Regina v Ete [2017] SBMC 38; Criminal Case 1443 of 2015 (24 August 2017)

IN THE CENTRAL MAGISTRATE’S COURT )
OF SOLOMON ISLANDS AT HONIARA )

CRIMINAL JURISDICTION

Criminal Case No. 1443 of 2015

REGINA
-V-
JEENEY ROBERT ETE, BERNARD LAGATE’E, LUCIANO LAUKASI AND MILTON MAELIKINI

Date of Hearing: August 8, 2017
Date of Decision: August 24, 2017

Mr. B. Dalipanda for the Crown
Mr. A. Kesaka for Jeeney Robert Ete
Mr. B. Alasia for Bernard Lagate’e
Mr. H. Fugui for Luciano Laukasi
Mr. H. Kausimae for Milton Maelikini

RULING ON COMMITTAL HEARING (LONG FORM PRELIMINARY INQUIRY)

1. Apart from the defendant, Milton Maelikini, who already conceded that there is some evidence to commit him to the High Court, for this ruling, the Court will decide on whether there is sufficient evidence to commit the remaining defendants (Jeeney Robert Ete, Bernard Lagate’e and Luciano Laukasi) to the High Court for the alleged murder of Wilson Kafo, contrary to section 200 of the Penal Code. It is alleged that each of them during the night of 17 or 18^th August 2015 murdered Wilson Kafo (deceased) at a location called Confuse Point near Gwaunaru Airport. This is a location situated or located several kilometres outside the outskirt of Auki town in Malaita Province.
   
2. During the committal hearing, the prosecution called 3 witnesses namely; Ellen Futaiyala, Selwyn Ka’a and Willie Koke and tendered 34 witness statements and 5 exhibits.
   
3. The defendant Jeeney Robert Ete elected to give unsworn evidence while Luciano Laukasi gave sworn evidence and called Elson Konley and Silvester Baega to give sworn evidence in support of his case. It appears that some aerial maps were also tendered as part of the defence case. I don’t need to describe them in detail, save to say that the maps are self-explanatory.
   
4. The view of the prosecution is that there is sufficient evidence for the Magistrate Court to commit all the defendants to the High Court when all the materials presented during the committal hearing are considered in their entirety. To that effect, reliance was placed on the evidence given by Ellen Futaiyala with some references to the evidence given by Selwyn Ka’a, Willie Koke, the statement of Barnabus Bira Bana and the album of photographs particularly the photographs depicting the closer shot of the deceased groin (genital) which as per the photographs was swollen and appeared abnormally. In the prosecution’s view, the assault (kick) was inflicted on this part of the body and therefore consistent with the evidence given by Ellen Futaiyala on how the deceased was fatally attacked that night.
   
5. The defendants^[1] through their lawyers submitted that there is no sufficient evidence to send the defendants to the High Court. The evidence offered by the prosecution when considered in itself and balanced it with the evidence adduced by the defence is insufficient to send the defendants to the High Court. The value of the evidence as it stands is flimsy and one that no reasonable judge could convict the defendants. Therefore, the Court should discontinue the matter by discharging the defendants.
   

Law and test required at Committal Hearing

6. The law on committal hearing is very clear to any legal practitioner in our jurisdiction. The purpose of committal hearing is similar to a filtering process where the committal court only needs to determine the evidence in the witness statements/evidence if proven would constitute sufficient case to send or commit the matter to the trial court.^[2] In deciding the sufficiency of evidence, the law as prescribed in the High Court case of Gitoa v R^[3] has made it clear that the test required is “very low” and even “lower than” that of a civil case. The rationale behind this is attributed to the fact that the function of the committal court is non-judicial, meaning, it is not a trial court.^[4]
   
7. In examining the evidence, the committal court is not obliged to consider whether there is sufficient evidence which the trial court should be satisfied beyond reasonable doubt that the defendants have committed the offence alleged herein, or even to impose its views as to the prospect of conviction of a matter subject to the committal hearing. That duty is exercised only by the trial court which in our jurisdiction, the High Court.
   
8. Hence, there should be a fine line between the role of the committal court and the trial court. The committal court should only stick to its role in examining whether there is sufficient evidence to send the matter for trial on the charge(s) or indictment(s) and not to engross or move to the arena of the trial court by deciding issues regarding the strength of the evidence or which version of the evidence is credible and ought to be accepted and so forth. To do that is to assume the role of the trial court. Therefore, during any form of the committal hearing, if the materials before the committal court disclose evidence that is adequate for the purpose of committal then, the case must be committed or transmitted to the High Court.
   
9. Since the committal hearing involves the screening or examination of the evidence, it is therefore important to note that the evidence itself will reveal or speak for itself whether it is sufficient if proved in evidence constitute sufficient grounds to commit the matter to the High Court.
   
10. For this case, since it is a long form preliminary inquiry resulting in some of the defendants had given evidence and even to the extent of calling witnesses, it is expected that the defendants will deny the allegation and under no circumstance, they will concede to the sufficiency of the evidence. Against this background, to ascertain whether or not there is sufficient evidence for the purpose of this committal hearing, it will only make sense if I start with the evidence contained in the materials produced by the prosecution and more importantly, only the relevant aspects of the evidence I consider important for the purpose of the committal hearing.
    

Prosecution’s case

11. The prosecution’s evidence consisted of 34 witness statements, the sworn evidence of the Ellen Futaiyala, Selwyn Ka’a and Willie Koke and 5 exhibits. From those materials, I consider the following as relevant evidence for purposes of the ruling:
    

11.1 The sworn evidence of Ellen Futaiyala given during the committal hearing and her police statements tendered in the committal brief;

11.2 The statements of Jessica Kafika dated 7^th November 2015;

11.3 The statement of Sarah Ramo dated 13^th November 2015; and

11.4 The statements of Barnabus Bira dated 12^th November 2015 and a typed undated statement of 2016

12. The relevant aspect of Ellen Futaiyala’s evidence both in her statements and sworn evidence revealed that she was in a relationship with Robert Ete since 2012. As a result, they had a child. During the course of their relationship, they would often argue and Robert would warn her that if she contacted any person then he would kill that person. Later on Robert suspected him of having an affair with Wilson Kafo also known as “Prince.” Sometimes Robert and Bernard would call her by phone and told her that they would kill him.
    
13. Her evidence continued to reveal that during the midnight or in the early hours of 18^th August 2015, she accompanied Wilson Kafo (deceased) in a RAV4 driven by Luciano Laukasi to a location known as ‘the Aligegeo slab’ or a mini playing court. Their purpose of going there was to drink the beers they took with them in the vehicle. They spent some time at the slab and Luciano suggested for them to go to Sea Sound near the Gwaunaru airport. They all went down in the same RAV4 as suggested by Luciano. As they approached Sea Sound, they decided to use the Confuse Point area and so they entered through the boom gate of Confuse Point. There, she and the deceased went and sat in one of the leaf houses while Luciano remained in the vehicle. While they were still sitting under the leaf house, a RAV4 light blue in color arrived with the following persons: Robert Ete, Bernard Lagate’e, Milton Maelikini and other two females - Jessica and Sarah. Robert Ete walked out of the RAV4 and went straight to her and started to accuse her for misusing the money he gave her to support the child. In her statement^[5], she said Robert was angry with her and said that he and Barnard had planned to come to them that night. It was during the course of the argument that Robert saw the deceased and accused him as the one who took her since she was his wife. This infuriated Robert and so Robert grabbed her intending to slap her and that was when the deceased came in to stop him. At this stage, Bernard moved over and stood behind Robert and said “yu no save mifala planem for kam lo this fala ples.” Robert moved to the deceased, held tightly his neck with his right hand and lifted him up while at the same time, Bernard move towards the deceased and kicked him with his right leg and landed on his groin. This made the deceased to fall down instantly to the ground. His body was not moving or even for him to speak as well. Seeing the he was lying motionless on the ground, Bernard lifted his body and placed him in the booth of the RAV4 driven by Luciano. It was at this stage Robert suggested to take him to the hospital but Bernard refused and instead advised them that he was already dead so they should take him to the B-mobile tower in Auki.
    
14. This was agreed to by Robert and hence, Bernard and Ellen got in the RAV4 that carried the deceased. Luciano got inside that vehicle and drove it out from the scene while Robert and the others got inside the other RAV4 driven by Milton.
    
15. They drove back to Auki and followed a feeder road that led to the B-mobile tower while Robert and the others waited at the main road. When they stopped at the vicinity of the said tower, Bernard lifted the deceased from the back of the vehicle and as he was about to leave the vehicle with the deceased, she escaped towards Kunu settlement.
    
16. I have looked at the evidence/answers she gave in cross examination to try and find whether she had changed her story or retracted from what she had given in evidence regarding the attack on the deceased up to the disposal of his body but failed to find any. She was subjected to vigorous cross examination which effectively challenged the credibility and truthfulness of her evidence. However, as the record disclosed, she maintained all the important aspects of her evidence all throughout in relation to the incident. Since the issue about credibility is irrelevant for the committal court to consider, I am of the view that it is also needless or pointless to make any finding on this but prefer to leave it to the trial court.
    
17. The evidence contained in the statement of Jessica Kafika^[6] shows that she accompanied Robert Ete, Bernard Lagate’e and Sarah to the Sea Sound area near Gwaunaru airport in a green RAV4 driven by Milton during that night of 17^th August 2015. When they arrived, she saw a RAV4 was already there. That RAV4 was driven by Luciano. She recalled that time to be between 10:00pm – 11:00pm. Robert got out of the vehicle and approached Ellen and they started to argue over their small child. That was about 2 meters from them. During the course of the argument, the deceased walked over to Robert and Ellen and that made Robert angry and started to talk to him in a loud voice. Immediately, Bernard walked out of the RAV4, moved to the deceased and kicked him with his right leg. The deceased fell down to the ground instantly and could not talk anymore. Bernard and Robert tried to call his name but no response. Robert, Bernard and Luciano then carried the deceased to the back of the RAV4 driven by Luciano. Bernard and Ellen got inside that RAV4. Luciano then drove it out of the area with the deceased at the back. She got in the RAV4 with Robert and Sarah and they followed the other RAV4 back towards the Auki direction.
    
18. The evidence of Sarah Ramo in her statement dated 13^th November 2015 is more or less akin to the evidence of Jessica Kafika. She was one of those who went with Robert, Bernard and Jessica in a vehicle driven by Milton to Confuse Point that night the incident occurred. They arrived and drove in the Confuse Point area after Robert paid the entrance fee. As they drove in, she saw a RAV4 was parking at one of the leaf houses on the beach that she described it as the ‘second leaf house.’ They stopped at a leaf house beside that RAV4 and she could recognise Ellen, Luciano and the deceased were sitting and drinking beer inside the second leaf house. Robert walked out of the vehicle and not long, she heard Ellen asked Robert for money and thereafter, they started to argue. During the course of the argument, the deceased walked over to Ellen and Robert intending to stop them from arguing. It was at that stage that Bernard walked out of the vehicle, advanced to the deceased and kicked his groin with his right leg, causing him to fall instantly to the ground. She observed Ellen was shocked and screamed out when Bernard assaulted the deceased. She knew Bernard was wearing a black shoe/boot when he kicked the deceased.
    
19. Thereafter, Bernard and Robert lifted the deceased and carried him to the back of the RAV4 driven by Luciano. Robert then advised them to leave that area and hence, they left in the same RAV4 that she came in with Robert and the others. She did not know where the deceased body was dumped but stated that she was dropped at about 2:00am at Robert’s new area located above the Auki Primary School (APS).
    
20. The evidence of Barnabus Bira as disclosed in his statement dated 12^th November 2015 and the undated statement of 2016 is also relevant. According to his statements, he was the one who looked after the Confuse Point area. He recalled that between 8:30pm – 10:00pm, the first RAV4 came in the area. That was the RAV4 the deceased came in. Not long, a second RAV4 driven by Milton also came in. He said Robert was the one who came in that second RAV4 with some girls he could not recognise. He allowed them to go through the boom gate after Robert paid the entrance fee. When he was sitting at the veranda of his house, he heard screaming likely from a girl from the direction of the leaf houses so he took his torch light and walked out of the house. He flashed his torch and saw Robert, Ellen and Bernard were standing close to the back of the black RAV4. He then moved closer to them and that was the time he heard Robert ordered Bernard to carry the deceased to one of the RAV4s. He torched and saw Bernard himself lifted the deceased to the black RAV4 and after, Bernard got inside that RAV4 and they left the Confuse Point.
    
21. That is the evidence of the prosecution that is relevant to determination of whether or not there is sufficient evidence for purposes of this committal hearing.
    

Defence case

22. The defendant, Jeeney Robert Ete, gave unsworn evidence and raised the defence of alibi. The main thrust of his defence is that he was innocent of the allegation and at all times during the night the alleged murder took place, he was inside his Gerus Motel in Auki. His unsworn evidence is self-explanatory and detailed his claimed alibi.
    
23. The same defence was also raised by Luciano Laukasi who denied going to the Confuse Point with the deceased and Ellen that night. He called two witnesses namely, Elson Konley and Silvester Baega as his alibi witnesses. Those two witnesses in summary said that by 9:00pm on 17^th August 2015 Luciano had already returned with the taxi to its owner – Silvester Baega. Thereafter, they asserted that they travelled together in that same vehicle that same night in order to drop Luciano at the wharf so that he could board a vehicle to North Malaita.
    
24. In my view, the defence of alibi raised by Robert and Luciano is one which is relevant to the trial court and not the committal court. Whether or not the alibi defence raised herein is tenable is a matter within the purview or vicinity of the powers exercised by the trial court. The assessment of alibi defence is the fact-finding process that leads to the determination of a guilt and innocence of an accused which only the High Court can do. To do so as I have mentioned earlier is to assume the role of the trial court. Therefore, it is my view that it is needless for me to consider this issue at the committal hearing but prefer to leave it to the trial court if I decide to commit this case to the High Court.
    

Decision

25. In relation to Jenney Robert Ete, I find there is sufficient evidence to commit him to the High Court for the alleged murder of Wilson Kafo, contrary to section 200 of the Penal Code. The reasons to commit him to the High Court in a nutshell is based on the following aspects of the evidence unfolded and already been considered:
    

25.1 First, before 17^th or 18^th of August 2015, he had already told Ellen his intention to kill the deceased;

25.2 Second, he also told Ellen during the course of the argument at Confuse Point that he and Bernard had planned to come to them that night;

25.3 Third, he was the one who held the neck of the deceased while Bernard kicked the deceased;

25.4 Fourth, he instructed Bernard to carry the deceased to one of the RAV4s; and

25.5 Finally, he also agreed with Bernard to carry the deceased to the B-mobile tower – an isolated place that makes it hard for any person to come to his (deceased) aid. He knew that the deceased was unconscious and helpless. By agreeing to leave him unattended at the tower that night is to expose him to the possibility of death.

26. In relation to Bernard, I am also satisfied that there is sufficient evidence to commit him to the High Court for the charge of murder contrary to section 200 of the Penal Code. The evidence so far had disclosed that he was the one who kicked the deceased with his right leg and landed on his groin. He then carried the deceased and placed him in the booth of the RAV4 driven by Luciano. He refused to transport the deceased to the hospital but made a strange suggestion to carry the deceased to the B-mobile tower in Auki. He also accompanied the deceased to ensure the RAV4 must reach where he had decided to dump his body. At the vicinity of the said tower, he was the one who removed the deceased out of the vehicle and dumped or put him to rest at a secluded or isolated place where his body was later discovered during the afternoon part of that day.
    
27. In relation to Luciano Laukasi, I find there is insufficient evidence to commit him to the High Court for the alleged murder of Wilson Kafo. I have looked through the entire evidence but failed to see any evidence that showed he had agreed or entered into any agreement/arrangement with Robert, Bernard and Milton for the murder of the deceased. The evidence at its highest showed that during the evening of 17^th August 2015, he was busy working as a taxi driver and had been transporting passengers until the deceased and Ellen came in as passengers. There is no any evidence that he was talking to the other co-defendants through phone and/or was expressly advised of the plan to deliver the deceased to the hands of the other co-defendants at Confuse Point.
    
28. Even at Confuse Point, the evidence is totally silent on whether he had uttered any words to excite or encourage Robert and Bernard when they assaulted the deceased. There is no evidence that he had expressly agreed with Robert and Bernard that the B-mobile tower was the right place to dump the deceased body. Even during the course of driving back to Auki, there is no any evidence to show he was talking to Bernard about the mode or how and where to conceal the deceased body at the tower.
    
29. His act of transporting the deceased that night from Confuse Point to Auki could be seen as performing his job as a taxi driver but under the command and control of Bernard who was sitting beside him at the front seat of the vehicle. Even if there is evidence that he was the one who transported the deceased back to Auki, the overall tenor of the evidence implicating him to the charge is flimsy and insufficient to satisfy the test required for committal hearing. The evidence could be improved had the investigators asked relevant and detail questions from those who were present at the Confuse Point area about his participation or culpability in the alleged offending and especially from Ellen who travelled with him that night in the same vehicle. Unfortunately, this did not occur and the benefit of this must be afforded to him.
    
30. Joint enterprise or agreement to commit an unlawful act or offence involves verbal discussion or mutual planning between co-defendants. It is through expressing and conveying of the thoughts that will make the other party(s) understands and come to an agreement. For example, in this case, the proof of any discussion taken place between Luciano and his co-defendants on how to execute the murder of Wilson Kafo. Regrettably, the evidence as it stand is completely silent on this and hence, falls short to impute him to the charge as well.
    
31. Based on these reasons, it is needless for me to discuss his defence of alibi as this would not make any difference to the decision I’ve reached herein. Therefore, I order that he is discharged forthwith under section 217 of the Criminal Procedure Code of the charge of murder contrary to section 200 of the Penal Code.
    

Orders of the Court

(1) The defendants, Jeeney Robert Ete and Bernard Lagate’e are committed to the High Court to stand trial to the charge of murder contrary to section 200 of the Penal Code.

(2) By concession of the defence counsel, Milton Maelikini is also committed to the High Court to stand trial to the charge of murder contrary to section 200 of the Penal Code.

(3) Defendants referred to in Order 1 and 2 above, will be remanded in custody until 29^th September 2017 at 1:30pm for first appearance at the High Court.

(4) Discharge the defendant Luciano Laukasi forthwith of the charge of murder contrary to section 200 of the Penal Code. This Order is not a bar to further prosecution in the event police decides to recharge him in due course.

(5) Any aggrieved party(s) is/are at liberty to lodge an application to the High Court for review of this ruling.

(6) Order accordingly.

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THE COURT

Augustine Aulanga – Principal Magistrate

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^[1] Jeeney Robert Ete, Bernard Lagate’e and Luciano Laukasi
^[2] For example; see remarks by Mwanesalua J in Rojumana v R [2008] SBHC 23; CRC 462 of 2007 and CJ Palmer in Gitoa v R [2011] SBHC 111; HCSI-CRAC 46 of 2011
^[3] See footnote 2 above
^[4] Reference to “trial court” in this ruling means the High Court which has jurisdiction to hear a case that goes through the committal hearing be it for sentence or for trial
^[5] Dated 7^th November 2015 – page 2 and 4^th paragraph
^[6] Statement dated 7th November 2015