Regina v Maelonga [2012] SBHC 35; HCSI-CRC 247 of 2010, 462 of 2010, 171 of 2010 (24 April 2012)

HIGH COURT TO SOLOMON ISLANDS.
(Faukona J).

Criminal Case Numbers: 247 of 2010, 467 of 2010 and 171 of 2011.

REGINA

-V-

(1). TAEALAMO MAELONGA
(2). PETER SUTAFANABO
(3). WILLIE MAELONGA.

Hearing Dates: 23-26/1/2012, 30-3/1/2012, 1-3/2/2012, 6-8/2/2012, 13-17/2/2012, 20/2/2012, 7/3/2012.

Date of Judgment: 24th April, 2012.

Mr H. Kausimae for the Crown.
Mr S. Kalu for First Accused.
Mr W. K. Ghemu for the Second Accused.

Mr S. Aupai for the Third Accused.

JUDGMENT

Faukona J: All the accused, Taealamo Maelonga, Peter Sutafanabo and Willie Maelonga, herein called Accused 1, 2 and 3 respectively, are jointly charged for murder of the deceased Jack Maenari, contrary to Section 200 of the Penal Code.

2. Accused 2 and 3 are also charged separately for an offence of an act intended to cause grievous harm, contrary to Section 224 (b) of the Penal Code.

3. The charges emanated from an incident that occurred on 23rd November 2009, at Lausia village, East Kwaio, Malaita Province. On that date it was alleged following the participatory effort of Accused 2 and 3, Accused 1 executed the premeditated act in the presence of Accused 2 and 3 by slashing the deceased neck with a bush knife which caused fatal injuries and subsequently resulted in the death of the deceased.

Some facts to note:

4. It is relevant to note that Accused 2 and 3 and the deceased are blood bothers. Accused 3 was the first born, then the deceased and then Accused 2. Accused 1 is the son of Accused 3 and a nephew of the deceased.

5. Accused 1 and 3 lived at Lo'oka or Lo'omalaone village located further inland of East Kwaio. Both are heathen and practice ancestral worshipping. The deceased lived at Lausia village which is a bit inland from the coast. Accused 2 lives at Kwaina'aukwai village which is a shouting distance from Lausia village. Both villages shared the same water source. Accused 2 and his brother the deceased are Christians.

6. From the photographs and evidence the village of Lausia seemed to be inhabited by the deceased and his family. There are no other members of other families or even nucleus family dwell among them, like many community villages in Solomon Islands.

The Crown Case:

7. The Crown Case is that, on the morning of 23rd November 2009, between 7:00 am to 8:00am, all the accused were present at Lausia village at the deceased's house. Their presence at the same location at one time depicted an intention to execute a joint criminal enterprise of which each was a party.

8. On arrival they stood outside in front of the house in an open space. They were all armed with a spear and a knife each. The deceased was standing at the front door of his dwelling house. Accused 2 then threw his spear at the deceased but was missed and went through into the house.

9. Accused 3 then climbed up the ladder of the house. At the same time Accused 1 and 2 said that they have been waiting for the deceased and he had arrived. Both men persuaded the deceased to go down so that they would cut his neck. Accused 3 then cut the deceased with his bush knife but was missed and landed on the wall and the door frame.

10. The deceased was angry by then. As Accused 3 was descending down the ladder the deceased speared him through the wall of the house. Accused 3 said he would die of the spear wound. Accused 1 then asked the deceased to go down from the house so that he would cut his neck. Whilst in front of the house Accused 2 threw his second spear at the deceased but missed and landed on the ladder.

11. The deceased then put down his spear and knife and jumped out of the house unarmed. As soon as he landed on the ground Accused 1 approached him and delivered the fatal knife cut on his neck. Then all the accused followed the road behind the deceased's house that led to Accused 3's village.

The Defence Case:

12. The defence case is that Accused 1 and 2 had never been to Lausia village on the morning of Monday, 23rd November, 2009 and not involved in the deceased's death. Accused I was on his way from Boloagau village to Lausia village when he met his wounded father (Accused 3) on the way returning. He then accompanied him to their home at Lo'omalaone village up inland.

13. Accused 2 was at his village Kwaina'aukwai when he heard people arguing and heard the words "killem mi" so he proceeded to Lausia village. As he approached the village and from the entrance he saw the deceased lying down on the ground and Accused 3 was standing at his side crying.

14. There was no notice of alibi intended to be served on the parties to verify the location of both accused at the time of the incident.

15. Accused 3 was the only accused present at Lausia village on the morning of 23rd November, 2009. He admitted slashing the neck of the deceased after the deceased swore at his devils and speared him twice; one on his left palm and the other on his left belly, below his left rib cage. He did it by self-defence.

The Law on Murder Charge:

16. Section 200 of the Penal Code define murder as "any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder and shall be sentenced to imprisonment for life."

17. From Section 200, two elements ought to be established before a person is criminally responsible for committing the offence of murder. One is the physical unlawful act or omission and the second is the mental state.

18. In order for a crime of murder is committed the element of forbidden action must be accompanied with the forbidden mind, which means the act does not constitute guilt unless the mind is guilt.

19. The law can only punish people who are blameworthy and not innocent; for instance in the case of absolute defence or qualify defence. Blameworthiness does not depend on what a man did, or the result of the action caused, but depends on his knowledge and intention when he acted.

20. Section 202 of the Penal Code further defines the state of mind (malice aforethought) which must be proved by evidence, preceding or co-existing with the act or omission. There are two states of mind expressed in subsection (a) and (b), either of which if proved would establish malice aforethought.

21. The first is an intention to cause the death of or grievous bodily harm to any person. Secondly is the knowledge that the act which caused the death will probably cause the death of or grievous bodily harm to some person whether such person is the person actually killed or not.

22. To ascertain the state of mind, intention and knowledge, the Court should look objectively at all the evidence including that of the defendant[1]. The issue of knowledge must be considered on the basis of what had been established by evidence which show the appellant knew of the consequences and not according to the knowledge of the ordinary reasonable person.[2]

23. The prerequisite knowledge can be inferred from words and actions. In considering the accused's knowledge it is the cumulative effect of all the evidence that must be considered[3]

The Law relates to parties to offence and joint criminal enterprise:

24. Where there is more than one person involved in the commission of offence, the person who is criminally responsible is directly responsible for the actus reus. In practice it is not only a person responsible for actus reus could be held responsible for the offence. It may be other persons as well.

25. To extend the responsibility of an unlawful act to include others is governed by the existence of the principle or doctrine of joint criminal enterprise. It is the principle of secondary degree; is the secondary participation which the common law term as aiding, abetting, procuring, counselling or prosecuting an unlawful purpose with another.

26. On all factual situations a conviction of the commission of the offence entails the same consequences in all respect, as a conviction of committing the offence - see Section 21 of the Penal Code.

27. To determine the objectivity of any joint criminal enterprise the Court has to consider proved circumstances. Not only that but the Court has to be satisfied that reasonable evidence of common intention to commit the unlawful preconcert acts exist.[4]

28. To bring home the principle into the domestic law of Solomon Islands, Sections 21 and 22 of the Penal Code governed the law in respect of joint criminal enterprise or common purpose and its application.

29. Section 21 (a) concerns with the principle of the first degree, a person who is responsible for causing the act. Subsections (b) – (d) deals with the situation of aiding, abetting, procuring and counselling. Aiding is define to give support, help, or to give assistance, or giving physical assistance. Abetting is defined as to encourage or incite someone to commit an offence, in other words to instigate. Counselling or procuring is offering encouragement in an earlier stage.

30. The terms joint criminal enterprise and common purpose can be used interchangeably to invoke the doctrine which provide additional means of establishing participation with another of a wrong action by the secondary party in the commission of the crime[5].

31. The distinction between Sections 21 and 22 premises on the issue whether the joint criminal enterprise is a straight forward one or an extended version involving the consideration of probable consequence set out in Section 22 of the code.

32. It is a requirement that such distinction be made after analysis of the facts of each case. In R v Miavana,[6] Commissioner R. D. Chetwynd observe and stated;

"It seem to me that section 21 is aimed at those who intentionally participate in an offence, whilst Section 22 is aimed at those who might set out with others or another to commit a particular offence and become complicit in an entirely different offence ... if there is straight forward evidence, evidence of aiding and abetting then there is no need to rely on the doctrine of common purpose".

33. In R v Cawa[7], Commissioner Lewis comment on the law by stating;

"Aiding and abetting means [in the context of Section 21] doing one or another of the three things"

(1) intentionally helping the principal in the first degree to commit the crime; or

(2) Intentionally encouraging him by one's presence or behaviour to commit it, or

(3) Intentionally conveyed to him by words or presence that one is assenting to or concurring in the commission of the crime.

34. A person does not need to be present at the commission of the crime to have taken part in committing the offence but assistance must have been given in committing the offence, which must mean that the participant is at least aware of what is being done or perhaps will be done by the actor. [Carter 750].

35. On the issue of being present and participate in the joint criminal enterprise Hunt CJ said in R v Tangye[8] in which he directs in point [111] and said,

"A person participates in the joint criminal enterprise either by committing the agreed crime or simply by committing and [with knowledge that the crime is committed or is being committed] by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to encouragement to the other participant in the joint criminal enterprise to commit that crime".

36. Further a person aided and abetted must be established that he is presenting (actual or constructive). In R v Maetia and Misi,[9] Sir J. Muria, CJ said,

"The authorities clearly show that for a person to have aided and abetted the commission of an offence it must be established that he is present (actual or constructive); that he knows the facts necessary to constitute the offence and that he is actively encouraging or in some way assisting the other person in the commission of the offence. Knowledge of the actual offence committed is not essential."

37. In Ligabatu and Others v Regina[10], following R v Barlow the Court said;

..."In order to render a secondary offender liable, that person must be proven to have given aid or assistance knowing that the offence was being or was about to be committed by the primary offender and concluded that in the present case therefore section 21 (с) of the Penal Code require proof that each of the accused appellants realized when they assisted (the principle offender) that he intended to kill or do grievous bodily harm which is to be determined subjectively".

38. In R v Allen, Ballantyne and Mooney, Edmund Davis J delivered the judgment of the Court on pages 246 – 250, citing the case of Coney [1882] UKLawRpKQB 30; (1882) 8 QBD 534 said;

"Now it is a general rule in the case of principals in the second degree that there must be participation in the act, and that although a man is present whilst a felony is being committed, if he takes no part in it, and does not act in concert with those who commit it, he will not be a principal in the second degree merely because he does not endeavour to prevent the felony, or apprehend the falcon"

39. The Court continued; encouragement in one form is a minimal requirement before an accused person may be regarded as a principal in the second degree to any crime.

40. Participation in crime does not necessarily require a man should actually have taken part in the physical act connected with the crime. In R v Gray[11] Lord Reading CJ delivering the judgment of Court said;

"If he has participated in the crime this is to say, if he is a confederate (shares in the crime) he is guilty, although he has no hand in striking the fatal blow. Equally it must be born in mind that the mere fact of standing by when the act is committed is not sufficient. A man, to become amenable to the law, must take such part in the commission of the crime as must be the result of a concerted design to commit the offence".

41. In Archbold Criminal Pleading and Evidence and Practice at 29-6, 42 Edition, the author stated;

"It is not necessary to prove that the party actually aided in the Commission of the offence; if he watched for his companions in order to prevent surprise, or remain at a convenient distance, in order to favour their escape, if necessary, or was in such a situation as to be able to readily come to their assistance, the knowledge of which was calculated to give additional confidence to his companions, he was, in contemplation of law, present aiding and abetting".

42. In the case of Keke v R[12] the Court of Appeal said;

"....... to be a principal in the second degree, there must be evidence of conduct pointing to assisting or abetting the principal of the first degree ... where presence is entirely innocent or accidental there can be no evidence of aiding or abetting. Where presence is on the face of it not accidental it is no more than evidence for the jury or the Court"

43. The mental element required in aiding and abetting is participating in a concerted design or joint venture to commit the offence or having the necessary knowledge of the facts constituting the offence, and giving assistance or participation therein. It is a different requirement from the principal. An aider and abettor in murder have never had the intention to kill. He may, of course, hope or desire that the principal does kill but what needs to be proved is an intention to render assistance in the realization that the other may kill or do so deliberately or intending to inflict serious injury. Aiding and abetting requires proof of mens rea that is to say of intention to aid as well as knowledge of the circumstances, see National Coal v Gamble [13].

44. In considering a case of joint criminal enterprise it is the duty of a tribunal of fact to draw appropriate inferences is considered in the Australia case of G v H[14].

45. All in all His Lordship Muria A CJ concluded by summarizing the elements of aiding and abetting in R v A. Maetia and Misi[15].

1. The accused were present (actual or constructive).

2. There was a concerted design to commit the offence; or

3. That there is knowledge of fact constituting the offence.

4. There was participation or some form of participation that is intention to encourage commission of the crime.

The Law on Prosecution of a common purpose:

46. The Crown also submits that should the Court refuse to accept its case under section 21, then an alternative common intention to prosecute an unlawful purpose is considered under section 22 of the Penal Code.

47. Section 22 admonishes the formation of common intention by two or more persons to prosecute unlawful purposes, and in doing so an offence is committed of such a nature that its commission was a probable consequence of such purpose.

48. In the case of R v Ben Tungale,[16] Awich J stated at pages 17 – 18,

"The Law of joint liability is that when more than one person embarked on a joint enterprise, each is liable for the acts of others, done in pursuance of the joint enterprise and that includes liability for unusual consequences if they arise from the execution of the joint enterprise. Each one is, however, not liable if one of them acts beyond what was expressly or tacitly agreed as part of the joint enterprise; he is not liable for the consequence of disagreed and therefore unauthorised acts of others. That rule was firmly established in the English case of Anderson and Morris[17] and confirmed in the case of John David Ward[18].

48. In McAuliffe v R [19] the Court describe the doctrine of Common purpose by stating;

....the Complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others. Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be expressed and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime they are all equally guilty of the crime regardless of the part played by each of its commission".

49. In the case of R v Peter Fitali and Others[20] Muria CJ stated at page 8;

"The existence of a joint enterprise must be first established. Then it must be proved that the accused were all parties to that joint enterprise and that the acts of the accused were done in furtherance of that joint enterprise or common purpose.

50. It appears from the authorities that first, there has to be an understanding or arrangement amounting to an agreement between the parties of a joint enterprise. The joint enterprise must be in existence and must be established. Then there must be evidence to prove that all the accused were party to that joint enterprise. Subsequently they acted in furtherance or in execution of that joint enterprise or common purpose in doing so commit a crime.

51. It is to be noted that section 22 has no application in the circumstances where, for instance, two accused form a common intention to commit an offence and in fact do nothing further except commit that offence. Then there is no need to consider section 22 as both accused are equally culpable. For instance during the course of committing the offence for robbery and one of the accused killed a person, that accused is capable for unlawful killing. In such situation Section 22 is applied to decide this because it becomes an additional offence to that originally intended. The question is whether the killing was a probable consequence of the original intended offence of robbery.

52. In the case of R v Victor Tadakusu,[21] the Court outline the relevant elements under Section 22 of the Penal Code; and they are;

1. A common interest.

2. To prosecute an unlawful purpose.

3. An offence is committed

4. It is a probable consequence arising from prosecution of such purpose.

The Charge of Murder:

53. The first count is a charge of murder which all the accused are indicted for contrary to Section 200 of the Penal Code. The Crown case is that all the accused were party to a joint criminal enterprise to kill or cause grievous bodily harm to the deceased. The Court must be satisfied of common intention to commit the unlawful acts, and can only determine the objective of that joint criminal enterprise from proved circumstances.

54. I will first deal with the criminal liability under Section 21 of the Penal Code. In order to render all the offenders liable under Section 21, they must be proven to have been present and participated in actual committing of the crime or giving aid or assistance knowing that the offence was being or was about to be committed by the primary offender. Proof is required that each of them intended to kill or intended to provide aid and assistance to do grievous bodily harm[22].

55. The question ought to be paused is, had all the accused present, either actual or constructive on the date of incident at the deceased house and participated in the commission of the offence and or by aiding and abetting with intention of giving assistance.

56. To prove its case the Crown relies on the only direct evidence of PW1 and a number of circumstantial evidence and exhibits in quest to unfold the truth. In a contested charge it is often expected that distinctive views will emerge. As such any source of evidence needs to be critically analysed by the judicial process of treatment of evidence considering its relevancy, consistency, credibility and reliability.

57. At this juncture an ideal point to start with is to consider the probable motive that prompted evil mind that subsequently led to evil doing.

The probable Motive:

58. In extreme circumstances where life is taken away by an aggravated or violent act, often, if not, in most cases there is motive that prompted the killing. In all cases the Crown carries the legal burden to prove the motive that could have been derived from previous acts, if any, events, or what were said. In the case R v Williams (CI),[23] referring to the dicta of Lord Atkinson in Ball's Case (that evidence of motive was admissible to show that it was more probable that the accused committed the offence charge, and of Kennedy J in R v Bond,[24] [that relations of a murdered man to his assailant were properly admitted to prove as integral parts of the history of alleged crime, so far as they might reasonably be treated as explanatory of the conduct of the accused).

59. In ordinary prosecution for murder the Crown has to prove previous acts or words of the accused to show that he entertained feelings of enmity towards the deceased, and this is evidence not merely of the malicious mind with which he killed the deceased, but of the fact that he killed him.

60. In R v Bolami[25], I did quote with the approval the definition of motive cited in Hayman V DPP, stated at paragraph 78, that;

"In fact the case define motive in two distinctive but related meanings. In the first sense it means an emotion prompting an act. In the second sense, motive is to be equated with the ultimate end of a course of action often describe as purpose or object. From the two meanings the first is entirely distinct from intention or purpose. It is the emotion which gives rise to intention".

61. In almost all cases it is more probable that men are killed by those who have some motive for killing them than those have not.

62. Accused 3 states in evidence that after the marriage of Esau and Susan had disintegrated his daughter Susan Rifu told him that the deceased had sexual relationship with her. Upon hearing the news he felt bad so he approached the deceased to inquire. The deceased swore blocking any discussion in relation to the matter and swore not to pay any compensation. In cross examination Accused 1 says his father told him of the problem and that the deceased swore not to solve the problem, meaning to pay any compensation. That was before the deceased left for Honiara.

63. The news became a public knowledge and people at Lausia village and the vicinity talked about it. Culturally it is a serious offence for a man to have sexual relationship with his niece. However, Accused 3 further stated that though it was bad it can be resolved by payment of compensation of pig and shell money. If nothing is paid then it will create new problems.

64. Accused 2 also states in cross examination that when he returned home after selling his three pigs in Honiara, he heard the news concerning the deceased having sexual relationship with Susan Rifu. And the news had spread among the people in the vicinity of Lausia village. But agree to resolve such problem payment of pig and shell money is the answer.

65. PW12 Mrs Bethphase Oirua, the wife of the deceased says when the deceased was still in Honiara Accused 1 gone to her house on three occasions. On the third occasion Accused 1 said if the deceased failed to do anything he disrespected his head and tribe. On that occasion too Accused 2 accompanied him and he assured Accused 1 that he would go to Honiara and persuade the deceased to return home so that they could solve the problem. He did and coincidently returned home on 20th November, 2009, with the deceased and others on the same boat.

66. On 21st November, 2009, a day after the deceased arrived from Honiara, Accused 1 approached PW3, the Chief, to arrange for a meeting between himself and the deceased to occur on 23rd November, 2009, the day of incident, which he did. Again on the morning of 23/11/2009, before the incident PW3 met Accused 1 and conversed with him. PW3 describe him as someone who would not listen. On the morning of incident, at the scene, PW1 heard Accused 1 and 2 said the man they had been waiting for had arrived.

67. Transpired from those evidenced it is undoubtedly the case that there have been no compensation transacted to resolve the issue. Even up until the date of the deceased death, which did cause ambitious anger and annoyance to all the accused.

68. In Kwaio custom or Malaitans for that matter, it is a prohibited act for close relatives as a man and his niece to have sexual relationship. It is serious or taboo for such offended behaviour to occur within the family. To a certain extent it down grades the status of that family and questions their standing in the community, thus prompted shame on them. In most cases, though compensation is paid, the reputation of the family will take a long while before it is recognised and recreated back into the community.

69. The negative respond and continuous persistent not to pay had caused anger on all the accused. Accused 3 emphasized should nothing was paid it will create more problems. Accused 1 said such an arrogant behaviour defiled his head and the tribe. Accused 2 expressed his anger in answering Q.16 of his record of interview. The tones of their voices connote desperate and ambitious anger and anxiety.

70. Subsequently such failure prompted some reactions of resentment by all the accused. All had expressed their views as above. Accused 2 did also play a role because previously he received a share of the bride price paid by the deceased's family for Susan Rifu, the daughter of his brother Accused 3. Again the same girl involved in another problem which by customary obligation he was entitled to involve.

71. Anger or grudges is one element which promote enmity that may form the basis of motive which can prompt a person to do an unlawful act. The evidence show as an integral part of the history of the alleged crime, which reasonably be treated as explanatory of the conduct of all the accused. I must say the probable motive has been established by evidence.

The presence of all the accused at the scene of crime on 23/11/2009:

72. The revelation by Susan Rifu of the deceased having sexual affair with her prompted Accused 3 to find out from the deceased. However the deceased swore blocking the allegation and swore not to pay any compensation. It became apparent that the news became public knowledge at Lausia village including the surrounding villages. All the accused were aware that the deceased had refused to pay any compensation and that caused them anger, anxiety and resentment. In any case that is normal where there is a serious problem within the same family and has not been resolved.

73. PW12 has pointed out in her evidence that after her husband (the deceased) left for Honiara Accused 1 went to her house three times and asked for PW1. She told him to wait until the deceased arrived from Honiara before they could talk. On the third occasion Accused 1 was accompanied by Accused 2 and a man named Ri'ilamo. On that occasion Accused 1 said if the deceased did not do anything he disrespected his head and tribe. Accused 2 intervened and stated that he would go to Honiara to persuade the deceased to return home so that they would resolve the problem. Accused 2 confirm in evidence that he went to Honiara but for a different purpose; that he was following his son. Whatever reasons Accused 2 might have, the fact was that he returned home with the deceased and others on the same boat and arrived home on 20th November, 2009.

74. On Saturday 21st November, 2009, Accused 1 stated that he went to the sea coast to buy some fish. There was nothing so he returned home. On his way he passed through Boloagau village and met up with PW3 Chief Unufaka. What transpired at that meeting was controversial. But the fact was that on Sunday 22nd November 2009, PW3 went to Lausia village and told the deceased that accused 1 would meet him personally on Monday 23rd to discuss the problem. It was not a discussion involving the chiefs. Had it been so, Chief Unufaka would have arranged for other chiefs to attend.

75. The news of the deceased's arrival on Saturday 21st November, 2009, was conveyed to Accused 3 by Accused 1. That was confirmed by Accused 3 in his evidence.

76. On the morning of Monday 23rd November, 2009, Accused 3 went to Lausia village. Accused 1 also followed his father, by his version to Bologau village, to check on PW3 whether he had conveyed the message to the deceased that there was supposed to be an anticipated meeting on the morning of that day. The meeting of the two men was described by PW3 as arrogant and Accused 1 could not take heed. At that time Accused 1 was armed with a spear and a knife. Then Accused 1 proceeded after Accused 3 to Lausia village.

77. PW1 indicated the entry by all the accused to the crime scene was from the direction of Accused 2's house which is towards the right hand side of photograph 1 of Exhibit 1. It was between 7.00 – 8.00am on 23/11/2009. He saw Accused 2 and 3 arrived first then little later Accused 1. On arrival they stood in front of their house where he marked 'X" on photograph 2 of Exhibit 1. The position was not far from the house and it was in an open space. At that time he was standing at the window marked "0" on photograph 2 of Exhibit 1, and was looking through. He saw all the accused clearly, each was armed with a knife and a spear.

78. Accused 2 confirmed in cross examination that there was a footpath that led from Boloagau village through his village Kwaina'aukwai then to Lausia village, and vice versa. That was exactly the footpath all the accused followed when they went to Lausia village that morning.

79. The evidence of PW2 and PW12 was that PW1 was left behind at their house with the deceased when they and other members of the family left to work and collect food from their bush gardens. Those evidence had placed PW1 at the house and crime scene.

80. Accused 1 and 2 have denied being present at the crime scene on 23/11/2009 and denied any involvement. Accused 3 admitted his presence at the crime scene by himself, and admitted responsible for killing the deceased. While he was there, nobody else was seen around.

81. The evidence of PW10, John Sisa Baetalua places only Accused 3 at the crime scene on the morning of 23/11/2009. He could not hear any words spoken by both men as he walked past, but could hear arguments from Kwaibaita, some distance away.

82. After the incident at Lausia village all the accused returned to their homes. By then news had spread out. PW3 who lived at Boloagau village saw Accused 1 and 3 at the edge of his village as they were returning home. He saw Accused 3 with a big knife but an old one. He could not see them clearly as they disappeared on their way. PW6 who was also from Boloagau village saw Accused 1 and 3 on their way home. Accused 1 was in possession of a knife and a spear. Accused 3 was unarmed, and was wounded. He also saw Accused 2 went through his village following Accused 1 and 3. He was also armed with a spear and a knife. PW9 who also hailed from Boloagau village saw Accused 1 and 3 following the road to their village. That was after they heard the news of the killing. He saw Accused 1 had a knife and two spears, and Accused 3 was following him and he was in possession of a knife.

83. In summing, there is evidence from PW3 who actually met and conversed with Accused 1, at Boloagau village before the incident. Accused 1 was armed with a knife and a spear and was of an attitude of not listening. After a short conversation Accused 1 preceded on the same footpath described by Accused 2 and intended to go to Lausia village. Eventually PW1 saw all the accused at scene of incident. They arrived from a pathway that led from Accused 2's village. Inference can be drawn that all the accused must have met at Accused 2's house or there about before proceeding to the deceased house at Lausia village on the morning of 23rd November, 2009. All the accused were armed with a knife and a spear each. PW1's presence at the crime scene was supported by the evidence of PW2 and PW12. After the incident three Crown witnesses PW3, PW6 and PW9 who lived at Boloagau village saw all the accused as they passed through their village. They were armed. Accused 2 and 3 with a spear and knife each and Accused 3 with a knife.

84. The only inconsistency in that evidence is in regards to the two spears which Accused 1 was in possession of. That inconsistency is not severe enough to disregard the entire evidence of PW9. In fact good portion of PW9's evidence corroborates the evidence of PW1, that all the accused did present at the crime scene being armed with knives and spears, and were seen later armed with the same weapons.

85. I noted there are discrepancies raised by the defence submissions. One is in relation to the location where the deceased was when the three accused arrived. In the preliminary hearing PW1 said the deceased was in the kitchen. In this Court he says both were in the house. He was cross examined on that and denies what the P1 record revealed was not what he said. There may be discrepancy but not so serious to totally negate his evidence.

86. The other discrepancy is in relation to the evidence of PW8 who said he approached the deceased whilst lying on the ground and that he did not see any person around. At the scene he saw PW1 came and climbed the ladder, indicating he must have arrived from somewhere. It was then PW1 motioned to him to go away.

87. This argument premised on the second case of the defence that PW1 was never present at the scene of crime when it occurred. However PW1 in his evidence in chief says that after his father was killed and all the accused had left he came down from the house to check his father. No one was there and around. It would appear that PW8 would have arrived later after he heard the news. By then PW1 would have moved around as to what needed to be done and of course he would have been in a state of shock and despair. He would have gone up and down the ladder. It was then that PW8 arrived and saw him went up the ladder. Of course it took time for the news to get around. I see there is no inconsistency but misunderstanding of the facts as they were revealed by different calibre of people.

88. Other inconsistencies raised will be dealt with in the later course of this judgment under another sub-heading.

89. All the accused's reason for going there was to ask for compensation and not to set a date for discussing the issue. Accused 1 and 2 whilst at the crime scene said, "the man they had been waiting for had arrived". That was a reflective of a desire which prompted Accused 1 to attend the deceased's house thrice in the past. It further showed how anxious all the accused were to ask for compensation from the day they heard the news of the prohibited relationship. As a result three days after the deceased had arrived from Honiara all the accused approached him. The deceased's persistent failure to pay had caused anger and resentment. Accused 3 did mention in evidence that he had been waiting for a long time and nothing had been paid.

90. The case of R v Tangye,[26] makes it clear that a person participates in a joint criminal enterprise if he is simply present when the crime is committed with the knowledge that it is to be or is being committed, and by assisting and encouraging another participant. The presence of the person when the crime is committed and readiness to give aid, if required, is sufficient to amount to encouragement to other participants in joint criminal enterprise.

91. A similar sentiment is shared by Archbold 42nd Edition, in law, a person is present, aiding and abetting, if, with the intention of giving assistance, he is near enough to afford it, should occasion arise, the knowledge calculated to give additional confidence to his companions, he was in contemplation of law, present aiding and abetting.

92. In the case of R v Maetia and Misi,[27] Muria ACJ summarizes and stated,

"Authorities clearly show that for a person to have aided and abetting the commission of an offence there must be established that he is present (actual or constructive)...

93. In this case the Crown evidence from an eye witness has placed all the accused at the scene of crime between 7:00 – 8:00 am at Lausia village, on 23rd November, 2009. Other circumstantial evidence refer to above support PW1's evidence by way of linking the events occurred at various locations at various times which inference can be drawn and undoubtedly support the evidence of PW1 and confirm they were present and were together at the scene of crime. Not only were they present but also participated. I will deal with their participation later.

94. The law has pointed out that for a person to help or assist in committing the offence, it must be established that he is present, actual or constructive. In this case the presence of all the accused together and armed when the crime was committed meant they are ready to assist one another. In law that amounts to encouragement to other participants to give aid and confidence to each other. Evidence of PW1 has revealed that all the accused were actually present in person at the scene of the crime, supported by circumstantial evidence. No argument as to identity.

95. I cannot accept and rely on the evidence of PW10, John Sisa Baetalua as credible and impartial. He is the son in law of Accused 3. His evidence does not reflect the real situation; in fact it did support the defence version.

96. Having said that it is difficult for me to accept the defence version. Accused 1 and 2 denied being present at the scene. Accused 3 admitted being present and admitted being responsible for the death of the deceased. His evidence appears as he was acting in self-defence or provocation, yet none of those defences are pursued aggressively at trial. However, they appeared finally in the final submissions. I would deal with self-defence issue should I believed accused 3's version of facts.

97. I noted in evidence that Accused 2 failed to attend his brother's funeral and burial. In fact he was prepared to move out to his wife's village. If he was innocent as he attributed, he should attend those occasions and show his grief. He failed. In Malaita tradition and custom, as well as logic, that implicated his presence and involvement at the crime scene.

98. Accused 1 and 3 cannot be believed. Both were anxious awaiting the deceased arrival from Honiara so that they would deal with the outstanding issue of compensation. Accused 1 could not wait for long. Accused 3 expressed in evidence that he had been waiting too long. Accused 1 in fact had enquired three times in the past monitoring whether the deceased had arrived from Honiara.

99. Upon arrival from Honiara, Accused 1 immediately arranged to meet him on the day of incident. Accused 3 had knowledge of that meeting. His version was that being present at Lausia village was to arrange a date of meeting. I could not believe that. A person, who had been waiting for years without being compensated, in particular when the deceased refused to pay, is succumbed by anger and anxiety. No time to wait for any more, its action time. With those reasons I rejected the defence version as to the issue whether all the accused were present at the scene of crime on 23rd November, 2009. With that, the Crown has established that all the accused were present actually at the scene of crime beyond reasonable doubt. The issue related to their actions in joint criminal enterprise will be discussed in the next sub-heading

Actions at the scene of Crime:

100. On the issue of what physically transpired on 23rd November 2009, the Crown relies on the evidence of PW1 as the only direct evidence, and other circumstantial evidence and exhibits to prove that all the accused had committed the offences of which they were charged.

101. To prove that all the accused had participated in a joint criminal enterprise, as a result of which has caused the death of the deceased, the Crown Calls PW1 who gives evidence. That on 23rd November 2009, between 7:00 am – 8:00 am, he was at their house with his father the deceased, at Lausia village, in East Kwaio. Accused 1, 2 and 3 then arrived. They were coming from the footpath that led to Accused 2's home. Accused 2 and 3 arrived first then little later Accused 1. Upon arrival they were standing outside in front of the house marked "X" in photograph 2, exhibit 1, not far and in an open space. PW1 was standing in the house and looking out of a window marked '0' in photograph 2 exhibit 1. The question of identification is not an issue in this case. All the accused, the deceased, PW1 and other Crown witnesses are close relatives and members of one family.

102. PW1 pointed out that when the three men arrived he could sense that there was trouble looming, and that for sure the three men were there to kill his father. He could tell because all the accused were armed with a spear and a knife each.

103. Whilst standing outside Accused 2 threw his first spear at the deceased. The spear missed and it went through into the house. It was then PW1 realized and concluded that all the accused were there purposely to kill his father. At the same time Accused 3 climbed up the ladder and cut the deceased once. The knife missed and landed on the wall and door of the house. When Accused 3 climbed up the ladder Accused 1 and 2 were standing on the ground talking to the deceased. They said the man they had been waiting for had arrived. Then both Accused 1 and 2 urged the deceased to go down so that they will cut his neck.

104. When the deceased missed Accused 3's knife he showed his anger and got his spear and knife. As accused 3 was descending down the ladder the deceased speared him from inside the wall of the house. The spear landed on Accused 3's right belly below the rib cage. Accused 3 then urged the deceased to go down and not to kill Accused 1 and 2 as he had already been wounded.

105. On hearing that, the deceased laid down his spear and knife near the wall and stood beside the front wall of the house. At the same time accused 1 urged the deceased to go down so that he could cut his neck. Accused 2 then threw his second spear at the deceased but missed and landed on the ladder of the house. Immediately after that, the deceased jumped down unarmed. Accused 1 then approached him and delivered the fatal blow to his neck with his bush knife. The deceased then fell to the ground. After that all the accused retreated following the road that led to accused 3's home. Later they were sighted at Boloagau village by three prosecution witnesses (PW3, 6 and 9) armed with spears and knives.

106. After all the accused had left PW1 descended down to check his father but was dead. After that he went to Tangalo village to inform the Pastor to pray for his father and to clear the area.

107. The spear that Accused 3 threw at the deceased and got stuck on the ladder was cut out by Accused 2 himself and took it away.

108. Accused 1 and 2 denied being present at the crime scene and played no part in the death of the deceased. In criminal practice such circumstance may require raising an alibi, however, the defence intended not to do so; meaning not intended to call evidence to prove the alibi.

109. Accused 3 admitted his presence at the crime scene on 23rd November 2009, and admitted being responsible for the deceased's death. He actually slashed the deceased's neck with his knife causing his death. On his own version he did it after the deceased had speared his left palm and his left belly below the rib cage, in an act of self-defence.

110. The evidence of PW10 in material form supported Accused 3's version. That on passing Lausia village on 23rd November 2009, in the morning, he saw the deceased and Accused 3 arguing. No one else was present. That evidence misplaces Accused 1 and 2 from the crime scene, which in fact corroborates their evidence.

111. From the evidence it is apparent that four factual conclusions may have transpired at Lausia village on the morning on 23rd November 2009. Firstly that all the accused were present and participated in a joint criminal enterprise resulted in the death of the deceased. Secondly Accused 1 and 2 were not present; logically they would not have participated. Thirdly that only Accused 3 was present and responsible for the killing of the deceased under the act of self-defence. Fourthly that PW1 was not present at all at the crime scene which therefore renders him unable to witness the events unfolding.

112. The issue of participation directly links to presence, it cannot be separated. Where a man is, his actions and behaviour are also there. The Crown relies on the evidence of PW1 supported by the same circumstantial evidence in particular PW2, PW12 who left for garden leaving behind PW1 with the deceased in their house, and PW3 who sighted Accused 1 before the incident and again with PW6 and PW9 who sighted all the accused at Boloagau village after the incident, being armed with spears and knives. The bulk of that evidence has been narrated above.

113. The element of presence has been established by proved evidence. Once that has been done it is easy to decide participation because of the link. That should reflect the gradual disintegration of the defence case, whilst the Crown benefited by gaining strength momentously. Ultimately the theory that Accused 1 and 2 did not participate because they were somewhere else cannot be accepted. The same applies to Accused 3's version of being responsible and acting in self- defence. In disqualifying those two versions the theory that PW1 was not present at the scene must not be accepted as well. We are therefore left with the crown version of events.

114. What evidence is there to discredit the evidence of PW1 which is supported by a bulk of circumstantial evidence to dilute the strength of the Crown case so as to be measured below the required standard?

115. Counsels for the accused submitted a number of material inconsistencies. I have dealt with two of those when considering the issue of presence.

116. Firstly the knife cut on the wall and door frame of the house. PW1 says it was Accused 3 who did it and did it once. Accused 3 denied and says it was the deceased who did it himself because he was angry. I have observed and critically analysed the knife marks on the wall, the door frame and the door itself. In doing so photographs 4-9 in exhibit 1 has given some assistance. There being no evidence that the deceased walked down and up the ladder. It would appear in the midst of the two versions that the knife cut must be from someone standing on the ladder. From PW1's evidence the deceased did not at any time went down or up the ladder, but at the door or at the decking. The knife marks did not assist or indicate someone standing at the door or on the decking. Logically it would be difficult for a person standing on the decking to create such knife marks. PW1's evidence therefore must be believed.

117. Secondly, concerning the knife cut on the left frame of the ladder. PW1 says it was done by Accused 2 of which he denied. Accused 3 says it was the deceased himself that cut the ladder because he was so furious. Again evidence from PW1 did not place the deceased standing on the ladder or on the ground during argument as stated by Accused 3. The mark of the knife cut on the left frame of the ladder, (photograph 13) was cut by a person standing on the ground. And that is consistent with PW1's evidence that after the deceased was slashed and was lying on the ground, Accused 2 cut and pulled his spear out of the ladder.

118. Thirdly the spear wound on the left side of Accused 3 was inconsistence with the evidence of PW1. PW1 says as Accused 3 was descending down the ladder the deceased speared him from inside the house through the wall. By contrast that should cause a wound on Accused 3's right belly or stomach. Accused 3 intended to show the Court the scar marks on his left belly and palm of his left hand. I rejected that. The best evidence in regards to wounds is a medical report. There was none and I cannot accept scars shown to Court by Accused 3. It is easy and simple to manipulate that.

119. Fourthly in relation to number of spears in possession by Accused 2. PW1 saw Accused 2 was in possession of a spear when he arrived at their house. During the incident Accused 2 threw two spears at the deceased. One went through the house and the other was stuck on the ladder which he cut and took it away. The defence argued that there is controversy in the evidence of PW1 that defies all logic for a person in possession of a single spear but threw two spears.

120. From the evidence it is possible to draw inference, that firstly, one has to consider that when the three accused were at the front of the deceased's house they were close to each other. Accused 2 by evidence started the whole entire episode by throwing the first spear at the deceased. The second spear he threw could have been undoubtedly belonged to Accused 3. Relying on PW1's evidence Accused 3 could not possibly be armed with a knife on his right hand and a spear on his left hand. That would complicate his attack considering the fact that he was ascending up the ladder. Of course one hand had to be set free. The possible conclusion I could draw is that Accused 2 could have taken Accused 3's spear and threw it at the deceased the second time.

121. Another aspect of inconsistency raised is in relation to the Doctor's report. The report reveals that the deceased died of the incision wounds on the neck. The report states that wound (1) a deep wound on the interior aspect of neck, (2) a wound on the right side of the chest, (3) a wound on the anterior aspect of the right arm. Wound (4) is on the left lateral aspect of the neck. According to the Doctor's report the deceased died of wounds (1) and (4). At the same time the report suggested that wounds (1) (2) and (3) were caused by one slash and wound (4) was caused by the second slash.

122. PW1 saw Accused 1 slashed the deceased once with his knife. Accused 3 who claim that he killed the deceased said he used his knife to slash the deceased. He did not mention how many times he slashed the deceased. Gathering from that evidence it seemed that he cut the deceased once as well.

123. I have studied the wounds indicated on the sketch plan attached to the Doctor's written report. All the wounds lie diagonally from the left lateral aspect of the neck to the anterior aspect of the right arm, almost at straight line at about 45 degrees. The report was tendered by consent and there is no privilege to cross examine the Doctor on whether a single slash will cause all the wounds in a situation where the victim attempt to lower or shake his upper part of the body to avoid the knife. That has been foregone.

124. If wounds (1)-(3) were caused by a single slash, how would an uneducated person like PW1 know that three different wounds could have possibly caused by one slash? From the sketch, wounds (2) and (3) were quite separated and wound (1) is joined by a fine line to wound (2). Wound (4) is almost at paralleled towards wound (1) at the upper end. Whilst I respect the Doctor's report, would it be possible that wound (4) was the result of the deceased instant responding by moving his upper body to fend the knife. PW1 and Accused 3 did not mention any two slashes.

125. In any event there is no inconsistency in PW1's evidence in relation to the number of slashes delivered to the deceased's neck. Accused 3 who claim to have been responsible for the fatal blow does not provide any alternative evidence to the contrary. I find there is no inconsistency in PW1's evidence as to the medical report.

126. Another area of inconsistency is that PW1 at PI trial gave evidence that he first went to their bush garden before going to Tangalo village to inform the Pastor. In this Court PW1 testifies that he went to Tangolo village first. That may amount to inconsistency in the manner as it is. However, the inconsistency is not so overwhelming as to negate the entire evidence of the PW1 and so as to be labelled as unreliable and danger to rely on. I accept the fact that the Court can accept part or whole of witness evidence, or totally reject it for non-disclosure of any reliable evidence at all. I accept that inconsistency but not serious enough to risk the entire evidence of PW1.

127. The demeanour of PW1 is questioned by Counsels for Accused 1 and 2. Both pointed out in submissions that PW1 is not afraid to hide, colour, manipulate, evasive, lie. Has a straight face without showing emotions. Drawing conclusions and expressing one's observations of who PW1 is at the witness box is an individual assessment. My observations are that PW1 is an uneducated person. In most of his answers he begins by repeating the negative part of the question first before giving an answer. Throughout the entire days in the witness box he was looking down, he could not dare to look across because the accused are right opposite of him and are fixing their eyes on him.

128. Because of his illiteracy it is quite difficult to understand him. At times he put words or sentence in the opposite. Generally he is not the kind the Counsels have observed with demeanour as ascribed. If he lies under oath then his entire evidence is fabricated. He has manufactured the whole story. Can an uneducated person with least calibre able to fabricate a theory that will later be assessed by qualified lawyers of its truth. It would be amazing if he succeeds, that would mean he defeated those who are qualified in their field. If his evidence can stand the scrutiny of qualified lawyers then that evidence is what actually derived from the five senses a human has. I must say the demeanour of PW1 though sway at times but stern in major and important issues.

129. Accused 3 in evidence admits being present at the scene of crime and responsible for slashing the deceased's neck with his knife, but for self-defence, an action excusable in law. In criminal practice an accused person defends a charge or allegation against him. In this case Accused 3 was charged for murder responsible under section 21, as aider or abettor, principal in the second degree. He was not being charged or alleged as a principal in the first degree as the accused who delivered the fatal blow. The accused took upon himself the responsibility of the principal in the first degree which was not alleged by the Crown at all.

130. It would be proper in my view that the defence of self-defence is available if Accused 3 was charged as the principal in the first degree. Only then he is obliged in law to raise such defence to explain his reason for his actions. That he resort to what was necessary and available and in doing so causing the death of the deceased in the circumstance to preserve himself, therefore excusable in law.

131. By accepting responsibility in the manner Accused 3 did, without appropriate allegation against him, as principal in the first degree was a voluntary admission which defence of self-defence cannot be available. It makes no sense, therefore must be rejected. The reason for rejection is twofold. One, it is not available considering the technicality of the charge or allegation and secondly that once the Crown version of events is accepted then self-defence must be flawed likewise.

132. The law related to participation is clear. Encouragement in one form or another is a minimal requirement before an accused person may be regarded as a principal in the second degree to any crime see R v Allan and Others[28]. A person participates in a joint criminal enterprise either by committing the crime or by being present with the knowledge that a crime is about to be committed by intentionally assisting or encouraging another participant to commit the crime. The presence of that person at that time when the crime is committed and readiness to give aid if required is sufficient to amount to encouragement to the other participant to commit that crime - see R v Tangye[29]. In Archbold 42nd edition the author stated that a party aided the commission of the offence if he remained at a convenient distance to be able to readily come to their assistance with the knowledge to give additional confidence to his companions he is present aiding and abetting. In R v Gray[30] the Court stated that "it is not necessary that a man to be guilty of murder actually have taken part in a physical act in connection with the crime. If he has participated in the crime – that is to say, if he is confederated (a person who shares)-he is guilty although he has no hand in striking the fatal blow.

133. In this case the crown has established the element of presence. That all the accused were standing together and all were armed with spears and knives in front of deceased's house. Being together meant their presence at the time the crime was about to be committed and readiness to give aid if required amount to encouragement to the other participants.

134. The question whether they have knowledge that a crime is about to be committed can be drawn from the possible motive which has been established by the crown, that is ambitious anger for non-payment of compensation. Their hostile and aggressive argument was heard by PW10 even from a distance of Kwaibaita. That indicated an atmosphere of animosity which premise on the probable motive.

135. All the accused not only were present in a convenient location in readiness to give aid, if required, or assist knowing to give additional confidence, but they went beyond that by taking part in physical act in connection with crime. Accused 2 threw two spears at the deceased both were missed. Accused 3 climbed up the ladder and cut the deceased once with his knife but missed. All the accused persuaded the deceased to go down from his house so that they would cut his neck. Eventually the deceased put away his spear and knife and jumped down unarmed. It was then Accused 1 approached him and delivered the fatal blow to the deceased neck. From the facts it is clear that all the accused had participated in the crime to say they are confederate share in participation. Accused 2 and 3 are responsible although they have no hand in striking the fatal blow, but Accused 1 did. They are all responsible for the death of the deceased under the principle of joint criminal enterprise.

136. I am satisfied on the evidence adduced by the Crown beyond reasonable doubt that all the accused by their participatory effort in confederation responsible for the deceased's death. And I must reject the defence version.

Malice aforethought:

137. The Court must be satisfied on the evidence that all the accused were a party to a joint criminal enterprise, with the intention to kill or give assistance by participation to kill or cause grievous bodily harm to the deceased. What is the common intention to commit the unlawful act? In R v Orinasikwa,[31] Muria CJ stated as follows;

"The accused's state of mind must be established, of course, on evidence before the Court and must do so by the Crown beyond reasonable doubt. Such evidence would include what the witnesses, including accused, said happened at the time of incident or immediately prior to or after the incident, so far as is relevant. The nature of injuries is also a very important factor in determining state of mind of the accused and the Court will also bear this in mind in this case"

138. All the evidence related to the entire case prior to the incident or immediately prior or after, has been considered under various sub-headings as probable motive, presence and participation. It has been identified and established by evidence that anger did persist which prompted intention that led all the accused to Lausia village and participated in the unlawful act on 23rd November, 2009. What actually transpired on that date has been pointed out and there is no need to reiterate again. However, the nature of approach resort to by all the accused was hostile and aggressive. PW10 could hear them arguing from a distance at Kwaibaita.

139. The medical report shows two wounds on the neck of the deceased which in the opinion of the Doctor was the cause of death. The interior incision wound cut through the air way, blood vessels and oesophagus. And that sharp instrument like a knife was used to inflect the wounds.

140. From the facts an inference can be made and conclusion be drawn that all the accused had formed the necessary mens rea to resort to those weapons they carried should the deceased resisted. Coming from the direction of Accused 2's village affirmed that what transpired that day was a pre-meditated activity. A plan could have been merged in Accused 2's house or there about.

141. The manner in which all the accused were physically participated in overt acts, and words said, reflected their intention to render assistance to one another in realization that the other may kill or do so deliberately or intending to inflict serious injury. Throwing of spears and slashing by using a knife were actions that follow a will of a person. It is the will that desire the ultimate cause of action as purpose or object.

142. By actively participating in attacking the deceased, one after the other, indicated that each of the accused was aware or knew of what the other was doing, and was prepared to assist each other acknowledging the probable consequence or risk associated with their actions. In doing so, they were party to a joint criminal enterprise to kill or cause grievous bodily harm to the deceased. In R v Miavani, Commissioner Chetwynd said, "It seems to me that Section 21 is aimed at those who intentionally participate in the offence".

143. When Accused 1 approached the deceased and delivered the fatal blow he had possessed the necessary malice aforethought, that he intended to cause the death or grievous bodily harm to the deceased. The nature of injuries inflicted was large, deep and serious to the neck. The anterior wound on the neck cut through the airway, blood vessels, and oesophagus. Those wounds were the result of such a magnitude of force employed by Accused 1. Such is no doubt reflected a man possessed by anger bottled up for years, and that which prompted him to do an act intended to cause death or grievous bodily harm to the deceased.

144. Based on the evidence adduced by the Crown I am satisfied that all the elements of a joint criminal enterprise had been proved beyond all reasonable doubt. Accused 1 is therefore convicted for murder under section 21 of the Penal Code as the principal in the first degree, and Accuse 2 and 3 were convicted for murder under Section 21 of the Penal Code as principals in the second degree.

145. Having dealt with the prosecution case under Section 21 successfully, I need not venture to deal with the alternative case under Section 22 of the Penal Code.

Charge or act intended to cause grievous harm:

146. Accused 2 and 3 were also charged for the offence under Section 224 (b) of the Penal Code, that on 23rd November 2009 with intent to do grievous harm to the deceased, did unlawfully attempt in a manner to strike a person namely the deceased with spears and knife.

147. To prove this charge the Crown relies on the same set of facts used to prove the charge of murder under the principal of joint criminal enterprise in Section 21 of the Penal Code.

148. I have found all the accused guilty for being responsible for the death of the deceased. Evidence had proven beyond reasonable doubt that Accused 2 and 3 were physically present at the crime scene and participated. Accused 3 did cut the deceased with a knife Accused 2 threw two spears at the deceased. Despite the fact that they missed their target the action taken did amount to the offence under section 224 (b) of the Penal Code. The evidence of PW1 and the relevant circumstantial evidence adduced in the major case also available in support of the charge against both accused.

149. Having said that there is overwhelming evidence adduced which prove beyond reasonable doubt the guilt of both Accused 2 and 3. I therefore convict both accordingly.

Orders

1. Having convicted all the accused of murder, an offence which carries a mandatory sentence; hereby impose life imprisonment for all the accused.

2. Accused 2 and 3 also convicted on the charge of doing an act intended to cause grievous harm contrary to section 224(b) of the Penal Code.

3. Case for Accused 2 and 3 on count 2 adjourned for sentences submissions.

The Court.

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^[1] Havimana V REGINA [2011] SBCA.
^[2] Victa Bina V REGINA [2006] SBCA 4.
^[3] Tabukai V REGINA [2009] SBCA 13.
^[4] Regina V Cawa [2007] SBHC 26 and Regina V Saea [2007] SBHC 121.
^[5] McAuliffe V The Queen (1995) 183 CLR 108; 113; (1995) HCA 37.
^[6] (2005) SBHC 25.
^[7] (2007) SBHC 26; HCSI-CRC 312.
^[8] [1997] 92 A Crime R545.
^[9] CRC No 42 of 1992 at p.8-10.
^[10] Criminal Appeal Case No. 2 of 2006 delivered on 23 November 2006.
^[11] A continue from R v Allan and others case.
^[12] (1994) HCA 48; (1994) 181 CLR 387
^[13] [1959) 1 QB11, Devlin J.
^[14] [1994] 181 CLR 387..
^[15] Ibid 9
^[16]CRC No.12 of 1997.
^[17] [1966] 50 Cr Case R 216; [1966] 2 QB 110.
^[18] [1987] 85 Cr Appeal R 71.
^[19] [1995] HCA 37; [1995] 183 CLR 108, 113; [1995] HCA 37.
^[20] Unreported Criminal Case No. 39 of 1992.
^[21] CRC No. 239 of 1999.
^[22] Ibid 10.
^[23] [1987] 84 Cr. App. R.299, C.A [Archbold para. 13-29, Page 1135]
^[24] [1906] 2 K.B. 389, 401
^[25] [2011] SBHC 28.
^[26] Ibid 8
^[27] Ibid 9
^[28] Ibid 11.
^[29] Ibid 8.
^[30] Ibid 11.
^[31] CRC No.66 of 1993.