Regina v Buare [2012] SBHC 86; HCSI-CRC 119 of 2010 (11 July 2012)

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

Criminal Jurisdiction

REGINA

-v-

DICKSON BUARE, GEORGE BOSA AND PATTERSON THUGATIA

Dates of hearing: 27th, 28th and 29th February 2012 and 1st, 2nd, 5th, 6th, 7th, 8th, 12th, 13th, 15th, 16th, 19th, 20th, 21st, 22nd and 23rd March 2012 and 4th May 2012.

Date of Judgment: 11th July 2012.

Mr. Talasasa (DPP) for the Crown.
Mr. Valenitabua and Ms Tesua for the accused Dickson Buare.
Mr. Holara with Ms McSpedden for the accused George Bosa.
Mr. Fugui with Ms McSpedden for the accused Patterson Thugatia.

JUDGMENT

Introduction.

1. The accuseds, Dickson Buare ("Buare"), George Bosa ("Bosa") and Patterson Thugatia ("Thugatia"), are jointly charged with the murder of Mathew Manegaua ("deceased"), a 39 year man from Kodolovi village, Aola, North East Guadalcanal.
   
2. Bosa is the younger brother of Buare and both he and Buare live at Kominigori village which is an area within a big village called Balo. Thugatia is from Vavalu village and is a cousin of Buare and Bosa. Both Balo and Vavalu villages are also located within the Aola District of North Guadalcanal.
   
3. It is alleged that the accuseds murdered the deceased behind Jenny's kitchen at Tenagau village sometime between 5am and 6am on the 9th January 2010. Tenagau village is located next to Balo village.
   
4. It is not disputed that the deceased died at around 7am on Saturday 9th January 2010. It is also not disputed that his death was due to loss of blood caused by the severing of his left hand above the elbow. This is confirmed by Dr. Roy Maraka who had carried out a post mortem on the deceased at the National Referral Hospital in Honiara on the 12th January 2010. In his report (exhibit "P14"), he confirmed that the deceased's left arm was completely severed above the elbow and that his death was caused by low volume of blood due to the blood loss from that injury. I am therefore satisfied beyond reasonable doubt that the deceased died from loss of blood caused by the severing of his left hand.
   
5. It is alleged that Buare had caused the injury and, as a result, he was charged as the principal offender while Bosa and Thugatia were charged as parties to a joint criminal enterprise in connection with the murder.
   
6. Buare does not deny causing the injury which led to the death of the deceased. He admits having chopped off the deceased's left hand and further admits that in doing so he had intended to cause grievous bodily harm to the deceased. He has, however, raised provocation and self-defence as defences to the charge against him.
   
7. Bosa and Thugatia, on the other hand, have completely denied being parties to any joint criminal enterprise in connection with the murder.
   

The case against Buare.

8. The case against Buare rests on whether he succeeds in his defences. If the defences fail, he would, in the light of his own admissions, be guilty of murder.
   
9. The issues in his case are therefore whether he was provoked and/or whether he was acting in self defence when he cut off the deceased's hand.
   

The law on provocation:

10. Sections 204(a) and 205 of the Penal Code provide for the defence of provocation in cases of murder. These provisions are as follows:
    

"204 – Where a person by an intentional and unlawful act causes the death of another person the offence committed shall not be of murder but only manslaughter if any of the following matters of extenuation are proved on his behalf, namely –

[a] that he was deprived of the power of self-control by such extreme provocation given by the person killed as is mentioned in the next succeeding section;

[b] ..."

205 – Where on a charge of murder there is evidence on which the court can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough make a reasonable man do as he did shall be determined by the court; and in determining that question there shall be taken into account everything both done and said according to the effect which it would have on a reasonable man."

11. Under that section, provocation does not, on a charge of murder, relieve the accused of criminal responsibility for the death of the deceased. It merely reduces murder to manslaughter[1]. This means that even if the court were to find that the accused had the necessary intent to murder the deceased, he would not be found guilty of murder if the court is satisfied that he was so provoked by the deceased's actions as to lose his power of self control[2]. The desire to avenge the death of another or to exact retribution cannot amount to provocation[3].
    
12. Where provocation is raised, it is for the prosecution to prove beyond reasonable doubt that there was no provocation[4]. However, for the court to consider the question of provocation, there must be prima facie evidence which points to provocation[5]. In the absence of such material, the court will not consider the defence. Where such material is before the court, the burden falls on the prosecution to prove beyond reasonable doubt that there was no provocation[6].
    
13. The test to be applied in ascertaining whether or not there was provocation is twofold. The first test is whether the accused was so provoked that he was deprived of the power of self control. Once that is established, the second test arises, that is, whether a reasonable man in the position of the accused would react in the manner in which the accused had reacted to the actions of the deceased[7].
    
14. The test of a "reasonable man" is that of a person having the power of self control to be expected of an ordinary person of the same sex and age of the accused and sharing such of the accused's characteristics as would affect the gravity of the provocation to him[8].
    
15. In determining whether the action of the accused satisfies the "reasonable man" test, the court must have regard to the background circumstances between the accused and the deceased and ascertain whether, in consequence of the actions of the deceased, the accused suffered a loss of self-control to the extent of doing what he did. Furthermore, it must also be shown that the loss of self control had arisen out of a sudden passion because of the provocation and that there was no time for the accused's passion to cool down or for the accused to reflect on what he wanted to do[9].
    

Whether or not Buare was provoked?

16. In the light of those principles, the issue now is whether or not there has been provocation. To determine that issue, it is necessary to consider the events of that night as shown by the evidence.
    
17. The evidence shows that at around midnight on the 8th January 2010, the deceased accompanied Philemon, Tony and Gregory from Kondolovi village, where the deceased lived, to Balo village where wedding celebrations were taking place[10].
    
18. The evidence is not clear as to whether Philemon, Tony and Gregory actually went all the way with the deceased to Balo, however, what happened on arrival at Balo can be gleaned from the record of interview conducted with Buare on the 10th January 2010 (Exhibit "P5") which has been admitted as evidence against Buare.
    
19. At this juncture, I wish to say that Buare had also made a statement from the dock which is inconsistent in a number of ways with what he said in his record of interview. I will return to Buare's dock statement later.
    
20. In his record of interview, Buare said that in the evening of the 8th January 2010, he and a Mark Devi ("Mark") had had some beer at his house at Kominigori village after which they both went to sleep.
    
21. At about 3am on the 9th January 2010, a boy came and told Buare that the deceased was at Balo swearing at everybody in the village saying he would "cut out their bellies". On hearing what the boy said, Buare got two stones and, along with other young boys from Balo village, went to attack the deceased. Fortunately for the deceased, he escaped into the bush. Buare and the boys then erected a road block in the middle of Balo village to stop the deceased coming back into the village.
    
22. The deceased did not come back to the middle of Balo village but re-emerged behind Buare and his boys on the road which led from Balo to Tenagau village. Buare's record of interview shows that the deceased stood on the road half way between Balo and Tenagau and called out to Buare and his boys to come at him. Buare and his boys responded by calling the deceased to come at them. It is clear that both sides were challenging each other for a fight.
    
23. After these challenging calls, the deceased went to Tenagau and sat at the verandah of Rose's kitchen and continued challenging Buare and his boys to come at him. It is not clear who these boys were but from the evidence, there can be no doubt that they were from Balo village and that Bosa and Thugatia were among them.
    
24. Buare himself admitted in his record of interview[11] that there were many boys standing with him on the road but that it was only him, Bosa and Thugatia who had actually went and attacked the deceased. This confirms that Bosa and Thugatia were among the boys who came to Tenagau with Buare and that they all followed the deceased from Balo village that night.
    
25. Furthermore, it is clear that these challenging calls must have continued until the deceased and Buare with his boys came to Tenagau village. This is clear from the evidence by Oliver Thugea (PW2) ("Oliver"), Olyn Josephine (PW5) ("Olyn") and Rose Mala (PW7) ("Rose") who were at Tenagau in the morning of the 9th January 2010 and who confirmed that they heard the deceased and Buare calling each other to come.
    
26. Olyn and Rose also testified that the deceased went and sat in their kitchen and continued challenging Buare to come at him while Buare also kept challenging the deceased to come at him.
    
27. So, from Balo the deceased along with Buare, Bosa and Thugatia and the other boys all came to Tenagau.
    
28. Buare, in his record of interview, went on to say that he and Bosa and Thugatia went to the deceased and held him while the deceased was sitting in the kitchen. He said it was Thugatia who first approached the deceased while the deceased was in Rose's kitchen. This is consistent with the testimonies of Olyn and Rose who said that they saw the deceased walking to their kitchen and later saw Thugatia walking over to the deceased then followed by Bosa and then Buare and all three of them pulling and pushing the deceased out from the kitchen to Jenny's kitchen where the betel nut and banana trees were.
    
29. Buare continued further in his record of interview that Thugatia went and held the deceased's hand and pulled the deceased towards him and at the same time grabbed a knife which was at the spot where the deceased had been sitting down. Buare said that he then went to the back of the deceased and pushed him. It was then that the struggle started between the deceased and the three of them.
    
30. During the struggle, Buare told the deceased to go back to Balo and explain to the people why he was shouting at Balo. Buare said that they struggled until they reached some betel nut trees. He said the deceased then grabbed a betel nut tree and at the same time he tried to grab the knife from Thugatia but could not do so because Thugatia lifted the knife so high that the deceased was not able to reach it. Buare said he saw that Thugatia was unbalanced so he (Buare) managed to get hold of the knife from Thugatia and swung the knife wildly at the deceased. Buare said that he aimed at the deceased's left hand and that he wanted to cut the deceased's hands so that the deceased would not come and assault him again.
    
31. Buare continued that if he did not cut the deceased's hand, the Balo community would not be free from the deceased's criminal activities. He said that the deceased had already assaulted him with a knife and had threatened his wife and children saying he would cut off their heads and place them at sacred places and would burn down his house.
    
32. Buare admitted in his record of interview that he meant to cut off the deceased's hand but he did not mean to kill the deceased. He said if the deceased was left with one hand, he would not be able to fight anyone anymore.
    
33. Buare's record of interview had been admitted into evidence and I am satisfied it contains an accurate version of what happened that early morning of the 9th January 2010. From this version of facts, it is absolutely obvious that the defence of provocation cannot succeed. There is simply no evidence which prima facie points to provocation. As I have said earlier, for the court to consider the question of provocation, there must be material which prima facie points to provocation. In the absence of such material, the court will not consider the defence.
    
34. From what was said in the record of interview, the only material which might point to provocation, if at all, is the information conveyed to Buare by the boy who said that the deceased was at Balo swearing at everybody in the village and threatening that he would "cut out their bellies".
    
35. Assuming that there was such a threat, the questions to be asked are, first, whether the deceased's threat that he would "cut out their bellies" was so provocative as to be capable of depriving Buare of the power of self-control. Second, even if I were to accept that such a threat was so provocative as to be capable of depriving Buare of the power of self-control, could it be said that Buare had no time for his passion to cool down or for him to reflect on what he wanted to do?
    
36. Unfortunately, I have to answer both questions in the negative. First, I do not find anything provocative in the message conveyed by the boy to Buare. It is important to note that Buare's actions after hearing what the boy said were not those of a person so provoked as to lose his power of self-control and to assault the deceased the way he did.
    
37. Second, even if the boy's message was provocative, I find that there was sufficient time for Buare to cool down and to reflect on his intentions when he followed the deceased from Balo to Tenagau up to the time of the assault on the deceased. According to his record of interview, the reason he followed the deceased to Tenagau was to ask the deceased to return to Balo and explain why he was shouting in that village. He did not follow the deceased because he was angry at the deceased or because of the threat issued by the deceased.
    
38. I now return to Buare's dock statement.
    
39. There are a number of notable differences between Buare's record of interview and dock statement.
    
40. The first is that the kind of swearing which Buare claimed in his dock statement that the deceased had made at him are very much different from the ones which he claimed in his record of interview. The swearing alleged in the dock statement were very serious than the ones alleged in the record of interview.
    
41. The second is that Buare in his dock statement mentioned that he was slapped by the deceased and that fell unconscious. That was not mentioned in his record of interview.
    
42. Third, in his record of interview, Buare said he grabbed the knife from Thugatia because he saw Thugatia was becoming unbalanced. In his dock statement, however, he said that he took the knife from the deceased after a big struggle with the deceased.
    
43. Fourth, in his record of interview, Buare said that he cut the deceased's hand in order to disable him from further attacking them in the future while in his dock statement he said that he cut the deceased because the deceased had held on to him very strongly when he wanted to escape from the deceased.
    
44. I have already said that I am satisfied that Buare's record of interview was accurate and that I have accepted the record of interview as the accurate account of what happened during the early morning of the 9th January 2010. The record of interview was conducted a day after the incident when Buare's memory was still fresh in regards to the incident. I reject Buare's dock statement. It is clear to me that he had made up these stories to support his defence of provocation. In any event, even if I were to accept Buare's dock statement as the truth, I find no evidence in that statement which was so provocative as to be capable of depriving Buare of the power of self-control thereby causing him to assault the deceased the way he did.
    
45. Buare has also alleged in his dock statement that the deceased had sworn at him at Tenagau village telling him to have sex with his mother-in-law, Rongokuvu. This appears to have been corroborated by Rose Mala's evidence. I accept that to tell a man to have sex with his mother-in-law is a very serious matter in custom. Unfortunately, there is no evidence to show that this swearing had any serious effect on Buare at all. I reject any suggestion that this swearing had provoked Buare in doing what he did to the deceased.
    
46. A number of witnesses have also been called to testify on behalf of Buare. They are Steven Sam, Osborn Gatu, Chief James Bosa and James Soniluvu. Out of those witnesses, only two were able to testify about the swearing that the deceased was alleged to have made towards Buare that morning at Balo village. They are Chief James Bosa and James Soniluvu.
    
47. In his dock statement, Buare said that the deceased had uttered the following swearing words to him:
    

"Dick, you eat every shit of all women at your village. Fuck your mother and your sister. You wait there and I will go and fetch my gang. I will cut off your penis, cut open your stomach and I will burn your house down".

48. According to Chief Bosa, the deceased had called out the names of three persons, namely, Dick, Thugatia and Philip then uttered the following swearing words to all three of them:
    

"Knife blong me here nao. I am coming nao. You come and I'll cut out your penis and testicles".

49. According to James Soniluvu, the deceased had uttered the following swearing words to Buare:
    

"This time I come again. This knife I hold it for you. If you no come, you fuck your mum, sister in-laws, tribe. Eat shit of your mum, sister, tribe and people at your place if not come".

50. James Soniluvu said that while swearing at Buare, the deceased had brandished the knife on the road three times and had kept repeating the swearing a number of times.
    
51. I have observed these witnesses in the witness box. I am not impressed by their demeanor. Furthermore, their versions of the swearing did not match. Neither Buare nor Chief Bosa said nothing about the deceased brandishing his knife on the road or repeating the swearing a number of times as alleged by James Soniluvu. I therefore reject their evidence.
    
52. It follows therefore that I must reject the defence of provocation as raised by Buare. I am satisfied beyond reasonable doubt that there was no provocation on the part of the deceased to justify Buare's action in chopping off the deceased's hand.
    

The law on self-defence:

53. Buare has also raised self-defence as a defence.
    
54. Section 17 of the Penal Code provides that, subject to any express provision of the Penal Code or any other law in Solomon Islands, criminal responsibility for the use of force in defence of person or property shall be determined according to the principles of English criminal law.
    
55. So what does the English criminal law say about self-defence?
    
56. In Rachel Tobo v Commissioner of Police[12] ("Tobo"), the Court of Appeal said:
    

"So far as is relevant that [section] provides that criminal responsibility for the use of force in defence of a person shall be determined according to the principles of English common law. Under the common law, it is lawful to use such force as is reasonably necessary in order to defend one's person against an attack."

57. So, the common law position is that a person is entitled to use such force as is reasonably necessary in order to defend himself against attack by another person and this could even include striking blows in an endeavour to defend one's self against attack provided that such blows are reasonable and necessary having regard to the circumstances prevailing at the time.
    
58. In Hussey's case[13] ("Hussey"), it was held that a man may use force and even kill to defend himself or his property. However, that position was qualified in R v Zamagita & Others[14] ("Zamagita") in relation to the defence of property where it was said that, today, only in the most extreme circumstances of clear and serious danger would a court hold that a man is entitled to kill in defence of property as there are other remedies available.
    
59. In Chisam v R[15] ("Chisam"), it was held that there must be a necessity for the killing or, at least, there is an honest belief based on reasonable grounds that there is such a necessity.
    

Whether or not Buare was acting in self-defence.

60. So the question here is whether chopping off the deceased's hand was reasonably necessary in order for Buare to defend himself against the deceased.
    
61. I have already referred to Buare's record of interview which I have accepted as an accurate and truthful account of the events which occurred that morning immediately before the assault on the deceased. I need not repeat them here. Suffice to say that I find nothing in his record of interview, nor in the evidence produced in this trial generally, which convinces me that Buare had found himself in a situation where it was reasonable necessary to defend himself against the deceased by chopping off the deceased's hand.
    
62. I am satisfied beyond reasonable doubt that the reason for chopping off the deceased's hand was as stated by Buare in his record of interview, that is, to incapacitate the deceased so that the deceased would not assault him again and to put an end to the deceased's criminal activities and harassment of the Balo community.
    
63. I reject Buare's defence of self-defence.
    
64. Having rejected Buare's defences and on the evidence before me as well as on the basis of his own admissions referred to earlier that he had inflicted the wound with intention to cause grievous bodily harm to the deceased, I am satisfied beyond reasonable doubt that Buare caused the death of Mathew Manegaua with malice aforethought.
    
65. Accordingly, I find the accused Dickson Soniluvu Buare guilty of the murder of Mathew Manegaua.
    

The case against Bosa and Thugatia.

66. I now turn to the case against Bosa and Tughatia.
    
67. The issue in the case against these two accuseds is whether they were parties to a joint criminal enterprise.
    

The law on "joint enterprise".

68. As regards the issue of "joint enterprise", section 22 of the Penal Code provides that:-
    

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

69. The requirements of this section have been explained in a number of cases in this jurisdiction.
    
70. In R v Ben Tungale & Others[16] ("Tungale"), His Lordship Lungole-Awich J, stated that where two persons embark on a joint enterprise, each is liable for the acts done in pursuance of that joint enterprise, and that includes liability for unusual consequences if they arise from the execution of the agreed joint enterprise.
    
71. However, his Lordship added that if one of the adventurers goes beyond what has been tacitly agreed as part of the common enterprise, his co-adventurer is not liable for the consequences of that unauthorized act.
    
72. In R v Peter Fitali & Others CRC[17], it was held that the existence of a joint enterprise must first be established. That is, it must be proved that the accuseds were all parties to the joint enterprise and that the acts of the accuseds were done in furtherance of that joint or common enterprise.
    
73. It appears to me that these principles have been summarized in R v Victor Tadakusu[18], where it was said that to prove joint enterprise under section 22 of the Penal Code, the following elements must be established:-
    

[a] a common intent;

[b] unlawful purpose;

[c] an offence was committed while pursuing that purpose; and,

[d] the offence is a probable consequence arising from prosecution of the purpose.

74. In accordance with these principles, therefore, Bosa and Thugatia would be guilty only if it is shown that there was a common intent on the part of Buare, Bosa and Thugatia to prosecute a purpose; that the purpose was unlawful; that in the process of prosecuting that purpose the deceased was assaulted with a knife which led to his death and, that Bosa and Thugatia knew that the assault on the deceased would be a probable consequence of pursuing the common purpose.
    
75. In this case, there is no dispute that an offence was committed so the only questions which arise here are:
    

[a] whether there was an unlawful purpose;

[b] whether there was a common intent on the part of the three accuseds to prosecute that unlawful purpose; and,

[c] whether Bosa and Thugatia know that an assault on the deceased was a probable consequence if the unlawful purpose was pursued.

The evidence against Bosa and Thugatia.

76. The evidence shows that Bosa and Thugatia were among the boys who, along with Buare, followed the deceased from Balo to Tenagau village. It is clear that, in the early hours of the morning of Saturday the 9th January 2010, the deceased was causing some disturbances at Balo village where a wedding celebration was taking place. It is clear that the people of Balo, including Buare, Bosa and Thugatia, did not like the disturbances.
    
77. The evidence by Osborne Gatu as well as Buare's record of interview also show that the deceased was not well liked by the community at Balo village and that the deceased had a history of causing disturbances and problems for quite a while to the Balo community and probably the surrounding villages as well.
    
78. It is clear that the disturbance being caused at Balo in the early hours of the morning on the 9th January 2010 had resulted in Buare, Bosa and Thugatia pursuing the deceased to Tenagau village where the deceased was assaulted.
    
79. There is no direct evidence as to why the deceased was pursued to Tenagau. However, in Buare's record of interview, said that the reason why they followed the deceased to Tenagau was to see to it that the deceased went back to Balo village and explain why he was shouting at that village[19].
    
80. It is clear from their actions that the accuseds were determined to bring the deceased back to Balo by force if necessary.
    
81. The evidence by Olyn shows that Buare, Bosa and Thugatia, were standing together near Jenny's house as the deceased walked passed their house to their kitchen. She recognized all three of them. They are her father's cousins. She heard Buare, Bosa and Thugatia challenging the deceased to come at them and the deceased making the same challenge back at them.
    
82. From where they were standing, they started to approach the deceased who was sitting in Rose's kitchen. According to Olyn's evidence, it was Thugatia who first went over to the deceased. On arriving at the kitchen, he pulled the deceased down and grabbed a knife from the wall of the kitchen.
    
83. Next to approach the deceased was Bosa. He went there as Thugatia was pulling the deceased. He assisted Thugatia by pushing the deceased. While Thugatia and Bosa were assaulting the deceased, Buare was still near Jenny's house.
    
84. Olyn then heard Buare shouting to Thugatia and Bosa asking them what they were doing and telling them to bring the deceased to him. This indicates that the reason why Thugatia and Bosa went over to the deceased was to bring the deceased over to Buare.
    
85. Olyn then saw Buare walking over to Rose's kitchen with stones in his hands. It is to be noted that, in his record of interview, Buare said that upon hearing what the boy told him at Balo, he collected stones to attack the deceased. He said that he and the full community at Balo had wanted to attack the deceased[20]. It is therefore clear that when Buare, Bosa and Thugatia followed the deceased to Tenagau, they knew of the probability that the deceased would be attacked.
    
86. Olyn said she then saw a boy named Gete trying to intervene but Buare shouted at him telling him to get out of his way. She then saw Buare grabbing the deceased's hand and both he and Thugatia then pulled the deceased towards the betel nut trees at the back of Jenny's kitchen while at the same time Bosa was holding the deceased's back and pushing him forward. About ten minutes later, she heard a noise like the cutting of bones behind Jenny's kitchen and some moments later she heard the deceased came calling out for help.
    
87. On the basis of this evidence, I am satisfied beyond reasonable doubt that there was an unlawful purpose; that there was a common intention on the part of Buare, Bosa and Thugatia to prosecute that unlawful purpose and that they participated in executing that unlawful purpose. Both Thugatia and Bosa followed the deceased from Balo. Both were seen standing with Buare near Jenny's house immediately before the assault on the deceased. Both came to the deceased while he was sitting in Rose's kitchen and assaulted him in the kitchen. Both were involved in pulling and pushing the deceased to the spot where his hand was chopped off. I am also satisfied beyond reasonable doubt that both Bosa and Thugatia knew that morning that an assault on the deceased was inevitable. They were themselves involved in that assault.
    

Dock statement by Thugatia:

88. Thugatia had made a statement from the dock. In that statement, he admitted struggling with the deceased as they pulled and pushed him to the betel nut trees. He also admitted holding on to the knife as they struggled. However, he denied that he was present when Buare cut the deceased's hand.
    
89. I must say I do not find Thugatia to be a credible witness. In his dock statement, he also said that when the deceased saw him coming, the deceased jumped down and said to him "you one of them" and wanted to attack him with a knife. Olyn, who heard what was being said that morning by the deceased and Buare and saw what happened in the kitchen that morning, never said having heard any such statement. If the deceased had indeed made such a statement and had jumped down from the verandah, Olyn would have seen that and would have said so in her evidence. She didn't. I find Olyn to be a straightforward and truthful witness. I do not believe Thugatia's assertion that the deceased had made any statement to Thugatia or jumped down as alleged by Thugatia. I also reject Thugatia's statement the deceased had wanted to cut him when he approached the deceased in the kitchen. Olyn said that she saw Thugatia grabbing a knife from the kitchen wall and holding it away from the deceased. At no time did she say she saw the deceased holding any knife during the whole episode.
    

Dock statement Bosa:

90. Bosa had also given a statement from the dock. In that statement, he had completely denied being involved at all in the incident at Tenagau that morning. He admitted coming to Tenagau between 4 or 5am and 6am that morning and also admitted seeing Thugatia walking over to Rose's kitchen where the deceased was as well as seeing the deceased jumping at Thugatia with a knife. However, he alleges that as soon as he saw the deceased jumping down, four men came to attack him so he escaped and never came back. In other words, he was never involved in the assault on the deceased that morning.
    
91. Clearly, Bosa's statement is inconsistent with the evidence by Olyn and Rose both of whom said that they saw Bosa pushing the deceased from the back as Buare and Thugatia were pulling him towards the betel nut trees behind Jenny's kitchen. Rose further said that as Buare, Bosa and Thugatia, were pulling and pushing the deceased towards the betel nut trees, they came past her and she asked Buare why they were making so much noise.
    

Finding:

92. From Olyn and Rose's evidence, I am satisfied beyond reasonable doubt that Bosa was a party to the assault on the deceased that morning. I reject his dock statement as containing no truth. I also reject the evidence by Peter Maneluga who was called to corroborate Bosa' evidence. I am satisfied Olyn and Rose were telling the truth in their evidence and I accept their evidence as truthful.
    
93. I am therefore satisfied beyond reasonable doubt that Bosa and Thugatia were parties to a joint enterprise in connection with the murder of Mathew Manegaua and accordingly I find them guilty as charged.
    

Sentence:

It is mandatory under the law that a person found guilty of murder must be sentenced to life imprisonment. Accordingly, all three accuseds are sentenced to life imprisonment.

THE COURT.

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^[1] Loumia v DPP [1986] SBCA 1.
^[2] R v Orinasikwa [1999] SBHC 28.
^[3] Loumia v DPP [1986] SBCA 28.
^[4] R v Orinasikwa [1999] SBHC 28.
^[5] R v Orinasikwa [1999] SBHC 28.
^[6] Lee Chun Chuen v The Queen [1963] 1 All ER 73, Tofola v R Crim. App. Cas 2 of 1993 (CA)
^[7] Regina v Buarafi [2002] SBHC 121.
^[8] Loumia v DPP [1986] SBCA 1.
^[9] Perera v AG for Ceylon [1953] 2 WLR 238, Lee Chun Chuen v The Queen [1963] 1 All ER 73, R v Orinasikwa [1999] SBHC 28.
^[10] See evidence of Meverlyn Thugea (PW1).
^[11] See Answer to Q23 of the Buare record of interview.
^[12] Unreported Criminal Appeal No. 1 of 1993, at pp. 2-3.
^[13] (1924) 18 CAR 160.
^[14] [1986] SBHC 24.
^[15] (1963) 47 CAR 130.
^[16] CRC No. 12 of 1997
^[17] CRC No. 39 of 1992
^[18] CRC No. 239 of 1999
^[19] Buare’s record of interview, Answer 24.
^[20] Buare’s record of interview, Answer 19.