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Regina v Tofola [1992] SBHC 74; HCSI-CRC 20 of 1992 (14 December 1992)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 20 of 1992

REGINA

V

BEN TOFOLA & RURUGENI NANAU IROFO’OA

High Court of Solomon Islands
(Muria ACJ)

Criminal Case No. 20 of 1992

Hearing: 2 December 1992
Judgment: 14 December 1992

F. Mwanesalua, DPP, for Prosecution
J. Remobatu for the Accused

MURIA ACJ: The two accused in this case had been jointly charged with the murder of Duddley Beni on 11th March 1992 at Oloa Tabu Site, Malaita Province. Both accused pleaded Not Guilty to the charge.

It is for the prosecution to prove the guilt of each of the accused beyond reasonable doubt. The elements of the offence must be proved and this the prosecution must do so beyond reasonable doubt. If there is any doubt, slight though it may be, in the mind of the court the accused must be acquitted.

The evidence adduced against the accused at the hearing came from four (4) prosecution witnesses. In addition, the Medical Report and the Identification Parade Report had also been admitted as evidence at the trial. In so far as the first accused, Rurugeni Nanau Irofo’oa is concerned, his cautioned statement had also been admitted, with the agreement of the defence, as evidence against him. The cautioned statement of the second accused, Ben Tofola, had been challenged and had been a subject of a voir dire hearing which I shall deal with later in this judgment.

The evidence for the prosecution is that on 11 March 1992, PW1 (the deceased’s father) went to his garden at about 10 o’clock in the morning. He was later joined by three of his children namely, Mary Ailifu, Paul Samani and Duddley Beni (deceased). But before the children arrived at the garden, a man came and met PW1 in the garden. When PW1 asked the man what his name was, the man replied that his name was “Tagini” who was later identified at an identified Parade as the first accused whose real name is Rurugeni Nanau Irofo’oa. PW1 also identified the first accused in court at the hearing.

The first accused used the name Tagini so as to make belief that he was related to PW1. Having said that his name was Tagini, the first accused asked PW1 to sit at his (accused’s) left side. The first accused then pretended to make fire by rubbing sticks. No fire was made. It was then PW1’s three children arrived. The first accused then asked PW1 if the two boys, Paul Samani and Duddley Beni (deceased) could follow the first accused to the plantation to climb coconuts. PW1 agreed and so his two sons followed the first accused to climb coconuts. Not long after the three returned with green coconuts.

Having returned from climbing coconuts, the first accused then asked PW1 if Duddley Beni could follow him (the accused) to a house in the bush to fetch fire. Without suspecting anything, PW1 agreed. The first accused and Duddley Beni left for the house to get fire. PW1 and his other two children waited and after a long wait, there was no sign of the boy returning. PW1 told his two children to go back home with the potatoes they had dug while he waited for his son Duddley Beni. PW1 then followed and when he came to the house which the first accused was talking about, there was no sign of his son and the first accused and neither was there any sign of fire in that house.

PW1 had become more worried then and so he proceeded to Kulilabata Village where he met one Meke and asked if Meke had seen the first accused and his (PW1’s) son. Meke replied and said that he did not see them. PW1 then returned to the house in the bush where the first accused said that he and the boy were going to fetch fire. There was again no sign of the first accused and the boy at that house. As it was getting dark PW1 went back home and asked his wife if she had seen their son. She replied that she did not see the boy.

As soon as he heard his wife’s reply, PW1 again went back to the bush to find his son. He went back to Kulilabata village to see Meke again. As it was night, he slept at Meke’s house that night. The next day PW1 came to report that his son was missing to Police at Malu’u and Auki.

The first day search with the Police produced no result. On the second day the Police found the boy Duddley Beni dead with his neck almost chopped off, a cut on the head and some cuts on the left arm and other parts of the body. The body was found at a custom Tambu site called “Oloa”. The body of the deceased child was examined by doctor at Kilu’ufi Hospital.

Mary Ailifu (PW2), one of PW1’s children, was in the garden at the time the first accused took her brother away. She identified the first accused in court and confirmed that it was him who took her brother away saying that they were to go and fetch fire. She first identified the accused at an identification parade at Malu’u Police Station.

D/Sgt. Angisia (PW3) was in charge of the Police search party who went to search for the missing boy. With him during the search were P.C Aeli and Ben Tofola (the second accused). When PW3 was nearer to the Tambu Site the second accused called out to him to turn back. PW3 turned back. The second accused then told PW3 to look down at the bottom of a “vasa” tree, saying the child might be lying at the bottom of that tree. PW3 followed the second accused’s instruction and went down to the bottom of the tree. Upon reaching the bottom of the tree, PW3 found the child lying face down dead with his hands stretched out. PW3 also noticed that there were cuts to the right and left neck, and the skull. At that time the second accused had withdrawn to a distance further away from the search party.

The dead child was then transported in a stretcher to the coast and then by truck to Kilu’ufi hospital. Post-mortem was conducted by Dr. Macpride Steward whose report, as I have said, was admitted as evidence by consent.

On 17 March 1992 PW3 accompanied by other Police Officers went to the bush to meet with one Morisara and his sons, one of whom was Rurugeni Nanau Irofo’oa. Following the description given to the Police by PW1, Rurugeni Nanau Irofo’oa was identified and was arrested for the murder of PW1’s son. A cautioned statement was obtained from the first accused on 18 March 1992 and an additional statement was obtained from him on 21 April 1992. Those statements, as I have said, were not challenged and were admitted as evidence against the first accused. Those statements clearly contain admissions by the first accused of killing the deceased boy.

Following further information, the Police went to the second accused’s village and arrested him on 22 April 1992. A statement under caution was obtained from the second accused on 24 April 1992. That statement was challenged by the defence.

Both accused elected to exercise their constitutional rights to remain silent and so they did not give evidence nor called any witness. However the second accused gave evidence only at the voir dire hearing challenging the admissibility of the cautioned statement obtained from him by PW3.

I shall now turn to consider the admissibility of the second accused’s cautioned statement. PW3 and PW4 were cross examined at length by Mr. Remobatu who represented both accused. Both officers denied any threat or force or promised offered to the second accused prior to and at the time of the recording of the second accused’s cautioned statement which contains admissions.

The onus is on the prosecution to prove that the statement obtained from the second accused was voluntary and must be so proved beyond reasonable doubt. The classic formulation of the principle on the admissibility of confessions appears in Lord Summer’s speech in Ibrahim -v- R [1914] A.C. 599 at 609 where he said:

“It has long been established as a positive rule of English criminal law that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement in the sense that it has not been obtained from him either by fear if prejudice or hope of advantages exercised or held out by a person in authority.”

Thus I must be satisfied that the statement containing admissions from the second accused was made voluntarily. If it was shown that it was not made voluntarily I must exclude it. No question of discretion arises in such a situation. See also the comments by Daly CJ in R-v-Baefaka (1983) SILR 26 at p.30.

The second accused gave evidence and said when he was arrested he was asked to accompany the Police to Auki. He agreed to accompany the Police. On arrival at Auki Police Station he was put in an office where he slept for the night. On 23 April 1992 he was asked to go to the CID Office. While in that office, the Police read the first accused’s statement to him. That statement contains the first accused’s story which implicates the second accused. The first accused’s story, if true, clearly puts the second accused on the scene of the murder and participated in the killing of the child. The second accused was said to have cut the child on left neck twice. The second accused at first denied what the first accused had said about him. He agreed that the Police asked him to think properly before giving his story.

The second accused further told the court that he was punched by a Police Officer named Auga and forced him to admit what the first accused had said about him. This the second accused said happened on 24 April 1992. After that D/Sgt. Angisia recorded his story. The second accused stated that D /Sgt. Angisia came into the office to take his statement after Sgt. Auga had already punched him.

In the course of the interview the second accused said that he told his story without the need for Sgt. Angisia to ask him questions. He stated that he told Sgt. Angisia that he cut the child’s left neck and then butchered the left neck as well. He agreed that after the interview D/Sgt. Angisia read the statement back to him and he agreed to his story as written down by D/Sgt. Angisia. He agreed that he did not want to change anything in his statement as recorded. He then signed his statement. The recording Officer and witnessing officer also signed.

In cross-examination, the second accused stated that it was him who asked for the first accused who came into the CID Office. In the presence of the first accused and D /Sgt. Angisia the second accused confronted the first accused asking him why the first accused lied about him. The first accused responded that he was not lying and that it was the second accused who went to the sea-coast with him and helped him to kill the boy.

The second accused further told the court that he cried because he was sorry that his brother (the first accused) had lied about him and that he might go to prison and would not see his mother.

The first accused story as contained in his statement under caution clearly admitted killing the boy. He did not try to shift the blame to his brother, the second accused. He simply added that his brother was also involved with him in the killing.

The defence, although·challenged the admissibility of the cautioned statement, did not deny the fact that it was the second accused who pointed out to D/Sgt. Angisia the exact spot where the body of the dead boy was to be found. The second accused could not have been so exact unless he himself knew the exact place where the body was to be found.

The two officers denied any threats or force used against the second accused. The defence sought to discredit the two officers’ evidence by asserting that one Sgt. Auga was the main figure in extracting admissions from the second accused by force. Although, there is no requirement from the defence to satisfy the court of the voluntariness of the statement, the defence must nevertheless satisfy the court by evidence that the alleged assault or threat occurred. In this case apart from the second accused’s assertions, no evidence was adduced pointing to such assault nor was there any evidence of force or threat. I do not believe the second accused when he said that he was assaulted and threatened to give his story.

The evidence clearly shows and I am satisfied beyond reasonable doubt that no improper means was exerted upon the second accused when he gave his story and so his caution statement was voluntarily obtained from him. I admit the second accused’s caution statement as evidence.

I now consider the evidence on the charge itself.

The crime of murder is provided for under section 193 of the Penal Code. The prosecution must prove that the killing was done with malice aforethought before the court can convict the accused. That is the mens area in murder and it is defined in section 195 Penal Code which reads:

“195. Malice aforethought may be expressed or implied and express malice shall be deemed to be established by evidence proving either of the following states of mind preceding or co-existing with the act or omission by which death is caused, and it may exist where that act is unpremeditated-

(a) an intention to cause the death of a grievous bodily harm to any person, whether such person is the person actually killed or not; or

(b) knowledge that the act which caused death will probably cause the death of, or grievous bodily harm to, some person whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused.”

This provision has been considered in a number of cases in this jurisdiction. See the cases of Joel Aosi -v- Reginam (1988/1989)SILR 1; R -v- Alick Te’e Crim. Case No.1 of 1992 (H.C)(Judgment given on 1 April 1992) and R -v- Maritino Suilamo, Tome Akwasu’u and Molusafi Criminal Case No.3 of 1992 (H. C) (Judgment given on 5 May 1992)

The prosecution must prove, the states of mind as required under section 195, Penal Code. The evidence relied on by the prosecution are contained in the Cautioned Statements of the two accused. In the first accused’s cautioned statement the following is an insurmountable evidence of his state of mind:

“I have the intention to kill Mr. Siale or any of his sons/children. From here I will explain from the very start of how the cross or the motive is. Right from the start it was Mr. Siale and group/section who does chopping down of about five (5) to six (6) coconut trees. We asked for payment but they failed to do so. So from there my father MORISARA (M) swore to the custom devils stopping anyone for not doing any work/cultivation upon the so called land (KWATO) Land. And since then Mr. Siale did not bother but ignored the custom swearing.

We on several times demanded compensation from Mr. Siale and also Mr. Bobby but still they did not give it. At one time I knew that Morisara, Ofea (m), Alick (m) together with Ben Tofoala (m) they also came demanding or asked compensation but still the demand was not met. During those times they only came to demand compensation for the swearings which my father Morisara (m) had swore to our highly respected custom devils for the party not to work/cultivate upon KWATO Land. Because of these things Morisara (m) did advise us his children that whenever any of us sees any sons of Siale (m) and his group we are to kill them so that they may realise it. This sort of Tambu swearing in custom, if they did not listen or obey it or to comply with it, then one thing is to kill or bloodshed was for such swearing and a human life is the only thing to be paid as compensation. That is why I must kill a human life for it. This is to compensate the swearing which my father swored to, or against our devils,....”

The first accused went on to describe how he came to the garden and met PW1 and that he took PW1’s two sons to climb coconut. He went to described how he told a lie to PW1 about going to fetch fire from a house in the bush. He described how he led the deceased boy into the bush and then to the “Oloa” Tambu Site. It was there that he tricked the boy into looking out to the sea for canoes. As Soon the boy turned to look to the direction of the sea, the first accused cut the boy’s right neck, three times and then another cut to the left neck with his bush knife. The boy fell. After the boy fell, the first accused gave another cut to the head of the boy.

The first accused also described in his additional cautioned statement how the second accused followed him to PW1’s garden and that the second accused stayed at some distance away from the garden waiting for him. He described also how he and the second accused led the boy into the bush until they came to “Oloa” Tambu Site where they killed the boy. He stated that the second accused helped to cut the boy’s left neck twice with a bush knife.

In his evidence contained in his cautioned statement, the second accused confirmed how he and the first accused planned to go down to the coast to kill any “salt- water” people. He described how they came to PW1’s garden, and lead the boy into the bush and killed him. The second accused described his part in the actual killing in his statement as follows:

“We both led the child until reaching the Oloa Tambu Site. Rurugeni told lies to the child to dig for mega bird (eggs). So at the sametime I saw him lifted up his bush knife, then I told Rurugeni again saying,’no’.We left the place and moved a bit again until reaching the place where we killed the child.

Right at the place we both now heard the father of the child shouting or calling for his son. There Rurugeni told the boy saying, ‘Did you hear your father, you listen carefully for it was your father’. At the very time Rurugeni was the first person to get his bush knife in his right hand and cut the right side neck of the child. The second time he cut the child and so he felt to the ground and so he cut the back head of the child. At the same time Rurugeni said to me we must killed him because of the things is so quite big. So from then I got my bush knife and I cut the left side neck and the below neck of the child. Then after all I got the bush knife where I butchered through the neck of the child again.”

His admissions are detailed and clear. I have no doubt his admissions are the truth of what he did on 11 March 1992.

The medical evidence described the injuries suffered by the deceased boy as follows:

“There were three major wounds.

Wound A: This was a very deep laceration on the left side of the neck. It stretched from the top of the sternum through the anterior and posterior triangles of the neck and to the midline of the neck at the level of the seventh cervical vertebra. This laceration exposed the deep structures of the neck including the spinal column.

Wound B: This was on the right side of the neck. This started at the top the sternum and went through the anterior and posterior triangles and reached the medial of the spine of the scapular. This wound met that of Wound A anteriorly exposing all the deep structures of the neck including the trachea.

Wound C: This was on the same side as Wound A in the same direction but at a higher level. This had cut through the bone of the skull in the left occipital region detaching a large piece of bone. The cranial contents were exposed.”

The caused of death was from the extremely severe lacevation wounds to the head and neck and that the child would have died quickly from loss of blood, if not, he would have already died from the trauma to his head.

The evidence against the two accused are overwhelming in this case. Most of it, if not all, is contained in their admissions which are clear and unequivocal. The evidence clearly shows that the two accused carried out a pre-meditated plan to kill PW1 or any of his children obviously following a dispute over Kwato Land. They put their plan into effect by savagely killing the deceased, one of PW1’s children. Photographs A-E in Exhibit 3 show the body of the deceased that had been brutally cut and butchered, an indescribable inhuman act of savagery.

I am satisfied beyond reasonable doubt that the both accused killed the deceased with the states of mind as required under section 195 P.C. That is murder and I convict both accused of the crime of murder.

(G.J.B. Muria)
ACTING CHIEF JUSTICE

Acc’d present

Ct: Judgment

Rurugeni Nanau Irofo’oa comes Fare Fare Vge

He is single

Mother is alive

No prior

Date of birth not known.

Ben Tofola, Fulilabata village Born 1974

Now 18 years

3 priors

- also going arm

- Grevious Harm

- Affray

- Grevious Harm

Married

Has one (1) child

Both parents still alive.

JR: The previous confirmed convictions of Ben Tofola were confirmed.

I ask court to consider Rurugeni’s caution statement, i/d parade and Medical Report are admitted.

Rurugeni’s case is very much like a guilty plea. I ask that be on the record to be taken into account when it comes to consider his case at some later stage.

I ask that as a matter of record that the two accused have a security risk. There is suggestion that inmates (life times) who are at present in prison are threatening to harm these two for the murder of their relative (the boy).

CT: I request that these concerns are not left unattended but should be looked into by the Prison Authorities.

Sentence: [Acc’d stand]

The law does not give me any choice as to which sentence I should impose on you.

The sentence is Life Imprisonment and that is what the court now sentenced you to.