Regina v Ngoro [2012] SBHC 127; HCSI-CRC 259 of 2011 (16 October 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(APANIAI, J)

Criminal Jurisdiction

REGINA

-v-

MONTROSE NGORO,
SAM DAGI,
BENTLEY BIARA
AND TUBARA BIARA

Dates of Hearing: 16th to 31st July 2012.
Date of Judgment: 16th October 2012.

Mr. Iomea and Ms. Ngava for the Crown.
Mrs. Tongarutu for Montrose Ngoro,
Mr. Pitabelama for Sam Dagi,
Mr. Ifuto'o for Bentley Biara,
Mr. O'shea for Tubara Biara.

JUDGMENT

Introduction:

1. The accuseds, Montrose Ngoro ("Ngoro"), Sam Dagi ("Dagi"), Tubara Biara ("Tubara") and, Bentley Biara ("Bentley") are jointly charged with the murder of Obed Rahemanu Ramo ("deceased").
   
2. It is alleged that the accuseds murdered the deceased in the evening of Friday the 26th February 2010 at Poitete, Kolombangara Island, Western Province.
   
3. Ngoro is charged as the principal offender who stabbed the deceased to death while Dagi, Bentley and Tubara are charged as secondary offenders in that murder.
   
4. The Crown case against Dagi, Bentley and Tubara is that either they had aided and abetted Ngoro in the murder or, alternatively, they were parties to a joint criminal enterprise.
   
5. The accuseds have pleaded not guilty to the charges. I must therefore remind myself that the burden is on the Crown to prove each and every element of the offences charged against each of the accuseds beyond reasonable doubt.
   

The law on murder:

6. Murder is an offence under section 200 of the Penal Code. To prove murder, the Crown must prove that it was the accused who caused the death of the deceased and that the accused had done so with malice aforethought.
   
7. Malice aforethought is a state of mind and to establish that state of mind, the Crown must establish by evidence that:-
   

[a] the accused had intended to cause the death of, or grievous bodily harm to the deceased or to some other person, or,

[b] the accused knew that the act which caused the death will probably cause the death of, or grievous bodily harm to the deceased or to some other person[1].

8. Hence, in the present case, the Crown is obliged to prove beyond reasonable doubt in respect of the case against Ngoro that:-
   

[a] Ngoro caused the death of the deceased; and,

[b] Ngoro either had intended to cause the death of, or had intended to cause serious bodily harm to, the deceased; or,

[c] Ngoro knew that his act would probably cause the death of, or grievous bodily harm to, the deceased.

Aiding and abetting:

9. Section 21(c) of the Penal Code provides that every person who aids or abets another person in committing an offence is deemed to have taken part in the commission of the offence and to be guilty of the offence. Such person is normally referred to as a secondary offender while the person who actually committed the offence is referred to as the principal offender.
   
10. To be guilty as an aider and abettor, the accused must either be an active participant in the commission of the offence[2] or must have willfully encouraged the person who had actually committed the offence to do so[3] or must be a confederate or a person who had played such part in the commission of the crime as to be the result of a concerted design to commit the offence[4]. Anything short of that will not suffice.
    
11. Aiding and abetting do involve some kind of contact between the principal offender and the secondary offender. That contact is what normally leads to the kind of involvement by the secondary offender in the commission of the offence. As stated by Lord Widgery, CJ, in Attorney General's Reference (No. 1 of 1975)[5]:-
    

"Aiding and abetting almost inevitably involves a situation in which the secondary party and the main offender are together at some stage discussing the plans which they may be making in respect of the alleged offence, and are in contact so that each knows what is passing through the mind of the other.

Joint criminal enterprise:

12. The alternative assertion against Dagi, Bentley and Tubara is that they were parties to a joint criminal enterprise with Ngoro under section 22 of the Penal Code.
    
13. Section 22 of the Penal Code provides that:-
    

"Where two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence."

14. The principle relating to the question of joint criminal enterprise has been settled in a number of cases both in this jurisdiction[6] and overseas[7].
    
15. In R v Hyde[8], ("Hyde") Lord Lane CJ (at p. 895) explained the two main types of joint enterprise cases where death is caused to a victim. He said:-
    

"The first is where the primary object of the participants is to do some kind of physical injury to the victim. The second is where the primary object is not to cause physical injury to any victim but, for example, to commit burglary. The victim is assaulted and killed as a (possibly unwelcome) incident of the burglary. The latter type of case may pose more complicated questions than the former, but the principle in each is the same."

16. His Lordship stated (also at p. 895) the principle of joint enterprise as follows:-
    

"If B realizes (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but nevertheless continues to participate with A in the venture, that will amount to sufficient mental element for B to be guilty of murder if A, with the requisite intent, kills in the course of the venture. As Professor Smith points out, B has in those circumstances lent himself to the enterprise and by so doing he has given assistance and encouragement to A in carrying out an enterprise which B realizes may involve murder."

17. The principle laid down in Hyde has been cited with approval in a number of later cases. For instance, in Hui Chi-ming v R[9] ("Hui Chi-ming"), Lord Lowry said:-
    

"The passage from the judgment in R v Hyde ... correctly states, in their Lordships' opinion, the law applicable to a joint enterprise of the kind described, which results in the commission of murder by a principal as an incident of the joint enterprise."

18. Also in R v Roberts[10] ("Roberts"), Lord Taylor CJ said:-
    

"In our opinion the principle stated by Lord Lane CJ in R v Hyde is of general application, whether weapons are carried or not and (as Lord Lane expressly said) whether the object of the enterprise be to cause physical injury or to do some other unlawful act, eg burglary or robbery. True it will be easier for the Crown to prove that B participated in the venture realizing that A might wound with murderous intent if weapons are carried or if the object is to attack the victim or both. But that is purely an evidential difference, not a difference in principle.

19. Locally, the issue has recently been considered in Ligabutu v Regina[11] ("Ligatubu"). In that case, the Court of Appeal said [at p.3] that the principal questions for consideration in relation to the issue of joint criminal enterprise in murder cases are [1] whether the secondary offenders formed with the principal offender a common intention of killing someone or causing him grievous bodily harm; and [2] whether the killing of the victim was a probable consequence of carrying out that common intention or purpose.
    
20. The court added that the second of these questions is to be formed objectively while the first question, being one of intention, is to be determined subjectively according to what is found to have been the common intention in fact of the participants.
    
21. The court said that what is to be proved is described in McAuliffe v The Queen[12] ("McAuliffe") as "an understanding or arrangement amounting to an agreement ... that they will commit a crime ... which need not be expressed and may be inferred from all the circumstances".
    

The Crown evidence:

22. Nine witnesses have been called to testify in support of Crown case. They are Mr. Pentrine Napthalai (PW1) ("Pentrine"), Sara Emu (PW2) ("Sara"), Qwenneth Napthali (PW3) ("Qwenneth"), Hupa Beta'a (PW4) ("Hupa"), Charles Poreke (PW5) ("Poreke"), Sgt. Symbol Lalu Hopa (PW6) ("Lalu"), Osmond Possy (PW7) ("Osmond"), Sakiusa Pelebo (PW8) ("Sakiusa") and PC Samuel Kay Logara (PW9) ("Logara").
    

Pentrine's evidence:

23. The first witness was Pentrine whose evidence is as follows. At around 7pm on Friday 26th February 2010 he was at Poitete and was returning from a visit to an SDA family when he saw a vehicle approaching with high beams on. The vehicle was coming down from the direction of Ngoro's canteen.
    
24. As soon as the vehicle got to where he was, the vehicle stopped and then he heard Ngoro calling out Sgt. Lalu's name. Pentrine replied saying he was not Sgt. Lalu and that he was Napthali. Ngoro then said that the deceased had come back to Poitete and was causing problems and that his boys had beaten him up. Ngoro told Pentrine that as chairman of the Poitete school, he should remove the deceased from Poitete. By the tone of Ngoro's voice, Pentrine knew something must have gone wrong.
    
25. Ngoro got out from the vehicle and started walking towards the deceased's house but then returned and got into his vehicle saying he was looking for Sgt. Lalu. No one was in the vehicle with Ngoro at that time.
    
26. Pentrine then walked back to his house. On the way he met Ofai who told him that the deceased had died and that his wife, Qwenneth (PW3), was looking for him. He wanted to confirm the truth of Ofai's statement concerning the deceased's death so he and Gillien Bui ("Bui") walked to the scene of the incident. There he saw the deceased lying on the ground with blood all around him. He instructed Bui to contact the KFPL head office at Ringgi and inform them of the incident while he went back to his residence.
    
27. On arrival at his residence, he told his wife, Qwenneth, not to go down to the scene of the incident unless the police were on site. He said that he went back to the scene again when the police arrived that night. He then went and called his wife who came and attended to the deceased.
    
28. Asked whether he knew of any dispute between the deceased and Ngoro, Pentrine said that he was aware that Ngoro had arguments with the deceased's family about the land on which the deceased's family was staying in Poitete. He said he knew that Ngoro had argued with them and had told them to move out from the land.
    

Sara's evidence:

29. Sara was the second witness called by the Crown. His evidence was that at the time of the incident, he was a contractor with Kolombangara Forest Products Limited ("KFPL") and was working at the KFPL plantations at Poitete.
    
30. At about 4pm on 26th February 2010 he came down from the bush to Poitete to get his workers' pay so he could buy food for his workers and return to the bush again where his workers were based.
    
31. When he arrived at Poitete, the pay was not ready so he decided that he would spend the night at Poitete until the next day.
    
32. That evening at about 8pm, he came to Sakiusa's canteen to buy cigarette. He bought his cigarette and went outside onto the verandah of the canteen. He saw Lela in the canteen when he went in to buy his cigarette.
    
33. When he came outside he saw the deceased and John Kopae sitting down on the ladder outside the canteen talking. He was on the verandah which was about the 5feet 4inches from the ground. Kopae and the deceased were sitting on the ladder below him about a meter away.
    
34. Charles Poreke then arrived and asked him for cigarette. At that moment he saw a vehicle arrive and park at the road above the canteen. He recognized the vehicle to be that used by Ngoro. It was a Forestry vehicle. There was moonlight and that there was also sufficient light outside so he was able to see things clearly.
    
35. When the vehicle stopped, he saw Ngoro came out and shouted "Lela, Obed, you are the ones who broke the Government vehicle". The deceased then shouted back at Ngoro saying "Want to kill me, kill me".
    
36. When the deceased shouted back, Ngoro and a group of men came running down towards the deceased.
    
37. Ngoro ran and punched the deceased. Bentley, Tubara and Dagi also came and kicked and fought with the deceased. Bentley, Tubara and Dagi were wearing safety shoes.
    
38. The fight took place while he was sitting at the verandah of the canteen. He saw Bentley kicked the deceased on his side. He saw Tubara ran and punched the deceased. Dagi also ran and punched the deceased. He said that there were other people also fighting with the deceased but he could not recognize all of them.
    
39. He saw Ngoro took out a knife from the right front side of his trousers at the level of the buttons and stabbed the deceased on his left side. Ngoro was bare bodied at that time. He was on the verandah of the canteen looking down at what was happening and Ngoro was about a meter away from him when he stabbed the deceased.
    
40. He said the knife used by Ngoro had a yellow handle and was about a foot long. He saw blood on the ground when Ngoro stabbed the deceased. He became frightened when he saw the fighting but he was up on the verandah and could not escape because the ladder was blocked.
    
41. He sat on the verandah the whole time that the fighting was taking place.
    
42. Before Ngoro stabbed the deceased, he saw Dagi, Tubara and Bentley holding the deceased.
    
43. As soon as Ngoro had stabbed the deceased, he heard the deceased calling out to his mother in his language saying that he was dying. As soon as the deceased cried out, those who were fighting the deceased pushed him and he fell down to the ground. It was then that Ngoro told his group of men to stop what they were doing and after that they all escaped from the scene except Ngoro who was still standing close to the spot where the deceased fell. Ngoro had no shirt on at that time. Shortly after, Ngoro walked back to his vehicle. As soon as he reached his vehicle, Ngoro drove off.
    
44. He said he Ngoro, Dagi, Bentley and Tubara and he knew them well. They all live at Poitete and he saw them and talked with them a lot at Poitete. After Ngoro left, he went to get help from the nurse.
    

Qwenneth's evidence:

45. The third witness called by the Crown was Qwenneth who was a nurse at Poitete clinic on the 26th February 2010. She is Pentrine's wife. Her evidence was that at about 7pm on the 26th February 2010, she was in her house. Poreke came to her house and told her to go and see the deceased who was stabbed. She told Poreke to go and tell Lalu. She said she would not go until the police arrived.
    
46. She said Sakiusa also came and asked her to go and see the deceased, however, she told Sakiusa to go and tell Freda, the nurse-aid at Poitete at that time, so that they could go together and see the deceased.
    
47. On arrival at the scene, she and Freda examined the deceased and found that the deceased had already died. She saw a lot of blood on the ground where the deceased laid and estimated the amount of blood to be around 2 liters. They turned the deceased's body to expose the wound. She saw a wound on the left side of the deceased's body. She measured the wound and found it to be 3 inches long and 3 inches deep.
    
48. When they turned the deceased's body, she saw a kitchen knife with a yellow handle under the left side of the deceased's body. The knife was about 9 inches long. PC Panda picked up the knife and put it in a plastic bag.
    
49. They then took the deceased's body to the clinic, cleaned the body and kept it in the clinic until the police took the body to Gizo on 28th February 2010.
    

Hupa's evidence:

50. The fourth witness called by the Crown was Hupa. His evidence was that that he was at Poitete in the evening of Friday 26th February 2010. He was a KFPL worker and had come to collect his pay. He collected the cheque and went to Sakiusa's canteen with Poreke to cash the cheque. After cashing the cheque, he bought two cigarettes and gave one to Poreke.
    
51. He said he knew there was a fight happening outside the canteen while he was in the canteen. He heard Ngoro's voice saying "Hem nao ia. You spoiled government property."
    
52. On hearing Ngoro, he went out and saw a person on the ground. He became frightened and left the scene immediately.
    
53. He said that when he came to the canteen, he saw Sara in the canteen and that Sara was still at the canteen when he left. He said Sara was outside the canteen when the fight was taking place. He knew Sara because they worked under contract with KFPL. He also knew Ngoro well as Ngoro is the boss at Forestry Division at Poitete. When the fight happened, he saw Sakiusa came out of the canteen.
    

Poreke's evidence:

54. The fifth witness called by the Crown was Poreke. His evidence was that he was at the Sakiusa canteen at about 7pm on Friday 26th February 2010. He went there with Hupa to cash Hupa's cheque.
    
55. He then bought a cigarette and was smoking when he heard a vehicle arrived and parked at the Forestry area above Sakiusa's canteen. He heard the door of the vehicle being opened and slammed back and at the same time he heard Ngoro shouting out and asking for the whereabouts of Lela and the deceased. While shouting for Lela and the deceased, Ngoro was walking towards Sakiusa's canteen.
    
56. When he heard Ngoro calling out for Lela and the deceased, Lela was inside the canteen while the deceased was sitting down outside on the ladder of the canteen.
    
57. He came out from the canteen and stood on the verandah when he heard Ngoro's shouted. When he came out, he saw Ngoro fighting with the deceased. He saw Ngoro punched the deceased with both his right and left hands and that others also punched and kicked the deceased.
    
58. The deceased was not even defending himself. He saw around 8 people in all attacking the deceased. He saw Ngoro punched the deceased's face. He saw that three of the attackers were wearing safety boots.
    
59. He recognized those taking part in the attack as including Bentley Biara, Tubara Biara, Dagi, Presley (who was Ngoro's boat driver) and another boy who worked at Ngoro's crushing mill.
    
60. He saw Bentley, Tubara and Dagi kicked and punched the deceased. There was light outside the canteen and it was clear enough to see what was happening. There was also moonlight that night and there was light from the clinic as well as light from a lamp in the canteen giving sufficient light to the outside of the canteen.
    
61. As the deceased was being attacked, he heard the deceased call out for his mother and then he saw the deceased fell to the ground. The group of men fighting the deceased then escaped while Ngoro was still standing near the deceased's head.
    
62. Sakiusa then came out and shone his torch at Ngoro and asked Ngoro whether he was the one who killed the deceased. Ngoro did not answer but just walked back to his vehicle.
    
63. After Ngoro left, he shone a torch at the deceased and saw a lot of blood on the ground. He also saw a small knife on the deceased's body. The knife had a yellow handle. He recognized the knife as Dagi's knife. He used to see Dagi carrying the knife around and had the name of Dagi's wife written on its handle.
    
64. Unfortunately, when asked to read the writings on the handle of the knife he was unable to do so saying he had problems with his eyesight and could not read properly. Hence, on this particular aspect of his evidence, I am not prepared to accept that he was able to read the writings on the handle of the knife that evening.
    
65. He said he knew Ngoro, Bentley Biara, Tubara Biara and Dagi very well since they had been living at Poitete for many years. He said Tubara and Bentley are brothers and that Dagi is Ngoro's nephew.
    
66. He knew that Ngoro and the deceased were not on good terms with each other. Ngoro did not want the deceased to stay at Poitete and run his business there. As a result the deceased had closed down his business at Poitete about three months before the incident and had moved to Gizo but had come down from Gizo to Poitete on the day of the incident.
    

Lalu's evidence:

67. The sixth witness called by the Crown was Lalu who was a police sergeant stationed at Poitete on the 26th February 2010. His evidence was that at about 7pm on Friday 26th February 2010, he was at a neighbour's house at Poitete when a boy came and told him to go and see the deceased who was "killed". He decided to go to Sakiusa's canteen.
    
68. On his way, he came to the Forestry compound. He saw lots of people around at that time. He also saw Sakiusa there and asked him what happened. Sakiusa told him that they had killed the deceased and that the deceased was still at the front of his canteen.
    
69. He and Sakiusa then went to the canteen where he saw the deceased lying down on his back with lots of blood on the ground and blood still coming out from his left side. He then asked for a nurse but Sakiusa told him that a nurse had already seen the deceased and had pronounced him dead.
    
70. He, along with the nurse-aid, Freda, and Qwenneth and Panda, then checked the deceased's body. They turned the body on its right and saw a knife at the position where the wound was. The wound was on the left side of the deceased. The knife had a yellow handle and was about a foot long. Panda took the knife and placed it in a plastic bag. They also removed the deceased's clothes and placed them in a plastic bag. They then took the body to the clinic.
    
71. He said that before the day of the incident, he had received a letter from Ngoro claiming 6.5 cubic meters of timber from the deceased. Ngoro had wanted the deceased and his family to move out from the area where they were residing. The dispute had not yet been resolved at the time of the incident. He had no idea how long the dispute had been going on.
    

Osmond's evidence:

72. The seventh Crown witness was Osmond Possy. His evidence was that he went to the Sakiusa canteen at about 7pm on the 26th February 2010 when he heard that Ngoro had had an argument with the deceased on the road and had wanted to ram the deceased with his vehicle.
    
73. On the way, Ngoro's vehicle came past him. Ngoro was the driver and there were many people in the back trailer of the vehicle.
    
74. He came to the Forestry area and saw the vehicle parked at the side of the road behind the Sakiusa canteen. He came to the vehicle and turned down towards Sakiusa canteen. On his way down, he met Bentley, Tubara and Ngoro as they were coming up to the vehicle from the Sakiusa canteen. Bentley was the first to come then followed by Tubara and then Ngoro.
    
75. When he came to Sakiusa's canteen, he said saw a man lying on the ground facing up. He recognized him as the deceased. There was a lot of blood on the ground and the deceased was not moving.
    
76. He then returned to where the vehicle was. There he saw Ngoro and commented that that's not the way to settle disputes. Ngoro however told him that he was too young and not fit to advise him.
    
77. He said he knew there was a dispute between Ngoro and the deceased's father about the land where the deceased's family was occupying at Poitete. He said the deceased's father had already died.
    

Sakiusa's evidence:

78. The eighth witness called by the Crown was Sakiusa. His evidence was that on 26th February 2010 he travelled to Gizo by outboard motor ("OBM") to get cargo for his canteen. He runs his canteen from a building which he rents from Ngoro at Poitete.
    
79. After buying his cargo, he left Gizo at around 3pm on his way back to Poitete. With him in the OBM at that time were Lela, Texta, Silas, James and the deceased. They had bought some beer and were drinking in the OBM as they travelled back to Poitete.
    
80. On arrival at Poitete, he told Lela and the deceased to walk up first while he and others unloaded his cargo. He then went and sought assistance from Ngoro to transport his cargo to his canteen using Ngoro's official vehicle, a SIG land cruiser. Ngoro transported his cargo to the canteen and then left. He said in the vehicle with Ngoro at that time was Dagi. That was between 7pm and 8pm. He did not know where Ngoro and Dagi had gone to after dropping his cargo.
    
81. While he was still in his canteen, Lela came to him in the canteen and told him about an incident which occurred between Ngoro and him and the deceased. He said was not interested in hearing what Lela was saying but Lela appealed to him to help them saying that Ngoro wanted to hit them with his vehicle.
    
82. As Lela was speaking, he heard a vehicle speeding up and stopping at the road just above his canteen. Then he heard Ngoro shouting "where nao man ia". He said it was not clear whether Ngoro was asking for the whereabouts of Lela or the deceased or both.
    
83. He said Ngoro's shout was loud and sounded fierce. He heard the deceased shouted back to Ngoro saying "If you want to kill me, just kill me".
    
84. He wanted to go out to see what was happening but his daughter stopped him and pulled him back into the canteen.
    
85. Later he came out and saw the deceased lying on the ground in a pool of blood near the ladder of his canteen. At the same time he saw Ngoro standing about 2 or 3 meters away from where the deceased was lying down. Ngoro was not wearing any shirt.
    
86. He then asked Ngoro what happened and whether Ngoro had killed the deceased. Ngoro replied saying Lela broke the screen of his vehicle and he came to look for him.
    
87. Apart from Ngoro, he saw no one else at the scene of the incident at that time. He said Kopae, Poreke and Hupa were in his canteen when the incident happened but they disappeared soon thereafter.
    
88. After talking to Ngoro, he decided to go and seek help from the nurses. On his way, he came past a vehicle parked above his canteen. He recognized the vehicle as Ngoro's vehicle.
    
89. When he came to the vehicle, he saw Tubara, Bentley, Max and Presley standing at the rear of the vehicle. He then asked them who stabbed the deceased with the knife but they told him they had no idea who did it.
    
90. He said that on the night of the incident, there was sufficient light outside his canteen. There was moon light that night. The light from the nearby clinic was also shining. Also, the hurricane lamp in his canteen was also shining and providing a bit of light outside.
    
91. When he came out of his canteen and flashed his torch at the person who was lying on the ground, he recognized the person as the deceased. He said even without flashing his torch, he could still clearly recognise the deceased.
    
92. He said he knew Ngoro, Tubara and Bentley very well. He used to work with Ngoro at Poitete from 1987 to 1992. He also knew Bentley well since they used to work together at the Forestry at Poitete. He also knew Tubara well as they normally talk with each other and used to play soccer together at Poitete. He said Tubara worked as shop keeper at Ngoro's canteen at Poitete.
    

Logara's evidence:

93. The ninth witness called by the Crown was Logara. His evidence relates mainly to the criminal investigations carried out at Poitete in relation to the incident and the exhumation of the deceased's body carried out on the 5th March 2010 at Kosigi village on Simbo Island by Dr. Roy Maraka Dorovolomo ("Dr. Roy").
    
94. During his evidence, Logara produced a knife (Exhibit "P1") with a yellow handle given to him by PC Panda which was the knife used in the incident.
    
95. It is not disputed that that was the knife used in the alleged stabbing of the deceased. Blood stains were still visible on the knife at the time of trial.
    
96. Logara had also produced the jersey (Exhibit "P2") and trousers (Exhibit "P3") worn by the deceased at the time of the incident. The jersey had tear at the lower left side which is about 5 centimeters wide. It is alleged that the tear is located at the area where the stabbing occurred on the body of the deceased.
    
97. An autopsy report by Dr. Roy dated 13th March 2010 (Exhibit "P6") was tendered into evidence by consent.
    
98. According to the report, a stab wound measuring 45x10mm and 3mm deep was located at the left lower back of the deceased approximately 52cm below the left shoulder.
    
99. The stab wound had cut the back muscle including the psoas muscle and the large blood vessels in that region.
    
100. The report also said that there haemorrhages on both chest walls and the left iliac region (that is, the area around the stab wound) of the abdominal lining posteriorly.
     
101. The report concluded that the death of the deceased was caused by hypovolaemia as a result of blood loss caused by the stab wound on his left lower back.
     
102. There is no dispute about the findings and conclusions of the report.
     

Evidence by the accuseds:

103. The accuseds have elected to give evidence on oath. In addition, Kule and Siga have also been called to give evidence on behalf of Ngoro. Dagi, Bentley and Tubara were the sole witnesses for themselves.
     

Ngoro's evidence:

104. Ngoro's evidence was that in the morning part on 26th February 2010, he had been conducting surveys on two sites, one for Telekom Company for a Telekom tower and the other for the Police for their housing compound. Then at around 5pm he was requested to assist in transporting teachers who had arrived from Gizo. After transporting the teachers, he wanted to go for his showers at Piropiro river when he met Sakiusa who asked him to transport his cargo to his canteen. That was around 7pm.
     
105. He then drove to the landing area at Piropiro where Sakiusa had landed with his cargo. On arrival, he saw Sakiusa's boys as well as Dagi. He said Dagi had given some money to Sakiusa to buy things for him at Gizo and had come to collect those things. According to Ngoro, Dagi and 4 of Sakiusa's boys came with him in the vehicle to drop off Sakiusa's cargo.
     
106. When they came opposite the deceased's area, they stopped to drop the outboard motor and a few cartons of beer and other things belonging to the deceased and Lela. Dagi then dropped off and went to Ngoro's canteen.
     
107. They then drove to Sakiusa's canteen and dropped off Sakiusa's cargo.
     
108. After dropping Sakiusa's cargo, Ngoro drove to his canteen and took some food for his son then went home to Piropiro.
     
109. It was at the canteen that Dagi, Timothy Pitakaji ("Pitakaji") and Jacob Kalengada ("Kalengada") came into the vehicle. They then drove to Piropiro.
     
110. On the way, they met Lela and the deceased. Ngoro said he then heard Lela and the deceased swearing "Fuckem you. Kaikaim shit blo mummy blo you".
     
111. Ngoro stopped the vehicle and asked them what the problem was. Lela answered saying he and the deceased were only swearing at themselves.
     
112. At that moment the deceased jumped at the vehicle and said "You no any kind". Ngoro asked the deceased what the "any kind" was about. The deceased answered saying to him "You want to stop everything here".
     
113. As they were talking, Lela and the deceased jumped and blocked the vehicle. Lela and the deceased were drunk so to avoid hitting them Ngoro said he had to reverse the vehicle.
     
114. As he reversed, Lela and the deceased jumped to the left side of the vehicle. Ngoro then told them to wait until Monday to sort out the problem. However, as he was speaking, the deceased took a can of beer and damaged the mirror of the vehicle with the can of beer.
     
115. Ngoro said that after that incident, he drove to Piropiro but stopping on the way at the police station to report the damage caused to the vehicle.
     
116. There was no police officer at the station so he drove back to Piropiro with Dagi, Pitakaji and Kalengada still with him in the vehicle.
     
117. At Piropiro, he dropped off his son's food, stayed for about 5 minutes and then returned to the police station again to report the damage.
     
118. Dagi, Pitakaji and Kalengada had dropped off at Piropiro and had gone to their house. However, as he was about to drive off, Dagi, Pitakaji, Kalengada and Ronald Kule ("Kule") again jumped into the vehicle saying they wanted to go for a ride.
     
119. At the same time, his brother Gordon Pelopi ("Gordon") told him not to go and fight. He told Gordon he was not going to fight but to report the vehicle damage to the police. They then drove away.
     
120. When they came to the Piropiro Kindy area, Maxson Ama ("Ama") and Tubara got on to the vehicle saying they wanted to go and buy kerosene and food at the shop.
     
121. From Piropiro kindy, he drove to the police station again but there was no police officer there so he drove to the KFPL compound to see PC Tony Panda ("Panda").
     
122. He did not see Panda so he drove to Bentley's residence to see whether Panda was there. He did not find Panda at Bentley's residence so he drove back again to Panda's residence.
     
123. At Bentley's residence, Presley Loka ("Presley"), Siga and Bentley joined them in the vehicle.
     
124. They then drove back to Panda's house. Bentley went and checked for Panda but Panda was not in so Ngoro said he was going to go and check for Sgt. Lalu ("Lalu") and drove all the way to the Forestry Office compound. He said he parked the vehicle at the Forestry compound area so he could walk to Lalu's house.
     
125. He said that as he was opening the door of the vehicle, he heard swearing words saying "fuckem you fala. Fuckem mummy blo you fala." The people around there told him it was the deceased swearing.
     
126. He then heard footsteps running to the place where the swearing came from. He had no idea who were the people running.
     
127. Some of the boys who came with him were still in the vehicle while some had run to the place where the swearing came from. He did not check to see which of those boys ran down to the place where the swearing came from and who stayed back in the vehicle.
     
128. He then followed those who ran down with the intention to stop them from fighting. He told the boys not to fight the deceased. He told them he would go and get the police.
     
129. He moved about 3 to 4 meters from the crowd and told them not to fight the deceased. It was then that he met Bentley returning to the vehicle.
     
130. He then went to check for Lalu but Lalu was not there so he went to the residence of George Pena ("George"), a Forestry worker, and talked with him about the damage caused by the deceased to his vehicle.
     
131. He said because he was going around he did not know what was happening.
     
132. After talking with George, he came down along the main road. There he met John Kopai who advised him not to fight. He told Kopai that he did not want to fight and that he was looking for Lalu.
     
133. He came back to the vehicle. He saw Pitakaji, Kalengada and Siga sitting at the back of the vehicle.
     
134. He went into the vehicle and turned on the head light. He saw Osmond coming up from Sakiusa's canteen. Osmond came and told him to straighten things out in a proper manner. He told Osmond to go back to his house and to stop complaining.
     
135. He then went to the deceased's area where he met John Hato, a Forestry Manager at KFPL. He asked Mr. Hato about Sgt. Lalu but Hato did not know where Lalu was.
     
136. As he was talking with Hato, Pentrine arrived. Pentrine asked him what the problem was and he told Pentrine that he was looking for Lalu.
     
137. After talking with Pentrine, he went and spoke with the deceased's sister and asked her why the deceased was angry at him.
     
138. After speaking with the deceased's sister, he went to Sandra's house to look for Lalu. Sandra told him that Lalu had just gone out and indicated to him the direction in which Lalu had gone.
     
139. Then he met Macelyn Toata, a KFPL security. He asked Toata to accompany him to go and find the two police officers, Panda and Lalu.
     
140. They came to the Forestry office and asked the people around there whether Lalu came around there.
     
141. A woman called Masiala then told him that Lalu had not yet arrived and that Panda was attending a programme at his church.
     
142. They then went to the KFPL camp where they met Mrs. Panda who told them that Panda had gone up.
     
143. It was then that a security officer warned him that people were throwing stones and that he should go back to the village or else people would damage the vehicle. The security officer told him to go back to the village to wait for the police who would come down to the village.
     
144. He took the security officer's advice and returned to Piropiro village. With him were Pitakaji, Kalengada and Siga. That was about 10pm. He said on arrival at Piropiro, he had his shower, ate his food and went to bed.
     
145. It was at about 2am in the morning on Saturday 18th February 2010, Sgt. Galo of Ringgi police came and called him telling him that the deceased had died. He said he was shocked at the news of the deceased's death. He was then arrested with eight others and taken into custody.
     
146. He denied being involved in any fight with the deceased that night. He also alleged that the evidence against him by Sara and Hupa were false.
     
147. He denied knowing Sara and alleged that the first time he saw Sara was when he gave evidence in court.
     
148. However, when shown exhibit "P1", he admitted that Dagi had the same kind of knife. He also admitted that Dagi is his nephew and that Dagi lives with him at Piropiro village.
     

Kule's evidence:

149. Kule had given evidence on behalf of Ngoro.
     
150. His evidence was that at the time of the incident, he was working for Ngoro at his crushing mill. Dagi, Kalengada, Pitakaji, Ama, Tubara and Presley were working at Ngoro's crushing mill at that time.
     
151. Kule said that he had finished work at 4.30pm on 26th February 2010 and that after cleaning the mill area, he and Dagi sat there and smoked tobacco. They cut the tobacco with Dagi's knife which had a yellow handle.
     
152. He said at about 5pm they separated and he then went to have his wash at the river. That was around 6 or 7pm. He did not know where Dagi had gone to. After having his wash, he went to his house and got changed.
     
153. Then he saw Ngoro coming down in his vehicle. There was no one in the vehicle with Ngoro. He went and asked Ngoro if he could follow the vehicle to go to the shop.
     
154. He said Tubara had just arrived from a fishing trip and had asked him for his trousers. After Tubara had changed into Kule's trousers, they both jumped into the vehicle and went with Ngoro.
     
155. They came to a bridge where Kalengada and Pitakaji also boarded the vehicle. They moved on and met Ama who also boarded the vehicle.
     
156. They then went to Panda's house. Panda was not in so they went and turned around up the road past Ngoro's shop. In the vehicle at that time were Siga, Kalengada, Pitakaji, Ama, Tubara, Dagi, Presley and Bentley.
     
157. Then the vehicle came and parked at the Forestry area. As soon as they had parked, he heard the deceased swearing at them saying, "Fuck you. If you want to fight, come down." He said the swearing came from the direction of the Sakiusa's canteen.
     
158. On hearing the swearing, Dagi jumped from the vehicle and ran down. Tubara and Bentley also ran down but Ngoro stopped them. He said he also jumped down from the vehicle but just stood behind the vehicle.
     
159. He said Ngoro then walked to the police station while he walked down to Sakiusa's canteen.
     
160. He went down with Saevi who was the deceased's brother-in-law. When he came to Sakiusa's canteen, he saw a man lying down on the ground. He was still breathing. He was lying down between a mango tree and the ladder to the canteen.
     
161. He shone a torch at the man. At the same time, Sakiusa came out from his canteen. Sakiusa asked him what happened. He said he did not know.
     
162. He said he did not see any blood on the ground when he shone the torch at the person lying on the ground. The only thing he noticed was that the person was still breathing.
     
163. He then walked back to the vehicle and saw Pitakaji, Kalengada and Siga near the vehicle.
     
164. At the same time he saw Ngoro coming from the Forestry office to the vehicle. Ngoro got into the vehicle and drove them to a police officer's residence and then drove back to Piropiro at around 9pm.
     

Siga's evidence:

165. Siga was another witness called to testify on behalf of Ngoro.
     
166. In his evidence, Siga said he came from Gena village on Kolombangara Island and arrived at Poitete at around 4pm on 26th February 2010. He then went to Tubara's house.
     
167. While at Tubara's house, Ngoro arrived in his vehicle. Bentley's son also arrived at Tubara's house.
     
168. He and Bentley's son then boarded the vehicle and dropped at Ngoro's shop and then they walked to Bentley's house. He said Ngoro went back in the vehicle.
     
169. At about 6pm, Ngoro came back to Bentley's house. Siga and Bentley got onto the vehicle. Kalengada, Kule and Presley were already in the vehicle.
     
170. They then drove to the Forestry office. As they came to the Forestry compound, he heard someone swearing saying "Fuckem you fala".
     
171. He did not see the person swearing but said the swearing came from the shop further down from the Forestry office.
     
172. When he heard the swearing, Ngoro told them to stay put while he went to look for the police. They waited in the vehicle.
     
173. He said Ngoro went for about 3 to 4 minutes then returned back to the vehicle. When Ngoro arrived, he started the vehicle and then they drove away to Piropiro.
     
174. He said he did not see Dagi in the vehicle at all that whole time.
     
175. On arrival at Piropiro, everyone went to his own house. Siga went to Tubara's house and spent the night there. The police then arrived in the early morning of Saturday 27th February 2010 and arrested them.
     

Dagi's evidence:

176. Dagi gave evidence on his own behalf. He is Ngoro's nephew. He also worked for Ngoro at his crushing mill.
     
177. His evidence is that he was at Piropiro on the 26th February 2010. He had finished work at Ngoro's crushing mill and, after assisting Kule to clean up the mill, he went home.
     
178. Sakiusa then arrived and told him that his goods were in the OBM. Sakiusa also wanted to ask Ngoro to transport his cargo in Ngoro's vehicle. He and Sakiusa went to the OBM which had arrived at the Forestry canoe shed.
     
179. He took his goods and dropped them at his house. His wife then asked him to go to the shop to buy kerosene and battery. He rolled a cigarette, put his knife in his pocket and then went to Ngoro's vehicle. That was between 6.30pm and 7pm.
     
180. They then drove to the deceased's house to drop the engine and other things. In the vehicle was Sakiusa and others whom he could not remember. He dropped and walked to Ngoro's shop and got food while Sakiusa and Ngoro went further to Sakiusa's canteen to drop Sakiusa's cargo. Ngoro then returned to his shop where he (Dagi) got on and then they drove to Piropiro.
     
181. On their way to Piropiro, they met Lela and the deceased. Lela and the deceased were drunk and swore at Ngoro and him. They said "Fuckem you. Kaikaim shit blo mummy blo you". It was the deceased who was swearing.
     
182. Ngoro stopped the vehicle and asked them who was swearing and why. He (Dagi) told Lela to take the deceased away.
     
183. Montrose reversed the vehicle to move forward. The deceased jumped to the left side of the vehicle and broke the mirror of the vehicle. He and Ngoro then drove on to Piropiro.
     
184. When he got to his house, his wife asked him for the kerosene and battery she asked him to buy. He told her he forgot and would send someone to go and buy them. At the same time, he heard the vehicle engine had started so he got onto the vehicle and returned to Ngoro's shop.
     
185. When he got to the vehicle, Pitakaji, Kule and Kalengada were already in the vehicle. There were others also in the vehicle but he could not remember who they were. He said these boys just wanted to go for a ride.
     
186. They drove off and went to the police station but it was closed so they went to Panda's house. Panda was not there so they proceeded on to Bentley's house to ask for Panda. Again, Panda was not at Bentley's house so they decided to return to Piropiro.
     
187. It was there that Bentley, Siga and Presley then got onto the vehicle. Bentley had wanted to go to Panda's house. Panda was not there so they proceeded to the Forestry office compound.
     
188. They parked the vehicle at the Forestry compound. He was in the cabin with Ngoro at that time.
     
189. When they stopped, he got down from the vehicle and saw the boys looking down towards Sakiusa's canteen. He did not hear any swearing at that time. However, it was when he got down and stood outside the vehicle that he heard the swearing. He heard someone swearing saying "Fuckem mummy blo you fala lo truck. If you want to fight me, you fala come down".
     
190. He then saw Bentley ran down. He followed Bentley. He heard Bentley talked to the deceased saying "swear blo you ia rubbish".
     
191. Then the deceased answered "I cannot listen to anyone". As soon as he heard the deceased say those words, he saw Bentley fell to the ground.
     
192. When he saw Bentley fall, he ran towards the deceased and punched him. However, at the same time someone had pulled the deceased away so his punch did not land.
     
193. At the same time the deceased became unbalanced and grabbed his shirt and pulled it. He kicked the deceased but got unbalanced himself and fell towards the deceased.
     
194. As he fell he remembered that there was a knife in his pocket. He quickly pulled out the knife to avoid the deceased falling onto the knife. Unfortunately, his efforts were in vain. He fell onto the deceased.
     
195. When he fell onto the deceased, he was lying across the deceased's body. As he and deceased were lying there, people came and kicked both of them. There were many people so he did not know who kicked him and the deceased.
     
196. He then crawled out from the deceased. As he was crawling out, he heard Ngoro calling out saying "Leavem hem. No fightem hem". Ngoro had come to stop the fight. Ngoro's voice came from the direction of the slope where he and Bentley came from.
     
197. He then saw people moving out from the place where the incident took place. Then he recalled carrying a knife and started looking for it.
     
198. At that time, Saevi and Kule came to where the deceased was lying down. The deceased was crying. He saw Sakiusa came out from his canteen and shone his torch. He said he saw blood on the deceased's body and shirt.
     
199. He then started searching for the knife but Kule told him to look for it the next day. Kule then returned to the vehicle.
     
200. As for him, he went to Ngoro's shop, bought the battery and kerosene as required by his wife then walked home to Piropiro.
     
201. At about 2am on Saturday 27th February 2010, the police came and arrested them.
     
202. When shown exhibit "P1", he admitted that that was the knife he was carrying that evening. He also admitted that exhibit "P1" was his knife.
     

Tubara's evidence:

203. Tubara Biara also gave evidence. Tubara lived at Piropiro and is the brother of Bentley Biara. Both Tubara and Bentley are Ngoro's brothers-in-law, Ngoro being married to their sister. Tubara also works for Ngoro at Ngoro's crushing mill.
     
204. His evidence was that he was at Piropiro in the evening on the 26th February 2010. Between 7pm and 8pm on that day, he saw Ngoro's vehicle coming up the road. Ngoro was the driver. He ran and stopped the vehicle and got on. He wanted to go and buy smoke (cigarette).
     
205. In the vehicle were Kule, Pitakaji, Kalengada and Ama. They went to the police post and then to Bentley's house. At Bentley's house Siga, Presley and Bentley boarded the vehicle. They then came to the Forestry office's parking area above Sakiusa's canteen. They parked at the parking area.
     
206. As soon as they stopped, Tubara heard swearing coming from the steps of Sakiusa's canteen. He heard the swearing three times. He then saw Bentley jumped down. Dagi and Ngoro were in the cabin of the vehicle at that time.
     
207. He then heard fighting taking place. He ran down to where the fighting was. He heard Ngoro speaking in Roviana telling them not to fight. The sound of Ngoro's voice was coming from the slope above Sakiusa's canteen. He was about three meters from the deceased that time.
     
208. Then he saw Bentley walking back to the vehicle so he followed Bentley back to the vehicle.
     
209. When he got to the vehicle, he continued on and walked all the way back to Piropiro. He denied kicking or punching the deceased or ever taking part in the fight at all.
     

Bentley's evidence:

210. Bentley Biara also gave evidence on oath.
     
211. In his evidence, he said that in the evening of 26th February 2010, he had finished attending to a log vessel and a log buyer who was on board the vessel and had returned home. He then had his shower, had some food and beer and then discussed with his wife about their children's schooling at Enoghae school.
     
212. Then Ngoro's vehicle arrived. Ngoro stood on the road and called out whether there was any police man around. He replied that there was no police around.
     
213. Ngoro then left. Siga and Presley got onto the vehicle. He shouted to Siga and Presley to stop the vehicle. They did, so he jumped onto the vehicle as well. In the vehicle at that time were Kule, Pitakaji, Kalengada, Tubara, Ama and Dagi. Dagi was sitting with Ngoro in the cabin.
     
214. He got onto the vehicle because he wanted to go and see Panda. They reached Panda's house but Panda was not there. Ngoro then told him to go with them to check for Lalu.
     
215. They came to the Forestry parking area and stopped. As they stopped, he heard the swearing words "Fuckem you fala. Fuckem mummy blo you fala".
     
216. He recognized the voice as that of the deceased. He walked to where the deceased was in order to cool him down.
     
217. He came to the deceased and told him not to swear. The deceased however said that he would not listen to anyone. At the same time, the deceased pushed him causing him to fall facing the clinic. At that moment people came attacking. He did not recognize the people because he was on the ground.
     
218. Then he heard Ngoro's voice telling people not to fight. He did not know where Ngoro was calling from. After that he got up and walked back to the vehicle.
     
219. When he came to the vehicle, he saw Siga and Presley sitting at the back of the vehicle. At the same time he saw Sakiusa coming out of his canteen and shining his torch.
     
220. He denied punching or kicking or ever fighting the deceased. He said he heard Sakiusa talking with someone but did not know who that person was. He denied seeing Dagi at the crime site.
     
221. When he came to the vehicle, he crossed the road and went away.
     

Analysis of the evidence:

222. The defence evidence, in short, is that Ngoro, Tubara and Bentley had never assaulted the deceased at all that evening and that Dagi had tried to punch and kick the deceased but his punches and kicks did not land on the deceased.
     
223. The picture that the defence evidence also tried to paint is that the deceased's death was the result of an accidental fall on Dagi's knife.
     
224. I must first of all say that I find the evidence given by the defence clearly full of inconsistencies and contradictions in themselves. I have doubts as to credibility of the accuseds and their witnesses. I give the following instances as examples.
     
225. First, Ngoro said that when Lela and the deceased caused the damage to the mirror of his vehicle, Sam Dagi, Timothy Pitakaji and Jacob Kalengada were also with him in the vehicle. Sam Dagi, however, said that only he and Ngoro were in the vehicle at that time.
     
226. Second, when Ngoro arrived back at Piropiro after dropping off Sakiusa's cargo, he said Sam Dagi, Timothy Pitakaji and Jacob Kalengada were with him in the vehicle. Dagi however said only himself and Ngoro were in the vehicle on that return trip while Kule said Ngoro was by himself when he arrived back at Piropiro.
     
227. Third, Dagi said that his wife had asked him to buy kerosene and battery when he accompanied Ngoro to drop off Sakiusa's cargo. Dagi said he did not go as far as Sakiusa's canteen but dropped at Ngoro's shop to buy those things.
     
228. Somehow, he forgot what his wife asked him to buy and returned empty handed to his house. As a result, he had to get into the vehicle with Ngoro again when Ngoro left to go to the police to report the damage caused to his vehicle by the deceased.
     
229. I must say find it hard to believe that he could so easily forget what his wife had asked him to buy when he had actually dropped at the shop to buy those things and did not proceed on to Sakiusa's canteen to drop Sakiusa's cargo.
     
230. Fourth, Ngoro said that after the damage to the mirror of his vehicle, he drove to the police station to report the incident before returning to Piropiro. Dagi said they returned straight to Piropiro after the damage to the mirror of vehicle.
     
231. Fifth, Kule said that when Ngoro started the vehicle to go back and report the damage to the police, he and Tubara jumped into the vehicle and went with Ngoro and the others.
     
232. He said that Tubara had just arrived from a fishing trip and had changed into Kule's clothes and then joined him in the vehicle as Ngoro was taking off.
     
233. In contrast, Ngoro said that it was at the Piropiro kindy area that Tubara and Ama boarded the vehicle.
     
234. In comparison to Kule's evidence, Tubara himself said he was at Piropiro at around 7pm or 8pm that evening and that when he saw Ngoro's vehicle coming up the road he ran and stopped the vehicle and got on to it. He said when he got on the vehicle, he saw that Kule, Pitakaji, Kalengada and Ama were already in the vehicle.
     
235. Sixth, Ngoro said that after returning to Piropiro from dropping Sakiusa's cargo, he rested for about five minutes and then took off again to the police station to report the damage. As he was leaving, his brother, Gordon Pelopi, came and told him not to go and fight.
     
236. Gordon's intervention is significant in that it shows that Gordon must have heard or known somehow that Ngoro was angry and wanted to fight. Although there is no direct evidence to show who Ngoro was angry at or who he had wanted to fight, there can be no doubt that he was angry at, and wanted to fight, the deceased and Lela for damaging the mirror of his vehicle.
     
237. Seventh, when Ngoro drove off to go to the police to report the damage, Pitakaji, Kalengada and Kule and Dagi also came with him. The reason why Pitakaji and Kalengada and Kule got onto the vehicle was that they wanted to go for a ride. This is despite the fact that they had been riding in the vehicle with Ngoro and Dagi and had just arrived about five minutes ago. I find this explanation unbelievable.
     
238. There are also other matters which have given me reason to be cautious in accepting the defence evidence.
     
239. Firstly, Ngoro, Dagi, Tubara and Bentley themselves are the accuseds in this case. The possibility of them being biased in favour of themselves is high.
     
240. Second, Dagi is the nephew of Ngoro and Tubara was an employee and a brother-in-law of Ngoro while Bentley is also a brother-in-law of Ngoro.
     
241. Thirdly, Kule is an employee of Ngoro while Siga, through his connections with Bentley, is also connected to Ngoro.
     
242. As such, the evidence of these accuseds and witnesses must be treated with caution.
     
243. As for the Crown witnesses, I find no reason why they should be biased against Ngoro, Dagi, Tubara and Bentley. Sakiusa rents Ngoro's building for his canteen. He has every reason to be biased in favour of Ngoro. However, he was not biased in favour of Ngoro and I find him to be a straight forward and credible witness.
     
244. Sara and Hupa stood their grounds during cross examination and maintained their version of the facts as they saw that evening. There is no reason for them to be biased against the accuseds.
     
245. There is no evidence of any reason why any of the Crown witnesses should be biased against the accuseds or any of them. I find those witnesses to be truthful and credible.
     
246. It therefore follows that where there is any inconsistency between the evidence of the Crown witnesses and those of the accuseds and their witnesses, I prefer and accept the evidence by the Crown witnesses.
     

Findings:

247. Having considered the evidence in this case, I find that there was a long running dispute between Ngoro and the deceased's family regarding a piece of land at Poitete on which the deceased and his family have settled and on which they have been running their business.
     
248. The dispute began when the deceased's father was still alive and when the father died in or about 2005 the dispute had not yet been resolved. The dispute had created animosity between Ngoro and the deceased's family.
     
249. I find that the deceased and Lela had caused damage to the mirror of Ngoro's vehicle and this had inflamed that animosity and had given Ngoro a desire to fight the deceased on that fateful evening.
     
250. It is a common behaviour among a lot of Solomon Islanders, especially those living in urban and semi-urban centres where a lot of people of different ethnicity, language and regions live and mingle, that when a person wants to fight another person, he gathers his tribesmen, relatives, friends and/or those very close to him to help him fight that other person. This often happens when the person sees himself as weaker than the other person. That pattern of behavior is commonly termed "wantok system". It is prevalent in Solomon Islands and I take judicial notice of it.
     
251. From the evidence, I can reasonably infer that Ngoro's trips that evening were purposely to collect his relatives and employees to assault the deceased and Lela.
     
252. I do not believe that his trips were to report the damage to the mirror of his vehicle to the police. The damage was minor and did not warrant the kind of urgency with which Ngoro appears to have portrayed by his many trips allegedly made to the police station that evening.
     
253. I am satisfied that Ngoro drove from Piropiro to Bentley's house and then to the Forestry parking area before going down to Sakiusa's canteen where the incident took place.
     
254. I am also satisfied that in the vehicle with him when he took off from Piropiro were Dagi, Kule, Kalengada and Pitakaji. On the way, they picked up Ama and Tubara. They then proceeded to Bentley's house where they picked up Bentley, Siga Presley before going to the Forestry parking area where they parked the vehicle.
     
255. In the cabin with Ngoro during that journey was Dagi who had a knife in his pocket.
     
256. Dagi's evidence appears to suggest that he was cutting tobacco with the knife and that he took the knife with him when he boarded the vehicle at Piropiro with no intention that it would be used for any unlawful purpose.
     
257. I do not believe Dagi. He was present when Lela and the deceased caused the damage to the mirror of Ngoro's vehicle. He must have known that Ngoro was angry about that and he knew that Ngoro was going to fight the deceased and Lela when he took off from Piropiro that evening. He took the knife because he knew they were going for a fight.
     
258. Ngoro's brother, Gordon Pelopi, must have realized that the group, or at least Ngoro, was going to fight that evening and advised Ngoro not to fight. It would not have been possible for Gordon to advise Ngoro not to fight unless he knew that Ngoro was going to fight that evening.
     
259. The accuseds and their witnesses claimed that the deceased had sworn at them as they came and parked at the Forestry parking area. They said that it was that swearing which caused them to go down to Sakiusa's canteen where the deceased was.
     
260. Unfortunately, I do not believe that the deceased had sworn at the accuseds as alleged. I am satisfied that the accuseds and their witnesses have invented this story in an attempt to persuade the court to think that they were innocent of the deceased's death. Unfortunately, I do not believe any of them.
     
261. None of the Crown witnesses said they heard any swearing from the deceased. Sara, Hupa, Poreke and Sakiusa were in Sakiusa's canteen that evening.
     
262. They heard Ngoro's vehicle when Ngoro and his group came and stopped at the Forestry parking area. They also heard the door of the vehicle being slammed shut and also heard Ngoro calling out aggressively for the whereabouts of the deceased and Lela.
     
263. However, none of them said he heard any swearing coming from the deceased. The only thing they heard was Ngoro calling out for the whereabouts of the deceased and Lela and the deceased replying to Ngoro's call saying "if you want to kill me, kill me".
     
264. The deceased was sitting at the ladder to Sakiusa's canteen. Sara, Hupa, Poreke and Sakiusa were more closer to him than they were to the Forestry parking area. If these witnesses could hear the slamming of the vehicle door and Ngoro's calls for the whereabouts of the deceased and Lela, I believe they could have also heard any swearing that might have come from the deceased. They did not hear any swearing from the deceased.
     
265. I am satisfied, the accuseds and their witnesses have lied in alleging that the deceased had sworn at them. I find that the deceased did not swear as alleged by the accuseds and their witnesses.
     
266. I also find that the deceased was at that time sitting at the ladder to Sakiusa's canteen and that, on hearing the deceased's reply to his call, Ngoro and his group went down to where the deceased was sitting and assaulted him.
     
267. I find that it was Ngoro who stabbed the lower left back of the deceased with the knife exhibited as exhibit "P1" and that it was that stab wound that had caused the death of the deceased.
     
268. Having regard to the nature of the wound as described in exhibit "P6" and the weapon used in inflicting the wound as well as the circumstances in which the wound was inflicted I am also satisfied beyond reasonable doubt that Ngoro had intended to inflict grievous bodily harm to the deceased.
     
269. Dagi, in his evidence, suggested that the deceased might have been injured by his knife when he fell onto the deceased at the time he was trying to punch and kick him.
     
270. I simply do not believe Dagi and I reject his evidence. I am sure he was trying to take the blame onto himself in order to save Ngoro but, unfortunately, the evidence is against him and Ngoro.
     
271. I therefore find Montrose Ngoro guilty of the murder of Obed Rahemanu Ramo and, in accordance with section 200 of the PC, he is sentenced to life imprisonment.
     
272. As for the part played by Dagi in the incident, the evidence is clear.
     
273. On the basis of the evidence, I find that Dagi was aware that Ngoro had wanted to fight Lela and the deceased. I find that he was with Ngoro in the vehicle when the damage was caused to the vehicle by the deceased.
     
274. I am satisfied he knew that Ngoro was angry with the deceased. He had accompanied Ngoro in the vehicle that whole evening. He was in the cabin with Ngoro during the whole of the trip. By his own evidence, he had his knife in his pocket all throughout the trip. He admitted that exhibit "P1" was that knife and it was that knife which caused the injury from which the deceased died.
     
275. I have found that it was Ngoro who stabbed the deceased with the knife. I have also found that the knife belonged to Dagi and that the knife was in Dagi's possession the whole time that they were driving around with Ngoro that evening.
     
276. So how did the knife came to be in the possession of Ngoro? In the light of the evidence, the only reasonable inference to be drawn is that the knife must have been given to Ngoro by Dagi or that Ngoro must have taken possession of the knife from Dagi with the knowledge of Dagi.
     
277. As stated earlier, to be guilty as an aider and abettor, the accused must either be an active participant in the commission of the offence or must have willfully encouraged the person who had actually committed the offence to do so or must be a confederate or a person who had played such part in the commission of the crime as to be the result of a concerted design to commit the offence.
     
278. In my view, by handing over the knife to Ngoro or allowing Ngoro to take possession of the knife, Dagi has aided and abetted Ngoro in the commission of the murder.
     
279. I find Dagi guilty of aiding and abetting Ngoro in the murder of the deceased. Accordingly, he is guilty of the murder of Obed Rahemanu Ramo and, in accordance with section 200 of the PC, he is sentenced to life imprisonment.
     
280. Now the case of Tubara and Bentley.
     
281. I have found that the purpose of Ngoro driving around that evening was to gather his group, among whom were Tubara and Bentley, for the purpose of assaulting Lela and the deceased for damaging the mirror of his vehicle.
     
282. I am satisfied beyond reasonable doubt that Tubara and Bentley knew that the reason why Ngoro was driving around gathering them was to assault Lela and the deceased.
     
283. The criminal enterprise in this case was the plan to assault Lela and the deceased. Tubara and Bentley knew that this was Ngoro's plan and they participated in that plan, not only in jumping into the vehicle with Ngoro and the others, but also in wearing safety boots in readiness for the assault.
     
284. Tubara and Bentley have denied wearing any safety boots that evening. Unfortunately, the evidence by Sara shows that Dagi, Tubara and Bentley had worn safety boots that evening. Poreke said that he saw three of the attackers wearing safety boots when they were attacking the deceased. That is consistent with Sara's evidence that Dagi, Tubara and Bentley were wearing safety boots. I therefore find that Tubara and Bentley were also wearing safety boots that evening.
     
285. So, to the question whether there was a joint criminal enterprise, the answer is "yes" and to the question whether Tubara and Bentley were aware of that plan, the answer must also be "yes" and, as far as the evidence is concerned, they not only knew of the plan but they also participated in the plan.
     
286. The only question that remains, however, is whether they knew or realized that someone might be killed or seriously injured if the plan was carried out.
     
287. In that regard, I have found that the injury which resulted in the deceased's death was caused by a knife. I have also found that Tubara and Bentley were clearly parties to the common enterprise to assault Lela and the deceased. However, there is no evidence to suggest that Tubara and Bentley knew that Dagi or Ngoro were in possession of a knife with which the deceased was murdered.
     
288. While they may be a party to the criminal enterprise, knowledge that an assault on the deceased would result in death or serious injury to the deceased or another person is an important requirement that must be proved beyond reasonable doubt. This is where the Crown case has fallen short.
     
289. In these circumstances, I consider that Tubara and Bentley could only be guilty of manslaughter and, accordingly, I convict them of manslaughter.
     

THE COURT

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^[1] See section 202 of the Penal Code; see also R v Viu CRC No. 15 of 1993 and Viu v R Crim. Appeal No. 7 of 1994.
^[2] R v Allan, Boyle, Ballantyne & Mooney (1965) 47 CrAppR 243
^[3] R v Clarkson, Dodd and Carroll [1971] 1 WLR 1402.
^[4] R v Gray (1917) 12 CrAppR 244.
^[5] [1975] EWCA Crim 1; [1975] 3 WLR 11 at p.13.
^[6] See R v Ben Tungale & Others CRC No. 12 of 1997; R v Peter Fitali & Others CRC No. 39 of 1992; R v Victor Tadakusu CRC No. 239 of 1999.
^[7] See Chan Wing-siu v R [1984] UKPC 27; [1984] 3 All ER 877; R v Slack [1989] 3 All ER 90; R v Hyde [1990] 3 All ER 892; Hui Chi-min v R [1991] 3 All ER 909, and R v Roberts [1993] 1 All ER 583.
^[8] [1990] 3 All ER 892.
^[9] [1991] 3 All ER 909.
^[10] [1993] 1 All ER 583.
^[11] [2006] SBCA 19; CA-CRAC 002 of 2006.
^[12] [1974] HCA 54; (1974) 134 CLR 426