Regina v Alagere [2015] SBHC 21; HCSI-CRC 203 of 2013 (26 February 2015)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 203 of 2013

REGINA

V

Brian Alagere (aka Scophield Baro)

HEARING: 20–23, 26-30 January, 2-3, 13 February 2015
Judgement: 26th February 2015

R. Olutimayin (Ms.) and M. Manata (Ms) for the Crown
Mr. G. Gray and Mr. Sevuloni Valenitabua for the Defendant

Palmer CJ.

• The defendant, Brian Alagere a.k.a. Scophield Baro ("the Defendant"), is charged with the murder of Flora Hangari Akwai ("the Deceased"), the particulars of which provide that he killed the Deceased at Tuvaruhu hilltop on 24th September 2012.
  
• The case for prosecution is that the Defendant met the Deceased at Tuvaruhu hilltop on the night of September 24th 2012 and killed her before rolling her body down Tuvaruhu hill. The decomposed body of the Deceased was discovered some two weeks later, on or about the 9th October 2012 by some students walking along the Tuvaruhu stream for a picnic.
  
• The body was so decomposed to the extent that about 90% of the remains consisted of skeletonised bones and included some missing parts most likely due to animals feeding on the body. This made identification difficult until the close relatives of the Deceased were called to identify some clothes found on and near the body and confirmed that it was the body of the Deceased; this occurred some six days (13th and 14th October 2012) after the body was discovered.
  
• The defence case on the other hand is that the killing was done by the main prosecution witness, John Sale ("PW1") at Papaho and the body carried by both of them all the way to Tuvaruhu hilltop before rolling the body down the hill. The Defendant denies killing the Deceased but admits helping PW1 to get rid of the body over Tuvaruhu hilltop.
  
• There are two different versions that have been put forward and so both cannot be true; only one contains the truth and the other false. This also means that someone has blatantly lied, that is committed perjury, to try and hide this hideous crime.
  
• Prosecution called a total of 8 witnesses, tendered four witness statements by consent, three medical reports and 3 booklets of photographs. The caution statement of the Defendant dated 16 October 2012 was also tendered, photo of the Deceased, and a copy of the text dated 30 September 2012 received on the phone of the Deceased's father, Chris Mamae ("Mamae") on 30th September 2012. About 11 other exhibits consisting of photographs taken of the area claimed by the Defence where the killing took place were also tendered.
  
• A locus in quo was also undertaken earlier on in the trial which took the court party to view the route claimed by the Defence to have been travelled by the Defendant, the Deceased and PW1 before and after the Deceased had been killed. That is, the killing was alleged to have been committed at Papaho and the Deceased's body carried all the way to Tuvaruhu hill and rolled down the hill. The view by the court party concluded at the bottom of Tuvarahu hill area at a lower part of the Tuvaruhu stream. The court party could not travel to the site where the body was found as it was not easily accessible.
  

Issues in the case.

• The issues which arise in this case are primarily issues of fact; who killed the Deceased, where, how and when? These in turn will depend on questions of credibility and reliability, who the court believes and what facts the Court will accept as credible and reliable and containing the truth.
  

Facts not in dispute.

• The identity of the Deceased's body after it was discovered is not in issue. The body had been adequately identified through DNA testing, identification of the clothes and other items that were found on and around the vicinity where the body was discovered.
  
• The possible cause of death identified in the post mortem report by Dr. Malcolm Dodd who carried out the post mortem examination is set out in page 6 of his report (marked as Exhibit "G") as follows:
  

"All evidence would suggest that this fracture pattern is the leading cause of death with the mechanism being one of blunt force trauma to the head.

CAUSE OF DEATH

Blunt force trauma to the head."

More specific details are set out in that report which I take note of. I accept there is no real dispute on this issue.

As well it is not in dispute that the body was disposed of down the Tuvaruhu hill.

• I also find the following facts as being not disputed.
  
• The records of the call logs which showed the numbers of phone calls made to and received by the Deceased's mobile phone number 8564826, on Monday 24th September 2012 are essentially not in dispute. The details pertaining to the phone numbers and the times recorded against each call have not been disputed and so they show a fairly accurate indication of the times calls were made and could corroborate the accounts of what possibly happened that night and the whereabouts of the Deceased and the Defendant. In other words, those phone calls are crucial in assisting the court to determine what transpired that night and the possible whereabouts of the Deceased and the Defendant.
  

For instance, the Deceased and Defendant could not be together when they were calling each other. And so before 7:17 pm that night, they could not have been together. The question of their whereabouts prior to their meeting forms one of the crucial issues of fact in this case, for that will also establish what eventually happened later that night and who was responsible for the killing of the Deceased.

We know Flora called the Defendant's number at 5:31 pm. We know there were five calls made from the Defendant's phone number 7405437 at the following times:

• 6:13 pm;
• 6:15 pm;
• 6:25 pm;
• 6:28 pm; and
• 6:31 pm.
  

The last call from the Defendant's phone that evening was 6:31 pm.

We also know that 6 calls were made from the Deceased's phone between 6:46 pm and 7:17 pm. The details of those calls are set out as follows:

• 6:46 pm;
• 6:56 pm;
• 7:05 pm;
• 7:07 pm;
• 7:11 pm; and
• 7:17 pm.
  

I acknowledge we do not know how long each call is, whether it was a missed call, an unanswered call, or whether they lasted for a minute or more on each occasion.

There were other calls made from other phones but which I will make reference to later in the judgment.

• There were also two text messages sent to the phone of the Deceased's father, Mamae, on the 25th September 2012 and on the 30th September 2012. Mr. Mamae indicated in evidence that both messages were similar in tone and gave the impression that the Deceased was still alive. A full copy of the text message sent on the 30th September 2012 from the phone of the Deceased is contained in Exhibit "O". In essence the message sought to convey the impression that the Deceased had eloped with a "boyfriend" and was staying with him and that they should not be looking for her.
  
• It is also not disputed that two phone calls from an unknown caller were made to the phone of the Deceased's mother, Elsie Takana ("Takana") on 5th October and 11th October 2012. On both occasions the caller gave the impression that he was a boyfriend of the Deceased and that they were living together at Vella la Vella in the Western Province. The caller also sought to give the impression that the Deceased was still alive (which was a lie).
  
• It is also not in dispute that the Defendant and the Deceased were previously engaged to each other.
  
• I think it is also not in dispute that there was an arrangement between the Defendant and the Deceased to meet that night of the 24th September 2012.
  

Facts in dispute:

• While it seems to be generally agreed there was an agreement to meet that night, the events leading to that meeting and the actual meeting place are in dispute. The findings of this court on these issues will ultimately determine the outcome of this case.
  
• There are two different versions and both cannot be true. The Defendant says he met the Deceased outside Ramo's Store (this is also referred to as the "Kombuvatu Store"). The Prosecution version on the other hand is that she met the Defendant at Tuvaruhu hill and there met her death at the hands of the Defendant.
  

Did the Deceased and the Defendant meet at Ramo's Store?

• Having carefully considered the evidence adduced by Prosecution, the evidence of the Defendant, the exhibits tendered in this case and submissions of Counsels I have come to the conclusion that there could not have been any meeting at or near Ramo's store. I reach this conclusion bearing in mind the burden of proof in criminal cases that the prosecution must prove beyond reasonable doubt that that is so in this case. This same standard of proof applies right across each and every issue in this case.
  
• According to the version of defence, the meeting between the Defendant and the Deceased would have occurred sometime around 7:00 pm that night at Ramo's store. Initially the evidence led by the defence was that the meeting place was at Ramo's store. In his evidence in court the Defendant described a spot opposite the junction which came down from Asite'e's house. The purported meeting place was marked as "BS/1" in Exhibit M/2, which is a photo of the vicinity around that area. This is different to what was initially led and demonstrates inconsistency in the Defendant's evidence.
  
• In his evidence, the Defendant says that after meeting up with the Deceased they walked back along the road past Asite'e's house and took a bush road or track down to the grasses below the hill where he and the Deceased had sex.
  
• He denies seeing anyone with the Deceased when they met up. This is however to be contrasted with what the prosecution witness Florin Akwai, ("Florin") her sister, told the court in her evidence.
  
• I find the demeanour of Florin to be quite frank and sincere and her evidence quite consistent throughout, credible and truthful. Her evidence of the events leading up to what transpired at that crucial time in the evening is of crucial importance. I find her evidence on her account of when they left their house at Feraladoa and walked along the road to Ramo's store that evening virtually un-contradicted and I accept her evidence as containing the truth of the events that she had described.
  
• The only part in which her evidence had been sought to be discredited was in relation to her statement to Police in which she stated that she did not know who the Deceased was talking to on the phone. In her evidence in court however she told the court that she recognised the caller to be the Defendant. During cross examination it was put to her that the person that the Deceased was talking to was not the Defendant. This is significant because unless it is the defence case that there was another person in the picture at that time, it is improper for such proposition to be put to a witness. It would be tantamount to fishing for evidence and that is not permitted. If that was not the case, then the only logical proposition is that the case for defence was that there was another man around at that time and hence the need to have that proposition put.
  
• A similar proposition was also put to the witness Mamae, during cross examination, when Mr. Gray, of Counsel for the defence sought to put to him the proposition that Florin had told him that she had heard the Deceased talking to a boy called "John". The defence case it would seem was that there was also a collateral arrangement between the Deceased and another boy to meet that evening, a boy described as being part Western and part Malaita. I would refer to this as the "mystery boyfriend". At one stage it seemed to be the defence case that the person being mentioned as "John" was John Sale (PW1), but that could not be the case, for PW1 was supposedly with the Defendant earlier on that evening, either on account of the defence case or the prosecution case, and no evidence has been led that he made any calls to the Deceased. This has been confirmed by the absence of any other calls that may have been linked to PW1.
  
• The only other place where this mystery person emerges is in the record of interview of the Defendant to police, dated 16th October 2012, in his answer to question 37 of the records. He tells the story of a plan by the Deceased to run away with this boy, it seems that night as well but that she had agreed to meet up with him first. He states that he saw the boy standing there at Ramo's store when he got there and the Deceased giving him her basket before accompanying him along the route to the grassy area earlier referred to in this judgment. In his evidence in court however, he makes no mention of such meeting between the Deceased and that boy. Instead merely stating that when he met the Deceased she was alone.
  
• This is another discrepancy in the defence case, a chink that has been exposed that while initially it might appear useful to have the appearance of another person around at that time, at that vicinity, and that the Deceased may have also been in contact over the phone with that person, the logs from the phone calls showed there was no such call other than from the Defendant and arrangements made for them to meet. There is simply no evidence to show that such a person was around at that vicinity at the said time.
  
• I do not find any inconsistency therefore in Florin's evidence when she strenuously defended her stand during cross examination that it was the Defendant that she had heard talking with the Deceased that evening and making arrangements for them to meet up. The phone logs are consistent with her account and undisputable, that the Deceased was talking with the Defendant at that time. Five calls were logged from the Defendant's phone to her phone between the period 6:13 - 6:31 pm, and six calls from 6:46 – 7:17 pm. There was also a separate call from her phone to the Defendant earlier on at 5:31 pm. I am satisfied beyond any reasonable doubt that the person Florin heard the Deceased conversing with that evening could not be anyone else other than the Defendant.
  
• Florin's account of what happened that evening is strikingly different and distinct, and directly contradicts the account of the Defendant. She told the court she and the Deceased came from Feraladoa village to Ramo's store that evening. On their way, they would have walked past the road junction into Asite'e's house and the purported spot in which it is alleged the Defendant met the Deceased, but there was no such meeting. If the version of the defence is correct they would not have needed to go beyond the junction to Ramo's store. Of-course they would have been in contact all along and so if they had arrived first there, they would have waited there or outside Ramo's Store. Florin would only have needed to drop the Deceased off at that junction and return home. The Defendant however was not there, she did not see him and even according to the tenor of the phone conversation overhead by Florin, it would seem that the Defendant was nowhere near or around that vicinity.
  
• When they got to Ramo's store she says they stood around there for some time, (she estimates this as about five minutes) before the Deceased left her and she was seen walking alone up the Zion hill. As an important aside, the direction she was last seen walking along would have led her towards town. This piece of evidence is crucial for it plainly rules out any suggestion by defence that she may be around that area where it was arranged for them to meet. It could not be for she was seen walking in completely the opposite direction, away from the supposed meeting spot at that crucial time. I accept the evidence of Florin on this as containing the truth of what transpired at that particular time period, and bearing in mind they were in constant contact and communication by phone during that time. If the version of the defence is true, she and Florin would have turned back from Ramo's store and Florin would have returned home from there, for according to the Defendant's version he was on his way towards that junction from the village diary market at Jericho, past the soccer field, up the road that goes to Kombuvatu, along the hill, which came past Leonard's house to a road that goes down to Aisite'e's house to the junction road described as the meeting place.
  
• I find there was no meeting there and reject the Defence claim on this.
  

Was there a meeting at Tuvaruhu hill top?

• The next crucial issue then that arises from this is whether there was a meeting at Tuvaruhu hill top?
  
• Again having carefully considered the evidence adduced by Prosecution, the evidence of the Defendant, the exhibits tendered in this case and submissions of Counsels, I have come to the conclusion that there was indeed a meeting at Tuvaruhu hill top. I reach this conclusion bearing in mind again the burden of proof that prosecution is obliged to discharge, that of proof beyond reasonable doubt.
  
• The second crucial witness for prosecution in respect of the meeting came from the account of the events that evening by PW1. His evidence is the next crucial piece of evidence that would account for the missing jigsaw puzzle in this case as to where the Deceased went after she left Florin at Ramo's store and directly contradicts the evidence of the Defendant as to what transpired that evening.
  
• According to his evidence, the Defendant came to his house in the evening at around 5:30 pm. They then left for a stroll to Tuvaruhu hill top. On their way and as they approached Tuvaruhu hill the Defendant made a call and about 30 minutes later the Deceased appeared. He estimated the time it took for them to get to the top of Tuvaruhu hill to be around one and half hours (1½ hrs.).
  
• It is important to bear in mind that when time estimates are given that these are bound to vary from as little as 10 – 15 minutes to possibly even an hour, bearing in mind that these were given without reference to any time keeping device. And so trying to pin timing to exact periods would be futile unless there is another reference point that can be used. In this case the call logs registered against the mobile phone of the Deceased would assist to some extent.
  
• The only criticism that I will make for what it is worth is as to why no call logs were also taken of the mobile phone number of the Defendant and several other phones that were connected to this case. In terms of investigation work, these are matters that police officers should be aware of and to be trained in so that no stone is left unturned. And while on the subject of mobile phones I also point out, that it seems that when a number is registered as unknown, that it seems to be taken for granted that the number is unknown. From my understanding on this, there is no such thing as an unknown number and that upon proper investigation the unknown number can be ascertained. Again it seems to me that these have not been pursued because of lack of training and awareness as to what is available and accessible from Telephone companies. I also wish to raise here regarding what seems to be the case as well that there are phone sim cards that are being issued without being registered and so could not be traced. I think it is high time Telephone Companies in Solomon Islands ensure (if that is not the case) that all phone sim cards are registered so that they are traceable and if legislation needs to be enacted to provide for this, then Parliament must attend to this with priority. We all know that criminals these days are becoming smarter and using advances in technology not only to carry out criminal activities but also to cover their tracks. The Government therefore must be proactive to ensure that any such possibilities are reduced and removed.
  
• PW1 stated that the Defendant made a call as they approached Tuvaruhu hill top. In this case, the call logs on the phone of the Deceased, does shed some light. There were five calls recorded against the Defendant's number from 6:13 pm to 6:31 pm. We do not know which of those was that particular call referred to by PW1, but if the last call is taken as that call, then it would indicate where their position was at that time, that is, approaching Tuvaruhu hill. If his estimate of the period of time (1½ hours) it would take to make that journey is taken into account then it would be fairly consistent with his evidence. In cross examination this witness agreed they would have arrived at the Tuvaruhu hill top around 7:00 pm and the Deceased arriving thereafter.
  
• The call logs from the Deceased's phone showed they could not have met up until after 7:17 pm, some 46 minutes later. I do not find any real inconsistency or contradiction in the estimates of PW1 regarding the timing of the meeting which occurred at Tuvaruhu hill top at that time, even if it was longer than estimated. He told the court that when they got to the top of the hill they were telling stories when the Deceased appeared. We know for certain the Defendant and the Deceased were in constant communication throughout that period and therefore would not have been in any doubt or confusion about their planned arrangement to meet. I am satisfied and I accept his evidence as truthful that after arriving at the hill top the Deceased turned up.
  
• PW1 states when he realised that it was their plan to meet, which from his evidence he was not aware of initially, he decided to leave them and return home. As he moved away from them he heard the Deceased shout. He states that when he turned he saw the Defendant stabbing the Deceased on the left side of her ribs. He states as she fell he moved towards them with the intention of catching the Deceased but then the Defendant turned towards him with the knife and threatened him. He says he took off in fright and went home. He estimates the time he arrived home at about 8:30 pm.
  
• PW1 also stated that he overheard them arguing before the Deceased was stabbed.
  
• In cross examination one of the matters which was sought to be put to this witness to discredit the veracity of his evidence was that there was no other way or route, in particular from the bottom of Tuvaruhu hill top, other than from the route or vicinity taken by the Defendant and PW1. The point sought to be made was that his account of seeing the Deceased appearing at Tuvaruhu hill top could not be true, for there was no other way to access that place than from where they had come from. In his evidence in chief however, this witness had pointed out that he saw the Deceased appearing from the direction of Marble Street. When this point was raised in cross examination, he explained that Marble Street came up from Tuvaruhu area and in spite of strenuous cross examination on this, he maintained his position and explained that there was a bush road or track that people used which went down to Marble Street in Tuvaruhu and that this was the direction he saw the Deceased coming from. He further explained that he had seen this road and travelled along it once before when they were looking for some trees.
  
• This piece of evidence is crucial to this case for it completes the puzzle as to how the Deceased reached Tuvaruhu hill top and directly discredits the suggestion of defence that there was no other route to that spot.
  
• From this we now know where the Deceased was going when she left Florin at Ramo's store and walked along Zion road in the direction of town, for she was travelling to Tuvaruhu to meet up with the Defendant at Tuvaruhu hill top. We do not know if she was picked up by anyone, whether she caught a taxi or bus but there is direct evidence she was seen coming up from that track from Marble street in Tuvaruhu by PW1.
  
• The existence of that track was later confirmed during trial by prosecution witness Lawrence Iko, the investigating officer. He told the court after reaching Tuvaruhu hill top they followed that particular bush road or track down to Marble Street at Tuvaruhu. Also in spite of strenuous cross examination to discredit this piece of evidence, I am more than satisfied beyond reasonable doubt of the existence of that track. Mr. Iko clarified in court that this was a common track used by people and that there can be little doubt it was the same route used by the Deceased that night to access Tuvaruhu hill top.
  
• There have been suggestions that the track may have been un-useable at around that time because of weather conditions etc., but that has been clearly displaced by the evidence of Mr. Iko.
  
• Another suggestion to discredit the veracity of the prosecution that if the Deceased had travelled along that route that it may have taken her more than thirty minutes up to an hour however was also displaced by the evidence of PW1 for he pointed out that it seemed to him that the Deceased was already around that road when she appeared. Again the timing of the meeting after 7:17 pm is fairly consistent with his account of the events that transpired and I do not find the discrepancy in timing from 30 to 46 minutes and longer, that would sufficiently discredit his account.
  
• Is PW1 a witness of truth and can be relied on? I find no hesitation in coming to that conclusion. In court he appeared reserved and would confine himself to answering questions as put to him. He denied the version of the Defendant and gave the impression of a person with basic education and simple learning. His educational capacity was only in primary school up to standard three, which would be very basic. He can be virtually described as an illiterate person. He denied knowledge of the mobile numbers of the Deceased's family and or knowledge of the Deceased's relationships and having observed his demeanour in court I am not satisfied he can be described as having any sophistication in his appearance and mannerisms. He appeared also to be a person of timid character. Apart from his knowledge that the Deceased was the girl-friend of the Defendant, there just doesn't seem to be any connection, especially of any relevant knowledge that he might have regarding details concerning the phone numbers of the parents of the Deceased etc.
  
• I accept his account of what transpired that evening as not only being credible, consistent and accurate but also as reflecting a true account of the events that transpired that evening.
  
• He only witnessed the stabbing incident and then left. He did not see anything else that transpired thereafter. It doesn't take too much of any deductive reasoning to conclude that the Deceased was killed in the hands of the Defendant and that he was solely responsible for her death.
  
• According to his version the killing would have occurred sometime after he ran away.
  

The flaws in the version of the defence.

• The initial purpose for meeting the Deceased disclosed in the defence case was supposedly to meet for the last time before she left him for the mystery boyfriend. Having done that for about an hour in the grasses beside the hill below Asite'e's house, it would seem that the purpose of their meeting had been fulfilled. There would have been no reason or justification then for them to go anywhere thereafter. The Deceased would leave him and PW1 and go her separate way. That however according to the version of the Defence did not happen and they continued up further the road. The reason, logic and purpose for this simply does not add up.
  
• In any event the defence version is that as well, during that time they were in the grasses, which he puts at about an hour, PW1 was patiently waiting somewhere above on the road. When they got to the road he allows PW1 and the Deceased to walk in front of him so that PW1 could talk with the Deceased and ask her to have sex with her. This took them all the way to Papaho, where the supposed sexual intercourse between the Deceased and PW1 was supposed to have occurred. All the while the Deceased was walking along oblivious to the agreement between PW1 and the Defendant for PW1 to approach the Deceased for sex.
  
• That supposed journey just does not add up. The Deceased did not arrange to meet with PW1 and so there would have been no reason or cause for them to meet and discuss anything. She had no connection or ties with him and so to imagine them walking along in front and the Defendant behind just does not make any sense or add up. In any event, PW1 had denied any relationship with the Deceased and conceded that she was the Defendant's girlfriend.
  
• The second major flaw as well in the version of the Defendant is in the impracticality, impossibility or improbability of what happened after the supposed killing was alleged to have been committed. The killing was supposed to have occurred at Papaho and mill-run bags used to carry the Deceased's body all the way up Iron Mark hill and down into Jericho valley, up Jericho hill and eventually to Tuvaruhu hill.
  
• The supposed principle role played by the Defendant as to what to do in the disposal of the body is contrary to his claim of innocence. Why was he taking the prominent and meticulous role of making the necessary arrangements for the disposal of the body? If he was innocent he need not be overly worried about it? Again I find his purported behaviour and explanation contradictory to his position of a mere bystander and not the principal.
  
• The court was able to view the area and the scene and the route it was alleged the body was carried through. Humanely speaking it would have been virtually impossible to carry out the feat within 1 – 2 hours and with any ease. It would have been extremely difficult, taxing and trying for any person to do the trip either in that period or at all, for the terrain was steep, sloppy, uneven and would have been made extra difficult to do at night. Even carrying an adult on a stretcher on level ground for a hundred meters would have been very tiring, demanding and difficult for anyone. The overall distance would have been much longer and over extremely difficult terrain. The suggestion that this was done that night by these two in my view is impracticable, highly improbable and simply unbelievable. I do not believe the version of the Defendant and reject his version outright.
  

Phone calls recorded later that night from the Deceased's phone.

• The call logs showed that a number of calls were made later that night as follows:
  
  • 7:48 pm, there was a call from Mamae (father of the Deceased);
  • 8:38 pm, fifty (50) minutes later, a call was made from the Defendant's phone to Mamae's phone;
  • 8:42 pm, there was a call from Elsie Takana's phone (mother of the Deceased);
  • 8:43 pm, a call was made from the phone of the Deceased; and
  • 8:43 pm, there was another call from Elsie Takana's phone (mother of the Deceased).
    
• Mr. Gray of Counsel for the Defendant submits that the Deceased was still alive at those times and made those calls to her parents. He relied on the answer of the Defendant in his record of interview (Exhibit "P") to Question 53, in which he stated that her Dad rang her and she spoke with him. He also stated that she also spoke with her mother after a miss call was made to her phone. He also stated that her boyfriend rang but she refused to answer the phone.
  
• Mr. Mamae in his evidence however indicated that the last time he saw his daughter alive was at 5:00 pm near the Hot Bread Kitchen. He also stated that he got home at 7:00 pm but her daughter was not at home.
  
• In cross examination when he was asked if he had received any call from his daughter apart from the two texts which he received, he denied any such calls. It was never put to him specifically if he recalled receiving any call from the Deceased's phone at 8:38 pm. As well in his evidence this witness pointed out that he rang the Deceased's Aunt on the next day 25th September 2012 to find out if his daughter had spent the night with her. This is uncontested and only goes to confirm that he could not have spoken with the Deceased on the night of the 24th September 2012.
  
• Apart from the call logs records which showed that a call was made from Mamae's phone on the evening of 24th September 2012 at 7:48 pm, there is no evidence to suggest that he spoke with his daughter that night. This piece of evidence was not put to him in cross examination if he spoke with his daughter at that time.
  
• His evidence therefore that he did not talk with his daughter that evening has never been contradicted. Those calls could have been missed calls.
  
• The same situation would apply to the mother's calls that were made. She was never cross examined on those calls if she spoke with the Deceased that night. Again the fact that this issue was never put to her to confirm or otherwise can only mean that in spite of the records the position is that she did not talk to the Deceased that night.
  
• This raises the question if she did not make those calls, that is, she had been killed by then, the only other person who could have made those calls from her phone would be the Defendant.
  
• It is pertinent to note as well that in his answer to question 53, the Defendant states that her boyfriend also rang her after her Dad called. There is however no record of any other call during that period. The only other calls from a phone number 8580186 were made at 9:11 pm (twice) and 9:13 pm (twice) and reciprocating calls made from the Deceased's number at 9:14 pm (twice). It appears that police investigators were not able to get any information about the owner of that sim card number for the reason it seems that it may not have been registered. If this was supposed to be the number of the boyfriend, then the information regarding these calls is inconsistent with the answer of the Defendant for he stated that the Deceased did not answer the call. And after the call with the mother she turned her phone off, which is inconsistent also with his answer.
  

Text messages sent from the Deceased's phone

• It is not in dispute that two text messages were sent from the Deceased's phone to Mamae's phone, father of the Deceased, one on the morning of the 25th September 2012, the very next day after she was killed, and the other on the 30th September 2012.
  
• Those two messages could not have been sent by anyone else than the killer who would have taken the Deceased's phone after killing her.
  
• Mamae told the court that the messages were similar in nature. A copy of the text message sent on 30 September 2012 at 9:30 am is set out in full in Exhibit "O". In essence it sought to give the impression that she (the Deceased) had eloped with her boyfriend and that they should not worry about trying to find her. The father when giving evidence told the court that he was misled into thinking that her daughter was still alive at that point of time.
  
• The defence case that the phone was in the possession of PW1 simply could not be true for not only had he denied this but he would not have known the numbers of the Deceased's parents.
  
• As well there was only one person who was aware of the story of the mystery boyfriend from the start; this was only the Defendant, not PW1.
  
• Further, in answers to questions 77, 78 and 79 in the additional statement made by the Defendant on 16 October 2012, he admitted sending the text to the Deceased's father and then destroying the phone after. At the start of trial this record was challenged as being obtained through threats and or unfair and therefore to be excluded. I heard the application on the voir dire and dismissed it. The admission was voluntarily made and further evidence in support of the Crown's case that it was the Defendant who was responsible for the death of the Deceased and no one else.
  
• His admission that he sent the text on 30th September 2012 raises the presumption that he was the one who could have also sent the text on the 25th September 2012. I am satisfied so that I am sure beyond reasonable doubt that it could not have been anyone else.
  

Phone calls to Elsie Takana (mother of the Deceased).

• It is interesting but significant that not only the father of the Deceased was misled but the mother of the Deceased was also misled by the so-called unknown caller, though in her evidence the mother ("Elsie") insisted she recognised the voice of the caller to be that of the Defendant.
  
• Two phone calls were made to her, one on the 5th October 2012 and the other on the 11th October 2012, (two days after the body was discovered at Tuvaruhu).
  
• On both occasions the case of the mystery boyfriend featured again giving her the false impression that the Deceased was alive and with him and that they were in Vella la Vella in the Western Province. The caller could not have been anyone else than the killer for only he would have known the truth about the disappearance of the Deceased and was pretending to hide it from the very persons dear to the Deceased.
  
• The caller obviously knew the number of the mother of the Deceased and after ensuring he was talking to her had the audacity to inform her that her daughter was alive.
  
• In her evidence Elsie told the court that she recognised the caller's voice to be that of the Defendant. In cross examination it was sought to be put to her that this was inconsistent with her statement to police dated 20th October 2012. She however insisted and remained firm that she recognised the caller throughout and at no time did she not know who the caller was. She later clarified in re-examination that she did not tell police the identity of the caller because they did not ask her about it.
  
• I am satisfied her evidence on this has not been discredited and that there could not have been anyone else other than the Defendant. If there was to be anyone else who may have made the call, it was PW1 but that can be ruled out based on my findings of fact in this case. He would not have known and did not know the phone numbers of the parents of the Deceased. Further, the story of the mystery boyfriend did not originate from him and so he would have known about it. We know for a fact that story came from the Defendant himself and he continued to perpetrate that story it seems to try and cover up his crime.
  
• I am satisfied beyond reasonable doubt that the caller was no one else but the Defendant.
  
• Apart from those phone calls, this witness also stated in court that when she got back from Malaita, (she got back on Tuesday the 2nd October 2012) the next day 3rd October 2012 she went to the house of the Defendant and spoke with him and asked him about the whereabouts of her daughter. The Defendant told her that he did not know, which was an outright lie. Her evidence on this has not been contested.
  

Reporting of the case to Police by John Sale.

• Police investigators got their break through to this case of the missing girl when PW1 in the company of his adopted mother went to the Police and told them about what he knew. The previous night he had been spoken to by his parents and following what he had told them they took him to the police station to tell his story about what he knew happened on the 24th September 2012. As a result of his statement and following further investigations the Defendant was arrested on or about the 16th October 2012.
  
• The actions of PW1 are inconsistent with that of a guilty mind. If as alleged he was the principal killer and the Defendant merely an accessory after the murder in assisting to dispose of the body, common sense dictates that when the body was discovered, the person who would have run to the police to inform them of the killing would have been the Defendant. Common sense relates to actions in normal behaviour and conduct of people that are consistent with as in this case, innocence.
  
• The murder of the Deceased was not a trivial matter and especially when the circumstances surrounding the discovery of the body and the condition of the body at time of discovery are considered, cannot be treated with lightness. Murder is the most serious crime in our Penal Code Act. His actions in withholding supposedly vital information from police including deliberately lying to the mother of the Deceased and seeking to hide the crime when he had opportunity on many occasions to report the matter to the police or to the parents of the Deceased are more consistent with that of a guilty mind than the converse. I do not believe his explanation that he did not report the matter because he was more concerned about PW1 as his relative than the fact of reporting a murder and killing of the life of another.
  

Motive

• While as set out in section 9 paragraph 3 of the Penal Code, motive is immaterial in so far as regards criminal responsibility, evidence of motive is admissible from which intent may be inferred. In the case of Hyam v. DPP, Lord Hailsham points out that:
  

"The motive for murder ... may be jealousy, fear, hatred, desire for money, perverted lust, or even, as in so-called "mercy killings", compassion or love. In this sense motive is entirely distinct from intention or purpose. It is the emotion which gives rise to the intention and it is the latter and not the former which converts an acteus reus into a criminal act."

In another case R. v. Murphy the court said (at pages 59; 69):

" Evidence is always relevant which tends to show that an accused had a motive for doing the act alleged or for doing it with the intention asserted by the Crown. When such proof is given it constitutes "a link in the chain of evidence" led to establish the matter in contention (per Lush J in R. v. Heeson (1878) 14 Cox CC 40 at 44).

Finally in Plomp v. The Queen Menzies J (at 247) citing with approval the dictum of Lord Atkinson in R. v. Ball said:

"Evidence of motive necessarily goes to prove the fact of the homicide by the accused, as well as his malice aforethought", inasmuch as it is more probable that men are killed by those who have some motive for killing them than those who have not."

• I accept submissions of motive in this case as relevant for the murder of the Deceased is primarily based on circumstantial evidence. PW1 did not see any other weapon or the crucial acteus reus, being any stone or blunt instrument consistent with the application that would have caused "the blunt force trauma" to the head of the Deceased and being described as the leading cause of death. PW1 only saw when the Deceased had been stabbed on the left side of her ribs and falling down before running away. While she could equally have died from that stab wound if it had inflicted any injury to her vital organs, that could not be ascertained for much of the body mass and organs were not visible.
  
• I accept submissions of the prosecution on this point as being entirely consistent with evidence adduced in this case and which I accept as having been established to the requisite standard of proof beyond reasonable doubt.
  
• I accept the Defendant maintained contact with the Deceased although it seemed their relationship was no longer being seriously pursued primarily according to his own evidence for sex purposes and personal satisfaction. He expressly stated that he no longer loved her but continued to contact her for sex.
  

I accept there is evidence of abuse in the relationship, satisfactory evidence being provided on this by the parents of the Deceased, including PW1.

There was also evidence of a pornographic video clip that he had taken of her and which had circulated around including members of her family being aware of it and that it seemed that the Deceased was not aware of it when it was taken and had been upset about it.

There is evidence from Mamae and Elsie, parents of the Deceased that they had asked their daughter to end the relationship because of the physical abuse but that it seemed to have continued on in spite of this.

There is also uncontested evidence from PW1 that before the Deceased was stabbed he overhead them arguing in particular the words "I am angry at you" used by the Defendant gives an indication of what his mental state was at that time, that he was angry with her before stabbing her.

This is crucial evidence of a state of mind which is consistent with the subsequent acteus reus that PW1 witnessed. The subsequent acts of blunt force trauma to the head can only be attributed to no one else but the Defendant, including the disposal of the body down the steep slope of Tuvaruhu hill. When PW1 left, no one else was there.

His subsequent actions in sending off text messages and phone calls to the parents of the Deceased are equally consistent with intention and "malice aforethought" to cover up a crime that had been committed deliberately.

• His descriptions of seeing blood coming out of the mouth of the Deceased, from her nose, and her eyes and face being covered with blood could only have been as a result of the fact that he was the one who witnessed all these before disposing of her body down the Tuvaruhu hill top.
  

Decision.

• I am satisfied so that I am sure beyond any reasonable doubt of the veracity of the evidence that has been adduced by prosecution in support of its case and the charge against this Defendant and I find him guilty and convict him of the murder of Flora Hangari Akwai.
  
• As usual the Defendant has a right of appeal to the Court of Appeal if aggrieved by the decision of the Court.
  

Orders of the Court:

• Find the Defendant guilty of the murder of Flora Hangari Akwai and convicted accordingly.
  

The Court.