Regina v Maerata [2016] SBHC 186; HCSI-CRC 083 of 2016 (14 October 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
Criminal Jurisdiction

CRC 083 of 2016

Regina
v
Raymond Maerata

Date of Hearing: 14^th – 16^th September 2016
Date of Sentence: 14^th October 2016

Counsels for the Crown: Mr. Ramosaea & Dalipanada
Counsel for the Accused: Mr. Lawry Howard.

JUDGMENT

Kouhota PJ:

Introduction

The accused, Raymond Maerata, was charged with murder contrary to section 213 of the Penal code.

The prosecution alleged that he murdered Isaiah Kenianohia at Tawaraha village, West AreAre on 11^th December 2012. The accused pleaded not guilty to the charge thus essentially putting the burden on the state to prove the allegation against him. The prosecution called 5 prosecution witnesses and tender with consent 2 documents namely; (1) Autopsy report of doctor Roy Maraka, dated 18^th December 2012; and (2) Photographs of the crime scene and statement by Sgt Michael Veets.

The first prosecution witness is Mr. Andrew Foasi Junior (PW1) from Su’u harbour in West Kwaio. His evidence was that, on the 11^th December 2012, he went fishing in an outboard motor canoe engine with his nephew, Brandon Foasi (PW2). They arrived at their village from the fishing trip at about 5 pm. When they arrived, the accused was already waiting at the beach near their house. The accused asked to hire their boat to go and pick his family, so PW1 and PW2 agreed to take him. The three of them took off in the boat and engine towards Hauhui village. However, when they approach Hauhui, the accused told PW1 to go all the way up, so they continued until they reached Taarutona in the West AreAre lagoon. They stopped at Taarutona Village and the accused went out of the boat while PW1 and PW2 waited in the boat. The accused returned and told them to go to his wife’s house which is on the main land, so they left Taarutona and went to the mainland. When they arrived at the village on the mainland, the accused told PW1 to accompanying him to his in-law’s house. PW2 remained in the boat to look after it. When the accused and PW1 got to the house, the accused went up the ladder and kicked the door. It became clear during cross examination and from the evidence of PW3 and PW4 that what PW1 described as door kicked by the accused was, in fact, a piece of plywood used to block the front entrance to the veranda.

PW1 said when they got to the house, he saw an Oldman and his wife. They were the only person PW1 saw in the house when they arrived that night. PW1 said when the accused, Maerata, kicked the door he was afraid so he did not go inside the house. He said he stood outside the whole time. PW1 described the lighting at the house as bright solar light and said it was dark around him outside but he can clearly see inside the house.

PW1 saw the accused went and talked to the two old people in the house at the veranda. He said he was not able to hear everything they were saying but he heard the accused asked, “Where is my wife?” PW1 did not hear the old couple’s reply. PW1 said the old couple and the accused were talking, then he heard the accused said in a loud voice to the old man, “I will kill you!” The old woman went out of the house and the old man was, at that time, sitting on a chair at the corner of a table, and the accused was standing in front of him. PW1 said, he could see the two of them clearly. Shortly after this, PW1 saw the accused pulled a knife away to his hand and heard the old man shouted and called to his wife saying that Maerata had killed him. The old man was speaking in AreAre language or dialect which PW1 said he understands. PW1 said he panicked and did not know where the old woman went. He said the accused came out of the house, leaving the old man still sitting on the chair dying. PW1 said he waited for the people to come so that he could explain how he got there.

Under cross examination, PW1 maintained that he remained outside the house, and from where he was standing, he could see clearly into the veranda where the accused was standing. He maintained that he saw with his eyes what the accused did. He confirm he heard the accused said in pidgin “by mi kilim you, you likem mi kilim you?!” PW1 said the old woman came out of the house two times. He also said he saw the blade of the knife the accused was holding. He confirm he heard the old man said Maerata had killed him. He saw the old woman shouted and came out of the house. The rest of what he told the court were irrelevant to the issues in question.

The defence submitted that PW1 had contradicted himself saying that he gave two statement to the police, one earlier at Maka Police Station, and one at Auki Police Station on 14^th December 2014. My view is that the witness confused about was a statement. My experience as a former police investigator is that, usually police, during investigation, would make inquiries to get information but may not record a formal statement from a witness. Hence, in this case, when the witness said he gave a statement at Maka Police Station, I believe he was referring to inquires made by Maka Police to get information from him rather than record formal statement.

The second prosecution witness is Brandon Foasi (PW2). PW2 was in the company of PW1 through the day. They went fishing together earlier that day and accompanied the accused and PW1 to West AreAre. His evidence was that, only the three of them went in the boat to West AreAre, stopping first at Taarutona island and then on to a village on the mainland where the accused told them to go to his wife’s house. When they arrived at the village on the mainland, he remained in the boat. He said while waiting in the boat he heard a woman screaming then, not long after, people from the village arrived and someone wanted to shoot him with a diving spear.

PW3 is Melody Maehaitao, the wife of the deceased, Isaiah Kenianohia. Her evidence was, on that night of the incident, Maerata came to their house after dinner. Only she and her husband, now deceased, were in the house at that time.

When Maerata came into the house, she did not see anyone outside. She said she was frightened when Maerata came into the house because Maerata kicked the timber used to block the door, which I understand she was referring to the entrance to the veranda. She told Maerata that his wife is not at the house but she was at Pademos. PW3 said, when Maerata heard this, he turned to the old man. She said when Maerata came into the house, he (Maerata) did not look happy but angry so she went out and called for help because she was afraid. She said she did not hear her husband called because at that time she was screaming and crying. When she returned, her husband was in the house but he said to her that he won’t be alright and that he was in a bad state, that Maerata had killed him, after this, he said no more. She said when Maerata went to her husband (deceased), she saw Maerata hold onto his shirt so she walked out of the house. When she went out she saw a man sitting on the ladder, the man spoke to her but she did not understand what he said. She said the man left when she was shouting and calling for Timothy. She said she was standing on the ladder when she heard her husband said “mummy I am dying”. She said when she returned to the house, Maerata was gone. She heard her husband said, “I cannot live, Maerata killed me.”

PW 3 told the court that she and her husband had six children and the youngest is Judith, who is married to Maerata the (accused). She said, Judith and Maerata had a family problem so Judith returned to live with her and her husband. PW3 said she recognised Maerata when he opened the timber used to block the door entrance to the veranda. At that time, she was sitting at the table with her husband with her back to the main house. She denied that her husband had any skin deceased or that her husband would use a knife to scratch his body.

PW4 is Mr Timothy Mairatea. In 2012, on the day of the incident, he was at his home. He stated that he recalled the time when his mother ran down the ladder and shouting, “ye, ye Maerata has come to kill us.” He was at his house when he heard PW 3 shouting and calling. He came down from his house and saw the old couple sitting on the veranda and then went away. He said he did not know what they were doing but he saw PW3 sitting beside the deceased crying. He stated that the deceased was an old man but just started to use a walking stick. He said the old man had no skin deceased or uses a knife to scratch his body.

PW5 is Doctor Roy Maraka. He is a pathologist who carry the autopsy on the deceased. He gave oral evidence and his report on the examination of the deceased body carried on 14^th December 2012, was tendered by consent. This form part of the evidence before the court. In his opinion, the deceased died from haemperitoneum, as a result of the stab wound into the abdomen which cut the liver. His evidence was not disputed and I accept it as true and correct.

The crucial question for the court is, whether the prosecution has proved that the wound which caused death was inflicted by the accused. The defence counsel submit that this is a case where there are major conflicts between the crown witness, Andrew Foasi PW1, and other crown witnesses. He submits that if the court accept the evidence of Melody Maehaitao then the essential evidence of PW1 must be false and the accused must be acquitted. I had observed PW1 giving evidence. His evidence starts with the journey from his home in Suu harbour to West AreAre.

This part of his evidence was consistent with evidence of PW2. I am satisfied he has not make up the story. If other parts of his evidence conflicts with other prosecution witnesses, that is understandable because of all the prosecution witnesses, he was the only eye witness to what Maerata did to the deceased. The evidence of Melody Maehaitao must be considered in light of the situation she was in when the accused arrived at her house. She said she was frightened and afraid as such her recollection of events may be affected and may not have observed everything or remembers everything that happened. That is not unusual for an old woman who found herself in such a situation. Her evidence about what her husband said, however, were consistent with the evidence of PW1. However, with regard to evidence of PW4, apart from what he said about him hearing Melody calling for help, the rest of his evidence were irrelevant. He said he came down from his house but quickly went away without making any inquiry or speaking to PW3 when he saw PW3 and the deceased on the veranda. He said he saw PW3 sitting with the deceased crying but left and followed the main road. His behaviour was unusual for a person who heard a call for help from an old woman close relative.

The suggestion by the defence that the wound could have been caused by something else, like the deceased falling on the knife. While this is not an impossibility, it is quite unattractive and must be rejected. There was no evidence at all that the deceased had any knife with him at that time or would use a knife to scratch his body as confirmed by PW3. If he had fallen on a knife, the knife would be seen somewhere close to him, it cannot just disappear into the air. In fact, I believe the evidence of PW1 about the incident at the house. He told the court what he saw and heard and firmly maintain his story despite the strong cross examination.

There was evidence that the accused and his wife had marriage problems and that his wife returned to her parents. On the day of the incident, there was overwhelming evidence that he was going after his wife and had to hire a canoe from Suu harbour in West Kwaio and went to West AreAre in the night. My knowledge of the area, it is a long distance. He arrived at the house of the wife’s parents and discovered that she was not there and turn his anger on his father in-law and said he will kill him. He had a motive to kill. There was an eye witness to this.

The accused was the only person left in the house with the deceased when PW3 went out of the house. He fled the house before PW3 returned. When she returned, her husband was dying and told her that he was in a bad state, that he cannot live and that Maerata had killed him. I accept her evidence about what her husband said to her before he died. On the evidence before the court, I am satisfied beyond reasonable doubt that the prosecution has proved the charge against the accused beyond reasonable doubt. I find him guilty of murder and convict him as charged. There is only one sentence for Murder and that is life imprisonment. The accused is sentence accordingly.

IRA

The Court

Emmanuel Kouhota
Puisne Judge