R v Kodo [2021] SBHC 113; HCSI-CRC 328 of 2016 (20 August 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Kodo
Citation:
Date of decision:	20 August 2021
Parties:	Regina v Enock Kodo
Date of hearing:	5, 6, 7 February 2020, 8, 9, 10, 11 & 12 June 2020, 21, 22 & 23 July 2020, 8, 9 & 10 September 2020
Court file number(s):	328 of 2016
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1) The defendant is found guilty and convicted of the offence of attempted murder contrary to section 215 (a) of the Penal Code (cap 26). 2) The defendant is found guilty and convicted of the offence of in possession of ammunition without firearm license contrary to section 5 (2) of the Firearm and Ammunition Act (cap 80). 3) The defendant is hereby remanded in custody awaiting sentence.
Representation:	Mrs Margret Suifa’asia for the Crown Mr Hubert Fugui (Trial) & Mr. Samuel Balea (Submissions) for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code [cap 26] S 231 (1), S 215 (a), S 215 (b), Firearm and Ammunition [cap 80] S 5 (2) (a)
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 328 of 2016

REGINA

V

ENOCK KODO

Date of Hearing: 5, 6, 7 February 2020, 8, 9, 10, 11 & 12 June 2020, 21, 22 & 23 July 2020, 8, 9 & 10 September 2020
Date of Decision: 20 August 2021

Mrs Margret Suifa’asia for the Crown
Mr Hubert Fugui (Trial) & Mr. Samuel Balea (Submissions) for the Defendant

JUDGMENT

Bird PJ:

1. The defendant Mr. Enoch Kodo was originally charged with three counts of intimidation contrary to section 231 (1) of the Penal Code (cap 26) and one count of in possession of ammunition without firearm license contrary to section 5 (2) (a) of the Firearm and Ammunition Act (cap 80). On the 5^th February 2020, a nolle prosequi was filed by the Director of Public Prosecution in respect of that charge and the defendant was thereby discharged. On the same date, an amended information was filed by the DPP in which the defendant was charged with one count of attempted murder contrary to section 215 (a) of the Penal Code (cap 26) and one count of possession of ammunition without firearm license contrary to section 5 (2) of the Firearm and Ammunition Act (cap 80). The defendant had pleaded not guilty to both charges and the matter was tried by the court.
2. In a criminal trial, the onus to prove the guilt of the defendant lies on the prosecution. The burden of proof is one of proof beyond all reasonable doubt and at no time does that burden of proof shifts to the defence. The prosecution must prove beyond all reasonable doubt all of the elements comprising the respective offences for which the defendant is charged.
3. For the offence of attempted murder contrary to section 215 (a) of the Penal Code, the prosecution must prove beyond all reasonable doubt the following elements namely:
   1. Attempts unlawfully to cause the death of another person;

It is noted at this juncture, that according to the filed amended information dated 5^th February 2020, the defendant is not charged under section 215 (b) of the Code. I have to point out this distinction on the outset because the crown had in their closing submission also made mention of s.215 (b) of the Code.

4. For the offence of in possession of ammunition without firearm license, the prosecution must prove beyond all reasonable doubt the following elements namely:
   1. Any person,
   2. purchases, acquires or has in his possession any firearm or ammunition,
   3. Without holding a firearm license
   4. Otherwise than as authorised by such license
   5. In case of ammunition, in quantities in excess of those so authorised.
5. The trial of this matter commenced on the 5^th February 2020 in Honiara. Due to various reasons, the trial of the matter was not completed until September 2020. The issues that must be proved by the prosecution to the required standard are firstly whether the defendant Mr. Enoch Kodo attempted to kill the victim Mr. Amos Galo. The second issue is whether the defendant used a homemade gun to shoot at Amos Galo. Third is whether the defendant was in possession of ammunition without firearm license? In order to prove their case, the prosecution had called a total of 14 prosecution witnesses.
6. Before discussing the evidence in this matter, I would first of all state some common factors from both the prosecution and the defence case. It is common ground that there was a commotion that took place at Kinoso Village on the 22^nd July 2013. The commotion was between some men from Tasure Village and the defendant’s group from Kinoso Village, South Choiseul, Choiseul Province. There was exchange of words and throwing of stones, sticks and spears. People were also armed with axes and knives. It was during that commotion that the victim Mr. Amos Galo was injured. It was alleged that the defendant used a homemade gun to shoot at the victim and the defence says that the defendant shot at the victim by using a nail carved out in the size and form of a bullet.

The prosecution evidence

7. The first witness called by the prosecution was Amos Rinta Galo, the victim. He stated that on the 22^nd July 2013, he was fixing his outboard motor engine at Tasure Village. He was in the company of his brother Simon Pitamama, Harrison Galo and Tanisupa Harrison. At that time, Pastor Varane came to Tasure and told Simon that the battery he was looking for was with Enoch Kodo. PW1 then went with his brother Simon to speak with Chief Toto at Tuzu Village to accompany them to go and ask the defendant about the battery. Other boys accompanied them to go and buy betelnut and smoke at Tuzu. Chief Toto was ill so he sent his son Jonathan Zengava to accompany them to Kinoso. They were accompanied by Galo Harrison and Tanisupa Harrison.
8. PW1 further stated that at the defendant’s house, Simon talked with him. The defendant came out from his house and walked down the ladder with a long bush knife in his right hand. He stood on the last step of the ladder of his house and told them to get out from his place before he will kill them all. Simon replied and said that they were only there to talk about his missing battery. The defendant repeated that they should go out from his house. He then ran back into his house and PW1 and others started to move away from the defendant’s area. PW1 then saw the defendant held a gun and leaned it on a window at his house and took an aim at Tanisupa and Galo Harrison. They moved away from the defendant’s house because the defendant was in possession of a gun. PW1 saw Tanisupa and Galo Harrison jumped and hid behind a coconut palm.
9. PW1 then stated that after the defendant fired the first shot they all ran into the coconut plantation. A second shot was fired towards Tanisupa and Galo and they were both running towards the main road. At that time PW1 was standing underneath Pastor Varane’s house with Rayboy. There was another shot fired and PW1 felt shock in his body. He was hit by a bullet. Tanisupa and Galo ran towards him and asked him if he was shot. He saw blood coming out of his body. He indicated in court where he was shot. He felt heat inside his body, was unbalanced and fell down. Jonathan, Simon and Zengava asked him how he was and he said that he was dying. As they were carrying PW1 towards the seaside, the defendant ran towards them with a gun and a knife. PW1 told them to leave him and run away. They left PW1 seated on a cement grave. He told Simon to run away because the defendant might shoot at him again.
10. While PW1 was seated on the cement grave, the defendant came and kicked him on his forehead and face with his right leg. PW1 fell backwards on the cement grave and the defendant pointed the gun at him and told him that he will kill him. The defendant also pointed the knife against his neck. PW1 told the defendant that he had already been shot and he could do nothing and if the defendant wants to kill him, he could do so. Galo then ran towards them and disturbed the defendant. The defendant then chased them into the plantation.
11. PW1 further stated that at that point in time, Noah came towards him. He saw Noah wanted to cut Simon with a knife as Simon was running towards him. He saw Noah chopped Simon’s figures out. Simon and Rayboy talked to Noah and Noah left and ran after the defendant. After Noah had left, Jonathan and Rayboy took PW1 and carried him to the seaside and Jonathan paddled with him to Tuzu. At Tuzu, PW1 was placed inside their boat and was taken to Tasure and to Papara Clinic and a nurse accompanied him to Sasamunga. They left Sasamunga that night and arrived at Gizo the next day. At Gizo, he was operated on and he felt much better.
12. When asked to describe the gun, PW1 stated that it was black. It was made of stick and iron. He said he had never seen or used a gun before that date. He further stated that the distance between himself and the defendant when he was shot at was between 15 to 20 meters.
13. In cross-examination, PW1 stated that the people who were present on that occasion were Simon, Tanisupa Harrison, Jonathan Zengava, Harrison Galo, Chillion Harrison and Joseph Kelly. He said Vegu Calvin was not with them. He confirmed giving a statement to the police two years after the incident. PW1 denied being armed with a spear and an axe. He denied shooting Noah with a spear before he was shot by the defendant. He did not hear Simon saying “today you will die. Only children, dogs and cats will remain in the village”. In fact PW1 stated that he heard Simon telling the defendant to go down and talk about what Pastor Varane had told him. He said that while Simon was talking to the defendant, the other boys were sitting at the bottom of a coconut palm. He denied the boys were throwing stones at the defendant’s house. He further denied that Simon threw a stone and hurt the defendant’s son’s leg. He denied that Galo Harrison used a sling and shot the defendant’s sister’s head. He further denied seeing Simon carrying half 20 kg rice bag of stones.
14. PW1 also confirmed in cross-examination that he saw the defendant held a gun. He also confirmed that the defendant and Noah kicked him. He did not see anything that Simon and Tanisupa did to the defendant. He denied being on the defendant’s ladder and climbing up the stairs when he was shot. He further denied that he was armed with a spear and a knife then. It was suggested to him that the defendant shot him with a sling. He reiterated that he was shot with a gun, not a sling. He heard the gun shot. He was not carried to the canoe by Smith.
15. PW1 further denied that his group of about six people ambushed the defendant at his village. He further denied carrying spears, knives and stones. He also reiterated that his brother Simon was cut with a knife.
16. PW1 was shown exhibit marked “P1”, the bullets. It was suggested that the bullets belonged to PW1. He denied that suggestion and said he knew nothing the bullets.
17. PW2 was Harrison Galo and his evidence supports PW1’s version of what had happened. He stated that when Simon approached the defendant about the battery issue, the defendant told them to leave his area. He saw the defendant ran into his house and got a gun, leaned it on the window and shot at them. He fired three times. Two shots missed them and the third shot hit Amos Rinta. When Amos fell down, the defendant went for him and PW2 with the other boys disturbed the defendant by throwing coconuts at him. The defendant chased them into the coconut plantation. They fell along the way as they were chased and ran into the coconut plantation. PW2 also stated that when the defendant fired shots at them, the children and women at Kinoso were crying.
18. PW2 saw Amos when he was shot by the defendant. At that time Amos was standing outside Pastor Varanes’ house. He was standing about 10 meters away from PW2. When asked to describe the gun that the defendant was holding, PW2 stated that he does not know the difference between home-made guns and the guns police normally uses. He does not know the different types of guns but he knew it was a gun. PW2 is related to the defendant as an uncle on both sides of his family.
19. In cross-examination, PW2 was asked if he was armed with a sling on the 22^nd July 2013. He denied holding a sling. He was further asked if he knew Lisa Paul and whether he attacked her with the sling. He denied holding a sling and attacking Lisa with it. He further stated that it was after Amos Galo was shot that they tried to disturb the defendant. There were no stones in the area so they chased the defendant around in order to distract him. They were in a coconut plantation so they shot him with coconuts. He was with Chillion and Joseph. PW2 was asked if Zengava was with them. He said he saw Zengava picked Amos from the ground after he fell down. He further stated that he did not see Simon do anything to the defendant and his house because his hand was cut. PW2 did not see any of the boys throw stones at the defendant or at his house. He further confirmed that Amos Galo was not armed with a spear and a knife before he was shot by the defendant. He stated that they did not go to Kinoso to ambush the defendant. Their intention of going to Kinoso was for the missing battery.
20. When further asked in cross, PW2 stated that when they went to the defendant’s house to talk with him, the defendant told them to get out from his house otherwise he will kill them all. He further said that he was a bad guy. The victim Amos was standing infront of Pastor Varane’s house when he was shot by the defendant. He recalled hearing children and women crying at the village when shots were fired. They were afraid of the gun shots. He also did not see that the defendant’s son was shot on the leg.
21. PW 3 was a police officer Marlon Surutago. Officer Surutago was the person that arrested the defendant on the 14^th July 2015. At the time of arrest, the defendant was armed with a knife. Also at the time of arrest, PW3 found some round rounds in the defendant’s bag. There were 4 live rounds in total. 2 x 5.6 live rounds and 2 x red live rounds. He handed the live rounds to CID office in Gizo to mark as exhibits. These live rounds are marked as exhibit “P1” in this trial. PW3 was shown exhibit “P1” in court and he identified them as the same live rounds that he obtained from the defendant’s bag when he was arrested on the 14^th July 2015. PW3 further explained that the 5.6 live ammunitions can be used in SR88, M16, M4 and homemade guns. The red rounds are normally used in shotguns.
22. In cross-examination, questions of acts of impropriety were put to PW3. It was alleged that PW3 assaulted and ill-treated the defendant upon arrest and whilst the defendant was taken from Kinoso to Gizo. PW3 denied all allegations of actions of impropriety on the defendant.
23. PW4 was Mr. Jonathan Zengava. PW4 stated that he could recall the 22^nd July 2013. It was a Monday. On that Monday, Galo and his brothers went to Tuzu Village to see his father. His father was unable to walk so his father told him to go with Galo and his brothers to Kinoso Village. PW4 stated that when they arrived at the defendant’s house, he told them to wait and ran into his house. The defendant’s brothers and uncles were running and he ran under the defendant’s house and watched the defendant from under his house. PW4 saw the defendant picked up an arm and leaned it on the window of his house. It was a homemade gun and he aimed it at Joseph and Tanisupa. He told them to run away. He then saw the defendant pointed the gun towards Galo. He shouted to Amos Rinta but the gun burst and Galo was shot. He then saw Galo walked s short distance and fell down. He saw Rayboy went and picked Galo up and sat him on a cement grave. At that point in time, PW4 was still under the defendant’s house and he could still see the defendant inside the house.
24. PW4 further observed that whilst Galo was seated on the cement grave, he saw Noah went towards him with a knife in his hand. He punched Galo. Noah is the defendant’s brother. PW2 was about 10 to 15 meters away from the scene. When he saw Noah punched Galo, he ran towards them and told Noah to stop because he was punching an already dead man. He then picked Galo up and carried him to the seaside. As he was carrying Galo, the defendant came to him and told him to get out from Galo. PW4 told the defendant that was enough because the man is already a dead man. PW4 also saw Paruku, the defendant’s uncle ran towards them with a knife. He threatened to cut them with the knife. PW4 also saw the defendant kicked Galo. PW 4 then carried and put Galo in a canoe belonging to a nurse and paddled him back to Tuzu. From Tuzu, they took Galo to Papara and to Sasamunga.
25. When asked about the injury on Galo’s body, PW4 stated that he saw a wound on Galo’s right side rib area. There was a hole on the side and it was a bullet wound. He further stated that when Noah punched Galo, Simon was already injured. By that time, Noah had already cut Simon’s hand with a knife and Simon was standing near the water. He further confirmed that Simon was trying to assist him carry Galo when Noah intervened and cut him with the knife.
26. When asked to describe the homemade gun, PW 4 stated that it was half stick and half iron. It had a slot for a bullet. It was like a point 22. He was under the defendant’s house when he first saw the gun. He was just about two meters away.
27. PW4 further confirmed that Simon is married to a woman from Kinoso. Simon’s house is near the defendant’s house at Kinoso. He stated that his father was the chief for both Tuzu and Kinoso. The defendant’s grandfather and his grandfather are brothers so the defendant is his brother.
28. In cross-examination, PW4 stated that Galo, Simon, Joseph, Tanisupa and himself went to Kinoso on that day. He did not see anyone throw stones from a bag. He stated that the defendant’s flooring had spaces between them and he could watch the defendant through the spaces on the floor. He did not see any of the boys accompanying him throw stones. Only the defendant fired gun shots at them. He also did not see Galo Harrison shoot Lisa’s head with a stone. None of them were armed with axes, spear or stones. He denied that the defendant’s brother by the name of Smith assisted Galo after he was shot. He said the defendant did not use a sling on that day. He used a homemade gun and he actually saw it. The defendant was sitting infront of his house with his brothers and uncles when they arrived at Kinoso.
29. PW5 was Simon Rinta. PW5 stated that the purpose for going to Kinoso on that date was to follow up on the battery issue. He said his solar battery went missing from the veranda of his house at Kinoso. He told Pastor Varane about it. PW5 stated that Pastor Varane told him that the defendant had his battery and if he wanted it he should go and see the defendant. He said he took his brother Amos Rinta Galo and Tanisupa and went to Tuzu. At Tuzu, he asked Chief Toto if he could accompany them but he was old and he instructed his son Jonathan Zengava to follow them.
30. PW5 further stated that when he arrived at the defendant’s house, he talked to him saying “iu come down umi stretim problem”. He saw the defendant came down with a spear and 5 rods (used for fishing). The defendant threw the spear at PW5 and shouted “today bae iufala everyone die”. The defendant then went back into the house and PW5 saw the barrel of a gun out of the window. He told Amos Rinta to move back and the heard the first shot towards Tanisupa at the coconut plantation. At that point in time PW5 and Amos moved from Noah’s house to Dagi’s house. He heard a second shot and Amos Rinta was shot. He held Amos and they walked towards the seaside. PW5 saw the defendant coming for them. Amos told him to run for his life and he run towards the river. When PW5 turned back, he saw Paruku and Noah together with the defendant. Noah ran to PW5 and struck him with a bush knife. His figure was cut. He then took out his shirt and tied his hand and ran away towards Tasure. Not long after, Zengava brought Amos Rinta to Tasure and both of them were taken to Sasamunga and then to Gizo.
31. In cross-examination, it was put to PW5 that he knew about the incident where boys from Tasure Village went and swore at Kinoso Village. PW5 denied any knowledge of that incident. PW5 disagreed to the proposition that he went to Kinoso because of the swearing incident. He said he went there for his own problem which was about his missing battery. PW5 further disagreed that his boys were armed with knives and axes. He also disagreed that he shot and broke the leg of the defendant’s son. PW5 disagreed with the proposition that the defendant was never armed with a spear. PW5 further disagreed with a proposition that it was when he shot the defendant’s son’s leg with a stone and that Amos Rinta was climbing up the defendant’s ladder that the defendant shot Amos with a sling. When it was put to PW5 that upon their arrival, they attacked the defendant’s house, his answer was “My lord, me no naf for talem anything, mefala no go for fight, mefala go for sortim out things happen”.
32. In re-examination, PW5 stated that the defendant’s son’s leg was broken before the incident. The broken leg was sustained from a fall. PW5 knew that story because he lives at Kinoso Village.
33. PW6 was Rayboy Liqutubatu. PW6 stated that he went to Tuzu Village on that day. He saw boys from Tasure arrived in a boat. He was told that the Tasure boys were going to Kinoso. He thought something might happen so he went to Kinoso to fetch his two nieces. He went to the Pastor’s house but he was told that his nieces had already left. He was walking from the Pastor’s house when he heard a gunshot. He looked over and saw Amos Rinta. The victim talked to him saying “aye tabu, me die nao, man ia shootim me”. PW6 ran over and carried the victim to a cement grave close to the seaside. PW6 saw Paruku and Noah coming towards them carrying spear and knife. PW6 lay the victim on the cement and Noah and Paruku assaulted the victim by kicking his body. PW6 also saw the defendant came towards the victim. He was holding a homemade gun in his left hand and a knife in his right hand. Zengava was also present and he prevented the defendant from further assaulting the victim. The defendant nonetheless, kicked the victim and left. PW6 and Zengava carried the victim to the shore, put him in a canoe and paddled him to Tuzu.
34. PW7 was Harrison Tanisupa. PW7 stated that him, Chillion, Galo Harrison, Rinta Galo and Simon travelled on an outboard motor from Tasure to Tuzu Village. From Tuzu, they then walked to Kinoso Village. The purpose of going to Kinoso was to ask for Simon’s missing battery. Pastor Varane came to Tasure and told Simon about the battery. Upon arrival at Tuzu, Simon asked the defendant about the battery. Instead, the defendant said “ufala wetem me. Bae mi tekem gun and shootim ufala”.
35. PW7 saw the defendant ran into his house and got a gun. The first shot was aimed towards him but it missed. The second shot hit Galo. PW7 was about 15 to meters away from Galo when he was shot. He heard Galo said that he had been shot and he told them to run away. They all ran away and hid at the coconut plantation. As he ran away he heard people saying that Galo had died.
36. In cross-examination, PW7 stated that they all went to the defendant’s house. The defendant was angry. When suggested that the defendant did not use a gun, PW7 stated that the defendant used a gun because he heard the noise of gun shots. He was shot at by the defendant with a gun and he retaliated by shooting the defendant with stones. By that time, he was about 25 meters away. He shot the defendant with stones after Rinta Galo was shot and fell down.
37. PW 8 was John Wayne. This witness assisted PW 3 to arrest the defendant. The bulk of the evidence from this witness relates to the manner and allegations during the defendant’s arrest.
38. PW9 was police officer Taero Sibwere. This witness was involved in the investigation of the case against the defendant. He was the person that drew a sketch plan of the scene of the offending from the information that he had gathered. The sketch was tendered and marked as exhibit “2”. Another sketch was also tendered as exhibit “3”. It was the sketch of the layout of Kinoso Village.
39. PW9 confirmed that the defendant’s wife told him that her son’s leg was fractured during the fight. He did not see any bandage on the child’s leg. He observed that the child looked normal on that occasion. He did not see the defendant at Kinoso Village when they arrived. PW8 further observed that the flooring of the defendant’s house was made of betelnut stock and there was spacing between the flooring.
40. The main reason for the police to go to Kinoso was to look for the gun that was allegedly used by the defendant. PW9 stated that they were not assisted by the villagers and no one was willing to give them information. They advised the defendant’s wife to lodge a formal complaint and further advised the villagers that the police will be stationed at Tuzu Village for further information. None of the villagers came to Tuzu to give further information.
41. In cross-examination, PW9 was asked why the police did not obtain statements at Kinoso Village and he answered that it was not safe for them. The defendant was said to be armed with a gun. The sketch he did was from information obtained from Zengava who was present at the scene. They saw stones and sticks at the scene.
42. PW 10 was Cedar Nevol. PW10 stated that on the 14^th July 2015, she received a call from PPC, Choiseul informing that an accused person has been brought over from Choiseul. A PRT Officer, Surutago handed to her four bullets at her office. She kept the bullets in her officer until recording officer, PC Irish Sogavaka arrived and took them to record.
43. In cross-examination, PW10 confirmed that after his arrival at Gizo, the defendant was placed in a cell. She further stated that she did not go out to check the defendant’s condition upon arrival at the station. If an accused person needs medical assistance, they can be referred to the hospital.
44. PW11 was Leslie Mule. PW11 is a police officer who conducted a record of interview with the defendant on the 14^th August 2015.When asked in cross-examination whether he had noticed any injuries on the defendant in August 2015, PW11 denied seeing any injuries on the defendant.
45. PW12 was Alick Alison another police officer as the witnessing officer of the defendant’s record of interview obtained on the 14^th August 2015 and PW13 was Irish Sogavaka, the police officer that recorded the bullets taken from the defendant’s bag as exhibits.
46. PW14 was Rachel Iro a police officer stationed at Gizo Police Station in 2015. She saw the defendant at the station. He was seated on a table with Constable Surutago. In cross-examination, PW14 stated she saw the defendant sitting with his wife. His niece came and saw him. She did not see any physical injuries on the defendant. He was not told by the defendant if he was in pain.
47. The last crucial evidence in this case is the evidence of PW15. This witness is Dr Howard Marau. PW15 is specialised in Anaesthesia. His job is to put patients to sleep and to monitor the blood pressure, heart rate and to make sure that everything is within accepted limits. He recalls that on the 23 July 2013, he attended to a patient by the name of Rinta Galo at Gizo Hospital. PW15 also confirmed producing a report of the patient. According to the patient’s history, he has sustained a gunshot wound to the abdomen. PW15, observed the patient to be in distress and in a lot of pain. He was pale and suggestive of someone losing blood. He identified a wound on the patient’s right upper quadrant on the right abdomen. He described the wound as point 5 by point 5 wound with no active bleeding. The patient’s abdomen was distended which was consistent with the injury sustained.
48. PW15 stated that the patient went through an emergency operation on the same day. It was noted during the operation that the wound from the skin extended down to the abdomen cavity. The wound ruptured the protective layer covering the bowels. They could not locate the bullet and they have to abort the operation after two hours into it because the patient was clinically unstable. He was then placed in the ward for blood transfusion.
49. PW15 further stated that part of the examination on the patient involved an investigation by an ultra sound scan. Three abdominal x-rays were conducted on the patient. The x-rays showed the area below the chest down to the pelvic bone. The first x-ray was taken on the 23^rd July 2013, a day before the operation on the patient. The second x-ray was taken on the 24^th July 2013 after the operation and the third x-ray was taken on the 26^th July 2013.
50. PW15 explained that the first x-ray film, shows fluids in the abdomen. The metallic object can be seen very faintly on the film. The second film was taken after 600mls of fluid was removed from the abdomen. The metallic object was clearly defined and visible in the x-ray film. The third x-ray film was taken because the patient was not passing urine and faeces. That x-ray film depicts the same metallic object as in the second x-ray film.
51. When asked in cross-examination when asked that he was not able to confirm that the metallic object was a bullet, PW15 answered ...”with the history that the patient gave and with the wound that was demonstrated on the patient’s abdomen and the x-ray that depicted a metallic object is suggestive of a bullet head and is consistent with a gunshot wound”. PW15 disagreed with the suggestion that the bleeding and the injuries could be caused by any metallic object and not just a bullet. He stated that the long incision seen from his report is a well-defined wound.
52. PW15 further explained that for a six inch nail, it would not show what he saw from the patient’s wound. The wound would be much smaller in size if a six inch nail was used. The size and shape of the object was also different from a nail. When further asked if the object was indeed a six inch nail, would that shape be also depicted in the x-ray film. PW15 agreed.

The defence evidence

53. The case for the defence is premised on the fact that the defendant was ambushed and attacked and had to use a sling to shoot the victim Amos Rinta to defend himself and his family. The defendant had given evidence on oath and twelve other witnesses were called on his behalf. The first defence witness was the defendant himself.
54. The relevant evidence of DW1, the defendant is to the effect that he lives at Kinoso Village with his family. On the 22^nd July 2013, he was at Kinoso Village. He stated that in the evening of 23^rd May 2013, a canoe carrying three people from Tasure drove past them to Tuzu. They shouted swearing words towards people at Kinoso. He was told by his elder brother to talk to the three boys and he did. The boys were Joseph Kelly, Vengu Calvin and Chillion Harrison. That swearing incident was not resolved.
55. DW1 further stated that the next morning, Simon Galo, who was married to his cousin went to his house to talk about what the three boys did the previous day. He requested to be given three to talk to the boys and sort the problem. He then left, got into his canoe and left for Tasure. Simon Rinta did not go back to Kinoso after that. He stated that in the evening of the 22^nd July 2013, he was at the village with his two sons. Other people were also at the village. They saw a blue fibro canoe travelled from Tasure to Tuzu. He was sitting with one of his sons on the ladder of his house. He saw a group of people walking towards them from the road. Simon walked to where they were and he asked Simon if they had come to sort out the swearing incident. Simon replied say that “you save today bae mifala aotim neck blo you lo place blo you. Kokorako, pussy cat, dog nomoa bae hem left lo place ya”. He pulled his son and they went to the veranda of their house.
56. DW1 further stated that he heard Simon say that he was an army commander and he instructed his boys to kill everyone. The boys shot him and his house with stones. Simon got hold of a big stone, ran up the ladder to the third step and shot it at him. The stone missed him and it landed on his son’s leg and fractured the leg. At the same time, Galo Rinta followed Simon armed with a spear and axe. The defendant’s brother Noah Zala was returning from the garden. Galo Rinta speared his brother Noah with the spear. The spear missed Noah. Galo Rinta retrieved the spear and ran towards him. Upon seeing the victim running towards him holding an axe and a knife and was on the first step of his ladder. The defendant then ran into his room and pulled his sling that uses wire and nail. He came out and shot Galo Rinta on his stomach with the sling.
57. For clarification, DW1 further stated that he shot Galo Rinta’s stomach after Simon injured his son’s leg. He said he was armed with a spear and an axe. After he shot Galo Rinta with his sling, Galo Rinta bend down and lay down on the ground. All the other boys saw that and ran away because he was their trusted man. DW1 further stated that his brother Smith Dengo told him to stop and he went and assisted Galo Rinta and led him to the seashore. He put Galo Rinta in his other brother’s canoe and paddled him to Tuzu.
58. DW1 further stated that he saw Galo Harrison held a sling and he shot his sister Liza’s head with it. Vengu Calvin held a knife and threw the knife at him. He saw Jonathan Zengava used a stone to shoot his house and broke his wooden louvers. Tanisupa Harrison used stones to shoot his house. Chillion Harrison and Joseph Kelly used stones to shoot him. Simon Rinta shot his son’s leg with a stone and fractured it. Galo Rinta was armed with a spear and an axe and also wanted to shoot him too. That was what they did to him before the accident occurred on the 22^nd July 2013. He further stated that he shot Galo Rinta after his son’s leg was fractured and his son was crying “daddy me die now, me die now”. He said he shot Galo Rinta in defence of himself and his son. He could not take his son to the clinic because of fear that they will be attacked again. They will have to go past the group’s village before they can reach the clinic. They were threatened by the other group. He used local herbs to treat his son’s leg.
59. DW1 further stated how he had tried his best to tell his side of the story to the police. He contacted the police through his brother-in-law in about July 2014. He wanted to surrender himself to the police. He said that police officers from Honiara came to him at Kinoso Village. They went and took photographs of the things used at the incident. Police brought him to Gizo, slept overnight there and he was brought over to Honiara by plane. One of the officers that went and got him from Kinoso was Soakai.
60. In Honiara DW1 was taken to Rove CID office and a statement was obtained from him. At that time, he surrendered himself and the sling that he used during the incident. After giving his statement, he was advised to wait until the other party came to court. Nothing was done about the case and after checking with the police again, he was advised to return home and wait until he was informed to come back to Honiara. He left for his home to attend elections on the 18^th November 2016. He made a surrender statement on the 28^th March 2014. When later asked by his lawyer, DW1 stated that he went back home in November 2014.
61. DW1 recalled he was arrested on the 14^th July 2015 at Tuzu Village. He went to Tuzu to buy smoke. He also bought betelnut. He was chewing betelnut and smoking when he felt something. Police officer Surutago whipped his hand with a knife and hit his ribs with a police baton. He saw another person also hit him with a police baton on his ribs and back. He also whipped his legs with the baton. He was cupped. He said he was assaulted by Surutago and other boys. The boys were Marlon Suritago, John Wyne, Zeno Lumbara and Gravis Rikapi. He was then pulled through a coconut plantation, to the place where their boat was stationed. They met a person by the name of Rows Zakele and he kicked DW1’s back. At that time Suritago pulled out DW1’s small basket, opened it and took out $200.00 from the basket.
62. DW1 was taken by boat to Kinoso Village. He saw a girl being pulled to the seaside. That girl was Leah Sokeni. On the beach Leah was assaulted by Joseph Kelly, Charlie Vuqaqolo and Rowa Zakele. Leah was then pulled into the boat by John Wyne. Dw1 further stated that Leah and himself were assaulted with paddles by Suritago and Gravis. They were taken to Katurasele, to Papara, to Sepa, to Goe, to Boe and to Sasamunga Village. DW1 stated that Leah and himself were threatened to be assaulted and were also actually assaulted along the way to Sasamunga. He and Leah also fainted along the way and none really bothered about their physical conditions. Their bodies were swollen from the assaults occasioned to them. They left Sasamunga at about 4.00pm and arrived in Gizo at about 7.00pm that night.
63. At Gizo, DW1 and Leah were taken to the police station. DW1 further stated that when Suritago removed $200.00 from his basket, he also took out four (4) bullets from that bag. Exhibit “1” was shown to DW1 and he confirmed that those were the bullets that Suritago took out from his bag. He further stated that the bullets belonged to Galo Kamake Rinta and that was the person that he shot with a sling. He said Joseph Kelly gave those bullets to him. I will not go further into evidence on this issue because it is hearsay and inadmissible. Joseph Kelly was not a witness in this case.
64. DW1 stated that at Gizo, he requested police to take him to the hospital because his whole body was painful and swollen. His eyes were blind. He was not taken to the hospital but was only given Panadol to drink. He was taken to the hospital after two weeks by Prison Officers. He requested a medical report but it was not done because the doctor was of the view that there was nothing wrong with him.
65. In cross-examination, DW1 stated that police went to Kinoso to see him and took him to Honiara in March 2015 and not in July 2014. His brother-in-law Kaipua arranged for police to go to him at Kinoso. He reconfirmed that Zengava, Tanisupa and Chillion shot stones at his house. Simon Rinta threw a stone at his son and broke his leg. He did not take his son to the clinic because they were threatened, He did not know that the police were camped at Tuzu to investigate the case and did not go to see the police. He was busy looking for herbal medicine for his son’s leg. He surrendered to the police in Honiara, the sling that he used during the incident.
66. When asked about the bullets, exhibit “P1”, DW1 stated that they belonged to Rinta Galo. Rinta Galo had a gun and the bullets belonged to him. They were given to him by Joseph Kelly. He further stated that Simon is married to Nose and they lived at Kinoso. After the incident of the 22^nd July 2013, Simon left Kinoso with his family and did not return. Dw1 denied taking Simon’s solar battery. He used a generator.
67. When asked about the incident of the 22^nd July 2013, DW1 stated that he was at the village with his two sons. Simon came first and then followed by Amos Rinta, Tanisupa and Zengava. He said it was not true that Simon asked for his battery. He said it was also not true that he told them to get out of his place. He further denied that he ran into his house to get a homemade gun. He also denied firing two shots with the gun. He denied firing the first shot towards Tanisupa and the second shot at Amos Rinta Galo. He said that he shot Galo Rinta with a nail. He further denied chasing Tanisupa, Chillion and Galo.
68. DW1 further denied in cross-examination that after Rinta Galo was shot, he walked towards them with a gun. He denied that Simon saw that and ran away. He also denied that Rayboy came from pastor's house and picked Rinta Galo up and took him to the seaside. He did not know that Rayboy made Rinta Galo sat on a cement grave. He also did not know if Noah was holding a knife. He denied kicking Rinta Galo’s face whilst he was lying down. He denied holding a gun in his left hand and a knife in his right hand. He said it was not true that he pointed the gun at Rinta Galo and told him he will kill him. He said it was not true that Noah chased Simon to the side of the river.
69. When further asked, DW1 stated that it was after Tanisupa shot at his house that he shot Galo Rinta. He further denied a suggestion that he ran away into the bush because he was armed with a gun on that day. He said he went to the bush to get local herbs for his son’s leg. He did not run away from the police. He said Galo Harrison shot his sister with a sling. That complaint was relayed to the police but no action was taken against Galo Harrison.
70. DW1 stated that when he was arrested on the 14^th July 2015, he was whipped by a baton. Leah Sokeni is his niece. He denied going around with Leah with a gun in the village. He further denied they restrained people from going to their gardens. He denied owning any homemade gun at all. He however confirmed that the bullets were retrieved from his bag and they belonged to Rinta Galo. He agreed shooting Rinta Galo but it was with a sling not a gun. When DW1 was referred to PW14’s evidence, he still denied it was a bullet but a nail.
71. DW2 was Manus Enock, the defendant’s 12 years old son. DW 2 stated that he went to school on the morning of that day. After coming back from school and later that day, he was sitting with the defendant on the ladder of their house. He then said Rinta’s group walked towards their house. His dad, the defendant asked if they were there to solve the swearing problem. He heard Rinta said “I am the commander of the army. Pussy cats, dogs and kokorako nomoa bae left lo village. Pikinini and everyone lo village bae mifala killin die”. The defendant pulled him to the veranda of their house. He saw Rinta hold motu stones. From the second step of the ladder of our house he, shot the defendant with the stone. The stone missed the defendant and it landed on his leg. He cried and said dad me die now. Stone kasem leg blo me. He could not walk for some time after he was shot. He did not see anything else happened that day.
72. In cross-examination, DW2 stated that they shoot his father’s house that day. He said he could not recall if police came to their village.
73. The third defence witness called was Vavi Lapo. She is from Nuatabu Village. She was married to the defendant and she had three sons with the defendant. She could recall that on the 22^nd July 2013, she had gone to the garden. On her return, she saw their house was broken. She went inside the house and saw her son. His leg was broken and she asked as to what had happened. In their house, she saw stones and a spear was hanging on the beam of the house. Her son’s leg was bandaged with bamboo and a piece of cloth. The wall and window of their house were broken. They did not take the child to the clinic because they were afraid. It was after about two months before her son could walk again. She said that three police officers went to their village after the incident. She was in the village then.
74. DW3 stated that the police took photographs that day. They took photos of the house and stones and also on her injured son. She told the police that Simon Rinta broke her son’s leg. Nothing was done about it. She did not give a statement to the police on that day. Apart from her son, no one was injured on that date. She did not see any one from the village gave any statement to the police. The defendant was not in the village when the police arrived.
75. In cross-examination, DW3 stated that the defendant was in their house when she arrived from the garden. The defendant and other people from the village told her that some boys came and broke the house. She said the police came to their village, about three days after the incident. They did not take the child to the clinic. Police took the photos on the 25^th July 2013.
76. DW3 further stated that the defendant was not at Tuzu when police went there on the 17^th July 2013. She did not know where the defendant had gone to. She also stated that she did not know if the defendant had run away because he shot Rinta Galo.
77. The fourth defence witness was Chelsen Pitakia. DW4 is from Kinoso. He could recall that on that day he had gone to his father’s village at Kolokapisi. Upon returning that evening, he observed that the village was quiet. He saw all his aunties, sisters and granny crying and he asked why they were crying. They told him that something big happened in the village that day. His uncle’s house was damaged. The walls and windows were damaged. He saw stones, spear and knife. His mother also showed him an injury on her head. His mother is Liza Kodo. His solar panel was damaged as well.
78. In cross-examination, DW4, his uncle, the defendant was not in the village when he arrived. He denied that his uncle had run away into the bush. He denied hearing any gunshot and he did not know who damaged his solar.
79. DW5 was Elrick Tanamama. This witness is also from Kinoso Village. He was not at the village when the incident occurred. It was only upon his return that he learnt about the story. He saw stones, spear and sticks lying near the defendant’s house. The window of his house was damaged. His brother’s leg was fractured. He saw his brother’s fractured leg.
80. In cross-examination, DW5 stated that the defendant was not in the house when he arrived. He was also not in the village. He did not hear the defendant shoot with a gun. He denied that the defendant ran away to the bush.
81. DW6 was Leah Sokeni. She is from Katurasele. DW6 stated that on the 17^th July 2015, the defendant told her and John Pitakia to go and witness what Joseph Kelly wanted to say to him. I will not discuss this evidence because it amounts to hearsay. Exhibit “P1” was shown to this witness.
82. DW6 further recalled the incident on the 14^th July 2015. That morning she went to Tuzu Village to buy betelnut and smoke. She noticed that a crowd of people had gathered near a canteen. As she moved closer, she saw someone assaulting her uncle. She saw Marlon Suritago hit him with a police baton. Another civilian also hit the defendant with a baton. Rawo Zakele and Gravis Rikapi assaulted her uncle Kodo. She saw Suritago twisted the defendant’s hand and cuffed him. They then took him to the seaside, put him in their boat. She then heard Suritago instructing other people to get hold of her. Henry Toto and Samuel Basia got hold of her and led her to the shore. Joseph Kelly came around and kicked her on her ribs and she fell down. They then pulled her to the seashore.
83. DW6 also stated how she was further assaulted and pulled into the boat. DW6 further talked about the assaults and abuse on her during their trip from Kinoso to Katurasele, to Papara, to Sepa, to Goe, to Boe and to Sasamunga Village and also to Gizo. Her face and body was swollen from the assaults that were occasioned to her.
84. In cross-examination, DW6 stated that she recorded the events she talked about in court in her diary. When asked when she recorded the events, she said in 2015. When further asked, she said she transferred the records to another diary in 2017.
85. DW7 was David Siau. He is from Malaita. He was a former police officer. At present, he is under suspension. He could recall that in about 2014, a suspect was brought over from Choiseul. He was Enoch Kodo. Soakai brought him to the CID office. He was tasked to record an open statement from him and later released him. In his statement the defendant told him that there were two issues. The first issue was an ongoing land dispute between himself and the other group. The other issue was that the other group came and attacked him at his house. He then retaliated and used a nail to shoot a man.
86. DW7 further stated that the defendant gave him a sling and a 7 inch nail. It was one inch in length. It was cut and sharpened. He was not involved in the investigation of the case. He was informed by his boss that the defendant had a gun in his possession.
87. DW8 was Noah Zala, one of the defendant’s brothers. He could recall that there was a big fight on the 22^nd July 2013. On the morning of that date, he went to his garden. He returned home in the afternoon. He left his canoe, carried his bag of food and was walking to his house when he saw people shoot his brother’s house. His brother was Enoch Kodo. He recognised the people as their nephews. They were Simon Rinta, Galo Rinta, Galo Harrison, Vengu Calvin and Joseph Kelly. They were throwing stones. He was about 8 meters away from them. He saw Galo Rinta shoot him with a spear but it missed him. He then saw Galo Rinta picked that spear and walked towards the defendant’s house. He shot DW8 with the spear three times. Galo Rinta threw the spear at the defendant but missed him. He saw the spear got stuck on the beam of the defendant’s house.
88. He further stated that he then saw Simon Rinta with a bush knife. He tried to cut DW8 with the knife but it missed. He cut Simon’s hand with the knife he was holding. The knife Simon held fell down and Simon ran away. He stated that after the fight, two people were injured. He also confirmed that the defendant’s son’s leg was fractured.
89. In cross-examination, DW8 said that he was armed with a knife and he cut Simon’s hand with the knife. He denied kicking and punching Galo Rinta. He also denied that the defendant shot Galo Rinta with a gun. He further stated that the defendant did not have a homemade gun. He recalled that after the fight police went to Kinoso. He was at the village that time but the defendant was not at the village. He could not recall if the defendant’s wife told police about the child. He nonetheless said that he did not ask the police officers to assist them take the child to the clinic. He further stated that it was not true that the defendant had run away and hid in the bush after the incident. He said Galo Rinta was holding a spear.
90. DW9 was Deniva Dulude. She is from Kinoso Village. She recalled she was at the village on the 22^nd July 2013. She was minding her grannies, her daughter’s children. She was underneath her brother Noah’s house with the children. She saw a group of people walking towards their village. At the same time, they shouted “kilim hem”. Some of them were holding stones and knife and they were walking towards her brother’s house. DW9 walked towards them and talked to them saying “ae, no way for setolim problem ufala doim ia. Ufala easy nomoa and stretim”. She then heard someone said, Deniva, knife, knife na come”. She saw the knife and ducked. The knife missed her. She did not see who shot the knife at her. People were running around. She was afraid and cried. She was shaking.
91. DW9 further stated that she saw Amos Galo Rinta ran to the defendant’s ladder. She saw him start to climb up the ladder and he fell back onto the ground. She saw her brother Smith went and held his hand and led him to the seaside. He put the victim in the canoe and paddled him to Tuzu. At that time, she did not see any of the other men. She said she initially saw the men surround the defendant’s house holding stones, knife, spear, axe, sticks and timber. She also saw small Manus’s leg fractured. They did not take him to the hospital because they feared the other group. They have to go past their village before the clinic.
92. In cross-examination, DW9 denied that the defendant shot Amos Rinta with a homemade gun. She further denied that Simon Rinta went to assist Amos Rinta. She further denied that Zengava and Rayboy carried Amos Rinta to the seaside. She further denied that Zengava paddled Amos Rinta to Tuzu. She did not see what had happened to Manus’s leg. She confirmed that police went to Tuzu three days after the incident. She was at her garden on that day.
93. DW10 was Lisa Bari. This witness is one the defendant’s sisters. She could recall that on the 22^nd July 2013, she was at her brother, Noah’s house looking after her grannies. She heard an outboard motor went past to Tuzu. Her granny told her that some people were coming. Straight away they stoned the defendant’s house. She panicked. She stood up and Galo shot her with a stone on her right forehead. She did not know what happened thereafter.
94. In cross-examination, DW10 stated that she did not see what injured Manus’s leg. She said that Galo Harrison shot her with a stone.
95. DW11 was Pastor Samson Varane. He is from Langalnga and Bareho. He recalled an incident happened in May 2013. Some boys came and said some bad words and the defendant was not happy. That incident had led up to the incident in July 2013. The bad words were made against Kinoso Villagers. As a Pastor, he tried to arrange a reconciliation between the parties.
96. He was not at Kinoso on the 22^nd July 2013. He returned to Kinoso on the 23^rd July 2013 and heard about the incident. He went and saw the defendant and told him that he had spoilt the arrangement for reconciliation. He also went to Tasure and talked with Galo Rinta.
97. In cross-examination, DW10 stated that he did not talk to Simon about his missing solar battery. He talked with Galo Rinta but he could not talk properly because he was injured. He knew Simon left Kinoso and went to Tasure in May 2013.
98. DW11 was David Soakai. This witness is a police officer. He was involved in the defendant’s arrest in March 2014. They left Honiara on the 25^th March 2014. He went and saw the scene and collected everything. He was informed by the defendant that his son fell from his house and fractured his leg. The defendant’s house was a high house. He did not take photographs because he had no camera.
99. In cross-examination, he stated that he handed everything to Gizo police. He did not know if the defendant had surrendered a sling. The witness was shown exhibit “P1” and he identified them as bullets. In re-examination, DW11 was unsure if the child fell down or was injured.
100. DW 12 was Selwyn Rotu who was a former police officer. He was involved in the defendant’s arrest in 2014. They received information that the defendant was willing to surrender. They went to Choiseul and took the defendant to Honiara.

Analyses of the evidence

101. After having discussed the evidence from both the prosecution and the defence, I would now turn to analyse the evidence as presented. For the offence of attempted murder, the relevant evidence adduced by the prosecution came from PW1, PW2, PW4, PW5, PW6, PW7, PW9 and PW14. PW1, PW2, PW4, PW6 and PW7 were present at Kinoso Village on the 22^nd July 2013 when the incident occurred.
102. I can conclude from the evidence of the prosecution as well as the defence, that there was a fight at Kinoso Village on the 22^nd July 2013 between men from Tasure Village and residents of Kinoso Village including the defendant. There were differing reasons for the fight, one being for previous swearing against Kinoso villagers and one for a missing solar battery belonging to Simon Galo.
103. I have noted from the evidence of PW9, police officer Sibwere that when they went to Kinoso to carry out investigation into this case, they were not assisted by the villagers and no one was willing to give them any information. The evidence of PW9 is corroborated by the evidence of DW3, Vavi Lapo, the defendant’s wife. DW3 stated in evidence that she did not give any statement to the police when they went to Kinoso. She further stated that she did not see anyone from the village gave a statement to the police during investigation. I am baffled by that attitude because, common sense would prevail that when someone do you wrong, you would be willing to come forward to assist with any investigation by the police. This situation at Kinoso following the shooting incident was different. People were tight lipped about the incident. Surprisingly, almost 10 witnesses had to travel to Honiara from Kinoso to give evidence in this case, on behalf of the defendant.
104. Apart from a few inconsistencies, which in my view do not go to the crux of this case, the evidence of PW1, PW2, PW4, PW5, PW6, PW7 had revealed a similar picture of what occurred at Kinoso Village on the 22^nd July 2013. A group of men consisting of those witnesses travelled from Tasure to Tuzu. They intended to go and see the defendant about PW5’s missing battery. Another reason for going to Tuzu on that day was to look for betelnut and smoke. Whilst PW5 approached the defendant at his house, the other boys were sitting at a bottom of a coconut palm tree. When he asked the defendant about the battery, the defendant shouted and told them to get out from his place otherwise he would kill them. He was armed with a knife.
105. It is also common ground from the six prosecution witnesses that the defendant then ran into his house and got hold of a gun, came out with it, leaned it on his window and took an aim towards Tanisupa (PW7) fired a shot and missed him. He then fired another shot and it hit PW1, Amos Rinta (the victim). It is important to note at this stage that PW4 was watching the defendant from under his house. The flooring of his house was made of betelnut palm and had spaces between them. He was able to see clearly what the defendant was doing inside his house. PW9’s evidence in court supports PW4’s evidence. PW9 had stated in evidence that the flooring of the defendant’s house was made of betelnut stalk and there was spacing between the flooring.
106. The other evidence from the prosecution came from PW14, Dr Marau. In his report as well as his oral evidence in court, Dr Marau indicated that the victim was injured. The injury was consistent with a bullet wound. The wound was 0.5 x 0.5 cm in size. The x-ray also shows a bullet head in the right side of the abdomen. The injury could have been more fatal if bigger blood vessel or high vascular organ was hit by the bullet. When suggested that the object in the x-ray film could be a 6 inch nail, PW14 stated that the wound he saw was not a wound from a nail.
107. The defence version of what took place was that the defendant was ambushed at Kinoso Village by the Tasure boys on the 22^nd July 2013. The boys were armed with knife, axe, spear, sticks and stones on that day. When the defendant inquired if they were there to sort out the swearing problem, PW5 told him that they will cut his neck off and only chickens, cats and dogs will be left in the village. He heard PW5 saying that he was an army commander and he instructed his boys to kill everyone. The boys then started shooting his house with stones and damaged it. PW5 ran up his ladder with a stone and threw it at him. The stone missed him and landed on his son’s leg and fractured his leg. At the same time PW1 (the victim) also ran up the defendant’s ladder armed with a spear and an axe. His brother Noah was returning from his garden and the victim threw the spear at Noah but it missed him. The victim retrieved the spear and ran towards the defendant. It was then that he ran into the room, got the sling and nail and shot the victim’s belly with it.
108. It is noted at this stage that the defence had not cross-examined PW5, Simon Rinta about the allegation that PW5 will go and talk with the Tasure boys about the swearing incident.
109. It is also interesting to note that another version of the defence case is in relation to the injury to the defendant’s son’s leg that came from police officer David Soakai (DW11). In his evidence in-chief DW11 stated that the defendant told him that his son fell from his house and injured his leg. The defendant’s house was a high one. In re-examination the witness was unsure whether the child had a fall or was injured. The evidence of PW5 would also be relevant on this issue. When asked by the court if he knew that the defendant’s son’s leg was fractured, PW5 stated that he knew because he stayed in the same village. He further stated that the child’s leg was fractured about a week before the incident on the 22^nd July 2013.
110. The prosecution case further alleges that when the victim (PW1) fell to the ground after he was shot PW5 tried to assist him but the defendant had continued to pursue them. PW5 ran away and the victim was further assisted by PW4 and PW6. They made him sat on a cement grave and he was further assaulted by the defendant and his brother Noah Zala, DW8 and Parku. On that day, PW5 was also injured. His hand was cut by Noah Zala with a knife.
111. The defence version of what happened was after the victim fell to the ground, he was assisted by the defendant’s brother, one Smith who took him to the seaside, put him in a canoe and paddled him to Tuzu. Smith was never called as a witness for the defendant to confirm that position.
112. It was further alleged by the defence that PW7 shot and injured the defendant’s sister’s forehead with a stone. It was however obvious that the injured people from the fight at Kinoso on the 22^nd July 2013 were PW1, the victim and his brother Simon (PW5).

Credibility of witnesses

113. I have observed the prosecution witnesses as well as the defence witnesses in the witness box whilst giving evidence and I have noted their various demeanours. Upon my observation, I tend to believe the prosecution witnesses and I do not doubt their respective evidence. The prosecution witnesses are credible witnesses.
114. It is quite obvious that the evidence of the civilian witnesses for the defence are somewhat fabricated. Take for example, the evidence of DW2, the defendant’s 12 year old son. DW2 was about 4 years old in 2013, just a child. How would it be possible for him to recall every single words that were exchanged between the men in 2013. In court DW2 was adamant about what he heard and saw. He was a rehearsed witness. He was instructed by someone to say the exact words he said in court. It is sad that this child witness was induced to lie about his fractured leg in court in order to support the defendant’s case and theory of his defence.
115. The other witness that I wish to discuss is DW6, Leah Sokeni. She was also a rehearsed witness. In court she talked about recording the events in her diary. When further questioned, she stated that she transferred her records to another diary in 2017. The alleged incident occurred in 2013, some 4 years prior.
116. The other civilian defence witnesses are related to the defendant. During police investigation, those witnesses did not give any information about the incident to the police. They came to court and gave evidence on behalf of the defendant some 7 years later. Due to the above discussion, I do not believe that defence civilian witnesses are credible witnesses in this trial.
117. The effect of the evidence of DW 7- David Siau, DW12- David Soakai and DW12- Selwyn Roto is that the defendant had surrendered to the police the weapon and object he used in the attack.

Whether the defendant attempted to kill the victim Amos Rinta Galo

118. As I have already mentioned in this judgment, there is no issue that the defendant shot the victim Amos Rinta Galo. After having analysed the evidence in this case I can find as a fact the following:
     1. There was a swearing incident by some boys from Tasure Village towards Kinoso Villagers on the 23^rd May 2013. They were Joseph Kelly, Vengu Calvin and Chillion Harrison.
     2. The defendant was angry about that incident.
     3. That problem was not settled up until the 22^nd July 2013.
     4. A group of men from Tasure Village came to Tuzu and then to Kinoso on the 22^nd July 2013.
     5. Jonathan Zengava accompanied the group of men from Tuzu.
     6. A fight erupted between the defendant and some villagers with the group of men.
     7. During the fight a homemade gun was used by the defendant.
     8. The defendant shot the victim (Amos Rinta Galo with the homemade gun.
     9. After having injured the victim, the defendant further assaulted the victim and threatened to kill him.
     10. The victim was injured and taken to Gizo Hospital where an emergency operation was conducted.
     11. The bullet head could not be located during operation and the victim had to live with the bullet head for life.
119. With the above findings of fact, I am therefore satisfied beyond all reasonable doubt that the defendant shot the victim with a homemade gun at Kinoso Village on the 22^nd July 2013. I am also satisfied beyond all reasonable doubt that the defendant intended to kill the victim on that occasion.

Whether the defendant acted in self-defence

120. The defendant had stated in evidence that he shot the victim after he saw his son’s leg broken. He stated that Simon Rinta (PW5) shot and broke his son’s leg on that occasion. He said he also saw the victim armed with a spear and an axe to attack him. He retaliated and shot the victim with a sling. As discussed, I do not believe his son’s leg was injured by a stone thrown by PW5. I believe the evidence of the independent witness, David Soakai (DW11). He told the court that the defendant told him his son fell from their house and broke his leg. That piece of evidence places the defendant’s defence of self-defence to be unavailable to him.
121. I can therefore determine that the story about the defendant’s son leg being broken is a fabricated one. It could have been made up by the defendant. I am equally satisfied beyond all reasonable doubt that the prosecution had rebutted the defendant’s defence of self-defence. I therefore find the defendant guilty of attempted murder contrary to section 215 (a) of the Penal Code (cap 26).

Charge of in possession of ammunition without firearm license

122. For the charge of in possession of ammunition without firearm license contrary to section 5 (2) of the Firearm and Ammunition Act (cap 80), the evidence adduced by the prosecution came from PW3, PW10 and PW13. These three witnesses are police officers.
123. PW3 retrieved the 4 bullets from the defendant’s bag when he arrested him at Tuzu Village on the 24^th July 2015. Those exhibits were given to PW10 at Gizo Police Station. PW13 received and recorded the bullets as exhibits. The bullets were tendered to court and marked as exhibit “P1”.
124. The defendant did not deny that the 4 x bullets were taken from his bag at Tuzu Village when he was arrested by PW3. His explanation is that the bullets belonged to the victim. One Joseph Kelly gave the bullets to him. Joseph Kelly was not called as a witness and that evidence is hearsay and inadmissible in this trial.
125. There is no dispute the 4 x bullets were in the defendant’s possession when he was arrested on the 24^th July 2015. I am therefore satisfied beyond all reasonable doubt that the prosecution had proved the offence under section 5 (2) of the Firearm & Ammunition Act (cap 80). I convict the defendant accordingly.

Orders of the court

1. The defendant is found guilty and convicted of the offence of attempted murder contrary to section 215 (a) of the Penal Code (cap 26).
2. The defendant is found guilty and convicted of the offence of in possession of ammunition without firearm license contrary to section 5 (2) of the Firearm and Ammunition Act (cap 80).
3. The defendant is hereby remanded in custody awaiting sentence.

THE COURT
Justice Maelyn Bird
Puisne Judge