R v Bosa [2014] SBHC 138; HCSI-CRC 158 of 2013 (6 November 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
PALLARAS J

Criminal Case Number 158 of 2013

R

v

GIDEON BOSA

Coram: PALLARAS J
Crown: Mr. R. Iomea
Defence: Mr. M. Holara
Hearing Dates: 27-28 October 2014
Verdict Delivered: 6 November 2014

VERDICT

1. The accused was charged with one count of murder contrary to section 200 of the Penal Code [Cap. 26]. To this charge, the accused has pleaded not guilty. By his plea the accused has required the prosecution to prove each of the elements of the offence beyond reasonable doubt before he is liable to be convicted of the charge. The onus is on the prosecution to prove the charge beyond reasonable doubt and there is no onus on the accused to prove his innocence or anything else.

2. It is alleged that on the 10th November, 2012, at Simba village, near Siara village, North Guadalcanal, the accused murdered the deceased.

3. The case against the accused is put in two ways by the prosecution. First, that the accused used a bush knife to inflict a fatal wound to the leg of the deceased from which he bled to death. Alternatively, the accused was part of a joint criminal enterprise with the common purpose of engaging in a knife fight with the deceased during which the deceased received the wound to his leg from which he bled to death.

4. The defence submit that the accused did not inflict the fatal wound and that he was not part of any joint criminal enterprise.

5. It can be said at the outset that there is no evidence that the accused was personally responsible for inflicting the fatal wound on the deceased and that part of the prosecution case must fail.

6. The prosecution called two witnesses in its case and the defence called no evidence at all.

7. Derick Sanga was the first prosecution witness (PW1). He lived at Simba village which is next to the village of Siara. At about 4:30 pm on 10th November, 2012, he was in his village. He had been talking to another villager concerning an issue of the use of water tanks between the two close villages. It was common knowledge that the deceased had a grievance with various members of both villages because he felt that a water tank had been unfairly taken from his house and taken to the adjoining village.

8. While PW1 was talking to the other villager, he saw the deceased arrive at the village. He appeared to have been drinking and was carrying a knife. He was boisterous and was aggressive towards PW1 and the other villager over the issue of the water tank. The deceased wanted to go into the neighbouring village to resolve the issue. The deceased was shouting out about the water tank in a way that could easily be heard in the village of Siara due to its very close proximity. PW1 tried to calm the deceased and stop him from going to Siera village, however the deceased would not be pacified.

9. PW1 then heard a man named Donald shouting back from Siara village. He then saw three men from Siara village, including the accused, come into the village of Simba. PW1 said that two of the men were armed with knives and stones and the accused was carrying a stick and stones. The three men were the accused, Donald and Glin Mala. These men ran towards PW1 and the deceased carrying their weapons. The first in line was Donald, followed by Glin Mala and then the accused. They were running one after the other with some distance separating them.

10. PW1 saw the deceased and Donald fight. He said that the accused was standing "on the other side" watching from a distance of 6 or 7 metres. A man named Mostyn fought with the accused and the accused was cut. The accused then cut Mostyn with a knife. The deceased had already fallen to the ground wounded. After the accused cut Mostyn he dropped the knife and the fight stopped. PW1 saw that the deceased had a severe injury to his leg. He said that even although he was only a few meters away from the deceased when he was fighting, he didn't know who wounded the deceased because "I closed my eyes". I found this aspect of his evidence to be untruthful and incredible.

11. PW1 said that the fight lasted for approximately 5 minutes and that he also saw an injury to the deceased's head. He tried to attend to the deceased's wounds and carried him to a nearby house but the deceased died on the way.

12. In cross examination, PW1 said that both the deceased and the accused were his uncles and that Mostyn is the blood brother of the deceased. It was put to PW1 that the accused did not run to the scene and that he was at the scene before the other two men arrived. These suggestions were denied by PW1. He said that the accused held a stick about two thirds of a meter long and had a handful of stones.

13. The second witness was Betty Pile (PW2). She is the wife of PW1 and presented as a far more impressive witness than he did. She said that she was in her home with her husband before the fight started. The deceased came to her home and asked to see her husband. Mostyn was also present. The deceased was angry and accused PW1 of siding with the villagers in Siara.

14. She heard the deceased shouting at Donald. When he shouted Donald and two other men came into her village and they were all carrying knives and stones. The deceased and Mostyn were both holding knives. She said that the three men walked into the village carrying their weapons and that they all immediately started arguing with the deceased. Almost immediately the three men fought with the deceased and Mostyn. They were all fighting in the same area and three men had injuries – the deceased, Mostyn and the accused.

15. In cross examination it was put that the three men did not come as a group but that the accused had arrived before the other two. PW2 denied this suggestion. PW2 agreed that Mostyn cut the accused first and then the accused cut Mostyn. She said that Donald was fighting with the deceased and was close by. PW2 said that the men were all in one group and were swinging their knives at each other. The three men were not talking to each other when they came to the village but did talk during the fight although she couldn't make out what was being said.

16. Although the accused did not testify and the defence led no other evidence, a document headed "Memorandum of Agreed Facts and List of Witnesses" was signed by both parties and filed with the Court. The accused agreed that he was present at the time and was one of the men holding a knife at some stage.

17. As indicated earlier, there is no evidence to suggest that it was the accused who inflicted the fatal wound on the deceased. To the extent that the prosecution case is based on that allegation, it fails.

18. The prosecution also put their case on the basis of a joint criminal enterprise. When two or more persons form a common intention to carry out an unlawful purpose with one another and, in carrying out that unlawful purpose, an offence is committed that was the probable consequence of carrying out that unlawful purpose, each of them is deemed to have committed the offence: s22 Penal Code [Cap. 26].

19. In this case, the accused can only be held responsible for the death of the deceased if it can be said that he knew or ought to have known that the killing would be a probable consequence arising from the carrying out of the unlawful purpose.

20. On the evidence of PW2, which I accept as truthful and reliable, the deceased had been shouting out about his grievance with the adjoining villagers for some time. The villages were very close to each other and it was common ground that the deceased's shouts would easily have been heard in the adjoining village. Indeed, one of the men, Donald, began to shout back. The three men from the adjoining village, including the accused, all came together and all came armed. They went directly to the deceased and confronted him. Out of the brief and initial argument, an all-in brawl developed with each of the five men becoming involved in a fight in which large bush knives were being used. During this fight, three of them were injured and the deceased suffered a fatal wound.

21. In those circumstances, I find the only reasonable inference to be drawn is that the three men entered the village jointly to, at least, assault the deceased with the weapons that they had brought with them. They had armed themselves with knives and stones in order to use them against the deceased.

22. It may be that the plan was simply to fight with the deceased, assault and injure him but not to kill him. The question then arises as to whether the accused knew or ought to have known that the killing of the deceased was a probable consequence of carrying out the common purpose of assaulting the deceased. In my judgment, the answer to this question must be yes. Indeed when men arm themselves with such deadly weapons and attack each other, it would seem almost inevitable that a death would occur.

23. It was put by the defence that the accused did not arm himself with a knife but only with a stick and rocks. The defence sought support for this proposition from the evidence of PW1. I reject PW1's evidence which may be said to lend some support to that position. As indicated, I did not find him to be an altogether satisfactory witness and several aspects of his evidence troubled me. This was one of them. I do accept the evidence of PW2 however who presented as a far more cogent and reliable witness to the events. She had no doubt that the accused was armed with a knife.

24. Even if I accepted the defence claim that the accused was not armed with a knife, which I do not, he must have seen that his two companions were both armed with knives and nevertheless joined them in the joint enterprise. He knew or ought to have known that those knives were going to be used on the deceased and must have realised that the death of the deceased would be a probable consequence of their actions. He nevertheless continued in the joint enterprise and actively engaged in the fight, which led to the death of the deceased.

25. As a result of these findings, the only conclusion open is that the prosecution have proven their case beyond reasonable doubt on the basis that –

• the accused formed a common intention with others to carry out an unlawful purpose
• the accused and the others did acts in furtherance of the common unlawful purpose
• during the carrying out of that common unlawful purpose, a further offence was committed and
• the further offence was a probable consequence of carrying out that unlawful purpose.
  

26. The accused is convicted of one count of murder contrary to s.200 of the Penal Code [Cap. 26].

THE COURT