Regina v Cawa [2012] SBHC 79; HCSI-CRC 250 of 2009 (6 August 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(PALLARAS J)

CRC NO. 250 OF 2009

REGINA

-V-

RONNIE CAWA

Date of Hearing: 23, 24, 25 & 26 July 2012
Date of Decision: 6 August 2012

Mr J Naigulevu & Mr A Kelesi for the Prosecution/Crown
Ms P Spence & Mr H Fugui for the Defendant

VERDICT

PALLARAS J:

[1] Ronnie Cawa ("the accused") is charged (Count 1) that on the 28th of April 2003 at Ngalemala West of Nduidui, Weathercoast, Guadalcanal Province, he did murder Paul Buake ("the deceased" or "Palu") contrary to Section 200 of the Penal Code, Cap.26.

[2] He is further charged (Count 2) that on the same day and date, at Isuna, Weathercoast, Guadalcanal Province, he did abduct the deceased in order that he be subjected to grievous harm contrary to Section 251 of the Penal Code, Cap.251.

[3] To both counts the accused has pleaded not guilty.

[4] The accused did not give evidence nor did he call evidence on his own behalf.

[5] The case for the defence was limited to putting the Crown to proof of its case and in this regard it is timely to observe that the burden of proving the allegations rest solely on the Crown to prove them to the criminal standard of beyond a reasonable doubt.

[6] The accused, despite the fact that he has called no evidence in his own defence and has limited his defence to putting the Crown to proof, bears no onus whatsoever to prove his innocence. The Crown must prove his guilt to the required standard of beyond a reasonable doubt.

[7] If I find that there remains a reasonable doubt after consideration of all of the evidence, then the benefit of that doubt must be given to the accused and he must be acquitted. It is only if I find that the Crown has proved each element of the case against the accused to the required standard can the accused be convicted.

[8] Although the offences are related in time and place, consideration must be given to the evidence led in support of each count separately and the accused is entitled to separate verdicts on each count. It is only if the evidence in relation to each count establishes that offence beyond reasonable doubt may he be convicted of that individual count. If a reasonable doubt exists as to his guilt of either or both counts then the accused is entitled to the benefit of that reasonable doubt and must be acquitted of either or both counts.

The Crown Case

[9] The Crown called two witnesses, Mr Clement LEDI ("PW1") and Mr Billy SAPO ("PW2") to describe an attack on them by a group of men suspected of being members of the Guadalcanal Liberation Front ("the GLF").

[10] Both men testified that at around 9 a.m. on 28th April 2003, they were part of a group of several (10-12) armed men who were walking from Kolina to Nduidui on the Weather Coast of Guadalcanal at the invitation of the Chief of Nduidui.

[11] Mr Ledi said that the purpose of the trip was to help resolve some customary issues in the village.

[12] Mr Sapo said that the reason for the trip was to talk to the villagers in an endeavour to persuade them to support the government in the hostilities with the GLF.

[13] While this discrepancy has no impact upon my verdict in this case, it is a curiosity which is worthy of note. It may well lend credence to the suggestion that the ensuing gun battle was a deliberately set up ambush facilitated by the Chief's invitation offered at the instigation of the GLF.

[14] As the group were walking along a narrow bush path they were suddenly fired upon by armed men. On one version this group were firing from behind a stone wall that was used to fence in pigs. Another version had it that the firing came from a dry creek bed or ditch.

[15] Understandably, both men testified to the panic that they felt when the attack began and it is not unusual that in the circumstances where they feared for their lives and were running and ducking for cover while under fire, that the exact location of their assailants may have been confusing.

[16] The attack began in an area that was previously the location of Isuna Police Station. As a result of the shooting, one man died instantly and another died later as a result of the injuries he received in the gun fight.

[17] During the course of the battle the deceased, who had been deaf since childhood, was seen to be running towards his attackers. Evidence was later to be given that suggested that he ran in that direction because, due to his deafness, he would have been unable to determine the direction from where the shots were coming.

[18] Both Mr Ledi and Mr Sapo said that this was the last time that they ever saw the deceased.

[19] The third witness for the prosecution was Mr Ephraim Rongomilepo ("PW3"). He testified that on the morning of the 28th April, 2003, he was in the village of Vunusa when he heard gunshots coming from the direction of Isuna. Many shots were heard and in fear, he and the other members of his village ran to hide in the bush near their village. They remained hidden for approximately three hours.

[20] After that period of time, a man by the name of Robert Tatale came to PW3 and told him that the GLF had captured a member of the Joint Operations Group. He told PW3 that the name of the captured man was "Palu".

[21] Fearing that the captured man may have been his uncle, PW3 together with two other men, came out from their hiding place in the bush and went to a river near Nduidui.

[22] At that point, PW3 saw that the captured man was indeed his uncle and that he was standing naked with his hands tied behind him and appeared to have injuries to his face and head.

[23] PW3 testified that he saw a number of GLF men together at that place with his uncle and, specifically, he saw the accused there also. Although the evidence as to the exact time is less than clear, PW3 testified that at about that time he saw and distinctly heard the accused give the order to the men with him that Palu was to be killed.

[24] He further testified that the accused ordered his men to take Palu towards the coast in the direction of the beach area known as Ngalemala. Upon hearing the order from the accused, several men then began to take Palu in the direction indicated by the accused. One of these men was carrying a shovel.

[25] As the men moved off with Palu, PW3 followed them out of concern as to what was going to happen to his uncle. At some point around this time, the order for Palu to be killed was repeated by the accused.

[26] It is not the prosecution's case that the accused physically participated in the death of Palu. It is their case that after giving the second order to kill, the accused then left the scene.

[27] At the beach, the captors armed themselves with thick tree branches. On one version of events, it was after they had armed themselves with branches that the accused repeated the order "kill Palu dead". PW3 testified that he was about 10-12 metres away from the accused when he gave this order.

[28] The men proceeded to beat their captive, who was still tied up, to death. When they were satisfied that he was dead, the deceased was placed in a grave that was dug in the sand. PW3 was called on by the captors to help put his uncle into the sand grave. He did as directed out of fear for his own life.

[29] He was then warned by the men that if he told anybody about the events he had witnessed then they would report it to the accused and the accused would kill him.

[30] In its cross examination of PW3 who was clearly the principal witness for the prosecution, the defence in large part contented itself with putting alleged inconsistencies to the witness between evidence he has given or statements he has made in several other proceedings with the evidence he gave before me.

[31] While there may have been some inconsistencies established, they were far from being significant enough to alter my assessment of the witness's reliability, honesty or credit. Over the lengthy time that he was in the witness box, I found him to be an uncomplicated man of calm demeanour who was giving patently truthful evidence. Many of the matters which were put to him as alleged inconsistencies were able to be sufficiently explained by him, or having regard to the length of time which has passed since the happening of these events, totally understandable. Having seen and heard both the content of his evidence and the manner in which he gave it, I have no hesitation in accepting PW3 as a witness of truth.

[32] The issue of identification, although raised in the cross examination of this witness, was never to the effect that PW3 was wrong in his identification of the accused but rather concentrated on the circumstances by which he came to know the accused.

[33] It was not specifically contested that an order was given (whether by the accused or by anyone else) for Palu to be killed. Indeed the cross examination curiously seemed to suggest that the only mistake that the witness was making was by asserting that the order was verbal. At page 28 of the transcript of the 25th of July, 2012, the following passage appears:

MR FUGUI: You mentioned today that Ronnie Cawa gave orders twice, one at the river and the second one was at the beach, is that correct?

PW3: Yes.

MR FUGUI: Was there at any time Ronnie Cawa gave instructions during the period simplify using gesture instead of saying words?

PW3: I only saw him giving the order but for any signs or gestures, I forgot it.

MR FUGUI: My Lord, I wish to put to the witness – I wish to make a proposition to the witness.

JUDGE: In this?

MR FUGUI: Thank you, my Lord. Rongomilepo, I put to you that you're lying when you said you saw Ronnie Cawa giving orders verbally, what do you say to that?

PW3: He gave an order.

MR FUGUI: I put to you that Ronnie Cawa never verbally ordered?

PW3: He gave an order.

[34] It was not contested that as a result of the order, other men took Palu to a place on the seashore. It was not specifically contested that at that place the order to kill was repeated (whether by the accused or anyone else). It was not contested that after the order to kill was repeated, the captors then beat Palu to death. It was not contested that after Palu died, he was placed in a sandy grave that had been dug in the beach. It was also not contested that PW3 was threatened with his life should he tell anyone what he had seen.

[35] On the other hand, it was put by the defence that the accused was a commander in the GLF who gave other men orders and it was agreed that the accused was the Ronnie Cawa being referred to by the prosecution witnesses.

[36] The fourth and fifth witnesses for the prosecution were police officers who testified that they interviewed the accused on the 22nd January 2009. During that interview the accused freely admitted giving the orders to kill Palu.

[37] A voir dire was conducted after which I ruled that the record of interview was admissible in evidence. I have published my reasons for admitting the document.

[38] Even although the interview was accepted into evidence, I make it clear that my verdict in this case would not be different even if I had refused the admission of the record of interview into evidence. That is because, as indicated, I accept as truthful and reliable the testimony given by PW3 and would have been prepared to act upon it without the evidence of confession by the accused.

[39] The next prosecution witness was the father of the deceased, Mr Batua Buake ("PW6"). He testified as to the birth of his son on 15th October 1976 and to his son's deafness from an early age. He last saw his son on the 28th April, 2003 when his son had come to tell him about his plan to go with the other men to Kolina.

[40] He advised his son not to go and noticed that he was wearing "green army style trousers". Apart from his deafness, Palu was a fit and healthy young man. After he heard the news of his son's death, he went to Kolina to locate the body. Unfortunately the body was not able to be found. The defence admitted the identity of the deceased.

[41] The next prosecution witness was John Alvin ("PW7"). He was a resident of Vunusa and was one of the villagers who, upon hearing gunfire, fled to the bush along with PW3. He accompanied PW3 from the bush and went to the river near Nduidui where he saw Palu naked, his hands tied behind his back and apparent injuries to his head.

[42] He said the group of men who held Palu, were following the commands of the GLF commander Ronnie Cawa, the accused. He said that the accused gave the order to take Palu away and the men followed the order. Prior to Palu being taken away, he saw the accused and a group of men having a meeting under a mango tree and after the accused gave the order to take Palu away, it was the same group of men who then effected the order.

[43] He said that he knew the accused and that he had seen him before this day (28th April, 2003) as he had previously seen the accused in Vunusa.

[44] He confirmed that he saw the accused with his own eyes and that it was the accused who ordered the others to take Palu away. He was not able to say who gave the order to kill Palu because after the order to take Palu away had been given, he did not stay but returned to his village.

[45] In cross examination it was put to PW7 that he did not see the accused on the day of the killing, that he only heard that the accused was there from someone else and that he did not see the deceased on that day but had only been told that Palu was there. To these suggestions PW7 affirmed that he had seen both the accused and the deceased "with my own eyes".

[46] Again, the manner of cross examination did not come to grips with the essential gravamen of the testimony given by the witness PW7. It was not put to him that the accused was not present, rather that the only reason he knew of the accused's presence was because someone had told him about it.

[47] The final prosecution witness was Detective Senior Sergeant Paul William Tubman who was attached to the Western Australian Police Forensic Division. In 2005 he was part of the Regional Assistance Mission to Solomon Islands and at that time worked out of the National Investigation Department at Rove Police Headquarters.

[48] He was involved in the investigation of the murder of Palu to the extent that he visited the scene and took a series of photographs. He was required to travel to Solomon Islands from Western Australia simply to produce the photographs. The defence had no questions for him whatsoever.

[49] It is extraordinary that the parties through a failure to communicate appropriately with each other could not have avoided this farce. Neither party were able to give the court a satisfactory explanation for requiring a witness to travel such a distance to produce uncontested evidence. It is hoped that such incompetence is never repeated.

The Defence Case

[50] No submissions were made at the conclusion of the prosecution case. The accused did not give evidence and no witnesses were called on his behalf. I have already noted above the tenor of the defence case put to the prosecution witnesses and so will not repeat it here.

[51] While I was told initially by the defence that the issues were the cause and the manner of death of the deceased and the role played by the accused, no alternative scenario as to the manner or cause of death was put to any prosecution witness and no evidence as to the manner or cause of death was led by the defence.

[52] While there was of course no onus whatsoever on the defence to do so given that the burden lay always with the prosecution to prove its case, the absence of any alternative scenario or evidence left the state of the prosecution's evidence as to the manner and cause of death of Palu, essentially unchallenged.

[53] I have no hesitation in finding beyond a reasonable doubt that the deceased died in the manner described by the prosecution witnesses.

The Relevant Law

Count 1 – Murder: section 200 of the Penal Code, Cap.26

"200. 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."

[54] For the prosecution to succeed, they must prove beyond a reasonable doubt that:

1. The accused
2. With malice aforethought
3. Caused the death of the deceased
4. By an unlawful act.
   

[55] It was not the prosecution's case however that the accused was personally involved in beating the deceased to death. Their case was rather that he gave the orders to others to kill the deceased.

[56] In order to bring the accused within this criminal enterprise, they rely on section 21(d) of the Penal Code which provides that –

"21. When an offence is committed each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say –

(d) any person who counsels or procures any other person to commit the offence.

In the last mentioned case he may be charged either with committing the offence or with counselling or procuring its commission.

A conviction of counselling and procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

Any person who procures another to do or omit to do an act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment as if he had himself done the actor made the omission; and he may be charged with doing the act or making the omission."

[57] In this case the prosecution have chosen to charge the accused with having committed the act of murder.

[58] Looking then at the elements of the offence of murder and the evidence that has been produced to prove each of them:

Identity

[59] As outlined earlier, evidence of identity came from PW3, PW7, the Record of Interview and the defence concession that Ronnie Cawa was the accused and that he was a commander in the GLF who gave other men orders. The manner in which this issue was approached by the defence indicated that the true contest was whether or not Ronnie Cawa gave the orders as alleged, rather than ever suggesting that they were given by somebody else.

[60] I am satisfied beyond a reasonable doubt that the witnesses have correctly identified the accused as the man who gave the order to take Palu away and the order to kill him. I repeat that I would be so satisfied without any recourse to the admission made by the accused in his record of interview.

Intention or Malice Aforethought

[61] Malice aforethought is defined in section 202 of the Penal Code as follows:

"202. Malice aforethought may be expressed or implied and express malice shall be deemed to be established by evidence proving either of the following states of mind preceding or co-existing with the act or omission by which death is caused, and it may exist where that act is unpremeditated –

[a] an intention to cause the death of or grievous bodily harm to any person, whether such person is the person actually killed or not; or,

[b] knowing 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, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused."

[62] Having accepted the accuracy of the evidence of PW3 and PW7 as to the role played by the accused, it is clear that the latter's intention is manifest in the words he used – "kill Palu dead". This is an unambiguous command that Palu was to be murdered and demonstrates that at the time he gave the order, the accused intended that Palu should die.

[63] The provision of a spade to one of the accused's men before the deceased was being led along the beach to the place where he was to be killed, a spade which was then used to dig the grave, is also circumstantial evidence of an intention to kill and bury the deceased.

[64] I am satisfied that the prosecution has proven malice aforethought beyond a reasonable doubt.

Whether the Accused Caused the Death

[65] The prosecution did not allege that the accused physically participated in the beating to death of the deceased, however he need not be present to have caused Palu's death. In giving the order to kill Palu to men under his command, which men then followed out that command, the accused has in law "caused" the death of the deceased.

[66] This is so on two bases.

[67] First, by the operation of section 21(d) of the Penal Code he has counselled or procured others to commit the offence of murder and thereby has committed the offence of murder himself.

[68] Secondly, the prosecution has relied on the principles governing a joint criminal enterprise. In Regina V Maoma [2008] SBHC 48; HCSI-CRC 300 of 2006 (8 August 2008), the Court considered (at page 26) the directions in law appropriate to section 21(d) of the Penal Code.

"158 A direction apposite to section 21(a) (b) (c) and (d) of the Code is that given by Hunt CJ at Common Law in R v Tangye (1997) 92 a Crim R 545 per Hunt CJ at 556-557. I adopt the direction here.

" the Crown needs to rely on a straightforward criminal enterprise only where - as in the present case – it cannot establish beyond reasonable doubt that the accused was the person who physically committed the offence charged. It needs to rely on the extended concept of joint criminal enterprise, based upon common purpose only where the offence charged is not the same as the enterprise agreed.

[69] So far as a straightforward joint criminal enterprise is concerned the jury should be directed along these lines:

(1) The law is that where two or more persons carry out a joint criminal enterprise each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused.

(2) The joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or agreement need not be expressed and its existence may be inferred from all the circumstances. It need not have been reached at any time before the time the crime was committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime.

(3) A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time the crime is committed and ( with knowledge that the crime is to be 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 the crime.

(4) If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission.

[70] The evidence clearly establishes a joint criminal enterprise between the accused and his men to abduct and kill the deceased. There was no dispute that those who beat the deceased with tree branches caused his death. As a participant in this joint criminal enterprise the accused has also therefore caused the death of the deceased and I so find beyond reasonable doubt.

Unlawful Act

[71] Again there was nothing before me to contradict or challenge the prosecution evidence that the deceased was taken away with his hands bound behind him and was beaten to death by several men wielding tree branches. After being killed the deceased was then buried in a grave dug in the sand. I have no trouble in accepting beyond reasonable doubt that the death was caused by an unlawful act.

[72] Having found that on the evidence the prosecution has proven each of the elements of the offence of murder beyond a reasonable doubt, the accused is convicted of the murder of Paul Buake otherwise known as Palu.

Count 2 – Abduction: section 251 of the Penal Code, Cap.26

[73] Abduction is relevantly defined in section 248(b) of the Penal Code as follows:

"(b) any person who by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person."

Section 251 provides –

"Any person who kidnaps or abducts any person in order that such person may be subjected, or may be so disposed of as to be put in danger of being subjected, to grievous harm or slavery, or to the unnatural lust of any person, or knowing it to be likely that such person will be so subjected or disposed of, is guilty of a felony and shall be liable to imprisonment for ten years."

[74] The evidence relating to this offence is precisely the same as that produced by the prosecution concerning the murder. While on this count, unlike in count 1, there is evidence that the deceased was tied and being held against his will in the presence of the accused, the analysis of the evidence before me is the same as already stated and I shan't repeat it.

[75] I find beyond a reasonable doubt that the accused personally gave the order to take the deceased, by force and with his hands bound behind him, to a place along the beach. I find beyond a reasonable doubt that the purpose of him being so abducted was that he could be subjected to grievous harm, indeed death.

[76] Consequently, the accused is convicted of Count 2, abduction.

THE COURT