R v Napuae [2023] SBHC 131; HCSI-CRC 549 of 2021 (12 May 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Napuae
Citation:
Date of decision:	12 May 2023
Parties:	Rex v Ishmael Napuae, Charles Tanen, Samson Muanivi, Joses Miave, Henry Roto, Nickson Kapitene, Alban Mengo and Michael Mupio
Date of hearing:	1, 2, 3, 4, 5, 9, 11 May 2023
Court file number(s):	549 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. The Accused Ishmael Napuae, Charles Tanen, Samson Muanivi, Joses Miave, Henry Roto, Nickson Kapitene, Alban Mengo and Michael Mupio are all acquitted on the charge of murder. 2. It is not necessary to consider any alternative charge.
Representation:	Mr V Taupongi & Ms G Waletofea for the Crown Mr S Aupai for Samson Mauanivi, Michael Mupio and Nickson Kapitene Mr B Alasia for Charles Tanen, Henry Roto and Joses Niave Mr D Houa for Ishmael Napuae and Alban Mengo
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:	Alagere v Reginam [2015] SBCA 22

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case 549 of 2021

REX

V

ISHMAEL NAPUAE, CHARLES TANEN, SAMSON MUANIVI, JOSES MIAVE, HENRY ROTO, NICKSON KAPITENE, ALBAN MENGO AND MICHAEL MUPIO

Date of Hearing: 1, 2, 3, 4, 5, 9, 11 May 2023
Date of Judgment: 12 May 2023

Mr V Taupongi & Ms G Waletofea for the Crown
Mr S Aupai for Samson Muanivi, Michael Mupio and Nickson Kapitene
Mr B Alasia for Charles Tanen, Henry Roto and Joses Niave
Mr D Houa for Ishmael Napuae and Alban Mengo

VERDICT

Introduction

1. The eight Accused are charged with the murder of the Deceased on 22 December 2029. He died on 31 December 2029. The Crown alleges that he was the victim of a customary practice referred to as a ‘wild man’ killing. This verdict is solely concerned with deciding whether the Crown has proven beyond reasonable doubt that each of the Accused was either a principal or a party to causing the death of the Deceased by an unlawful act with malice aforethought.
2. The Crown had called eight witnesses and a further eleven statements from nine witnesses have been tendered by consent. Some of those statements have been edited as a result of agreement between Counsel. The Crown case is that Samson Muanivi held a piece of reinforcing rod that was about 50cms in length and about 3cms in diameter. He is alleged to have struck the Deceased on the back of the neck and the abdomen and the buttocks causing him to fall to the ground. He is then alleged to have pushed about 6 inches (14cms) of the rod into the anus of the Deceased and then withdrawn it. Charles Tanen is then said to have used a knife to remove the testicles of the Deceased. Alban Mengo is alleged to have rubbed red leaves over the body of the Deceased reviving him. The remaining Accused together with Alban Mengo are alleged to have aided and abetted Samson Muanivi by holding the Deceased and five of the Accused are alleged to have pulled down the trousers of the Deceased and all the Accused are alleged to have encouraged Samson Muanivi and Charles Tanen by their presence.

The evidence- The Exhibits

3. Three exhibits were produced. PE1 was the length of reinforcing iron PW1 alleged to have used by Samson Muanivi.
4. PE 2 is a collection of documents: (a) the Death Certificate of the Deceased, (b) A medical report from the Clinic at Nembao relating to the Deceased concerning observations and treatment on 28 and 31 December 2019 and (c) the patient notes recorded at the Nembao Clinic on 26, 27 and 28 December 2019.
5. PE3 is the Burial Certificate for the Accused certified by Reverend Ambrose Muna. It confirms the Deceased had a burial service on 1 January 2020 at Aveta Village.

The Evidence – Witnesses

6. PW1 knows all the Accused. He is related to most. He said that on 22 December 2019 he went to the bush to collect wild yams. He said that on his return about 5:30pm he saw the Deceased tackled by all the Accused except Samson Muanivi. He said Michael Mupio was holding the Accused by the hand while the others were holding his body. He said Samson Muanivi hit the Deceased with the rod on the back of the neck, the abdomen and buttocks causing the Deceased to fall to the ground. He said that the Deceased struggled on the ground. He said the Deceased was wearing a cloth and trousers, that the cloth fell off and Charles Tanen, Ishmael Napuae, Nickson Kapitene, Alban Mengo and Henry Roto removed the trousers. He said he could see Samson Muanivi then push the rod into the anus of the Deceased. He said he was close enough to see that it was pushed in about 6 inches. He said the rod was pulled out and the trousers pulled up. He then said that Charles Tenen pulled down the trousers again, took out a yellow handled knife and cut the Deceased removing his testicles and throwing them to the side of the road. He said there was a lot of blood. He said that Joses Miave then took some red leaves from his pocket and rubbed them over the body of the Deceased, in particular the neck and abdomen and the effect was to revive the Deceased who he said had died. He changed that to saying that he was unconscious then later changed again to say he had died. The Deceased then got up, looked weak but walked with the others to where PW1 was and they all went to a stream where the Deceased washed in the stream and then Charles Tanen also washed him. He said he saw there was blood.
7. In cross examination he said that Samson had hit the Deceased three times. On the neck, on the abdomen and on the buttocks.
8. He also said that on an unknown date he had previously spoken with Charles Tanen who had told him that they were going to kill the Deceased, although he did not say who ‘they’ were. After the events he described, he said Charles Tanen gave him $100.00 and told him to tell no-one but to keep an eye on the Deceased until he died. He agreed that he had not said anything to the Deceased about the plan to kill him.
9. PW2 said that she was at her home at Nembao and saw Samson Muanivi walking towards Nembao along the beach on 22 December 2019 about 6:00pm together with Michael Mupio, Ishmael Napuae and Charles Tanen she said they were walking towards Nembao from the direction of Aveta. She said that Samson called out to her husband saying words that mean “Goodnight brother”. She says she knows it was Samson because she recognized his voice. She was challenged about whether it was in fact those who she had seen and whether it could have been on a different day. She did not know what day of the week it was nor what she had been doing earlier in the day. She was shown her statement made to the Police in June 2020 and it was pointed out she had not mentioned seeing Ishmael Napuae in her statement. She agreed she goes to church on Sunday and after some pushing eventually agreed that 22 December 2019 was a Sunday.
10. PW3 is a chief from Aveta Village. On an unknown date he was asked to assist the Police to bring Joses Miave to the Police. The Police had told him it was in relation to the death of the Deceased. PW3 went to get him and Joses followed him to where the Police were. He said that Joses Miave had told him to tell his family he is heading to Lata and if they do not see him he may be going to Honiara. He said to tell the family that he has a problem with a group that is why he is going to Lata. He said he was involved in the incident but did not say what the incident was, nor who the group was he had a problem with or how he was involved.
11. PW4 is an Anglican Priest. He was asked about a visit from Samson Muanivi. When advised of is right to privilege as a priest he asked to exercise that right.
12. TPW5 is a cousin of the Deceased. He said he saw the Deceased on 1 January 2020 after he had died. He was involved in washing the body. He said the testicles were not there and when he touched the private parts smelly pus was coming out. He said the scrotum was loose. He said the anus was open and blood and worms came out of his anus. He said he touched the back of the neck of the Deceased and it was not intact but was soft. He said the wife of the Deceased was present when he washed the Deceased, his sisters were there but they did not come closer because he was their brother. He described marks on the neck and abdomen of the Deceased as yellow as if there was pus. He said there was rubbish coming from his anus. He said the rubbish was like bad blood. In cross examination he said he could not see what caused the testicles to be missing nor could he see what may have caused the anus to be open.
13. PW6 was the nurse at the Nembao Clinic who attended the Deceased on 31 December 2019 then attended him the following days when he certified the death. He performed a physical examination of the Deceased on 31 December 2019, noted that the back was painful and saw there was blood in his stool. It was through him that PE2 was produced.
14. PW7 is a cousin of Michael Mupio. On 25 January 2020 he went to a festival called St. Paul’s festival. There he was watching activities with Michael Mupio. They were chatting, telling stories and discussing the activities. He said that Michael had said he was the Commander for Wild men. It was just part of the normal talk. He said that the meaning of Wild Man is someone who lives in the bush. He clarified that as being Wild Men are the people who do work or go around in the bush.
15. PW8 is from Santa Cruz. He is an elder and described the practice of killing by ‘wild men’ as part of the culture in Santa Cruz. He said it is a custom when people do not live in peace. He described different methods of such cultural killing. Before they used a bow and arrow. They also used a stick. As long as it touches the victim he would fall down. Rubbing a green leaf on the victim would prevent the victim from telling who did it to him. The victim would return home and die in 4 or 5 or 6 days. Another practice he said would be to push a stick into the anus of a male or vagina of a female. And turn it so the intestine would break if the victim was a woman they would first have sexual intercourse with her then push dirt and leaves into her vagina. She would die in 1 to 3 days. They would rub a leaf on her body that would allow her to live for certain days then she would die. He did not know the colour nor the name of the leaf. He said they could use a piece of iron or a stick to push into the anus of a male and on other occasions they would castrate the scrotum. He said the Wild Man would poke the body with a stick then put the stick in the wild man’s mouth and the victim would not know what had happened. PW8 said he heard the elders say that sometimes the victim could not talk and in 1, 2, or 3 days he would die.
16. He said that indications that the killing is by ‘wild man’ custom is that sometimes the abdomen would be swollen-more so in a woman. He said that when they castrate the man they would rub a leaf so that it would not bleed. The consequence of such a killing is the body would be black. He said that an indication that the killing was by wild man was that after the death the person who does the killing would be happy. This shows that he is the person who did the killing.
17. The above witnesses were the viva voce witnesses. The remaining witnesses had their evidence admitted by consent.
18. On 22 January 202 the Police took a statement from PW9. He stated that the people of Aveta were suspicious of the cause of the death of the Deceased because his illness was so short. On Christmas Day 25 December 2019 he was with the Deceased and his wife attending a feast at Abaga settlement. He said the Deceased drank some beer and danced a Tikopian custom dance but afterwards the Deceased reported a pain in his belly and lay down on a mat. They returned to Aveta at 10:00pm. The next day the Deceased was sick. He said that on 28 December 2019 the Deceased was taken to the clinic at Nembao returning that night. The Deceased returned to the clinic on 31 December 2019 and returned that night when he died. After the Deceased was buried PW9 was one who stood as security at the grave as did others including one of the Accused. PW9 expressed his views as to behavior he considered suspicious.
19. PW 17 had his statement taken on 29 March 2021 nearly 15 months after the death of the Deceased. He confirms that the Deceased was socializing on 25 December 2019, dancing, drinking beer and chatting.
20. PW11 is the widow of the Deceased. She cared for the Deceased when he became ill. Her statement was not recorded until 29 April 2020. She records that on 25 December 2019 the Deceased complained of a sore belly. That must have been after the socializing on Christmas Day. She said she took the Deceased on the boat belonging to PW19 to go to the clinic at Nembao. She said on the way he passed rubbish from his anus, the rubbish being half piece of stick, leaves and worms. The Deceased rested with his head on her lap as they went to the clinic. She stayed with the Deceased at the clinic for two nights. The Deceased was nursed by a nurse aid who then sent for Isaiah Narobo to come to examine the Deceased. She confirmed he did come and was there when the Deceased was passing stools. She confirmed that he died on 31 December 2029. She set out what she considered was suspicious behavior from PW1 and from the Accused Nickson Kapitene. The Crown has sought to explain away the behavior of PW1 as resulting from what he said he was instructed to do. That does not account for why he followed PW11 to the garden when she was planting kumara just standing two metres from her, and when asked why he had snuck up on her he just laughed with what she described as crazy laugh.
21. It is clear that as the illness of the Deceased progressed rapidly to his death, people stated to have suspicious about the behaviour of those around and whether that meant that they were involved in the death of the Deceased. PW11 went to some lengths to set out her suspicious.
22. PW10 transported the Deceased and his wife to the clinic at Nembao on 26 December 2019 leaving them both at the clinic. He said that he saw a total of three worms in his boat that the Deceased had passed from his bowel on the trip to Nembao. He gave a further statement more than a year later on 5 April 2020 and by this stage the reference to human waste included the presence of rotten leaves that smelt bad. That was not mentioned in his earlier statement. He also recorded that on the boat trip to the clinic the Deceased rested his head on the lap of his wife. He confirmed that the Deceased had been dancing on 25 December 2019.
23. On 8 May 2020 PW13 gave a statement to the Police about the death of the Deceased. It is understood she is the sister of the Deceased. She said there was talk about the death being suspicious because the death was so sudden. She added an addendum that after the death of the Deceased, the wife of the Deceased PW11 had bathed the Deceased and spent 5 to 7 minutes looking for his scrotum but there was nothing. This confirmed to her that the Deceased was killed. The difficulty with this evidence is that it is not consistent with evidence of either PW11 or PW5. Significantly, in spite of setting out her suspicious about her husband’s death PW11 does not claim to have done this.

The Medical Records

24. PE2 tells a clear story. On 20 January 2020 PW6 signed the Death Notification in which under the heading ‘Manner of Death’he has recorded “Dysentry/Severe Pneumonia/Hypotension’. The report has an entry for 28 December 2019 that records:
    • “28/12/19 Haroald been urgently transported to Nembao Clinic via out board motor for Aveta. On that boat few family members & the ... was also on that boat. During that time pt [ie patient] was having nasty smell associate with passing of watery stool, worms also seen coming out of his stool (round worms). On arrival to Clinic few nearby houses also mentioned pt was having nasty odour smell. Clinic nurse aide diagnosed him with diarrhea, where she gave zinc for Diarrhea & acbendazole for worm, ORS for re-hydrations overnight @ the clinic and discharge.”
25. The patient notes for 26 December 2019 record:
    • “Harold Rangitotonu 60 yrs male from Aveta rush in clinic/chx of passing watery stools, Body weak, fever. Abdominal pain from Aveta BO x 2 worms seen in the stools. Very smelly. Onset of passing watery stools today.”
26. By 10:30pm he still had watery stools. By 2:30 the next morning he was a bit better. He talked till morning. By 3:30pmthe diarrhea had stopped and treatment was given. He was again monitored overnight and discharged on 28 December 2019 at 8:30am.
27. On 31 December 2019 the Deceased returned to the clinic. The report for 31 December 2019 records:
    • “31/12/2019 pt Harold return to Clinic via OBM again. On arrival to clinic we do a physical examination by touching his body & thoroughly check his body. On examination – TEST for malaria but negative [ there appears to be the letter RD circled] check for pneumonia, where we diagnosed him with sever pneumonia, as he is having fever, cough with thick sputum, shortness of breath, also Diagnosed with Dysentery. As pt & wife mentioned blood stain seen, as having sunken eyes & dry tongue, with low B as blood pressure is irregular, Dull & below 100mmhg. Pt Harold talking and answering Qtns like he is confused. We told him to admit but he refused. We also agree for him to go as his wife also request them to go home. We ask the boat owner if they can take him to hospital but says the weather is not good and ?? agree.
    • Patient – Not tolerate food and water well
    • Not able to eat green cabbage
    • Smoker etc”

The report then details treatment given and concludes with an opinion. In the absence of a report from a doctor the Court takes note of the opinion from the nurse. That opinion reads as follows:

“All these sign/symptom occurs because of internal injury, or internal bleeding-severe pneumonia occurs or he is easily to get infected with any conditions blood pressure is not normal, nor he is having low blood pressure due to internal infection, but can only tell if through scan or x-ray for evidence.”
The report is signed by PW6 as (nurse in charge Nembao Clinic)

28. Of significance neither during the time at the clinic from 26 December 2019 until 28 December 2019 did any of the three medical personnel record any damage to either the genital area or the anus of the Deceased. Nor did they note any marks consistent with what PW5 says he saw.

Analysis

29. On the evidence before the Court the first indication of illness or discomfort is on the evening of 25 December 2019 after the dancing. The trip to the Nembao Clinic makes it unlikely there was any problem with the neck of the Deceased as he rested his head on the lap of his wife during the boat trip. In spite being monitored and examined at the clinic there is no mention of trauma to the neck body or genitals of the Deceased. The Clinic does not record marks on his body. PW11 who is caring for him does not record any mark on his body nor any issue with the testicles of the Deceased. The only issue with the anus is not damage but passing watery stools which had round worms and a bad odour. When they returned on 31 December, the day he died she reported a blood stain was seen. In spite of being at the Clinic overnight on 26 and 27 December 2019 when the Clinic was concerned with the problem with diarrhea there is no report of sticks or vegetation being passed. Significantly there is no report of a smelly pus discharge from the genitalia.
30. PW11 was present on both occasions at the Clinic and was included in the history recorded. If she and the nurses were cleaning the victim as he passed watery stools they could not have missed damage particularly if accompanied with a smelly pus discharge from the genitals.
31. The Court rejects the evidence recorded months after the event that the Accused passed sticks and rotten leaves. The presence of round worms could have had nothing to do with the events of 22 December 2019. The time required from ingesting the parasite to passing worms through the stools of the /deceased would require a much greater length of time. The evidence of PW5 about what he was on the body is rejected. He claims to have observed marks on the body that have not been noticed by the wife of the Deceased nor the nurse who examined the Deceased the day he died.
32. The testicles could not have been removed in the circumstances alleged without PW11 being aware while the Deceased was still alive. The Court is left in a position that it is unsure what has happened to the testicles, if anything. They could not have been removed by using a knife without leaving evidence of a cut of some sort.
33. Returning to the evidence of PW1, the Court considers he may well have his own motives to serve in giving evidence. Has the prosecution proved that on 22 December 2019 the Accused Charles Tanen removed the testicles as alleged? Fare from meeting the standard of proof required the Court finds it is most unlikely he did so. That then raises concerns about the reliability of the evidence of PW1. The Court rejects that the Deceased died when PW1 says he was knocked to the ground then brought back to life again by having red leaves rubbed on him. At best he could have been unconscious if in fact he was struck at all. The inference the Crown asks the Court to draw from the evidence of the Deceased passing sticks and rotten leaves in his stools is that the Deceased was killed by the wild man method. PW1 if he was close enough to see that 6 inches of the road was inserted into the anus of the Deceased would have been able to see if leaves and sticks were also pushed in. He gave no such evidence. In the evidence of PW1 there were instances where his evidence did not make sense. He says that after being knocked to the ground five of the Accused removed the trousers of the Deceased, Samson Muanivi then inserted the rod and pulled up the trousers. He then said that Charles Tanen then removed the trousers to cut and throw away the testicles. It raised the question as to why the trousers would be pulled down, then pulled up, then pulled down again then pulled up.
34. The evidence from PW5 about the neck injury must also be rejected as being caused by the blow from the rod. The wife of the Accused does not mention it nor do those who examined the Deceased at the Clinic. How could such a blow leave no mark or effect noticed by those caring for the Deceased. How could the Deceased rest his head on his wife’s lap while traveling on the OBM to the Clinic. How could the Deceased be dancing at the Christmas day festivities with such an injury? Is there then a reasonable doubt that the neck bone was crushed by Samson Muanivi. As with Charles Tanen the allegation against, it is much more likely that it did not happen.
35. The next issue is the inserting the rod. There has been no medical evidence to show that such a rod could be inserted without causing damage that would be noticed by the medical assistants at the Clinic. The Court is concerned that there was no evidence of the rod being discarded. More particularly there is no evidence if it being located. The Police do not appear to have located it. It is not known where it was found. The Court is entirely dependent on the evidence of PW1 as recognizing the rod even though it is smaller than he originally described.
36. There has been a great deal of evidence about the suspicious that a number of the witnesses have described. Events that give rise to suspicion can be considered as circumstantial evidence. However inferences drawn must be proper inferences. The Court has consider what the Court of Appeal said in Alagere v Reginam [2015] SBCA 22 at paragraph[26]:
    • “It is important, in our view, where it is necessary to draw inferences that any inference made is made, firstly, on findings of facts resulting from evidence properly admitted. After the fact finding exercise then, in addition, any inference made when it is adverse to an accused in a criminal trial must be the only available inference. That is to say that there is no other inference available consistent with innocence. Anything less than this is no more than an educated guess.”
37. From all the evidence placed before the Court, including all the tendered evidence. I am not satisfied that there is an inference available from that evidence about the behavior of the Accused after 22 December 2019, that the Accused must be criminally involved in the killing of the Decease. To draw such a conclusion would simply be guess work.
38. PW2 was a credible witness but she has identified four of the Accused as walking towards Nembao on 22 December 2019 which the Crown invites the Court to conclude was on their way home after the attack on the Deceased. PW2 however gave no evidence about how she knew that was on 22 December 2019. Her statement was not taken till 6 months later, in June 2020. She did not know what else she had done that day nor did she know the day of the week it occurred. She was cross examined about not including Ishmael Napuae in that statement as one of those she had seen, yet now three years later she has included him. Her response was that she thought she had mentioned four of them to the Police. The Court cannot place reliance on her evidence as proving that the four of them were together at 6:00pm on 22 December 2019 coming from Aveta when she gave no reason for remembering that date.
39. The result is that the evidence falls well short of proving that either Samson Muanivi or Charles Tanen caused the death of the Deceased or contributed to his death in a substantial or significant way. Could his death have come about in the time from when he was first ill until 31 December 2019. Of course it could. It is understandable why people would want to have answers. The stories about what has been observed has grown with time which often happens as part of the human condition. In this decision the Court can only consider whether the prosecution has proved that each Accused has been proved to be with a principal or a party in causing the death of the Deceased with malice aforethought. As neither Charles Tanen nor Samson Muanivi have been proved to have done that so the rest of the Accused cannot be found guilty of aiding and abetting them.
40. The Court finds it is unlikely that the events of 22 December 2019 occurred as alleged by PW1. It follows that the Court cannot be sure that any of the Accused has aided or abetted in an unlawful act that has contributed to his death. It is therefore unnecessary to consider the issue of malice aforethought. All Accused are therefore discharged.

Orders

1. The Accused Ishmael Napuae, Charles Tanen, Samson Muanivi, Joses Miave, Henry Roto, Nickson Kapitene, Alban Mengo and Michael Mupio are all acquitted on the charge of murder.
2. It is not necessary to consider any alternative charge.

By the Court
Hon. Justice Howard Lawry
Puisne Judge