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High Court of Solomon Islands |
THE HIGH COURT OF SOLOMON ISLANDS
Criminal Case No. 12 of 1997
REGINA n>
v.
BEN TUNGALE, BROWN BEU, NELSON OMA,
JAMES SALA, LOUIS LIPA, CHARLES MEAIO AND JOHN TETIHigh Court of Solomon Islands
Before: LUNGOLE-AWICH, J
Criminal Case No. 12 of 1997Hearing: 15 October 1998
Judgment: 6 May 1999J Faga for the Crown
L Kwaiga for the first accused - Ben Tungale.
Mrs M Samuel for the 2nd, 5th & 6th accuseds - Brown Beu, Louis Lipa & Charles Meaio.
Mr S Manetoali for the 3rd, 4th & 6th accuseds - Nelson Oma, James Sala & John TetiJUDGMENT
(LUNGOLE-AWICH, J): The Background. The 7 accused persons cited in the information are relatives or homeboys, commonly referred to as "wantok". They come from Temotu Province, also known as the Reef Islands. At the time of the incident of this case, one of them, Ben Tungale No. 1, had a house or home at BSA, Guadalcanal Plains. Some of the other 6 either lived with him at his house or home or frequented and had their meals there. Before the incident, Ben Tungale and Brown Beu, accused No. 2, had information that Fisher Young, now deceased, another "wantok". had sexual encounter with Lama, the wife of Brown Beu. On the evening of 3.1.1997, Tungale and Beu went to Tetere Police and reported their displeasure at the conduct of Young, to No.844 Police Constable Charles Hebatia, PW1. From the Police Station Tungale and Beu informed the other "wantok" about the misdeed of Young. They all agreed or acquiesced in doing something about it, they all went to look for Young. They found him at the house of Joseph Oisuru, PW3, at "Sol Rice CDC Two" area: One of them called Young to come outside. All or some of them beat Young. He sustained severe injuries; he was unable to walk or sit. The Police went and took him to Central Hospital in Honiara. He was first taken on a truck and later transferred into an ambulance. He died in the morning on 4.1.1997 at the Central Hospital. Dr. H. Oberli, Consultant Surgeon, stated the cause of death in these words: "The cause of death was severe brain damage due to a blunt head injury." The whole medical report was just 3 lines.
It is desirable that doctors give more detailed reports. In this case, injuries, both external and internal were not specified. Many times the case against an accused depends on the injuries found on the victim and sometimes on the accused himself. A standard medical examination form providing spaces for: (1) Injuries to the head (2) Injuries to the trunk (3) Injuries to the lower part of body (4) Injuries to the limbs (5) Internal injuries (6) Injuries to organs (7) Other injuries and other comments, and (8) Cause of death or other conclusions, might guide and encourage doctors to give more information about their examination. The Prosecution may consider taking up the suggestion with the Police and Medical Authority. In a case involving assault it may be wise for the police to ask suspects whether they also sustained injuries and would agree to medical examination (and of course treatment). Injuries on accused may turn out to be crucial when technical issues such as self-defence are raised at trial.
The Charge
The prosecution has charged all the 7 accused persons with the offence of murder under section 193 of the Penal Code, in Chapter 5 of the Laws of Solomon Islands. In the 1996 Revised Laws, murder is in S:200 and the Penal Code is now in Chapter 26. The particulars of the offence were that the 7 accused, "on 3.1.1997 at BSA Married Quarters, Tetere in Guadalcanal Province, murdered one Fisher Young Bilve."
Proof Required and Admitted Evidence
To prove its case the prosecution must prove that each of the accused unlawfully caused the injury that caused the death of Fisher Young, and that he caused the death, of malice aforethought, or that he jointly with others unlawfully caused the death, of malice aforethought. Joint liability in murder is proved by evidence proving common intent to cause the death, and common intent to do so with malice aforethought: see R -v- Robert Foster, Loea and Dusu Cr App 8 of 1994 also John David Ward -v- R [1987] 85 Cr App R 71. It is not necessary to prove that each confederate inflicted the injury that caused the death if the prosecution chooses to rely on common intent, also referred to as joint enterprise.
That Fisher Young died on 4.1.1997 as the result of head injury was admitted by all the 7 accused; the post mortem report dated 13.1.1997, signed by Dr. H. Oberli, was admitted and taken as Court exhibit No. P1. In the rest of the evidence there was conclusive proof leaving no doubt whatsoever, that on the evening of 3.1.1997, Young was beaten up at, "the Married Quarters, Tetere.'' He was taken to Central Hospital the same night, when his condition was grave and died as the result of injuries inflicted in that beating up. The beating of Young was unlawful; the law prohibits beating as a way of settling scores. In any case there is nothing in the case to suggest that Young fought back and so there was need for all or any of the 7 accused to defend himself. There was really no contest about those facts. The main issue in the case was and still is whether each of the accused beat or participated in beating Young, and which of them inflicted or assisted in inflicting the injury to the head, the injury which caused the death of Young, or alternatively, whether those who did not cause the injury nor assisted, can in law, be held responsible because they had the joint intent, sometimes described as common intent.
(Facts Admitted under Section 181 of the Criminal Procedure Code)
During the proceeding it became obvious that some relevant facts would not be contested. I asked Counsel for the Crown to consult with defence counsel and draw up admitted facts. That was accomplished. I would like to draw attention of all practitioners to s:181 of the Criminal Procedure Code, in Chapter 7 of the Laws of Solomon Islands. The section authorises admission of uncontested facts. In most criminal cases a lot of relevant facts are not contested. Much time will be saved if practitioners make more use of the section. I quote here only subsections (1) and (2) which state:
181. (1) Subject to the provisions of this section, any facts of which oral evidence may be given in any proceedings to which this Code applies may be admitted by or on behalf of the prosecutor or accused person, and the admission by any party of any such fact under this section shall be conclusive evidence in those proceedings of the fact admitted.
(2) An admission made under this section -
(a) may be made before or at the proceedings;
(b) if made otherwise than in Court shall be in writing and if made in court shall be entered in the court record;
(c) if made in writing by an individual shall purport to be signed by the person making it and, if so made by a body corporate, shall purport to be signed by a director or manager, or the secretary or clerk, or some other similar officer of the body corporate;
(d) if made on behalf of an accused person who is an individual and is represented, shall be made by his advocate;
(e) if made at any stage before the trial by an accused person who is represented at the trial, must be approved by his advocate (whether at the time it was made or subsequently) before or at the proceedings in question:
(i) Provided ���.
Statements of the Accused Persons
When learned counsel Mr Kwaiga for, Ben Tungale and learned counsel Mr Manetoali for Nelson Oma, accused No.3, informed Court that statements made by those two accused to police would be challenged as inadmissible, I asked learned Crown Counsel Mr Faga, prosecuting for the Crown, whether he intended using statements of the other 5 accused in proving the prosecution's case. He said that he would rely on all statements taken from all the accused. In the end he actually led in evidence only statements of Ben Tungale and Nelson Oma. Statements from Brown Beu, Charles Meaio, accused No. 6, and John Teti, accused No. 7, were admitted as statements made voluntarily and freely, their contents were appraised together with other evidence. The remaining 2 accused were said not to have made statements to the police.
(Statements of Sala and Lipa)
Learned counsel Ms Samuel, for Louis Lipa, accused No. 5, and Mr Manetoali, for James Sala, accused No. 4, said that Lipa and Sala did not make statements to police. Mr Faga for the Crown did not present to the Court evidence of statements made by the two accused (Lipa and Sala). As far as the cases against them are concerned the prosecution has to prove all the relevant inculpatory facts required in the offence of murder, committed singly or as joint enterprise. The standard and burden of proof are of course that of beyond reasonable doubt, and the burden always lies with the prosecution. That is "the golden thread" rule of proof in Woolmington -v- DPP [1935] AC 462 HL. Further explanations are in R -v- Summer [1952] 36 Cr App R 14 approved in Walters -v- The Queen [1960] 2 AC 26, Privy Council judgment.
(Statement of Charles Meaio)
The admitted cautioned statement made by Charles Meaio to Police Constable No. 511, after caution had been administered, was simply that he, Meaio wanted to talk only "one time and at Court." So again all the facts of the prosecution's case against him, Meaio, have to be proved beyond reasonable doubt.
(Statement of John Teti)
The admitted cautioned statement of John Teti, dated 6.1.1997, did not contain much inculpatory facts. He admitted joining up in the wantok group on 3.1.1997 at Tetere and went to look for Young, and that he hit Young once and Young fell down. That will at most be confession to the offence of common assault only. On those admitted facts the common intent he joined in cannot be put as high as to go and cause the death of Young, let alone, of malice aforethought. May be there would be common intent to go and chastise by assaulting; the assault would be unlawful.
(Statement of Brown Beu)
The cautioned statement of Beu dated 4.1.1999 at Tetere Police Station, admittedly given voluntarily and freely to the police was taken as exhibit. In it Beu admitted having held up Young when he was trying to run away from the first beating by some of the 7, and that he, Beu, kicked Young twice on the buttocks. That would be confession to the offence of common assault only. Much of Beu's statement was about the beating of Young by others, which of course is not admissible evidence against the 6 co-accused - see Solomon Islands Court of Appeal case; Robert Foster, Loea and Dusu -v- R, Criminal Appeal 8 of 1994. In that case, appeal of one of the appellants was allowed on the ground that the trial judge, in determining malice aforethought, seemed to have used the cautioned statement of one of the co-accused to convict the successful appellant. The statement was to the effect that the successful appellant had known that the third co-accused had knife, the appellant heard the third co-accused shout that he had knife the deceased be dragged to him, the appellant therefore knowingly took part in dragging the deceased to the third co-accused who stabbed the deceased to death. Important English cases on the point are: R -v- Rudd [1948] 32 Cr. App R 138 and R -v- Rhodes [1960] 44 Cr App. R 28. An important Privy Council case from Sri Lanka is R -v- Gunewadene [1951] 35 Cr App. R 80.
Apart from the events at the time of beating Young, the statement of Beu admitted that he (and Tungale) had been to the Police Station at Tetere earlier to report the misdeed of Young with Beu's wife. Taken together with the prosecution evidence on the point, in particular, to the effect that the police did not take any preventive step, Beu's statement was enough to destroy the prosecution's position that Brown Beu and Ben Tungale, informed the Police of their intention to kill Young. It is most probable that No. 844 PC Charles Hebatia, PW1 and No. 729 PC Henry Bae, PW7 (also VDW2), the police officers who spoke to the two accused, advised the accused to go and settle the matter in custom as a domestic matter. The police officers did not go with them nor inform them that the police would take action about the report. The prosecution's evidence about what happened at the Police Station when Tungale and Beu were at the station was not enough proof that at that time, Tungale and Beu already had intention to kill Young or do grievous harm to him, or that the pair knew at the time that what they set out to do would cause the death of Young.
The admissions made by Beu in his cautioned statement assists the prosecution's case only in placing Beu in the fight which resulted in the death of Young, and only as far as that Beu would be guilty of common assault because of the admitted punching and kicking on the buttocks. The rest of the facts required for the offence of murder must be proved by the prosecution beyond reasonable doubt.
(Statement of Nelson Oma and Voir Dire)
Nelson Oma, accused No. 3, admitted making statement to the police, but he objected to it being used as evidence against him in his trial. His counsel, Mr Manetoali informed the Court that the objection was on the ground that, "Nelson was forced to make the statement." The objection was raised when the second prosecution witness, No. 729 PC Henry Bae, was testifying. The Court directed the trial of the case to stop and proceeded to conduct a voir dire; a trial within a trial. In the voir dire the prosecution called 2 witnesses; the policeman who recorded the statement, No. 660 Detective Sergeant Jerry Muaki, and No. 729 PC Bae, who witnessed the recording. The defence (for Oma) called Oma himself and Beu, the co-accused, as witnesses in the voir dire. I considered the evidence in voir dire and decided to admit the cautioned statement of Nelson Oma, dated 5.1.1997 recorded by Detective Sergeant Muaki at Tetere Police Station. My finding was that the statement was voluntarily made freely by Oma.
The evidence in voir dire, in my view showed that Oma made the statement voluntarily and freely without any hope for reward or advantage. I also did not find any evidence of unfairness or prejudice so as to cause me to consider excluding the statement by exercise of Court's discretion.
There is no statutory law in Solomon Islands about admissibility of inculpatory statement - confession or admission, made by an accused to a police officer or to someone in authority over him. The law applicable has been the English law received during the protectorate days, and now authorised by section 76 of the Constitution. The rule of practice regarding recording of statement from an accused is that in the Supreme Court of England as modified by the direction of the Chief Justice of Solomon Islands, in Practice Direction No. 2 of 1982. Detailed guide is set out in the judgment of Savage JA in the Solomon Islands Court of Appeal case; Ben Tofola -v- R Cr App. 2 of 1993. The Court of Appeal outlined how courts should proceed following an objection by an accused to admission of his extra-curial statement.
I may state the basic purpose of deciding whether to accept in evidence prior statement made by the accused simply as to ensure that the Court may admit such a statement only if it had been made out of accused's free will. The law regarding admitting confession or admission made by accused outside court proceedings, still remains very much as stated by Lord Summer in the case of Ibrahim -v- R [1914] AC 599; All ER 874. At page 877, letter H, Lord Summer stated:
"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 of prejudice or hope of advantage exercised or held out by a person in authority. The principle is as old as Lord Hale."
The case was an appeal from Hong Kong during the colonial days. The Appellant, a private in the then British colonial army in India had been convicted of the murder of a native officer. The Commander of the detachment saw the appellant 10 to 15 minutes after the shooting of the officer. He addressed the appellant, "why have you done such a senseless act." Appellant replied: "For some two or three days he has been abusing me; without a doubt I killed him." Although their Lordships did not categorically rule on the admissibility of the statement because there were ample independent evidence which supported the conviction, Lord Summer stated the useful rule that has been followed in subsequent cases. Other useful cases are, Commissioners of Customs and Excise -v- Harz and Power [1967] 51 Cr App R 123 and DPP -v-Ping Lin [1975] 3 All ER 175.
The facts put forward by Oma to contest admissibility of his statement were that: He was arrested on 4.1.1997 and detained in custody, but the statement was taken only at 11 am on 5.1.1997. A policeman told him to make statement because "it was a big case". At the time of recording the statement there were many policemen in the room, they were as noisy as dogs. The police promised that he would be released. The police had also told him that Beu had already made statement. He, Oma, was never cautioned before making the statement.
I do not believe that there were many policemen in the room, Beu as Oma's witness would have picked on that. From the evidence, some of the police officers at the station were away on other duties. I also think that if Oma made his statement when he had known that Beu had already made one, it is most likely that his information first came from Beu. Oma and Beu are "wantok" arrested together at Beu's house and kept in the same cell. It is reasonable to take it that in their situation they would have talked about the fight, arrest and what might follow. Moreover, Oma's testimony in voir dire gives account of him knowing that Beu was making a statement at the time that Beu did. Even if I were to find that the police informed Oma, I would not conclude that in the circumstances it exerted pressure on Oma, to make his statement.
The statement itself was not worth much for the prosecution, it did not admit guilt for murder. Oma admitted only punching Young once on the forehead and kicking twice on the buttocks. He said that his attempt at Loea's house to strike Young with a stool was stopped. Then the statement went on to talk about his good caring act of washing Young's face there and then at the scene. At most Oma like Beu, admitted facts sufficient to prove only common assault. The prosecution is left with his burden to prove the unlawful act of Oma that the prosecution alleges caused the death of Young and of malice aforethought or his part in joint enterprise to murder.
(Statement of Ben Tungale and Voir Dire)
The objection of Ben Tungale, accused No. 1 to his statement admitted in evidence was said to be on the grounds that: "The statement was incomplete, it would be unfair to Tungale." I ruled against the objection and admitted in evidence the cautioned statement of Ben Tungale dated 27.3.1997, made at Rove Police station. I however, ruled against admitting another statement said to have been made by Tungale on his own before he was arrested. The statement was said to have been handed over to a policeman by a brother or cousin of Tungale. The document was simply an hearsay document. In fact it appears in the voir dire that the prosecution might have not wished the statement introduced. Counsel for Tungale introduced it in cross-examination perhaps to illustrate his point that the cautioned statement contested was an incomplete account of events. Tungale did not admit the particular statement as having been made by him.
Mr Tungale's objection was not grounded on being forced by the police to make the statement. He said that he "was not subjected to force," so that a statement could be extracted from him. His complaint was that he was denied opportunity to write the statement himself and that Pijin was used instead of English, he understood English better. He would have, on the other hand, liked to give the police a statement he had written before his arrest, but he never got the opportunity to collect the statement from his cousin's house. The statement produced in Court, and now rejected, was not the one.
In the first place there is no rule that a statement which does not give full account of events as seen by the accused or the prosecution, is not admissible. The prosecution has negatived any unfairness arising from not including the statement prepared earlier by Tungale. Moreover, if Tungale felt that the inclusion of that statement could bolster his argument he was free to produce the statement to make his story complete. I reject that ground. Tungale's points that he should have been allowed to write by himself and to use English, are good grounds but, in my view, are after-thoughts. I do not believe that he informed the police that he wanted to write his statement. In any case, the deficiencies are considerations only relevant as to whether I should refuse to admit an otherwise admissible statement made voluntarily and freely. They are defaults in following the English Judge's Rules which though are good Rules, I need not follow. Indeed even English judges may in their discretion excuse failure to comply with the Rules and admit statements they consider were made voluntarily and freely - see Vision -v- R [1918] 1 KB 531.
The facts upon which the ground of unfairness to Tungale was alleged, was never made clear to Court. The usual factors regarded as giving rise to unfairness were never pointed out by Mr Kwaiga as obtaining. The rule of unfairness applies to cautioned statement to police only in limited circumstances such as when there has been oppression to accused. Examples are: when accused has been unnecessarily subjected to prolonged solitary confinement, denied food, asked to make statement when confronted with a co-accused. Unfairness is usually about admitting evidence which may have been obtained by unlawful means such as during unlawful search or arrest or by trespassing and spying, by theft of the evidence from the accused, by obtaining evidence through untoward actions of agent provocateurs and many such others. Cases on the point include: Kuruma -v- R [1955] AC 197; 1 All ER 236, an appeal from East Africa to the Privy Council, Jeffrey -v- Black [1978] 1 All ER 995 and R -v- Hudson [1981] 72 Cr App R 163. Kuruma's case, in my view, lacks in assessment of the burden of proof, a surprising deficiency in a conviction punishable with death. It is however, an illustration of admissibility of evidence obtained during unlawful search.
If by unfairness Tungale meant that circumstances surrounding the taking of his statement were oppressive, then it is to be noted that the prosecution has excluded evidence of the usual oppressive acts such as denying him food, access to solicitors, unnecessarily prolonging his detention, unnecessarily keeping him in solitary detention and many others. In this case Mr Kwaiga did not point out to any possibility of such oppressive conducts during the time Tungale was detained. Oppressive acts in my view, tend to actually show that there was, in the first place, lack of free-will and therefore the statement could be regarded as not having been made voluntarily and freely.
Despite the much effort expended in objecting to the admissibility of Tungale's cautioned statement, the statement hardly discloses inculpatory facts against him. It simply admitted that he (and Beu) went to Tetere Police to seek permission to "teach", (chastise) Young and that he, Tungale, urged the other 6 accused to look for Young so that they could "teach" him. The statement nowhere admits any physical beating of Young by Tungale. So even after the statement has been admitted, the prosecution still has to prove beyond reasonable doubt, all the facts that show that Tungale was guilty of the unlawful act that caused the death of Young and that Tungale acted with malice aforethought, alternatively that Tungale engaged in joint enterprise, the murder of Young.
Proof by Testimonies
To prove its case, the prosecution called 6 eye witnesses who all lived within the BSA housing area, where Young was beaten up. Much and vigorous cross-examinations on behalf of all the accused were done. The vigorous cross-examination never succeeded in dismantling the central story that Young was called out of the house of Joseph Oisuru, beaten badly, sustained grave injury in the head and died as the result. The beating was one sided, Young did not fight back. He was simply overwhelmed by numbers and by guilt of his disapproved sexual encounter with Lama, the wife of Beu, an offensive and embarrassing conduct within the "wantok" circle. All the eye witnesses placed the fight behind Beni Martin's house; that it moved round to the side of the house facing Melody's house then to the front and across to the other side and on to the road and away.
Those who beat Young were undoubtedly from among the accused, if not all of them. The crucial question is whether each of the 7 accused was identified beyond reasonable doubt while he beat up Young or assisted in the beating.
There were, of course, some differences, even call them discrepancies, in the accounts given by eye witnesses. I would have been suspicious if there were not, given the large number of eye witnesses, of various age groups, and with different abilities to comprehend details. Some of them could, understandably, not understand the significance of the so many not so dissimilar learned questions that they were asked in Court. It must also be remembered that the fight was an event which, as usual, occurred without warning. The eye witnesses came to the scene at different stages of the fight and in some haste, perhaps even in panic and fear. At least one came out with combat club, the "alafolo". Witnesses were asked to identify their positions in relation to one another as they arrived and as they watched the fight. I was in fact impressed that whatever discrepancies came out in their pointing out, the closeness of the places they pointed out were more significant.
I particularly scrutinised the evidence about identification, given the not so good circumstances in which identifications were made by witnesses. The Court visited the scene in the evening, perhaps a little earlier than the time given as the time of the fight. At the scene, some evidence about identification was received and cross-examinations on the evidence were done. That took us up to 9.00 pm, the time estimated the time of the incident. I carefully observed the lighting at the scene. The front and left side of Martin's house was very well lit by electric light bulb in the verandah, light from the rooms in the house through windows, light from Melody's house and some rays from street lights. My view was that when fight was on the side and front of Martin's house, the witnesses could see much details of the fight. In fact all the witnesses gave more details about the beating when it came to the side and front of the house. The back was rather dark; some outline of human figures could be seen, but not reliably. The defence suggested that light in the rooms be switched off and that was done. On the side of the house, one could still see outlines of people and their movements. Maybe there would be room for mistaken impression. My finding on the evidence is that the lights in the rooms were on as Martin and several other witnesses testified, and that there was no basis for the suggestion in cross-examination, that the inside light had been switched off. Even if that had been the case earlier before the fight, it certainly was the time to switch on all lights the moment Martin heard the noise from the approaching fight, so that he could see any danger approaching.
Further, on the evidence, it was absurd to suggest that there was no torch, nobody shone it onto the fight. Gordon Iroau who had the torch, testified that he shone it on the fight when the fight was behind Martin's house in a dark place. Beni Martin, Joseph Oisuru, David Maedani and Arthur Inia all noticed the torch light as they watched the fight; they testified about it. There has been no evidence to the contrary. My finding is that some of the fight behind the house was seen clearly by the eye witnesses when torch light was shone on the fight there, and that the whole fight or beating on the side and front of the house could have been observed if one paid full attention; the front and side were brightly it.
Responsibilities of Accused Individually
The individual actions of each of the seven accused will now be examined to determine the individual responsibility of each. After that, since the Crown also relied on joint enterprise, the joint intent of the accused will be examined to determine whether each of the accused can be held jointly responsible for the consequences of the actions of all or some of them.
1. Responsibility of Louis Lipa:
Earlier in the proceeding Ms Samuel told Court that Lipa did not make statement to police. Later in submission counsel said it was Charles Meaio who did not make statement. The mix-up does not matter because the statement of Meaio said to have been admitted was merely that he wanted to make statement once only and in Court. It is the same as not making statement at all. That of Lipa was actually not tendered in Court, but as it was admitted I looked at it. It was a complete denial of any part in the beating up of Young. I did not take anything said in there against him. So evidence of all relevant facts against Lipa must come from the testimonies of eye witnesses. Lipa was identified in the fight by Joseph Oisuru and others who said that Lipa kicked Young and pushed him to move on. It must have been when Martin demanded that the accused take the fight away from Martin's house. Oisuru did not say on which part of Young the kick by Lipa landed. I take into account that the implicating evidence came only in re-examination on the point. The witness was, however, truthful. He was very frank about some places being too dark to allow any proper seeing and that he came out with his alafolo combat club. Apart from Oisuru, Inia also identified Lipa in the fight. He said that Lipa kicked Young on the side. The evidence does not suggest that the kicks by Lipa could have been the cause of the death of Young. It showed however, that the kicks were unlawful; Lipa could be guilty of common assault under s:237 of the Penal Code (now s:200 in the 1996 Revised Edition).
2. Responsibility of James Sala:
The Court was informed that James Sala did not make cautioned statement to the police. His part in the beating up must be proved. He was positively identified in the fight by Gordon Iroau who had torch. Gordon saw Sala and Oma bang Young's head on the short concrete wall of Martin's house several times. Other witnesses also saw this action, but some of them were not sure of the identities of the accused persons who banged Young's head on the wall. David Maedani identified Sala when Sala kicked Young on the belly. Maedani said that at that time Young was too weak even to defend himself - meaning too weak to fend or ward off blows. Sala was also identified when he and another held Young's arm off to allow powerful kicks by Tungale to land on Young unobstructed. I believe the evidence against Sala and I find that he contributed to the head injury which caused death and to other acts of assault such as kicking when Young was helplessly weak from the beating.
3. Responsibility of Charles Meaio:
I took it that it was this accused who made statement to the police. As I have explained, Meaio simply said that he wanted to make statement only once and in Court. His part in the fight must came from the testimonies in the case. Among the witnesses who identified Meaio was David Maedani The parts in the fight identified with Meaio were punching with fist and kicking. He was not identified to have struck a blow to the head. His action would amount to common assault.
4. Responsibility of John Teti:
This accused admitted in his cautioned statement that he was in the beating up of Young mid that he punched Young on the forehead That does not go far enough to prove that the punching caused the head injury that caused the death of Young. Eye witnesses including Maedani and Gordon identified Teti in the fight. He was not identified as having struck the head of Young with anything dangerous. He could be held responsible for assault.
5. Responsibility of Brown Beu:
This accused admitted having made statement voluntarily. In the statement he admitted being in the beating up of Young, but admitted only minor acts of violence such as holding Young and preventing him running away and kicking him twice on the buttocks. Against him, almost all the eye witnesses identified him in the beating up of Young. He was identified at least by two witnesses, to have struck on the back of the head of Young with a solid heavy branch of tree, and to have also banged Young's head on the wall. The testimonies against him are reliable and believable. I find that he contributed to the head injury that caused the death of Young.
6. Responsibility of Ben Tungale
Ben Tungale's statement put blame on others, but of course the Court cannot use those parts of his statement against the other accused. He admitted he was at the scene of the beating up of Young. He was recognised by all the 6 eye witnesses. He traded at his store in the village and so all the witnesses knew him. He was identified to have kicked Young on the ribs, neck, face and punched with connecting fist blows. Most gravely, Tungale persisted in hitting and kicking when Young was held on both arms by Oma and Brown and sometimes by Sala and so Young was all open to the hard blows of Tungale. He also instructed the others to act as they did. He knew that his blows were dangerous when he persisted when Young was too weak. The kicks he landed on the head and face were likely to have contributed to the head injury that caused death. The evidence as a whole shows that he shared in the common intent to the actions that caused the death of Young. He is answerable for the death of Young.
7. Responsibility of Nelson Oma
This accused admitted punching and kicking Young; that could be common assault. Eye witnesses identified his acts in the fight holding Young's arm so that Tungale could land kicks and blows completely unobstructed. He with Sala and at another moment, with banged Young's head on concrete walls. His acts contributed to the head injury therefore to the death of Young.
Intent to Cause Death
(Intention and Malice Aforethought)
I have already determined that only Tungale, Beu, Sala and Oma can be held responsible for causing death of Young. The charge of murder laid against them includes responsibility for causing death. In this case, therefore murder can be considered only against the 4 of them The question now is whether the four caused the death of Young in circumstances that make them guilty of murder. For conviction on a charge of murder, the prosecution must prove, beyond reasonable doubt, that the accused caused death, and of malice aforethought. The relevant sections 200 and 202 of the Penal Code state as follows:
200. Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder and shall be sentenced to imprisonment for life.
201. ............
202. 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 or 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.
Malice aforethought defined in s:202 means (a) intention to cause death or grievous bodily harm or, (b) knowledge that the act will probably cause death. So the Court must be satisfied that evidence has been made available from which to conclude that when Tungale, Beu, Sala and Oma caused the death of Young, they had the intention to kill him or that they knew that their acts would probably cause his death. Knowledge that death is highly likely to result from the act of accused, has recently in England, been regarded as merely a way of determining, together with the rest of the evidence, that the accused had the intention to kill - see R -v- Molony [1985] 81 Cr App R 93; 1 AC 905. The case was clarified in the consolidated appeal cases: R -v- Hancock and R -v- Shankland [1985] UKHL 9; [1986] 82 Cr App. R 264. In Molony, the deceased was killed by his step son after a happy dinner party, by a single gun shot fired in a mutual drunken challenge to prove prowess. The Court of Appeal decided that there was intention, but the House of Lords decided otherwise. In Hancock and Shankland, the deceased, a taxi driver, was killed by heavy concrete dropped onto his taxi car from a bridge. Accused were labour union members who tried to stop one of their members going to work in the car. They were convicted of murder based on a direction to jury about intent by reference to consequences. The Court of Appeal decided that the direction was defective and allowed the appeal, the conviction was changed to that of manslaughter. The House of Lords upheld the Court of Appeal's decision. In Solomon Islands, foresight is the knowledge that accused's act will probably cause death or grievous bodily harm. It is a matter of statute, in s:202 (b) of the Penal Code. It is of course in the nature of evidence, but the Act points at it as another way of identifying malice aforethought required in the offence of murder.
In this case it is impossible on the evidence available, to say that Tungale, Beu, Sala and Oma had, from the start, intention to kill Young. All the 7 set out, unarmed to look for Young. The intention was to find Young and beat him, something the accused saw as "teaching" Young. In the course of beating Young, Beu took a rather heavy and solid piece of branch of tree and beat Young with on the back of the head, a dangerous part of the body. The branch was handy around on the ground though. Much more evidence would be needed to dispel my doubt that by using the branch of tree, Beu intended to cause the death of Young or that he knew that beating Young with the branch could probably cause death. When some of the accused banged Young's head on the wall, they seemed to have done so in the frenzy of a fight. It is my decision that malice aforethought required in the offence of murder has not been proved in this case. I acquit the four: Tungale, Beu, Sala Oma on the charge of murder under s. 193 (now s. 202) of the Penal Code.
On the other hand, reasonable doubt aside, I have no doubt whatsoever that the actions of Tungale, Beu, Oma and Sala were reckless arid endangered the life of Young. The unfortunate result is that Young died from their reckless actions. I am satisfied beyond reasonable doubt that the prosecution has proved the case of manslaughter against them. I find Ben Tungale, Brown Beu, Nelson Oma and James Sala guilty of manslaughter under s:192 (now s:199) of the Penal Code, I convict them by authority of s:159(2) of the Criminal Procedure Code in Chapter 7 of the Laws, which provides that when facts are proved which reduce an offence charged to a lesser offence, accused may be convicted of the lesser offence although he was not charged with it. Manslaughter is a lesser offence to murder and has been proved.
The other 3 accused, Louis Lipa, Charles Meaio and John Teti acted unlawfully because it is against the law to settle anger by the use of violence. Their acts were by kicking and punching. Intention to cause death or even to act negligently towards life cannot be inferred from these acts. I have already said that they cannot be held responsible for causing the death of Young. Their acts could indeed inflict pain, and may have even caused bodily harm, but the acts cannot be regarded as reckless or negligent so as to cause death. In view of the rather very general post mortem examination report, I can say that I am only satisfied by the evidence, beyond reasonable doubt, that the acts of Louis Lipa, Charles Meaio and John Teti make them guilty only of the offence of common assault under s:237 (now s:244) of the Penal Code. I convict them of that lesser offence by authority of s:159 of the Criminal Procedure Code. I acquit them on the charge of murder under s:199 (now s:200) of the Penal Code.
Common Intent to Cause Death
It would be apparent by now that I have not found evidence of common intent among all the 7 accused to commit murder, and only in 4 to commit manslaughter, the offences in which causing death is a requirement. I have already pointed out the facts upon which some of the accused could singly be held responsible for causing death and, others singly for assault. It is my view that the evidence about common intent is extremely limited. The law of joint liability is that when more than one persons embark on a joint enterprise, each is liable for the acts of the others, done in pursuance of that joint enterprise and that includes liability for unusual consequences if they arise from the execution of the joint enterprise. Each one is, however, not liable if one them of them acts beyond what was expressly or tacitly agreed as part of the joint enterprise; he is not liable for the consequences of unagreed and therefore unauthorised act of the others. That rule was firmly et case of Anderson and Morris [1966] 50 Cr. App R 216; [1966] 2 QB 110, confirmed in the case of John David Ward [1987] 85 Cr App R 71.
In the former case, Anderson and Morris, appeals of both appellants were allowed, a retrial was ordered of Anderson because of misdirection on the evidence. Morris's conviction was quashed. He was acquitted because the evidence that he knew that the first appellant had a knife when the two set out to meet and fight the deceased was unreliable. The first appellant used knife in the fight with the result that the deceased died. The law, as stated by the Lord Chief Justice on page 221 may be summarised as:
"Where two adventurers embark on a joint enterprise, each is liable for acts done in pursuance of it and also for the unusual consequences of such acts, provided that they arise from the execution of the joint enterprise; but if one of the adventurers goes beyond what has been tacitly agreed as the scope of the enterprise, his co-adventurer is not liable for the consequences of that extraneous act.
Where, therefore, two persons take part in a concerted attack and one of them departs completely from the scope of the common design and forms an intent to kill or cause grievous bodily harm and uses a weapon in a manner in which the other party had no reason to suspect he would act, and so causes death, the other party is not necessarily liable to be convicted, and may be entitled to an acquittal."
In the later case, John David Ward, the appellant and another also convicted of murder, had argument in a public house with the deceased and others. They went and collected a knife and a pair of scissors; appellant collected the pair of scissors. In the fight that followed, the deceased was stabbed several times when he was on the ground. He died as the result of two wounds either singly or together; one was caused by knife and the other by scissors. The appeal was on two grounds, that there was no intention to kill, he struck with the scissors to prevent the deceased kicking him and that there was no common intent because the appellant did not foresee the action of the co-accused who stabbed with knife and its result. The appeal was dismissed. The Court of Appeal did not comment on the submission that the appellant did not know about the co-accused's knife, but the Court did not find misdirection about common intent. It went on to say that the misdirection about individual intent could not affect the guilt of the appellant, because there was intent to seriously injure or kill. The Court stated:
"This is a case where the appellant both wished and intended, on the finding of the jury, to injure the victim seriously or to kill him ........."
In this case I am satisfied beyond reasonable doubt that all the 7 joined and set out to find Fisher Young with the intention of "teaching" him which was to chastise him for his unacceptable offensive conduct in the circle of "wantok". The contemplated "teaching" was by beating Young, not by causing his death and not by beating him in so reckless manner that could endanger his life. As the beating was unlawful, all the 7 could be responsible for assault because that was the agreed or perceived joint enterprise. The evidence shows anyway that each of the 7 assaulted Young, each could be liable for his own act of assault.
As far as liability for the death of Young is concerned, the evidence falls far too short to show that causing death of Young was agreed expressly or tacitly among the 7. I cannot accept that it is within the usual or even unusual result of the agreed joint enterprise, the chastisement of Young. There was, however, common intent in recklessness on the part of Tungale, Beu, Sale and Oma. Their joint recklessness caused injury to the head of Young. Holding Young when he was already too weak, so as to render him without guard when being further beaten is reckless conduct that developed during the assault. It is evidence of joint recklessness with those who inflicted the more serious injuries. The four could be convicted singly for their own individual parts in the assault that caused the death or could be convicted because of their joint intention developed during the assault. Their individual act is evidence of the common intent in each. On the other hand, there is no evidence to show that the other 3 accused, Loins Lipa, Charles Meaio and John Teti went along beyond the agreed chastising acts and joined in the acts which caused the death of Young. They cannot be held responsible for recklessly or negligently causing the death of Young.
Should Co-Accused Remove from Voir Dire Proceeding Concerning only the Other Accused?
I shall make a short observation about my ruling that during the voir dire to determine the admissibility of the statements of Tungale and Oma, the other co-accused and their counsel were to remain in attendance. The ruling seemed to have been a surprise to counsel. I was told that there was a judgment of Palmer. J. of this Court, that co-accused who do not have a statement to be considered for admission as evidence could remove from voir dire proceeding. I was not given the copy of the judgment of Palmer. J. If that is the correct interpretation of the judgment, I respectfully say that there is much good logic in it. I, however, would prefer that all co-accused and their counsel attend the voir dire. In my view it is good precaution for what may happen in the main proceeding. For example, a prima facie case may be established, the accused in voir dire could, in the main trial, elect to testify with the result that he may be cross-examined on all his testimonies including that in the voir dire, will it not be advantageous if the co-accused attended the voir dire, but without participating so that he may be better informed, should it become necessary for him to cross-examine the accused in voir dire subsequently testifying in the main trial?
Delivered this Thursday the 6th day of May 1999
At the High Court
HoniaraSam Lungole-Awich
Judge----------------------------------------
SENTENCE
(LUNGOLE-AWICH, J): The 7 accused were charged and tried for the offence of murder under s: 193 of the Penal Code (now s:200 in the 1996 Revised Edition). They were all acquitted of the offence of murder. Ben Tungale, Brown Beu, Nelson Aroma, and James Sale were convicted of manslaughter under a: 192 of the Penal Code (now a: 199 in the 1996 Revised Edition). The remaining 3, Louis Lipa, Charles Meaio and John Teti were convicted of common assault under s:237 of the Penal Code (now s: 244 in the 1996 Revised Edition).
The four convicted of manslaughter have different domestic circumstances, but the weight to be given to those different domestic facts, in my view, is the same. An important consideration for all of them is that they did not use potentially lethal weapon. I warn that this Court will in future impose heavier punishment where lethal weapon such as a knife is used.
As far as Sala and Oma are concerned, I take into account that they were called upon and in a way pushed into acting by words of swear, which according to evidence, suggest substantial urging in custom. The three convicted of common assault were similarly pushed. They are entitled to some reduction from the punishment appropriate for their acts resulting in the offence. They must, however, note that being asked to do something wrong is not excuse in law.
Brown Beu is also entitled to some reduction. He was pained at the adultery of the deceased with Lama, Brown's wife, although that again is not excuse in law for doing something wrong. The Court has been informed that Beu's wife has since gone away with another man.
I have taken into account the personal material losses of Ben Tungale and the fact that the is now very sorry and has paid money in custom for settlement, but for that, the punishment herein would have been greater. His part in the incident was that of the leader. He urged the others into action.
On the other hand, I have to warn that the Court has a duty to punish appropriately according to how serious the offence and the circumstances are. Judges, like everyone, do have sense of mercy, but they have a duty to reflect how serious the law would like an offence to be regarded and punished for. I think offences resulting into loss of life are serious, courts must not allow punishment in them to descend to levels comparable to punishments for offences involving property, such as theft, burglary etc.
I have compared the circumstances in this case with those in the cases that counsel cited. I have taken them into consideration. I am grateful to counsel for citing cases from this jurisdiction. I, however, observe that punishment in one case usually cannot be matched exactly with punishment in another. Circumstances usually differ even if only in details. Public view about how serious an offence is regarded also changes. Prevalence or otherwise of an offence during particular periods also counts. It is, in my view, not useful to compare punishments in cases from different jurisdictions.
The punishments that I order in each of the convictions for the manslaughter in this case are:
1. Ben Tungale: 5 years imprisonment.
2. Brown Beu: 4 years imprisonment.
3. Nelson Oma: 3 � years imprisonment
4. James Sale: 3 � years imprisonment.
Each of the 4 terms of imprisonment is back-dated to the respective dates when the accused was first taken into custody.
The punishments that I order in each of the convictions for common assault are:
1 Louis Lipa: 1 (One) year imprisonment.
2. Charles Meaio: 1 (one) year imprisonment.
3. John Teti: 1 (one) year imprisonment.
The three have been in custody on for more than 1 year. It is to be regarded that they have served the terms of imprisonment herein. I order that they be released forthwith.
All accused have right of appeal and may note appeal within 30 days.
Pronounced this Friday the 7th day of May 1999
At the High Court
HoniaraSam Lungole-Awich
Judge
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