Regina v Saki & Others [2010] SBHC 88; HCSI-CRC 181 of 2010; 414 of 2009 (13 December 2010)

IN THE HIGH COURT
OF SOLOMON ISLANDS

Criminal Jurisdiction

REGINA

v

JOHN LEE SAKI, MICHAEL TALASASA AND KAE
KONITARAKE

Date of Hearing: 25-29 October 2010, 1-5 November 2010, 1 December 2010
Date of Decision: 13 December 2010

Mr. J. Naigulevu and Mr. R. Iomea for the Crown
Mr. R. Cavanagh, Mr. W. Ghemu and Ms M. Manaka for John Lee Saki
Mr. S. Valenitabua for Michael Talasasa
Ms L. McSpedden and Mr. N. Qalo for Kae Konitarake

DECISION AFTER TRIAL

Cameron PJ:

1. The three accused John Lee Saki, Michael Talasasa and Kae Konitarake are jointly charged with murder of Mede Eva, Staisen Chaivaka, Don Lee and Inasio Vavo.

2. The Crown contends that on 3 September 2002 the three accused were part of an armed group which ambushed by rifle fire a Hilux double cabin truck in which the four victims and many others were travelling in the area of Dereni, and that as a result the four victims were killed by gunshot wounds and many others were injured.

3. It is common ground that in the early daylight hours of 3 September 2002, the truck was travelling along a dirt road and nearing its destination of the Ngorou medical clinic. That is in the Dereni area of east Guadalcanal, within a wider area known as CDC 2, Guadalcanal Plains. The truck, which had an open tray, was grossly overloaded with people, many of whom were women and children. One estimate was that as many as 34 people were travelling in and on that truck.

4. The truck slowed to take a right hand bend, and it is at that point that the truck and its occupants were fired upon by high velocity rifles. At that point the truck was in the middle of an oil palm tree plantation, with trees growing in symmetrical lines both parallel with and at right angles to the road. From photos produced it is apparent that the oil palm trees were relatively young, and were in an unpruned state. That is, that each tree had a profusion of dead fronds hanging downwards and as far as the ground in many instances.

5. I find that the firing came from the left hand side of the road in relation to the vehicle, and only the left hand side. As a result of being fired upon, the vehicle slowed further and turned partly off the road to its right, where it stopped. It was pointing into the oil palms at that point, and only a few metres from the nearest tree. As the vehicle carried out this manoeuvre, people were screaming and jumping off and out of the vehicle. Some were fatally shot, while others were injured by gunshot. Those that were able to escape did so into the oil plantation.

6. It is apparent from the evidence and I so find that the persons firing the shots were hidden in the oil palms and I infer that they were strategically positioned so as to ambush the truck at a point where it was forced to slow down to negotiate a right hand bend. No motive for the ambush was suggested by the Crown, let alone established by the evidence. It is true that this incident occurred during the tension period in Solomon Islands, where open armed conflict was not uncommon. However, I dismiss as ridiculously far-fetched the suggestion by the defence that the truck may simply have been caught in crossfire between two opposing factions positioned on opposite sides of the road. As I have said, all the evidence points to a planned ambush.

7. A curious feature of this case is that of the up to 34 people in and on the truck that day, only 2 witnesses claim to have seen John Lee Saki at the scene, only 2 witnesses claim to have seen Michael Talasasa, and only 3 witnesses claim to have seen Kae Konitarake.

8 John Lee Saki:

I deal first with John Lee Saki. Two witnesses, Stella Tova and Miriam Vera, gave evidence of recognising John Lee Saki as one of the gunmen that day. Stella Tova's evidence was that she was a passenger on the vehicle and when it stopped, she jumped down and carried her child into the oil palms and hid with him. She said that she was at least two oil palms distance into the plantation. She said that while sitting down at the bottom of an oil palm she saw John Lee Saki at the side of the road and that he was holding a gun and firing to the right hand side of the road. She attempted to estimate the distance between her and the person she said was John Lee Saki, and it was accepted that she indicated a distance of about 6 or 7 metres. The first point is that this is at odds with her evidence of taking up a hiding position of at least 2 oil palms distance into the plantation – it is apparent from the photos that such a distance would be significantly greater than the distance from which she claimed she saw John Lee Saki.

9. In this respect the evidence of Bonnie Koelanga, the driver of the vehicle, is relevant. His evidence is that after stopping the vehicle he fled into the oil plantation and came across the child Don Lee at the bottom of an oil palm, and that Don Lee was struggling at the time. I find that Don Lee had at that time already been shot and wounded, and later died from his injuries. Bonnie Koelanga gave evidence to the effect that Don Lee was positioned about 6 oil palm trees into the plantation, and that no one else was with him at the time. This can be contrasted with the evidence of Stella Tova, who said that the other child who was with them when she and her child hid in the oil palms was "the one that was dead or who died". On the evidence, that had to be Don Lee, and I so find. The significance of this is that Bonnie Koelanga's evidence places the location of Don Lee about 6 oil palm trees into the plantation, and if this is the spot where Stella Tova hid then it is a considerable distance away from the vehicle and the road. Given the distance and the density of the dead fronds on the trees, I consider that no reliable identification could have been made from that position.

10. On the subject of the reliability of her recognition evidence, Stella Tova gave evidence of having seen John Lee Saki on several occasions at the Ngorou medical clinic prior to the shooting. She said she saw him in 2000 and 2001, but there was no cogent evidence of how she knew that person was John Lee Saki. Against that background the Crown did not ask her to describe the physical characteristics of John Lee Saki either before or at the time of the shooting, or to point him out in Court, and when shown a photo in Court of someone who was not John Lee Saki she told the prosecutor that it was a photo of him. She was mistaken. All this combined raises a question as to the reliability of her identification of John Lee Saki on the day of the incident.

11. Another aspect of the evidence of Stella Tova is that in her evidence she stated that she saw people drive away the truck after the shooting, but at the long form preliminary inquiry in the Magistrate's Court in March 2009 she stated that she did not see the truck being driven away. This discrepancy adds to the unreliability of her evidence.

12. Another troubling aspect of Stella Tova's evidence is that it was not until 17 August 2005 that she gave a statement to the police. At that time she named John Lee Saki as having been involved. While she may have been frightened initially to name him, it is noted that in July 2003 Ramsi intervened in Solomon Islands and achieved a cessation of the hostilities. This would have given Stella Tova the opportunity to come forward with relevant information in relative safety well prior to August 2005. Of course, by the time she did make the statement some 3 years had elapsed, with the attendant risk in the circumstances of this case of contamination of her recollection by discussion with others as to who may have been responsible for the shooting.

13. While the delay in making the statement is but one factor of many I have to take into account in assessing the reliability of her evidence, combined with the inconsistencies to which I have referred and the poor quality of the recognition evidence itself, I conclude that I cannot safely rely on the evidence of Stella Tova that she saw John Lee Saki at the scene of the crime.

14 The other witness who gave evidence of recognising John Lee Saki as being involved in the shooting was Miriam Vera. She gave evidence that she was a passenger on the vehicle and that after disembarking the vehicle, she saw 3 men run from the left side of the road to the road. She said she saw the 3 men running to the truck. She stated that all 3 were holding guns when they ran onto the road, and that she recognised them as the 3 accused. She said that after seeing them she ran off.

15 In cross-examination, it became apparent that she had given a markedly different version of events when giving evidence before the Magistrate's Court in the long form preliminary inquiry. In that inquiry her evidence was to the effect that she saw the faces of the 3 men, and when they saw her they hid back in the oil palms. Thus on the one hand she told this Court she saw and recognised the 3 men when they were running to the truck and that she then ran away, and on the other hand she told the Magistrate's Court in March 2009 that when she saw the 3 men they saw her and hid back in the oil palms, and said nothing of seeing them running onto the road and to the truck. She had no explanation for this major discrepancy, and when asked if she remembered giving the different version to the Magistrate's Court she simply stated "I've forgotten those things". Further, when it was put to her more specifically that she had told the Magistrate's Court that she saw the 3 men hide behind the dead leaves of the oil palms she did not agree, answering "I was the one who was hiding in the oil palm". I find as a fact that she did give that different version to the Magistrate's Court.

16 As with Stella Tova, Miriam Vera did not give a statement to police until 17 August 2005, almost 3 years after the incident. This enhances the risk of a mistaken identity or a false memory through contamination introduced by listening to other people's versions of who may have been responsible for the shootings. I consider the discrepancies in her evidence to be significant, and when combined with the fact that she did not come forward with information until 3 years after the incident, I cannot be satisfied beyond reasonable doubt that those she said she saw at the scene of the crime were the 3 accused.

17 I add that John Lee Saki gave evidence that he was at home on the day of the shooting and had nothing to do with it.

18 Michael Talasasa:

I deal now with the evidence against Michael Talasasa. Two witnesses gave evidence of recognising him at the shooting. Those witnesses are Miriam Vera and Oli Pelekea.

19 For reasons already given, I find the evidence of Miriam Vera cannot be relied upon. As to Oli Pelekea, she was the mother of the victim Staisen Chaivaka, who was 3 years old at the time of the incident.

20 Her evidence in this Court was that she recognised 3 of the gunmen. She stated that when she saw them they were hiding in the oil palms, and that they then ran onto the road. Her estimate of how far away from them she was when she recognised them was a distance that was agreed to be about 10 metres. She said that one of the men, Kae Konitarake, was "dancing" at the time, and was shocked when he saw Oli Pelekea. This evidence can be contrasted with her evidence at the committal in the Magistrate's Court, when she said the men were in the oil palm area and that she "Look at these men and they hid". She said nothing to the Magistrate's Court of seeing the men run onto the road, and of seeing Kae Konitarake dancing. As with Miriam Vera's evidence, this is a significant inconsistency and gives cause for real concern as to the reliability of her evidence.

21 It is also relevant that I find that her son Staisen Chaivaka was killed in the initial burst of gunfire and was lying dead in the back of the truck, and that her sighting of the 3 men occurred at about the same time as she realised her child had died. This brings with it a grave risk of a mistaken identity, as clearly her focus would have been on her dead child.

22 As with Stella Tova and Miriam Vera, Oli Pelekea made no statement to police until 17 August 2005. She gave evidence that after the shooting in 2002 police entered her village to take statements but that she did not make a statement as she was "in the garden" at the time. She agreed that she was told the police had visited her village that day to take statements, and agreed that she did not approach the police at any later point in time to provide them with information as to who was involved in the shooting. It was the police who approached her in 2005 when she made her statement. When asked if she had even thought about telling the police what she said she saw at some earlier point in time, she stated "I thought of it but I did not know what police to go to'. This answer is unconvincing and indeed demonstrates a lack of candour on the part of the witness.

23 The accused Michael Talasasa had given two interviews to the police, one on 24 September 2002 and the other one on15 November 2008. He also gave evidence in his defence, saying he told the police at both interviews that on the day of the shooting, 3 September 2002, he was working at the Cocoa Plantation of an Andrew Kuve at Foxwood. However, that assertion is not contained in the record of interview with police on 24 September 2002, and I do not accept his evidence that he told police that at that time. It was also submitted that because Michael Talasasa had given evidence that he was elsewhere at the time of the incident and that this had not been directly disproved by the Crown, then in some way the Court was obliged to accept as correct the evidence of Michael Talasasa as to this. The submission is misconceived. The Court has to assess all the evidence presented to it in deciding whether or not the Crown has established its case beyond reasonable doubt. It is free to accept or reject evidence as it deems appropriate. As a matter of fact, I am sceptical about the evidence given by Michael Talasasa asserting that he was elsewhere at the time of the incident, but in the circumstances it will not be necessary for me to elaborate further as to this.

24 Kae Konitarake:

The eye-witness evidence against him came from 3 persons, namely Miriam Vera, Oli Pelekea and Saul Tova. I have already expressed reservations about the reliability of the evidence of Miriam Vera and Oli Pelekea relating to the other accused, and the same considerations apply in respect of their evidence against Kae Konitarake.

25 As for Saul Tova, he was a 14 year old boy at the time of the incident, and was seriously injured by gunshot. He suffered a stomach wound such that part of his intestines were protruding from his lower abdomen, and was hospitalised for about one and a half months after the incident.

26 He gave evidence to the effect that after he was shot he was lying on the back tray of the truck "playing dead". While lying injured, he said he saw 7 or 8 gunmen come up to the truck, and that he recognised two of them, they being James Salovi and Kae Konitarake. He further stated that around that time he saw Maria Votu, who had been a passenger on the truck, return to the vehicle and take her basket. This can be contrasted with what he said to police in his statement of 2002. Significantly, in that statement he did not identify any of the gunmen. It was only in 2005, in a second statement, that he stated for the first time that he had recognised two of the gunmen. What he had said in his first statement of 2002 was that:

"I can feel when the (y) gunmen came into the truck".

This is, of course, consistent with his evidence that he was "playing dead", which is suggestive of a person lying still with his eyes closed.

27 In addition, though he initially gave evidence in this Court that he saw Maria Votu return to the truck to collect her basket, he later admitted in cross-examination that he did not in fact see her but had been told by her that this is what she had done. Further, when it was put to him that he had never mentioned that he saw Maria Votu return to the vehicle in either his 2002 or his 2005 statements, he stated that he had told the police that at those times and they had omitted it from his statements. In light of his admission that he did not see Maria Votu return to the truck, this explanation relating to his police statements lacked candour.

28 I make the obvious point that the chance of a mistaken identity is heightened dramatically in the circumstances in which this witness found himself. He had seen two people on the back tray of the truck, Mede Eva and Inasio Vavo, shot dead, was himself seriously wounded, and was attempting to escape further attention from the gunmen by "playing dead".

29 I comment, too, that no other witness gave evidence of having seen a large group of 7 or 8 gunmen going to the truck. I accept the submission that there is a risk of contamination of this witness's evidence in that in the 3 years before he made his second statement, in which he first named Kae Konitarake, he lived in the same village as 3 other witnesses namely Annette Eka, Mary Age and Maria Votu, and admitted that he had spoken to them about the matter during that time.

30 For all these reasons I find the evidence of Saul Tova as to identification cannot be safely relied upon. In the circumstances, it is unnecessary to deal with the further defence submission that the evidence fell short of establishing that the person named by the witnesses was one and the same person as the accused Kae Konitarake.

31 Conclusion and Verdict:

For all these reasons I consider that the Crown has failed to prove beyond reasonable doubt that John Lee Saki, Michael Talasasa and Kae Konitarake murdered the victims.

32 John Lee Saki, Michael Talasasa and Kae Konitarake, I find each of you Not Guilty of the murders of Mede Eva, Staisen Chaivaka, Don Lee and Inasio Vavo, and each of you are acquitted on those charges accordingly.

BY THE COURT

Justice IDR Cameron
Puisne Judge