving only the fact of previous trial then it would be of no useful benefit to the prosecution of perjury

107. The Prosecution also argued that the case of Ram v Regina did not specifically consider the legality of section 112. In any event the Fiji case is nearly 45 years old. It has minimal persuasive effect in Solomon Islands.

108. In deciding whether to admit Exhibit O or not, lets examine section 112 closely. A very significant part of the section says, the fact of the former trial shall be sufficiently proved by the production of a certificate containing the substance and effect of the information and trial purporting to be signed by the Registrar. The content attached to the certification by the Registrar was not disputed. The statements made by the accused at the trial after being sworn on oath were not disputed. The sentence that was imposed by the Court was not disputed. In fact they are all public documents after the trial. The fishy part here concerns with the tendering of Exhibit O which the Defence Counsels sought that direct evidence from the presiding judge will make the exhibit admissible.

109. Section 112 is self explanatory. A certificate issued by the Registrar of the High Court containing the substance and effect of the information and trial signed by him is a sufficient prove. It is not therefore necessary at all to call the presiding judge to give evidence.

110. In my opinion once section 112 is proved and the Registrar certifies the extracted copies as true copies of the Court record kept in his possession, then corroboration though statutorily required is not relevant in this case. Section 112 supercedes section 109. Section 109 is only necessary in relation to sworn witness giving direct evidence in Court.

111. I therefore admit Exhibit O, and eventually find there is evidence capable of supporting a conclusion beyond reasonable doubt that all the three accused are guilty. I therefore find there is a case to answer for the charge of perjury.

The Court.

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^([1]) [2004] SBCA 13; CA – CRAC 004 OF 2004 (10/11/2004)
^([2]) [ 2005] SBCA 11; CA – CRAC 003 of 2004 (4/8/2005)
^([3]) [1990] HCA 51; (1990 171 CLR 207
^([4]) (2010) HCSI – CRC: No. 94 of 2008