Regina v Tofasi [2013] SBHC 220; HCSI-CRC 271 of 2011 (16 August 2013)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 271 of 2011

REGINA

v.

ADAM GWARO TOFASI

HEARING: 13–17 May, 21-24 May, 10, 19 June, 22-25 July, 6 August 2013.
JUDGMENT: 16 August 2013.

F. Taeburi (Ms.) and J. Naigulevu, and A. Aulanga for the Crown
H. Kausimae for the Defendant.

Palmer CJ.

• The defendant, Adam Tofasi (hereinafter referred to as "the defendant") has been charged with the offence of murder contrary to section 200 of the Penal Code. He has been charged pursuant to section 21 of the Penal Code on the basis that he aided and abetted the principal offender, Filis Olifei ("Olifei") who had been convicted on 26th March 2011 for the murder of Billy Toito'ona ("the deceased").
  
• There is basically no issue raised regarding the application of the law in this case. The issue in this case lies essentially on the evidence before this court, that is, essentially on the facts and rests very much on issues of credibility and reliability, which I as judge, both of fact and law have to determine.
  
• In a jury trial, such matters will be for the jury alone to determine after having been advised on the law by the trial judge. That is not the case here and it is part of my role to make a finding on the evidence as adduced before me.
  

The Prosecution Case

• The prosecution case is premised under the provisions of section 21(b) and (c) of the Penal Code, that the defendant participated in the killing of the deceased by assisting the principal, Olifei to hold the deceased down, while the principal delivered the fatal blows which resulted in the death of the deceased.
  
• The wounds or injuries were located to the back of the deceased's body. A total of five wounds were identified and clearly visible on the body of the deceased as can be seen from the photographs contained in Exhibit "J". All except one were described as slash wounds (length is greater than depth), by the medical doctor who carried out the autopsy report. The slash wounds included one on the scalp, one on the lateral area of the left thigh, two wounds on the lower back, which did not enter the abdomen, and a stab wound at the right mid-back, which entered the right chest cavity. This stab wound was identified as the fatal injury which caused the death of the deceased. This is not in dispute.
  

The Defence Case

• The defence case is that the defendant did not participate in any way in the struggle at the bottom of the hill. The defendant claims that he could not have been involved in any way in assisting his son because while he was on his way down (about mid-way down the slope), he was kicked from behind by someone, which caused him to turn around and chase that person, who ran in the direction of Wilson Arudola's house. By the time he returned to the scene of the struggle only his son was there while the deceased was climbing back up the hill. After helping his son back to his house he returned to the scene of the crime at the top of the hill to deal with the relatives of the deceased who had gathered in numbers.
  

Issues for determination.

• In determining this case, a number of issues need to be decided. First, the overarching question that will have to be determined is whether the defendant assisted his son or not, as described in the version of the Crown's witnesses?
  
• In answering that question, this court will have to determine the reliability of the Crown's crucial witness, Charles Iro ("Iro"), who gave an eye witness account of the stabbing incident at the bottom of the hill. Olifei, Iro and the deceased knew what happened on that occasion and possibly, the defendant himself, although his defence is that he did not see anything further thereafter because half way down the slope he ran after Iro. As between the two versions, one of them is telling the truth while the other is not, for both versions cannot be correct. The defendant cannot be at two different places at the same time, either he helped Olifei in the manner described by Iro or he was not even there and if he gave chase to Iro at that point then why did Iro say he saw him at the bottom of the hill assisting his son because if his version is true, Iro too would not be able to see what transpired at the bottom of the hill.
  
• When assessing the credibility and reliability of the evidence of a witness all the relevant and surrounding circumstances, that includes those events immediately prior to and after the incident should be considered by the court.
  
• In relation to the witness, is he a credible and reliable witness; can his account be relied on as opposed to the evidence and account of the defendant as to what happened.
  
• In so far as the defence case is concerned, there are two possible conclusions that can be drawn about the prosecution evidence; either the witness is lying and this would raise the question of motive for doing so, or, the witness is mistaken, for instance that the person Iro saw may have been someone else. If he is mistaken it could be for a variety of reasons, for instance, that because of the lighting conditions available at that place he may have been mistaken that there was another person involved when there was none.
  
• The defence case on this point is not even that Iro may be mistaken, it is essentially a question of credibility, an either or scenario. Either the defendant was there or if he was not and Iro is lying or vice versa.
  
• I will now consider Iro's evidence in detail, his credibility and reliability of his evidence.
  
• I have had the opportunity to carefully assess Iro in the witness box, his evidence during examination in chief, cross examination and re-examination. I find him to be a very credible, frank and honest witness, recounting events as best as he could, bearing in mind that the events from which the incident occurred at the bottom of the hill were a continuation of the fracas that occurred on the top of the hill and that it is to be seen in that light with a lot of movement, running around, shouting and swearing, and the traumatic and tragic consequences that occurred which obviously affected him and others as well.
  
• I find nothing in the evidence to suggest that the accuracy and reliability of his evidence may have been tainted or reduced, for instance, that he may have been also under the influence of alcohol, which may possibly impair his capacity to observe accurately what was happening at the same time being involved in the fracas that night. He was awake at the time in his house, minding his little child and attended the scene when he heard shouting at the top of the hill and recognised the voices and names of his brothers, Billy Toito'ona (the deceased) and Thomas Giosia ("Thomas").
  
• I am satisfied he was able to make clear identifications of those who were present at the scene of the crime on the road before the fight proceeded to the bottom of the hill by the light of a torch that he had, as well as the fact (not disputed) there was light from the moon that night. Elizabeth Musu ("Elizabeth") also confirmed that it was full moon that night and she too was able to witness events from a safe distance, she estimated it to be about 12 or so meters.
  
• Iro was able to identify, the defendant, Olifei, and others (George Lee, Stanley and Wilson Arudola) with them at the road.
  
• Thomas also identified the same group of people on the road at Kaibia heights where the altercation initially occurred. Diana Bibi ("Diana") wife of the deceased also confirmed seeing the other three persons (George Lee, Stanley and Wilson Arudola), on the road with the defendant after the incident and when she had helped the deceased back onto the road.
  
• Wilson Arudola, a witness called by the Crown but gave adverse evidence confirmed seeing a group of boys but could not identify who they were. I have my doubts about his denial in that his evidence has to be carefully vetted as he is related to the defendant through his wife and the evidence by other Crown witnesses was that he was seen in the company of the defendant and Olifei. For instance when asked to describe what he saw when Olifei attacked the deceased, he responded that it was because of the argument, but when pressed to describe what he saw, he said he denied seeing what happened. I do not find him a credible witness, vague and ambiguous in his responses and his evidence in my view can be discounted on that basis.
  
• The evidence from the Crown witnesses is that there were essentially two groups up at the top of the hill that night, those with the defendant and Olifei and the two brothers, whereas the defence version is that there those brothers and their group and only Olifei and the defendant on one side and were being surrounded and attacked. Those others with the two brothers apart from Iro however could not be identified.
  
• In contrast, while I do bear in mind that all the other Crown witnesses are directly related in one way or another to the deceased, apart from Thomas, I find that those others who attended as a result of the fracas on the road that night to be reliable witnesses of credit and accuracy as to what happened as best they could remember. I find their evidence generally to be consistent, clear and certain; they were not evasive in their responses to questions put to them and remained firm and unshaken during cross examination as to their observations.
  
• Iro for instance described how Olifei attacked the deceased with the knife he had at the top of the hill on the road. This attack was also witnessed by Elizabeth who gave similar evidence about the attack. This attack is further consistent with and supported by the medical report in which a slash wound on the scalp was identified as one of the injuries received by the deceased. Iro did clarify that some of the wounds were incurred at the top of the hill; he identified one crucial stabbing which he witnessed at the bottom of the hill which is consistent with the fatal wound inflicted at the back of the deceased.
  
• I am satisfied from the accounts given that the injury on the scalp was incurred during the attack on the road. It was as a result of that attack and in defending himself when the deceased grabbed hold of Olifei's hand and both struggled and fell down and then rolled down the hill.
  
• I also accept the version of Crown's witnesses as to what transpired at the top of the hill as it related to this defendant. Both Thomas and Iro described how they were taken aback by the approach of this defendant as a mature and elderly man who they had expected could have intervened to calm the standoff and confrontation instead of actively encouraging Olifei to attack them by using attacking words in language such as "fouia", or "thaongia" or something similar, which would have the effect of aggravating and stirring up emotions and the already tense situation instead of calming things down. This version is consistent with and supported by the testimony of Elizabeth who I accept as a reliable witness, who described the defendant's approach like someone who wanted to fight.
  
• This is also consistent with the evidence of Thomas who testified that it was the defendant who had attacked him with a knife and slashed or cut his ear. The defence had sought to discredit the reliability of his evidence by referring to his statement to police in which he said that it was Wilson Arudola who had cut his ear. In examination in chief and cross examination however, he maintained his answers that it was the defendant and explained that when he mentioned the name of Arudola it was because he had muddled up names but that it was never in doubt in his mind as to who had attacked him.
  
• When this point was put to the defendant he denied this and said that it was someone else and not him but could not and did not say who it was or could be. In fact the only other person that possibly could be the one who may have attacked Thomas was Arudola, but this point was never put to him in cross examination when called by prosecution as a witness.
  
• I accept the version proffered by Crown's witnesses on this and reject the version given by the defendant and Wilson. I find his denial, explanation and responses to be vague, evasive and ambiguous.
  
• I find Iro's description of the events that transpired at the bottom of the hill to be clear, concise and consistent. He told the court that by the time he reached the bottom of the hill, the defendant was already there with the deceased and Olifei. In cross examination it was sought to be put to him that half way down the hill he caught up with the defendant and kicked him at his back at which the defendant turned and gave chase. He strenuously denied this version and said that he was chased away by the defendant afterwards when he saw him at the bottom of the hill. He also told the court that he observed the defendant holding a knife at that time.
  
• One of the grounds relied on by defence to discredit Iro's credibility was the fact that he did not mention in his statement to police the use of the word "foungia" or "thaongia" and only mentioned this at trial. His explanation however was that he did not mention this because he was not asked specifically by police during the interview. He also explained that during that time they were in trouble and that he was not thinking as clearly then. Had he been asked specifically about some of those things he would have been able to respond directly to them. I accept his explanations as both reasonable and understandable in the circumstances, and that such omission may have been deliberate or, that it did not happen and therefore fatal to the question of his credibility. Both Iro and Thomas were adamant about their observation that it was the defendant who had uttered those words.
  
• It is important to note in contrast that when the defendant was expressly asked about the allegation against him of the use of those words, he was evasive in his response by seeking to explain that the word "haungia" was a word from the dialect of those from Lau and not from his mother tongue and that it could also mean "to whip or slap" and not necessarily to kill. He also explained that it was a word which a father could use or say to his son to do something to someone, like whip someone, or slap someone, and not necessarily to kill. He did not expressly deny using such words initially until he was asked again. In cross examination when asked if he used the word "haungia" he responded that it was not his language and denied using it.
  
• I accept the version given by the Crown witnesses that he uttered those words and is consistent with his demeanour and appearance as described by those who saw him at the crime scene on the top of the road.
  

What happened at the bottom of the hill?

• There are two contradicting versions and both as I have said cannot be correct. Iro says that the defendant rushed down ahead of him to the bottom of the hill and by the time he reached them at the bottom, the defendant was already there. He described how the deceased was lying face down on his belly and the defendant holding his head down with his knees pressing at his back. Iro told the court he was only a short distance away from them, about 4 meters away. Olifei then got up and stabbed the deceased at the back with his knife using both of his hands in a downward stabbing action.
  
• Iro also confirmed seeing Olifei stabbing the deceased on the leg and at the top of the hill. The stab wounds described are consistent with the medical report provided.
  
• The version by the defendant on the other hand was that he was about half way down the slope when accosted by Iro and so gave chase and could not be at the bottom of the hill with the deceased.
  
• I have had the opportunity to consider and assess the demeanour of Iro on the witness stand and his overall evidence throughout in contrast to that of the defendant. I am unable to find fault with his credibility or as to the accuracy and reliability of the evidence given in court. He was consistent throughout, gave similar evidence in the trial of Olifei, and remained firm and unshaken despite strenuous cross examination by Mr. Kausimae. I find him to be an honest, frank and sincere witness telling the court the best he could of what happened that fateful night.
  
• In contrast, I find the credibility of the evidence of the defendant lacking. He told the court when he was about half way, he saw that the deceased was on top of Olifei but then was distracted when he was kicked by Iro turned and gave chase. I find the plausibility of his explanation lacking in credibility in that if he was concerned for his son's safety in the first place, then it is more likely than not that as soon as Iro ran away, he would have returned quickly to help his son and not chase after Iro. As I pointed out earlier, this would have also meant that Iro too would not have seen anything and was not telling the truth in court about seeing him holding the deceased down.
  
• I take judicial notice of the finding of the court in the earlier trial regarding the credibility of the defendant, in which that court had rejected his version of being kicked in the face by the deceased. I note in this trial he did not go so far as to state who had kicked him in the face.
  
• After the incident, the defendant was seen at the scene of the crime on top of the hill. Mr Kausimae submits that his actions in remaining behind were inconsistent with that of someone who may have participated in the killing of the deceased. He submitted his subsequent actions were more consistent with that of an innocent person as contrasted with someone who may have been guilty and would have sought to escape immediately from the scene as well.
  
• On the other hand, the defendant did explain as well that he felt obliged to remain behind and face the consequences of what his son may have done and seek to deal with those who were of the victim's family. He accepts that the injuries inflicted on the deceased were caused by his son and was willing to attend to any compensation payments.
  
• I am not satisfied the fact he remained behind could add anything further to strengthen his version or discredit the Crown's case. This was not a case where the evidence hinges on anything other than that of clear, credible and reliable eye witness accounts of what transpired that night.
  
• The dying statement of the deceased as well when asked by his wife, Diana Bibi also supports Iro's version about the involvement of the defendant. Section 123 of the Evidence Act provides an exception to statements made in contemporaneous with the person's health, feelings, sensations, intentions, knowledge or state of mind. This section preserves the common law position regarding the exception to the hearsay rule of dying declarations.
  

"The general principle on which this species of evidence is admitted is that they are declarations made in extremity when the party is at the point of death, and when every hope of this world has gone: when every motive to falsehood is silenced, and the mind induced by the most powerful considerations to speak the truth: a situation so solemn and so awful is considered by the laws as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice."

• I am satisfied the identification of Olifei and the defendant by the deceased in the hands of his wife and making that statement knowing that death was imminent fell on all fours within that exception to the hearsay rule.
  
• I am satisfied the Crown have discharged the onus placed on them and I find the defendant guilty of the murder of the Billy Toito'ona under section 21(b) and (c) of the Penal Code as an aider and abettor and convict him accordingly.
  

Orders of the Court:

• Enter finding of guilty and conviction of murder as charged.
  

The Court.