|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of Solomon Islands |
IN THE HIGH COURT OF SOLOMON ISLANDS
PALLARAS J
Criminal Case Number 447 of 2006
R
v
Stanley GITOA
Coram: PALLARAS J
Crown: Mr M Hartmann and Mr M Kelesi
Defence: Mr S Valenitabua and Mr C Ravumay
Hearing Dates: 29 April – 13 May 2013
Verdict Delivered: 17 May 2013
VERDICT
Events Leading Up To the Killing - The Prosecution Case:
"There was a group of boys and I only know of Stanley Gitoa and Ford. They were with the group of boys."[3]
"(Stanley Gitoa is) also related to me and he is my child. Gitoa is my cousin sister's son. (I have known him) since he was a child and as well as growing up...they are related to me and they usually come to my house."[4]
"I (was) able to recognise Gitoa and Fordy. Those were the ones that I could identify. ....The way they were walking and there was light it was reflecting and that helped me to identify them."[5]
"I saw them."[6]
"I did not see Gitoa shot but I saw him, he went past. That's all."[7]
"Because I saw him on the road and that's the place where I saw him I didn't see him at any other place .... Him and Ford, they were the ones that I could identify but they were with other boys. They were going together in a group."[8]
"Yes, I absolutely sure that I saw those two, Ford and Gitoa."[9]
"Yes and the rest I don't know, it's only those two that I do recognise."[10]
"No, because I saw him that's why I said I saw him."[11]
"When you considered the light conditions and when you considered how close or how far you were from the two men, are you sure in your mind that it was Mr Gitoa who was one of the men that you saw?"
"Yes, with Fordie."
"Stanley Gitoa was the one that was – that did the shooting....Because once Stanley Gitoa started shooting, I tried to escape I didn't watch."[13]
39. And later[14] –
A. "At the same time when they were shooting, I dropped down and I started rolling so I did not manage to see who was shooting."
Q. "Did you see where the shots were coming from?"
A. "It's only a short distance, it's like from where I am to where your Lordship is."
Q. "And who was where I am, who were you looking at there?"
A. "Stanley Gitoa."
Q. "Were any shots coming from that direction."
A. "Yes."
40. When it was put to him that the accused was not present at the scene of the shooting, the witness replied
"If I didn't see him, I wouldn't mention his name."[15]
41. Later in cross examination, the following exchange occurred[16] –
Q. "My instruction is that Gitoa didn't know you"
A. "Gitoa we've known each other for a long time."
42. And,[17]
Q. "Now I put to you that Stanley Gitoa was at Binu village, during that shooting. What do you say to that?"
A. "Stanley Gitoa I saw him there that's true and correct."
43. And again,[18]
Q. "Just one more question Solomon, I put to you that Stanley Gitoa was not at the Tetere Prison Compound that night. What do you say to that?"
A. "Stanley Gitoa I saw with my own eyes that he came to Tetere."
44. In response to a question from the Court in relation to the accused's claim that he didn't know Solomon Bokisia at all, the PW5 said[19]
"Me and Gitoa are best friends.....He knows me very well, I know him very well.....We would walk around together, we would tell stories together he's like a brother to me, he's not someone far.....His father is Saronga, he worked, his father works with my father as well at the rice.....I only know Gitoa because he's my friend and he sometimes sleeps at my house."
45. The father of the deceased, Mr Wilson Pitakere (PW6), was called as the next prosecution witness. Although he was living at Tetere compound with his wife and family, his house was some distance from his daughter's house. He heard the noise of the shooting but was not able to testify as to what had occurred. He did, however, confirm his wife's evidence that she had collapsed outside her house and that she was assisted inside by her husband PW6 and also PW1.
46. The brother of the deceased, Douglas Pitakere ("PW7"). testified that he came upon the scene after his sister had been shot. While he did see a number of men running away, he did not see the events occurring.
47. The Crown then called Mrs Diana Kema (PW8). She was the mother of Solomon Bokisia PW5. She testified that her son and the accused had known each and had been friends for years. She had known the accused since he was born and although he did not grow up in her area, she knew his parents and grandparents and would receive news of him from the accused's mother. She had lived for some time with the accused's grandparents before he had been born. She said that the accused would call her "aunty". Her son PW5 would often go to visit the accused and she would see them talking together frequently. Her son knew the accused a long time before the accused was married. This evidence was obviously in sharp contrast to the case being put by the accused that he did not know PW5 or his family.
The Defence Case:
48. The accused gave an unsworn statement. He said that on the night of the killing, he was in his village of Binu. He heard a gunshot
and decided to go to see where the shot had come from. He called on another person, a Mr Boni, to go with him.
49. The two of them walked along the main road that led to the Tetere compound. As he approached Tetere, he saw two men sitting by the road who then ran towards a house next to the road. He then says that he heard a gunshot coming from the house. Upon hearing this, he fired two shots from an SLR rifle that he was carrying and then turned around and went back to his village. In direct contrast to his statement in his record of interview, he said that he never entered Tetere compound at all. He said that he never knew PW5 Solomon Bokisia, did not know PW8 Solomon's mother and that both of them were lying when they said that they knew each other.
50. The Defence then called Mr Radley Varaken ("DW2") who testified that he was from Binu, that he knew the accused and that they were together in his village on one occasion when they heard gunshots. After hearing the shots, DW2 separated from the accused and went to see his family members. This was at about 9 p.m. He did not remember which year, month or date that this occurred but he did know of the night when the deceased was shot and killed. It was on the day following the shots that he was told that the deceased had been killed. He said that his village was about 1½ hours walk from Tetere compound.
51. While this evidence originally was described as alibi evidence, it is clear that it was not alibi at all. On any version of events, after an initial shot was heard, the accused travelled on foot to the Tetere area, a journey which would have taken him approximately 1 ½ hours. On the evidence of DW2, the accused would have started this journey sometime between 9:00 p.m.- 9:30 p.m., arriving in the Tetere area between 10:30 p.m. and 11 p.m. Given the agreed fact that the deceased was shot and killed sometime after midnight, she was therefore still alive when the accused, even upon his own version, arrived in the general area carrying an SLR rifle.
52. The other problem with DW2's evidence was that he could not remember the day, month or year that these events occurred and when asked whether the gunshot that he had heard on that night had anything to do with the killing of the deceased, his answer was that he did not know[20].
53. DW2 also claimed that the first time he had been asked by the accused to be a witness about the events of 2001 was in 2011. He had never spoken to the accused about the incident at all between 2001 and 2011. When asked why he hadn't spoken to the accused about it or why he hadn't told the police what he knew, he claimed that he was just waiting for the case to come to court and that he would tell his story then. This was despite his evidence that he knew that the accused had been arrested on the current charges and was being kept in prison because of them.
Assessment of the Evidence:
54. I found the evidence of DW2 to be vague, imprecise, illogical in parts and unlikely in others. I did not regard his evidence as
being credible or reliable. In sum his evidence amounted to saying that one day some years ago, he was with the accused when they
heard a gunshot. The accused and he then separated to go their own ways. The day after he had heard from somebody that Samua Pitakere
had been killed. He did not say that he knew when she had been killed or whether the gunshot that he heard the previous night had
anything to do with her death.
55. As it turns out, the shot had nothing whatsoever to do with her death as he heard it some three hours before the deceased was killed. He did not attend at Tetere Compound, did not know what had occurred there and could give little evidence of significance.
56. The unsworn statement given by the accused not only contradicted the version of events he gave in his record of interview but was within itself an improbable and unlikely account totally unsupported by any of the several witnesses who were at the scene. I reject the accused's two accounts of the events of that night and find that I cannot accept him either as reliable or as a witness of truth.
57. Of course these findings do not in any way avail the Crown. As Mr Gitoa is presumed to be innocent until proven guilty, a rejection of the Defence case cannot and does not prove the Crown case, for the Defence have no onus to prove anything at all. Mr Gitoa does not have to prove that he is innocent, the Crown have to prove that he is guilty upon relevant and credible evidence. That evidence must be of sufficient strength so as to satisfy me of the guilt of the accused beyond reasonable doubt. If after an assessment of all of the evidence any doubt remains in my mind as to the guilt of the accused, then he is entitled to be acquitted. This is not because of any largesse shown to Mr Gitoa, it is his right under law.
58. The essential issue in the case is whether or not the Crown has proven beyond reasonable doubt that the accused was correctly identified as being present and active at the murder scene. Much has been said of the lighting conditions with some evidence indicating that there was bright moonlight, other indicating that it was not particularly bright and still other evidence that there was no moonlight at all. However there is consistent evidence that there was light in the vicinity coming from the verandah area of the house and that this was the light that the several people had been relying upon when they were doing their preparation for market.
59. Taking all of the evidence on this issue into account, I am satisfied beyond reasonable doubt that the available light, from whatever moonlight existed but principally from the light emanating from the house, was sufficient for the witnesses to reliably make the observations they have described in evidence.
60. Much has also been said as to the distance that separated the two identifying witnesses from the accused when they purported to identify him.
61. Evidence of identification is notoriously unreliable and even the most seemingly certain witnesses have been shown to be wrong in making their identification. The difficulty in making accurate identification is exacerbated by many factors including the lighting conditions, the time that a witness had to make a positive identification and the stress of what else was happening at the time of the identification.
62. In the case of a recognition, however, these factors may be more easily overcome. A person who is well known to another is often far more easily recognised by that other because of the fact that they are so well known to them. This is not to say that purported recognition evidence is not to be scrutinised with the same degree of care as other identification evidence.
63. In this case, the accused is identified as being at the scene by two Crown witnesses, namely Mrs Diana Pitakere (PW2) and Solomon Bokosia (PW5).
64. PW2 has known the accused all of his life and has seen him grow from a child to a man and even called him "my child" in evidence. He came to within one or two meters of her on the night of the killing.
65. PW5 has also known the accused since he was a child. He described the accused as his best friend and as like a brother to him. He said that he saw the accused arrive and that shortly thereafter saw him emerging from a hole in the wall of the Administration building, a short distance from him pointing a gun at him.
66. In both cases, the evidence of the witnesses amounted to recognition of a man that they had known for many years. He and his family was well known to them as was their family to him. I find it hard to accept the suggestion without more, that notwithstanding the prevailing conditions, both witnesses have made a mistake in those circumstances.
67. I am reminded that the accused claims not to have known PW5. He made no such claim in relation to PW2. However, in respect of his claims regarding PW5, I take into account what was said by PW8. She said that she and her son (PW5) knew the accused very well, that he would call her "aunty", and that she had often seen the accused and her son together. While the Defence had no onus to show that she was a dishonest witness, it is so that no reason emerged during the trial as to why PW8 would concoct such an unlikely story. On the issue of whether the accused knew PW5 and his mother PW8, I accept the Crown case and reject the denials of the accused.
68. As a result, I find that PW5 did well know the accused and that when he saw him on the night of the killing, that he recognised him.
69. I find too that PW2 also well knew the accused and that her evidence as to recognising the accused was accurate and reliable.
70. That evidence is more than sufficient of itself to justify a finding that the accused was present at the Tetere compound on the night of the killing. However, to this can be added the evidence contained in the record of interview of the accused himself which is capable of corroborating the allegation that the accused was firing his SLR at "Solo".
The manner in which the Crown case was presented:
71. In their opening address, the Crown opened on the basis that I should be satisfied either that the accused was the person who
shot the deceased and shot at PW5, or that the accused was one of a number of joint offenders who were acting with a common purpose.
72. In response to a question from the Court at the end of all of the evidence, the Crown suggested that throughout the trial they were also relying on the proof of the case against the accused on the basis that he was aiding and abetting whomever murdered the deceased and shot at PW5.
73. I do not accept this submission from the Crown as it was never once mentioned during the trial that this was a third alternative basis for the Crown's case. Counsel were asked to submit as to the appropriate verdict should I NOT be satisfied beyond reasonable doubt either that the accused fired the shot or of joint enterprise but was satisfied beyond reasonable doubt of aiding and abetting.
74. In other words, if I were to be satisfied beyond reasonable doubt that the accused aided and abetted in the murder of the deceased and was thereby himself guilty of murder, but was not satisfied on the two alternatives postulated in opening by the Crown, given the manner in which the case was opened, what should the appropriate verdict be?
75. The Defence contended that the accused should not be found guilty on the basis of aiding and abetting thus ignoring the very question that I asked the parties to assume. They then contended that if he was found to be aiding and abetting, then a verdict of guilty of manslaughter was open. I reject this submission as again it ignores the question that I asked the parties to assume.
76. The Crown submitted that it is open for me to convict on the basis of aiding and abetting if the proven facts support that result. It submits that there is no compulsion on the prosecutor to state the "specific liability theory" of the Crown.
77. With respect this too misses the point. In the present case, the prosecutor himself did elect to outline the "specific liability theory" of the Crown. He in fact outlined two, the first being that the accused was the person who shot the deceased and the second was common purpose based on section 22 of the Penal Code. The issue arises when only in closing, a third alternative is posited.
78. I do not accept that such a shift in the Crown case can have no consequence. It cannot be that everything that was contained in the opening address can be disregarded. This is not, as is the case in some of the authorities offered by the Crown, a situation where a prosecutor mentions evidence in his opening address which he later fails to call. This is not a change in the evidential basis of the case but rather the legal basis upon which it is being presented. If the accused is presented with a case in the opening which differs from the case at closing then a question of whether he has had a fair trial immediately arises. If there has been unfairness, then the trial is void.
79. In this case, the Defence was that the accused was not present. It purported to be an alibi defence although no evidence was led to establish where the accused was shortly after midnight at the time that the deceased was shot. He simply claimed that he was not present at the scene of the shooting.
80. The case he had to meet therefore was that prosecution witnesses placed him at the scene, armed and in the company of others who were also armed. It was clear that the Crown were alleging that he was in company and was either the person who shot the deceased or was within the group of armed men who were shooting, one of whom shot the deceased.
81. In other words on one factual scenario, the Crown was alleging that he was giving support by his presence, by the fact that he was armed and also by the fact that he was shooting his gun. The Defence response to this was not that although he was present he did not intend by any of these facts to be aiding and abetting the actual killer, but rather that he wasn't present at all. Consequently it is difficult to see how the Defence could have been prejudiced or in any way compelled or prevented from running a different defence than that which they did in fact present. When asked, defence counsel was not able to identify any prejudice the accused had suffered in the event. In my view this was because there was no prejudice that could be identified.
82. Consequently, in the absence of any prejudice, I cannot find that there has been any unfairness to the accused and consequently find that the trial has been fair in all respects.
83. That then leaves the question of whether a verdict of guilty of murder as an aider and abettor is a verdict that may properly be returned. In my view, on the facts of this case, such a verdict is open. However, because of what follows, it is unnecessary to resort to that conclusion.
Did the accused fire at PW5 attempting to kill him and did he fire the shot that killed the deceased?
84. On the evidence before me, I am satisfied beyond reasonable doubt that the accused fired at PW5 with the intention of killing
him, but I cannot be so satisfied that the shot that killed the deceased came from his gun. Many shots were being fired simultaneously
and there were several other armed men at the scene apart from the accused. I was not assisted by any ballistic evidence to establish
what guns were used by which man or indeed what gun was used to kill the deceased. I cannot rule out the possibility that any one
of the other armed men fired the deadly shot.
Joint Enterprise:
85. The alternative basis put by the Crown to found the accused's liability was pursuant to section 22 of the Penal Code. It was said that he with other joint offenders was acting with a common intention to prosecute an unlawful purpose, the probable
consequence of which was the death of the deceased.
86. A person participates in a joint criminal enterprise either by committing the agreed crime or by being present and (with the necessary knowledge) intentionally assisting in or encouraging another to commit that crime.
87. Each person participating in that criminal enterprise 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.
88. The understanding or agreement between the participants in the criminal enterprise need not be expressed and its existence may be inferred from all the circumstances. It need not have been reached at any time prior to the time the crime is committed.
89. In his record of interview, the accused admitted that on the night that the deceased died he not only went to the Tetere area but to the Tetere compound where the killing occurred. He said he did this to retaliate against those he believed had come to his village and fired upon them. He said that "Solo" and another were shooting at him and that he fired "up in the air".
90. He said that it was his idea to seek retaliation and that he brought another person with him. When asked why, when the people who had shot at him had run off, he had not simply left them alone. His answer was –
"If I don't retaliate they will come and burn the village and cause problem in the village."
91. And when asked if he wanted to say anything in relation to the charge of murdering the deceased, he said –
"I'm not sure whether I shot her or others in the crossfire."
92. In his unsworn statement, the accused gave a different version. He said that while in his village of Binu, he heard some gunshots. He then called another man to come with him to find out where the gunshots had come from. He and the other man then began to walk to the Tetere area but he did not ever go inside the compound. Near the compound he fired a couple of shots at two boys whom he said had fired at him, and then he turned around and walked back to his village.
93. In my assessment of the evidence, the accused was on a mission to exact retribution from those he had said had fired upon his village. However, as the two locations were some distance apart, taking 1½ hours to walk from one to the other, I do not believe that the accused thought that shots he heard coming from the Tetere area could possibly have been aimed at his village.
94. He went directly to the Tetere compound with others, armed and with the clear joint intention as was subsequently shown by their actions, to not only point the guns at the people he found there but to shoot at them from a short distance away. Not only was it a probable consequence of their actions that someone was killed, what is surprising is that others were not.
95. I am satisfied that the Crown has established beyond reasonable doubt, the existence of the joint enterprise and the participation of the accused in it. I am therefore satisfied that as part of this joint criminal enterprise, the accused is guilty of the murder of the deceased.
Orders:
As a result of these findings I make the following orders:
1. In respect of Count 1, alleging that he did murder Samua Pitakere, the accused is guilty and is convicted of that offence.
2. In respect of Count 2, alleging that he did attempt to murder Solomon Bokisia, the accused is guilty and is convicted of that offence.
THE COURT
[1] Transcript, Day 2, page 47-48.
[2] Ibid., page 67.
[3] Ibid., page 47.
[4] Ibid., pp47-48.
[5] Ibid., page 64.
[6] Ibid., page 66.
[7] Ibid.,
[8] Ibid., page 72
[9] Ibid., page 73.
[10] Ibid., page 74.
[11] Ibid., page 78.
[12] Ibid., page 79.
[13] op.cit., Day 5, page 10.
[14] Ibid., page 22.
[15] Ibid., page 13.
[16] Ibid., page 14.
[17] Ibid., page 23.
[18] Ibid., page 26.
[19] Ibid., page 27-29.
[20] op.cit., Transcript Day 7, p.39
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/sb/cases/SBHC/2013/202.html