Regina v Keke [2013] SBHC 180; HCSI-CRC 575 of 2004 (8 November 2013)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)
Criminal Case Number 575 of 2004

REGINA

V

HAROLD KEKE AND RONNIE CAWA

HEARING: 1st, 2nd, 4th, 5th, 8th, 9th, 11th, 18th August 2011.
JUDGEMENT: 22nd August 2013.

R. Barry and F. Taeburi for the Crown
R. Cavanagh and B. Ifuto'o for Harold Keke
M. Waqavonovono and S. Kalu for Ronnie Cawa

Palmer CJ.

1. The defendants, Harold Keke ("Keke") and Ronnie Cawa ("Cawa") are charged with the murder of Paul McSweeney ("McSweeney") at Inakona village on the Weather Coast in October 2001. In the alternative, they are each charged with the offence of wrongful confinement.
   
2. The Crown alleges that both men participated in the beating of McSweeney and that Keke as the leader of the Guadalcanal Liberation Front ("GLF") was responsible for ordering McSweeney's death. Cawa is one of the commanders in the GLF.
   
3. The Crown alleges that both men acted together and with others in a sustained beating of McSweeney over a period of time and which resulted in his death. They acted with intention to kill or to cause grievous bodily harm and both were responsible for significant parts of the physical attack on McSweeney.
   
4. The defence on the other hand was led on the basis that both men were not around at the scene of the crime at the time of the alleged beating.
   
5. Cawa's defence was led on the basis that Crown witnesses mistook him for his brothers who were at the scene of the crime. Keke's defence is that he was not present at the scene of crime.
   

Issue(s) for determination.

6. The main issue in this case is one of fact, that of identification of Keke and Cawa at the scene of crime and their involvement in the beating of McSweeney resulting in his death.
   
7. The burden of proof as always lies with prosecution from the outset, that of proof beyond reasonable doubt.
   
8. The Prosecution called a total of 13 witnesses. These included two members of the Participating Police Force ("PPF") who accompanied the team to the crime scene; one of whom was the pathologist, Dr. Malcolm Dodd, who carried out the post-mortem on the deceased's body after it was exhumed; the remainder were villagers who were around or at the vicinity of the crime.
   
9. The defence called no witnesses. Keke gave an unsworn statement to the Court, Cawa elected to remain silent.
   

Facts not in dispute.

10. The following facts are not in dispute. That McSweeney was taken to Inakona village in a canoe with his hands bound and a blindfold over his eyes. He was then subjected to severe beatings resulting in his death a couple of hours later and was buried at a shallow grave at the cemetery at Inakona.
    
11. The evidence of Dr. Dodd who carried out the post mortem sufficiently identified the body of McSweeney as being consistent with the description of witnesses. There is no dispute that the body exhumed on 12 May 2004, about 2½ years later was that of McSweeney. If there is dispute it is my finding that the body exhumed and identified as Inakona Body no. 14 couldn't be the body of anyone else other than McSweeney.
    
12. Dr. Dodd's opinion of the cause of death being caused by blunt force trauma to the occipital area of the skull is not disputed. He identified in his report various fracture lines, which are consistent with blunt force trauma being applied to the body of the deceased. These include injuries to the jaw, area of the left shoulder and mid left chest. He described the amount of force needed to cause those traumas as ranging from very strong to strong. These are entirely consistent with the evidence of eyewitness accounts of the beating that the deceased had been subjected to.
    
13. This case turns on the credibility and reliability of the evidence of crown witnesses. Is their evidence of identification reliable? Did they see Keke and Cawa beating McSweeney that day?
    
14. The crucial issues of identification and beatings of the deceased are essentially issues of fact. In view of the initial defence sought to be raised, I need to be satisfied beyond reasonable doubt that these two defendants were present and participated in the beating of the deceased, which ultimately resulted in his death.
    

Findings of fact.

15. I am satisfied that on the morning of 16th October 2001, McSweeney was brought by boat to Inakona village and arrived at about 7.30 am in the morning. The time of arrival of the boat coincided with the conclusion of a church service at Inakona village at that particular time and there were people who were around and coming out of the church service at that time who witnessed the beating of McSweeney.
    
16. The usual start time of the service was around 6.00 – 6.30 am and finishes by about 7.30 – 8.00 am. By the time people were coming out of the service, McSweeney had been taken captive, was blindfolded, his hands tied with a rope and was being led ashore. This is virtually undisputed.
    
17. I am satisfied there were three men in the boat that brought McSweeney in. One of them was identified as Raoul. On arrival, McSweeney was taken initially to the bottom of a koilo tree and made to sit upon some stones. Harold Keke was then called and on arrival he attacked him.
    
18. There were others there as well who attacked McSweeney including Ronnie Cawa.
    

Issue of identification

19. One of crucial issues in this case is that of identification. Whether the evidence of witnesses who identified Keke and Cawa can be relied on.
    
20. I am more than satisfied the evidence of identification of these two men is unassailable and overwhelming. This is not the case of a stranger or someone being seen for the first time. These two defendants were well known to all the witnesses; they were either related to them as cousins, uncles or nephews and were known for their notoriety as leaders to be feared in the GLF movement. Rockson Ruben for instance, told the Court that Keke was from the same village, Sughu as he was and related to him like an uncle from his father's side. He knew him prior to the incident. Cawa was also related to him as a cousin. Keke was clearly identified as the "boss" and Cawa as one of the "commanders" or right hand man of Keke.
    
21. In some instances Crown witnesses went to great lengths to point out that Keke had been living in Inakona village for a considerable length of time as long as 18 months, and even if it was only some 2-3 months as may have been suggested to witnesses in cross examination, I am more than satisfied that that would have given them sufficient time to make clear identifications of these two accused and not be confused about their appearance. John Pili told the Court he knew Keke from the time he spent in their village. He also told the Court he was about 15 or so meters away from the events that unfolded before his eyes. He also knew Cawa.
    
22. Ben Veke was the one who told the Court that Keke had been around his village for some one year and seven months. I am satisfied I can accept his evidence of identification as reliable. If Inakona is a typical small village, then it doesn't take long for people in the village to get to know everyone around even if they may be new. Word gets around quickly a fortiori, where notoriety is attached to the identity of those two persons.
    
23. David Babasi was a Pastor in Inakona at that time and knew Keke from the time he stayed in Inakona for well over a year. He knew him before this, had spoken with him before and only about 20 meters away from what happened that day. He knew Cawa as well and recognised him and could distinguish him from his other brothers, Pitakaka and Lasa. He told the Court they were all there. He was unshaken in his evidence about their involvement and could not be discredited about what he witnessed that day.
    
24. Risutal Kukumuna was around at the scene of the crime at that time at about 8.00 am in the morning and confirmed that both Keke and Cawa were present at the scene of the crime. They were both known to her and also saw Cawa dropping a stone on the deceased. She was about 20 or so meters away.
    
25. Another witness, Vincent Vaina was standing about 15 or so meters away and also knew Keke since he arrived at their village for some one year and seven months. He also knew Cawa. He was frightened when he saw the beating as this was the first time this had happened at the village. He never resiled from his original position of seeing those two defendants being involved in the beating of the deceased.
    
26. John Lili was a Pastor from Ngalito village and again knew Keke from previous encounters and meetings that he had attended at his direction, such as at Inakona or Mbiti. He told the Court he was invited to attend a meeting at Inakona on this particular day, which was a Friday and arrived at about 12.00 noon at the village. His evidence of identification and of events that transpired at the latter part of the day is consistent with what other witnesses told the Court. He was about 15 meters away and witnessed the beatings and later when the deceased was dragged away to be buried.
    
27. The beatings occurred in broad daylight, there was nothing secretive, private or confidential about them. There was no attempt to try and disguise or hide the beatings in any way. It would seem that this was purposely done as part of "scare techniques" to infiltrate fear and terror in the minds of those around so that they would not dare cross Keke and his henchmen's path. If that was the intention, it was successful to some extent but not enough to scare away these witnesses to come to court and give evidence. At that time, they did testify of being scared and some did say that they walked away shortly after witnessing the event. In any event, even if any wanted to intervene they did not for fear of being attacked by Keke and his followers. Nobody could help the dying deceased even when he was totally helpless and begging for mercy; such was the cruelty of these two men and those who participated in beating McSweeney up.
    
28. I have seen, heard and observed those Crown witnesses give evidence in Court; I am more than satisfied their evidence can be relied on. They were given in sincere, frank and objective terms, in spite of and despite the traumatic experience, they had to endure to observe and recall what happened before their eyes at that time. I am satisfied their evidence is consistent, and virtually uncontradicted. They remained firm in cross examination, did not resile from their observations and what they saw happened that day.
    
29. For instance, Ben Veke ("Veke") who gave evidence was pressed in cross examination regarding his vision and observations that day as he could not see clearly in Court to identify the two defendants in Court but he remained firm that at that time his vision was clear and he was able to identify clearly those two defendants. He told the Court his vision began to fail afterwards but he remained adamant it was those two defendants who he saw assaulting and beating the deceased at that time.
    
30. Veke told the Court he is a resident of Inakona village and had lived there all his life. He confirmed seeing the deceased being brought and taken to a koilo tree and Keke was then called. He saw both Keke and Cawa beating the deceased. He saw them both hitting him with a stick and stone. He told the Court Keke had come to stay at his village for some 1 year 7 months prior to this incident and so knew him. I am satisfied his evidence as to the involvement of these two defendants is virtually unassailable, solid and clear. He couldn't be shaken in cross examination about what he saw.
    
31. I note there were others who participated in the hitting and beating the deceased but that did not rule out the clear involvement of these two defendants.
    
32. The prosecution evidence is consistent throughout, that clenched fists were used to punch the deceased with, some saw him being slapped, being hit with a stick, being stoned, hit with a stone on his head and a rock thrown on his stomach and chest.
    
33. The evidence against these two defendants is overwhelming.
    
34. Injuries described by the Doctor who carried out the post mortem report were consistent with the description of the witnesses as to what was done to the deceased. One witness John Pili described the deceased's head as being round like a "football" as a result of being bashed so badly, that his face was swollen beyond recognition. It was only natural when he told the court that he did not remain longer and left as he himself was scared.
    
35. It is part of my finding in this case that the body exhumed by the Regional Assistance Mission to Solomon Islands Forensic Team could not be other than that of the victim, McSweeney. Those who assisted in burying the body of the deceased assisted the team to identify the likely spot and to assist with the exhumation. As well the materials and items found on the skeleton were consistent with the description of the deceased as his body was dragged away along the beach to an identifiable spot, called "kiala", where they usually bury people. There were eye witnesses of the burial spot, when the grave was dug, and the body buried. Again, this evidence is simply uncontroverted and I am more than satisfied that the body exhumed was that of McSweeney.
    
36. The post mortem report described the injuries on the skeleton as follows:
    

"IDENTIFIABLE TRAUMA/INJURY ON INTERNAL EXAMINATION – INCLUDING THE MUSCULOSKELETAL SYSTEM

• A curvilinear fracture is identified through the left occipital skull plate. The fracture measures 60 mm in length. The fracture lines extend through the left side of the occipital plate but do not encroach on the lambdoid suture. The fracture line extends into the foramen magnum.
  
• There is a fracture to the base of the skull causing separation of the occipital condyles.
  
• There is a comminuted fracture of the anterior mandible (jaw).
  
• There is a fracture with separation of the left acromion (shoulder).
  
• Left ribs 7 and 8 show multiple fractures. The fractures are located laterally."
  

37. In his interpretation of the above fractures, the Pathologist commented as follows:
    

"The cause of death in this case is one of blunt force trauma. The examination of the skeleton discloses a significant injury to the left occipital area of the skull (back of head). Fracture lines extend into the base of the skull and encroach onto and into the foramen magnum. The occipital condyles are disarticulated. Fracturing of the magnitude would lead to significant intracranial haemorrhage and disruption of the brainstem resulting in cardiorespiratory arrest. In addition, an anterior fracture is located through the jaw. This area probably represents an independent site of blunt force trauma, possibly due to a kick or blow with a gun butt.

Evidence of blunt force trauma is also identified over the area of left shoulder and mid left chest. The presence of ligature strongly supports the notion that the deceased may have been bound. A rope loop approximates the diameter of the forearm.

It is my determination that the death of Inakona Body 14 was caused by: BLUNT FORCE TRAUMA TO THE HEAD (SKULL FRACTURE) IN TANDEM WITH BLUNT FORCE TRAUMA TO THE LEFT RIB CAGE."

38. Dr. Malcolm Dodd who conducted the post mortem report gave evidence in court and was cross examined about the injuries on the skeleton and asked about his views as they relate to what witnesses described they saw. Most of the descriptions of the witnesses were consistent with the identifiable injuries on the skeleton of the deceased. Apart from a few discrepancies, which I am not satisfied detract from the cause of death and observations of prosecution witnesses, it was obvious the deceased had been subjected to excessive force to his body, the chest and stomach area and the head which correspond to the identifiable fractures to the skeleton. These are again virtually uncontroverted and I am more than satisfied the deceased died as a result of the beating meted against him inter alia by the two defendants.
    
39. I am satisfied both were in positions of power and influence and authorised, if not consented to the beating of the deceased. They could have intervened to stop or save the deceased, they chose not and actively encouraged and participated in the beating of the deceased.
    
40. Both defendants called no witnesses in support of their case. Keke gave a brief statement from the dock directly implicating Cawa and stating that he saw him killing McSweeney. Cawa on the other hand elected to remain silent.
    
41. It is interesting to note that if Keke said he saw Cawa killing or attacking McSweeney that day then it follows he must have been present at that time as well contrary to his assertion that he was not present at that time. In his defence, he asserts that he was not present at Inakona village that day. His statement however runs contrary to his defence. I reject his defence.
    
42. Cawa in his defence also sought to assert that he was not at Inakona on the said day and that he was mistaken for one of his brothers, Lasa or Pita. All prosecution witnesses who saw him at the scene however remained firm in their identification of Cawa, noting that they were able to distinguish clearly between him and his other brothers. I am satisfied as I pointed out in this judgment this was not the case of seeing a stranger or someone for the first time, but someone they knew from previous contacts, someone familiar to them, as well as being related to them. I reject his defence.
    
43. I am satisfied prosecution has discharged the onus placed on it and I find both defendants guilty of the murder of Paul McSweeney and convict them accordingly. It is not necessary in the circumstances to consider the alternative count.
    
44. There is only one sentence for murder and both defendants are sentence to life imprisonment for the murder of Paul McSweeney.
    
45. Both have a right of appeal if they are aggrieved by the decision of the Court.
    

Orders of the Court:

- Find both defendants guilty of the offence of murder of Paul McSweeney and convicted accordingly.
- Impose sentence of life imprisonment.

The Court.