Regina v Koria [2015] SBHC 116; HCSI-CRC 250 of 2009 (14 October 2015)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 250 of 2009

REGINA

-V-

Andrew Koria

HEARING : 28 – 30 September, 1-2, 5-7 October 2015
Judgement : 14th October 2015

Ms. G. Nott and Mr. B. Dalipanda for the Crown
Mr. G. Gray and Mr. S. Valenitabua for the Defendant

Palmer CJ.

1. The defendant, Andrew Koria ("the Defendant"), is charged with one count of murder and one count (count 2) of abduction of Palu Buake ("the Deceased"), the particulars of which provide that he assisted in the abduction and killing of the Deceased at Ngalimala village, in the Weathercoast of Guadalcanal.
   
2. The Defendant has been charged as a co-accused with one other, Ronny Cawa who has been charged, tried separately and convicted. Ronny Cawa was one of the commanders in the Guadalcanal Liberation Front ("GLF") movement during the period of unrest in 2000 – 2003.
   
3. The case for prosecution is that the Defendant was with Ronny Cawa's group that day, 28th April 2003 and assisted in the brutal beating up of the Deceased which resulted in his death.
   
4. It is not in dispute that the Deceased was a member of the Joint Operations' Group ("JOG"), a group in conflict with the GLF. The JOG comprised of members from the same areas in the Weathercoast who were not aligned to the GLF group. The Deceased was in a group with other members of the JOG who had been ambushed earlier that day, shot at and with two other members killed while he was captured, brutally beaten and then killed.
   
5. Prosecution called a total of four witnesses, Ephraim Rongomilepo (PW1), John Alven (PW2), Nicholas Sekovani (PW3) and Gregory Kisina (PW4). The defence called the Defendant to give evidence under oath in his defence; he did not call any witness.
   

Issue in the case.

6. The primary issue in this case is whether or not it had been proven beyond reasonable doubt that the Defendant participated in the killing of the Deceased by helping others to beat the Deceased with sticks. This in turn will turn largely on questions of credibility and reliability of the only direct evidence of one prosecution witness, Ephraim Rongomilepo, (PW1). He was the only one who expressly stated he saw the Defendant beating the Deceased that is, assisted in beating the Deceased with sticks.
   
7. It is not in dispute there were others implicated in the killing of the Deceased but apart from Ronnie Cawa, the principal, who has been tried and convicted no one else has been charged.
   
8. It has also not been disputed that the Defendant was not a member of the GLF. The case for Prosecution is that he was directed to carry out the beating under orders from Ronnie Cawa.
   

The defence case.

9. The case for defence is that the Defendant was not involved in the beating and the killing of the Deceased as at that particular point of time he had gone to a coconut plantation nearby to get some coconuts. By the time he arrived back the Deceased had been killed and his body disposed of.
   

Assessment of evidence.

10. As judge of fact and issues of credibility and reliability alone it is my duty to consider carefully not only what has been said in court, but how it was said including the demeanour of all the witnesses in court. These are trite and obvious issues and includes comparisons to be made with the evidence adduced by defence, which in this instance, comes from the sworn evidence of the Defendant and his statement to police. That role lies solely with the trial judge and not with anyone else. It is important to keep this in mind for in our jurisdiction a judge is not merely judge of the law but also of the facts, while in other jurisdictions those roles are divided between a jury and a judge.
    
11. The cause of death of the Deceased is not in issue, he died from serious wounds caused to his body from brutal beatings effected on his body.
    

Issue in dispute.

12. The issue in dispute is whether the Defendant took part in the beating of the Deceased. The Crown alleges he was party to the beating of the Deceased and relied solely on the evidence of Ephraim as an eye witness.
    
13. The defence on the other deny he was actually involved in the killing. The Defendant gave evidence under oath and directly contradicted that piece of evidence or the version of prosecution.
    
14. I have had the opportunity to consider carefully the evidence adduced by prosecution and in particular that of Ephraim and make the following pertinent points.
    
15. First, I find the witness Ephraim to be a very difficult witness, his evidence was extremely slow at times in coming. There were a lot of pauses sometimes too long and even with the Court's intervention his responses were still slow and unclear. Even with regards to simple and basic questions it was difficult to get a clear answer from him. When it came to certain questions however, which would appear to be suited to him he would respond much quicker. This does not make the task of counsels in this case and the court any easier bearing mind our common goals of the pursuit of justice according to the rule of law, for it is not merely about a just outcome but a just and fair process as well.
    
16. At times he would simply respond and say that he did not know or could not recall. As judge of fact in this case and on issues of credibility, it seems to me that there is element of evasiveness being demonstrated and not merely that he is slow because of his minimum educational background. It appears that he would respond quicker to questions that suited him as opposed to those which did not.
    
17. I find as well inconsistency in some parts of his earlier statement made to police and which there is simply no reasonable or justifiable explanations for them. When those different versions or inconsistent statements were put to him he merely responded that he did not know or could not recall them.
    
18. In particular he had told the court he was not with the group that captured the Deceased but was observing everything from a distance in the bush out of the sight of everyone. In his earlier statement to police however he had stated that he was with the group. As well another witness had contradicted his evidence on that, including the Defendant, that he was with the group that took the Deceased from Kolodui to Ngalimala. Another witness Nicholas Sekovani also denied that he was with them during that period. He denied their story of being present with them and accompanying them as well.
    
19. These differences in their versions raises the possibility he might have been somehow one of those who may have been involved whether voluntarily or involuntarily, in the events that transpired with regards to the Deceased. It raises the possibility, not unreasonable I might add and not mere speculation or guess, but based on evidential materials before this court, that he may have also been involved in the happenings whether directly or indirectly of the events that transpired that day, that he may have been with them at Kolodui and travelled with them to Ngalimala. This in turn raises concerns about his credibility and reliability of his evidence. While noting he had maintained throughout that the Defendant was involved as well with others in the beating of the Deceased until he died, there is doubt however in terms of whether he was one of those actually present at the scene of the crime or whether as he claimed he was hiding throughout in the bushes and observing from such distance. While on one hand he seemed quite certain and sure about what was happening it also raises concerns about the credibility of his evidence in terms of his observations from the bush and his denial that he was present with the group at Ngalimala.
    
20. I bear in mind that the totality of the evidence must always be borne in mind and even if one event or piece of the evidence is untrue or non-existent it does not necessarily follow the rest of the evidence should be disregarded when assessing the overall burden of whether prosecution had discharged the onus placed on it for the elements of a crime are but part and parcel of events that occurred over a period of time, which may run from a couple of hours to days and months. In making that ultimate assessment in this case I am unable to find that both the elements of abduction and murder with which the Defendant had been charged with have been discharged by prosecution in this case. I find reasonable doubt has been raised by defence which has not been displaced by prosecution.
    
21. I find therefore a verdict of not guilty on both charges and the Defendant is acquitted herewith.
    

Orders of the Court:

1. Find the Defendant not guilty on both counts of abduction and murder.
   
2. Direct an acquittal over both charges of abduction and murder herewith.
   

The Court.