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Regina v Sikini [2018] SBMC 1; Criminal Case 1030 of 2014 (8 May 2018)

IN THE SOLOMON ISLANDS MAGISTRATES’ COURT

AT HONIARA

Criminal Case No. 1030 of 2014

___________________________________________________________________________

REGINA

Fred SIKINI

Chris SUIMAE

Justin ANTHONY

___________________________________________________________________________

Before Principal Magistrate Ms. Fatimah Taeburi

Mr. John Wesley Zoze for the Crown.

Mr. Lazarus Waroka for Fred Sikini.

Mr. Daniel Kwalai for Chris Suimae.

Ms. Jenny Namo for Justin Anthony.

Date of Hearing: 14^th – 18^th August 2017

18^th – 27^th April 2018

Date of Ruling: 8^th May 2018

___________________________________________________________________________

JUDGMENT

___________________________________________________________________________

Introduction

The three defendants in this case are jointly charged under section 21 of the Penal Code for criminal trespass, threatening with violence and malicious damage. These are all offences under the Penal Code.
They all pleaded not guilty to all the charges against them. They were previously acquitted on simple larceny charges at a no case to answer stage.
This is the verdict at the end of the trial.

Allegation

The charges arose out of an incident that happened in Tamone Village at Sun Valley in Honiara on the 8^th of April 2014.
This incident involves a group of people shooting the complainant’s houses with stones. During the incident, a mob trespassed onto the complainant’s land. They ransacked his property. They destroyed his houses and other chattels on his land.
It is alleged that the three accused were part of this group. It is claimed that they were either the ring leaders of the group or the principal offenders or that they had engaged in conducts that enabled the commission of the offence. Therefore they were charged under section 21 of the Penal Code.

Undisputed facts

The undisputed facts in this case are as follows;
The complainant is Mr. Tome Lauma. His wife is Mrs. Noelyn Tome.
They have two sons, Mr. Alton Tome and Mr. Nickson Tome.
The complainant owns a plot of land at Tamone in Sun Valley.
He and his family lived there for most parts of their lives.
On that plot of land, the complainant built several houses.
At the time of the incident, he had built and completed three permanent houses. He rented out two of these houses.
One was rented by Mr. Ronnie Mae.
The other one was occupied by Alwin.
Tome and his family lived in one of the houses.
Another two houses were still incomplete and still under construction at the time of the incident.
All of the three defendants here also live at Tamone Village.
Mr. Fred Sikini and the complainant are relatives. Mr. Justin is also related to both Mr. Sikini and the complainant.
Mr. Suimae is not related by blood to any of the parties in this case.
It is not in dispute that Mr. Sikini’s family and the complainant’s family have had some disagreement between them.
On the 8^th of April 2018, during the early evening, the complainant’s sons, Nickson and Alton, went to Mr. Sikini’s house.
An argument and an altercation took place.
The complainant and his wife heard the altercation. They came and pulled their sons back to their house.
During the fight between Mr. Sikini and the complainant’s sons, Mr. Sikini’s father, collapsed and was taken to the hospital. He passed away later that same night.
After the altercation between Mr. Sikini and the boys, a rampage broke out.
A group of local people stormed Tome’s property. They threw stones at his house. They damaged and destroyed the houses with irons and other weapons.
The destruction went on for about 30 minutes or more.
The damage caused on the property is not disputed by the defendants.
An album of photographs was tendered by consent. The photographs show the damages caused on the houses. Doors and windows were broken. Walls and roofs were damaged. Chattels and other properties inside these houses were also destroyed.
It is not disputed that Tome’s brother Mr. Charles Lauma lives next to Tome on Tome’s land.
Kevin Charles and Kenson Filiga are Charles Lauma’s sons.
It is also not disputed that Janet is Tome’s other neighbour.

Defence case

The defendants denied that they were in any way involved in the shooting and destruction on the complainant’s properties.
Both Mr. Fred Sikini and Mr. Anthony Justin claimed that at the time of the shooting they were at the Henderson Police Station to report Tome’s sons for criminally trespassing onto Mr. Sikini’s property.
They also claimed that after attending to the Henderson Police Post, they then went to the National Referral Hospital to see Mr. Sikini’s father who was at that time taken to the hospital.
Mr. Chris Suimae raised a similar defence. Mr. Suimae claimed that at the time of the shooting, he was at Tamone Village, but he was not involved in any way. He claimed that at the time he was helping Mr. Lauma’s family to safety and he was buzy carrying some of the family’s properties to his house.

Issues

It is clear that there is no issue that the shooting actually took place. The damages caused to Mr. Tome’s houses are also not disputed.
The main issue in this case is whether or not the three defendants were there and whether they took part in the shooting and the destruction of the complainant’s properties.
I will consider the case against each of the defendants separately.

Preliminary matters

Before I consider the cases against each of the defendants, I need to make some findings on some general facts which are in issue.
Firstly the issue of the lighting in that area at the relevant time.
Almost all the witnesses called in this case said that there was a spot light situated at Alo Ladota’s house. All witnesses are consistent that Mr. Ladota’s house is located right opposite Mr. Tome’s area across the road. Witnesses said that the light is shone directly to Tome’s area.
The brightness of the light is described by almost all the witnesses. One of the witness said that the light is as bright at the light at Lawson Tama. Another witness said that the light is very bright that even a marble can be found in the area. Another said that nothing was hidden and that everything was clear.
I have no doubt that the light was bright. I also have no doubt that Tome’s area at that time was clear. I therefore find that under these circumstances, visibility as to what was going on in that area was clear.
Secondly, the issue on the objects and structures which are in the area. I find that there is evidence that there are about five houses on Tome’s property. Two houses are situated besides the road and in front of Tome’s family house.
I also note that there are plants in front of the road and in front of Tome’s house.
I do accept that these structures and objects and vegetation do create shadows if the light is shone from the opposite direction.
Thirdly, the issue on the time in which events had occurred.
I accept that almost all of the witnesses said that the incident happened sometimes between 8pm and 9pm. I accept that as a close to accurate estimation of the timing.

Fred Sikini

I now go to consider the case against each of the defendants. I begin with Mr. Fred Sikini.
Tome, his wife Noelyn and their two sons, Nickson and Alton all said that after the altercation between Sikini and the two boys, the complainant and his wife brought their sons back to their house.
They said that they were underneath their family house.
Tome, Noelyn and Alton said that Fred Sikini came to the ladder of their house. These three witnesses also said that Sikini swore at them.
Interestingly, only Tome and his wife Noelyn said that Fred was armed with a piece of timber.
I take great caution with the evidence of these four witnesses.
Firstly because they are members of the same nuclear family. The evidence shows that they have had some long standing issues with Sikini’s family.
Secondly, because although all four of them were at the same place, the evidence from Alton and Nickson are not fully consistent with the story of their parents. Nickson did not mention anything about Mr. Sikini coming to the front of their house.
Alton said that Sikini came to their house, and that he told them to go out, but he never said that Sikini was holding any timber.
I find this quiet strange. If Mr. Sikini did appear at their house with a piece of timber in a threatening manner, then I expect all four of them to talk about it.

Independent and supporting evidence

It is therefore important that I assess (if there is any) independent evidence that supports the allegation.
Wilson Kiki said that he heard Fred Sikini’s voice. Mr. Sikini was shouting and swearing. He heard Sikini said the words, Fesabas Kamulu or Fesa Ramo Kamulu.
I do not have any issues with Mr. Kiki’s credibility. I find him to be a reliable witness.
Patrick Olofia said he saw Fred inside Tome’s area. Fred was holding a timber. He threw the timber on top of the complainant’s house.
He said that he knows Fred Sikini.
Olofia said when he saw Sikini, he was 15 metres away. At the time, he said that he was inside Tome’s area somewhere near Alwin’s house and Sae’s kitchen.
I have no reason to doubt Olofia’s testimony. He is very firm and consistent. His observations were made under clear circumstances. He was also close to Sikini at the time.
Kevin Charles said that he saw Fred Sikini holding a piece of timber and was inside Mr. Tome’s area. He said Fred was shouting and swearing.
I cannot trust Kevin’s evidence against Fred Sikini. This is because when he was interviewed by the police, he did not tell them that Sikini was one of the men involved in the incident.
He also did not provide any logical explanation on his failure to tell the police about Sikini.
I can consider Kevin’s evidence against the other two co-accused, but not against Mr. Sikini.
Charles Lauma also said that he saw Fred in front of Tome’s house. He also heard Fred swearing in both the Malaitan dialect and in pidjin. He said Fred was not holding anything.
I also cannot accept Charles Lauma’s evidence.
He had given inconsistent evidence to the police and in court.
When he was interviewed by the police, he gave a list of the men he actually saw that night. He also gave a second list to the police of the men he did not see but learnt later of their involvement.
In court he gave a whole list of people who he claimed were involved in the shooting including the ones he had previously told the police, that he learnt of their involvement later.
I find that Charles Lauma could not distinguish between what he actually saw and what he heard from others. I therefore cannot trust his evidence.
Ronnie Mae lives in one of Tome’s houses. He said that he heard Fred Sikini arguing with Tome’s family that night.
I find that there is independent evidence that supports the claim that Mr. Sikini went onto the complainant’s property that night without the complainant’s consent. I also find that the evidence supports that Mr. Sikini swore at Tome’s family and ordered for them to go out. I further there is also independent evidence from Olofia that Mr. Sikini was at the time holding a piece of timber.
Is there any evidence that he aided or abetted the others to destroy the complainant’s houses? I will discuss my findings on this issue later in my judgment.

Defence of alibi raised by Mr. Sikini

I move on to assess Mr. Sikini’s defence of alibi.
I find that notice of an alibi has been given by Mr. Sikini in ample time to satisfy the legal requirements.
Now that I find that Mr. Sikini was inside Mr. Tome’s area, with a timber and was giving orders for the complainant’s family to move out, does this mean that I disregard his defence of alibi?
The answer is No.
There is in law no burden on the accused person who puts forward a defence of alibi.^[1] The burden of proof always lies on the prosecution. The Crown bears the burden to prove beyond a reasonable doubt that the accused person was at the place of offence and was not at the place he claimed through his alibi witnesses.^[2]
In this case, the Crown did not call any evidence to rebut the alibi defence advanced by Mr. Sikini. The Crown mainly relied on the evidence of prosecution witnesses and argued that they are credible hence should be believed.
I find that there are several prosecution witnesses who support parts of Mr. Sikini’s case, namely that sometimes during the shooting, he left Tamone in his bus.
Mr. Max Maebata gave direct evidence. He agreed in cross examination that he saw Sikini going into his bus. He does not know where they were going.
I take note that Maebata did not say anything to the police about Fred being involved in the shooting.
Mr. Olofia also said that he saw Sikini went into his bus. He said this was about five minutes after the shooting started.
Mr. Waroka called two alibi witnesses namely, Mr. Simeon Davies and Mr. Iro Sikini.
I find that Iro Sikini is not relevant to the defence’s case of alibi. He left Tamone and took his father to the hospital. This was before the shooting started. When he was at the hospital, Fred Sikini and some others arrived there. But that was not the time which is in issue in this case. The time during which the shooting occurred is the critical time and that is between 8pm and 9pm.
Mr. Simeon Davies is a relevant alibi witness in my view. He said that right after the altercation between Mr. Sikini and Tome’s sons, Sikini, Justin, Hollax and himself left for the police station in Sikini’s bus.
He said that they arrived at the police station at 9.10pm. He said that he saw the time on a clock at the police station. I take judicial notice of the close distance between Henderson Police Station and Sun Valley. I also take judicial notice that to travel from Sun Valley to the Henderson Police Post in a vehicle would not take an hour or even half of an hour.
I find that Mr. Sikini’s defence of alibi as raised through Simeon Davies is supported, not wholly but partially by Olofia and Maebata. There is prosecution evidence that supports that Sikini at some point that night left Tamone in his bus. Where he was going was unknown.
Did he leave Tamone right after the altercation with Tome’s sons?
I find that the prosecution through Mr. Olofia has satisfied me beyond a reasonable doubt that Sikini did not leave Tamone right after the altercation. He left in the bus after he had trespassed onto Tome’s land and after he threatened Tome’s family to move out.
Like I said before, I have no reason to doubt Mr. Olofia’s evidence. Not only is he consistent, but I have also observed his demeanour in court. He looks directly at his questioner. When he answers questions, he looks directly at the court. He appears very confident to me. I have no reason to doubt him. I trust his testimony entirely.
What this means is that I believe Olofia when he said that Sikini left Tamone after five minutes of the shooting.
This further means that in my finding, Sikini had trespassed onto the complainant’s land, he threatened the complainant and his family with the piece of timber. He then left the village in his bus five minutes or so later.

Anthony Justin

It is now convenient that I deal with the case against Mr. Anthony Justin.
Mr. Justin claimed that he went with Sikini to the Henderson Police Post and that he was not involved in the shooting.
The complainant, Tome said that he saw Justin threw stones. I do not believe the complainant on this part of his evidence for several reasons.
Firstly, he was underneath his house at the time of the shooting. The stones were coming from the road. His house is located at the bottom of a slight slope. The road is at the top of this slope. It would be difficult to see people on the top of the road from underneath Tome’s house.
Secondly, there are about two or three houses between his house and the road. These houses would have blocked his view to the road.
Thirdly, there are orchids and an inicori tree in front of his area besides the road. These would have also blocked his view.
Fourthly, I see from the photographs that were tendered that there are plants in front of Tome’s house. I note that the photographs were taken a year after the incident. I find that due to size of the plants as depicted in the photos, that they were there at the time of the incident and that they must have grown to some height at the time of the shooting. These plants would have also blocked Tome’s view.
I find that Tome could not have seen Justin at the road on that night.
Was Tome the only one who claimed to have seen Justin that night?
The answer is No. There were other witnesses.
Olofia said that he saw Tony picking stones and throwing them at Tome’s house. He said that he was 15 metres away from Tony at this point.
In cross examination, Ms. Namo tried to put to him that he was confused or mistaken about Mr. Justin’s identity that night. Mr. Olofia was even stronger and firm in cross examination and reaffirms that it was Tony he saw that night. He said he does not know Tony personally but he can recognise this person.
Olofia then pointed out the accused Mr. Anthony Justin as the person he referred to as Tony.

Dock identification

Dock identification is evidence given by a witness identifying an accused as the person seen at the crime scene. Generally, this kind of evidence is admissible. Whether it is accepted or not, and/ or the weight to be place on this kind of evidence depends on the circumstances in which the identification was made.^[3]
In making that determination, the court may consider the following factors;
1. The circumstances under which the identification at the crime scene was made – factors such as the distance between the witness and the person identified, the lighting, if anything was blocking the witness’s view and so forth are relevant;
2. The time period between the initial identification at the crime scene and the subsequent identification in court;
1. Whether the witness had known the defendant prior to the offending.^[4]
In this case, Olofia said that although he does not know the defendant personally, he recognises him and knows him as Tony. Olofia said he does not permanently reside at Tamone. He used to visit his relatives at Tamone and used to stay there for sometimes on occasions.
He knows that the defendant lives at Tamone. He also knows that the defendant is part Baelelea and is Fred’s nephew.
He said that the lighting was bright and he could clearly see the accused.
On that basis, I accept Olofia’s evidence on identification.
Kevin Charles also said that he saw Justin threw two stones at one of Tome’s houses. He said that Justin and Alo broke into one of Tome’s houses. He saw them broke the main door with a knife. He also saw them broke lourve glasses, mesonite, chairs, video screen, plates and everything inside that house.
He said he was about 8 metres away from them at that time.
Kevin Charles knows the accused personally. They all lived together in the same village for a long time.
I have no reason to doubt Kevin’s evidence against Anthony Justin.
Kenson Filiga is Charles Lauma’s son and Kevin Charles’s brother. He said that at the time of the shooting he came out of their house. He was about 1 ½ metres away from the shooters. He then moved further away to about 4 metres. He saw Tony throwing stones at Tome’s house. He said that Tony shouted and told the complainant’s family to move out. He saw Tony shoot two times. He said the stones thrown by Tony damaged the house.
He then said that he saw Tony going towards Tome’s house.
I also have no reason to doubt Filiga’s evidence. He is very consistent.
Did Anthony accompany Sikini to the Henderson Police Station?
Simeon Davies said that he Anthony did go with them in the bus.
Olofia said that Fred left in his bus five minutes after the shooting started. Olofia also said that when Fred left, Tony was still at Tamone.
Like I said before I find Olofia to be a very credible and reliable witness. I trust his evidence entirely.
Olofia’s testimony is supported by Kevin Charles and Kenson Filiga. Kevin who said that Anthony and Alo damaged Tome’s house for a long time. He estimated for about an hour.
Other prosecution witnesses said that the whole shooting incident happened for about an hour or more.
This means that the accused Anthony Justin was at Tamone the whole time during the shooting and the destruction.
I find that the crown has disproved the defence raised by Justin. I also find that the crown has satisfied me beyond a reasonable doubt that Anthony Justin trespassed onto the complainant’s land and that he caused damages to the houses.
Did Anthony directly threaten Tome and his family?
There is evidence from Filiga that Anthony shouted and order the complainant’s family to move out.

Chris Suimae

I now consider the case against Mr. Chris Suimae.
Suimae gave evidence and said that at the time of the shooting he was helping out people who were affected and was not involved in the shooting of the houses.
In effect, Mr. Kwalai has raised an alibi defence. I find that he has satisfied the requirement of notice because he did put the crown on notice of the intention to call Mr. Suimae.
Mr. Suimae however did not call the people that he said he had helped. I must also say that he is not required to prove his own innocence.
The crown carries the burden to prove that Suimae was involved in the destruction of the houses therefore rebutting the accused defence of alibi.
The crown alleges that Mr. Suimae is responsible for destroying Tome’s house which Mr. Ronnie Mae was renting at the relevant time.
Ronnie said that Chris and Alo came to his house. Chris was holding an iron bar.
They broke the door, louvres, walling and everything else inside the house. They ordered Ronnie and his family to move out.
It was put to Ronnie in cross examination that when he spoke to the police he said that he did not recognise the two men who broke into his house that night. It was also put to the witness that he told the police that he did see what these two men who holding.
Ronnie agreed to the proposition put to him. He explained that when he was interviewed by the police, he was still living at Tamone. He felt intimidated and could not give his story freely to the police and that was why he concealed some parts of his story. When he testified in court, he is no longer living at Tamone.
I accept his explanations. They are reasonable and they make perfect sense. I therefore find Ronnie to a truthful witness and I believe his evidence in court.
Another two people said that they saw Chris with an iron pipe. That is Kevin and Max Maebata. Both witnesses said that they saw Chris broke Ronnie’s door with the iron. They also said that they saw him breaking the interiors of the house with the pipe. They heard him ordering Ronnie’s family to move out.
I find that three people cannot all be mistaken about seeing Chris that night with an iron pipe.
I find that all the three witnesses against Chris are all consistent and they support each other. They all saw Chris with an iron pipe and they all saw the destruction he did to the house with that pipe.
I am satisfied beyond a reasonable doubt that Chris has trespassed onto the complainant’s land and that he did cause damage to the complainant’s property. Consequently I do not believe his defence that he was somewhere else helping others to safety.
I however did not find any direct evidence that he had threatened Tome or his family. The charge of threatening violence against Mr. Suimae has named Tome as the victim. I do not find on the evidence that the victim is Tome. The evidence shows that the victim of the threats made by Suimae is Ronnie and his family.

Aiding and abetting

Were these three defendants acting together as parties to the offending?
The starting point on the law of parties to an offence is section 21 of the Penal Code which states;

When an offence is committed, each of the follow persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say

(a) Every person who actually does the act or makes the omission which constitutes the offence;
(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c) Every person who aides or abets another person in committing the offence;
(d) Any person who counsels or procures any other person to commit the offence;^[5]

The crown has run their case under section 21 of the Penal Code.
In Regina v Maetia, the Court held;

The authorities clearly show that for a person to have aided and abetted the commission of an offence it must be established that he is present (actual or constructive); that he knows the facts necessary to constitute the offence and that he is actively encouraging or in some way assisting the other person in the commission of the offence. Knowledge of the actual offence committed is not essential.” ^[6]

In this case I find that all three defendants were present at the time of the incident. They all made threatens and they all acted violently. They had all contributed to the commission of the offences.
I also find that all defendants had knowledge of the actual offences committed. Their actions and the words they spoken according to witnesses shows that they had the required knowledge.
Therefore I find that under section 21 of the Penal Code, they are parties to the offending. I find that the crown has proved that they had all acted together in a group and I find that they all tied together under section 21 of the Penal Code.

Conclusion/ Verdict

I therefore find all three defendants guilty on all three charges against them and I convict all of them accordingly.
Right to appeal within 14 days.

________________________

Ms. Fatimah Taeburi

Principal Magistrate

^[1] Ipao v R [1982] SBCA 1; (1982) SILR 128
^[2] Regina v Malaketa [2003] SBHC 81; HC-CRC 082 of 2003
^[3] Criminal Law in Solomon Islands, Chapter 8: Admissibility of Evidence www.paclii.org
^[4] Ibid
^[5] Penal Code [Cap 26]
^[6] [1993] SBHC 6

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