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Regina v K [2006] SBHC 35; HC-CRC 419 of 2005 (4 August 2006)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 419-05

REGINA

V.

"K"

High Court of Solomon Islands
(Palmer CJ.)

Date of Hearing: 10th July, 11th July, 12th July, 17th July 2006
Date of Judgement: 4th August 2006

Nicholas Mirou for the Crown
Ikbal Khan for the Defendant

Palmer CJ.

The defendant (hereinafter referred to as "K") was 14½ years old when he shot and killed Patteson Gatu ("Gatu") on 25 April 2003. He was handed an SR88 rifle by Ronnie Cawa ("Cawa"), the commander in charge at that time and ordered to shoot Gatu. Cawa has been tried separately for the same murder and convicted; he is now serving a life sentence for it.

Gatu was a member of the Church of Melanesia Brothers, a group of young men locally known as the Tasius. He had been on a mission with five other Tasius to the Weathercoast in search of another Tasiu, Brother Nathaniel Sado, who they believed had been held prisoner by the Guadalacanal Liberation Front ("GLF") in the Ghorombau and Pite village area. On arrival at the GLF base camp however, they were held captive; three were shot immediately following their refusal to lie down when told to do so. Their killers have been tried separately, convicted and are serving life sentences. The other three, including Gatu, were held captive overnight and shot the following day.

K was a member of GLF for some 2 years it seems before joining them at their camp at Pite Village after his village at Vasuna was burnt down by the Joint Operations Group ("JOG"). He had been with GLF for some 3-4 months before Gatu was shot.

The defence relied on is that of compulsion as set out in section 16 of the Penal Code ("the Code"). I quote:

"16. A person is not criminally responsible for an offence if it is committed by two or more offenders, and if the act is done or omitted only because during the whole of the time in which it is being done or omitted the person is compelled to do or omit to do the act by threats on the part of the other offender or offenders instantly to kill him or do him grievous bodily harm if he refuses; but threats of future injury do not excuse any offence."

Where the defence of compulsion is raised and relied on, there must be some evidentiary support for such proposition and that it is a fit and proper one for consideration by a tribunal of fact[1].

What is the issue in this case?

The crucial issue is whether the facts of this case much of which is not in dispute sufficient to give rise to the defence of compulsion under section 16 of the Code.

What are the facts relied on in support of compulsion?

Mr. Khan says that K was a victim of unfortunate circumstances and that his joining of GLF was more out of necessity than voluntary. He had no option but to flee to the jungle for safety after his village with the exception of the church building and guest house was burnt down. He stayed in the jungle until he met up with Harold Keke’s[2] boys and followed them to their camp. Thereafter he became further entangled with the illegal operations and activities of the GLF; an indigenous militant group engaged in pursuing an agenda purportedly for indigenous Guadalcanal people. Prior to the uprising, a number of demands had been put to the Government by members of the Guadalcanal Provincial Government under the leadership of then Premier Ezekiel Alebua, which included notions of statehood for Guadalcanal, the return of alienated lands to indigenous tribal groups claiming ownership of those lands, compensation for Guadalcanal men and women killed by others and a host of other claims. When these were not met by the National Government of the Prime Minister then, Hon. Bartholomew Ulufa’alu, a violent uprising occurred led by Harold Keke ("Keke") and others. It started off initially as the Guadalcanal Revolutionary Army ("GRA") then became the Isatabu Freedom Movement ("IFM"), but when Keke became dispirited with the leadership and political side of the movement he moved to the Weathercoast and started GLF.

The illegal activities carried out by GLF included killings and beatings of villagers who did not join up, support his cause or were regarded as "spies". These were common knowledge amongst the people in the Weathercoast. Many paid a heavy price. People were executed in front of others and whole villages razed to the ground in an effort to strike fear and terror in the minds of the people to support their cause or not to assist those against them. Those who joined up knew where the boundaries of their allegiance lie and the price to be paid if they ever crossed the line. In his own words, Cawa told the court that the structure of GLF required its members to be loyal, honest and obedient. He said an order was an order. Once it is given it had to be obeyed. Those who did not comply were either killed or severely beaten. This was common knowledge amongst the members and around the Weathercoast.

Emotive words and phrases such as "fighting for our rights" "fighting for our motherland" were used to drum up support and sympathy in the rural areas. Grievances often were exaggerated and primed up to support and strengthen their cause.

The defence says that K as a youth was unfortunately caught up in that selfish and arrogant drive by misled and confused leaders and became trapped in their violent activities.

It wasn’t the case that any direct or specific threats had been made against K at the relevant time. He was already a member of GLF and taking part in the operational activities of GLF. He participated in sentry duties and patrols in and around the base camp at Pite village.

Defence says that K had shot Gatu under compulsion. He was under a real fear of reprisal of death or really serious harm if he did not obey the order to shoot and therefore was an unfortunate victim of circumstances. Mr. Khan submits this is clear evidence of compulsion and that it is for Prosecution to negative that defence beyond reasonable doubt.

Does this series of facts constitute compulsion?

For the following reasons I answer this question against K.

1. I find as a fact that he joined GLF voluntarily. He told Police in his record of interview conducted on 2nd October 2003, that he had been a member for some two years. Whether it is two years or much less than that does not make much difference. He joined voluntarily. He told Police he joined GLF when Keke came to his village, at Vasuna. I quote:
   

"Q26. Did, did anybody ask you to join or did you just join?

K: I’m join.

Koloni: Did anyone ask you to join, or did you yourself like to join?

K: Myself.

...

Koloni: How did you find out about the GLF?

K.: I heard the boss Harold Keke was around in my village, so I went and look for him and I followed him."

In his evidence under oath, he confirmed being a member of GLF but that he joined them physically only after his village had been razed to the ground by the JOG.

I find this to be entirely consistent with the evidence of Anthony Stafford, a member of the Australian Federal Police with the Regional Assistance Mission to Solomon Islands who had been involved in investigative work in 2003. He told the court that there were those who supported the GLF in terms of food, those who were sympathizers, members and soldiers in the hierarchy. This would explain why the village was razed to the ground by the JOG; a group engaged in opposition to Keke’s activities. The village would not have been burnt if it was not considered to be a supporter of Keke or the GLF.

I do not accept submission of learned Counsel for K that K joined GLF involuntarily or that it was forced upon him through circumstances beyond his control. His own words condemn him in this instance. He joined because he believed in what GLF stood for. I quote:

"Q21. Okay why, why did you join the GLF?

K: Because GLF is fight for right.

Q22: Fight for right?

K: yes.

Q23: Right of, what do they fight for?

K: My motherland.

Q24: Your land?

K: Guadalcanal."

He joined because he believed he was fighting for a worthy cause, for his rights, his land, his motherland. It may be that he was misled, deceived or brainwashed by others, but that is no excuse or substitute for a deliberate decision, which involved an exercise of his own freewill to choose to become a member and to join GLF.

2. By choosing to become a member of GLF and joining them he would have made it difficult to leave even if he had wanted to later. I do not find any evidence however that at some later stage he did try or wanted to leave. There is no evidence to suggest that when his village was razed to the ground, he did try to travel to a displaced village and run away from it all. There is no evidence of even any intention or attempt to do so. The evidence adduced in court instead showed that after separating from his parents he stayed in the jungle with other boys until he met up with Keke’s men who had come around looking for food. His parents by then had gone to another village at Veuru. Why he did not travel with his parents and perhaps away from it all is not clear. There is no evidence to suggest he could not have accompanied his parents and stayed away from all the violent activities going on around them. There is no evidence to suggest why he did not decide then to go away from it all from the beginning. In the case of Hese v. Regina CASI-CRC 32-05 at page 5, the Court of Appeal in that case noted that one of the witnesses Allan Sarevo, to the killing of Jack Taka had left the area after he was killed. I take judicial notice of this finding of fact as K himself did say in his evidence that he had also witnessed that killing of Jack Taka by Hese which had happened around the same vicinity. I quote:
   

"When Hese shot his brother I was there too. If he had not shot his brother we would have killed him as well. People who held guns were there as well at that time. I was not holding a gun at that time."

There is no evidence to suggest that he was forced to join GLF when they met in the bush. To the contrary, the evidence is clear, he was already a member of the GLF at that time and so only natural for him to follow them to their camp and join them.

I note submissions of Mr. Khan that it may have been difficult to leave at that particular point of time even if he had wanted to, but there is no evidence to suggest he wanted, intended or sought to leave GLF at any point of time in the conflict. It was a situation brought about through a deliberate exercise of his free-will to stay with the group. There is no suggestion that throughout the period he was with the GLF that he was ever forced or threatened to remain with them. In such circumstances it is quite difficult to later say he was compelled to commit the crime.

3. I find no direct or specific threat made by Cawa against K when he was given the SR88 rifle to shoot Gatu.
   
4. He was merely told to shoot Gatu by virtue of the fact of his membership of the GLF. It wasn’t the case where he was threatened with death or grievous bodily harm if he did not shoot Gatu. Cawa told the court in his evidence that he told K to shoot Gatu because he wanted to teach him how to kill a man.
   

In cross examination, K told the court that what he did at that time was in response to an order from his in charge.

"I was there to follow orders, I shoot when told to shoot. R C did not force me but he ordered me to shoot him at that time so I shot him. I agree it was done with my own will to shoot him.

Although there was no threat to my life at that time they were standing with guns at that time.

They were all members of GLF and were encouraging me to do what I did."

There is no evidence to suggest that he was constrained to shoot Gatu when given the order by Cawa.

5. I accept on the other hand that though there was no direct or specific threat made by Cawa, it was generally accepted what the consequences would be if the order was not obeyed. This acceptance was based on general knowledge and understanding of the ruthless nature of GLF over past incidents and experiences. K knew all about this or ought to have known.
   

Was he really frightened at that instant that he would be shot if he did not obey the order of Cawa? Did he have a real fear of ‘instant’ death if he did not obey? Respectfully, I find no evidence to suggest he was in real fear of any reprisals if the order was not obeyed. What was uppermost in his mind at that time in my respectful view was his desire or determination to obey or comply with the order given. In his evidence given under cross examination, he told the court that he was merely taking orders from his boss and complying as a good soldier ought. Although he did not feel good about it, he was merely following orders. This would be consistent with his beliefs at that time that he was fighting for his rights and his motherland. He told the court that the others standing around were encouraging him to do it and that they had made up their minds at that time to kill them (referring to the Tasius).

It is my respectful view therefore that the suggestion that he was under a "real fear of reprisal" at that time was only raised after the event to excuse him from the crime committed. But even if K had a real fear of reprisal at that time, as pointed out by the Court of Appeal in Kejoa v. Regina (2006) CASI-CC 28 and 31 of 2005 31 May 2006, at page 4, that would not in the circumstances, give rise to the defence of compulsion (see also comments of the Court of Appeal in Hese v. Regina CASI-CRC 32-05 at page 6). And as also pointed out in Hese v. Regina (ibid) at page 4, "...the continued membership of the organisation not withstanding the fear makes it impossible in the circumstances for the appellant to establish he was "compelled" to commit the crime."

6. He knew or ought to have known of the criminal activities of GLF and the ruthless manner in which it implements its decisions or deals with those they regard as their enemies or sympathisers of the "Government". In his evidence in court he said he had seen how Cawa’s group had killed other men that had not obeyed orders. He gave the example of Andrew Hese[3] ("Hese") who was ordered to kill his brother. He told the court that if Hese had not complied with the order given at that time, he would have been killed by them. He says he was present at that time and witnessed the incident. He knew what the consequences were of not complying with any order of the group. He knew what the regime was with GLF. Cawa told the court that those who joined knew what the requirements were. I quote:
   

"For some of the new ones, some were not trained others were trained. Structure of the Guadalcanal Liberation Front is that you have to be honest and loyal in every way and cope up with every order. Our structure is that an order is an order. This loyalty if you are not loyal or honest and do not cope with orders then the result or consequence is death.

If someone disobeyed any of our orders, everyone knew that an order is order and if anyone refuses then it will be death."

K knew that if he did not obey the command given to him by his commander Cawa, he may have been killed himself, but that was not the issue at that particular point of time. The issue was obedience to an order from an organisation he had voluntarily joined and was aware or ought to have been aware of its violent activities. K was aware that an order was to be obeyed. Cawa told the court that an order was to be obeyed.

In his record of evidence K told Police that when he was told to shoot, he said:

"...I just follow orders and I shoot."

When asked why he did not say no, he said:

"Because for me if I said no maybe I will be taken out from the group, sent me back home or maybe he will teach me a bit or I don’t know. But because I just follow orders, I just follow order for what I (sic) told me to shoot."

In such circumstances the comments of the Court of Appeal in Hese v. Regina (ibid) at page 4, apply on all fours to this case, that is, if when he joined "...he knew or must have foreseen that he would have to obey such orders, under penalty of death or grievous bodily harm if he did not do so, he cannot be heard to say that he was compelled within the meaning of section 16 of the Code and that he is exonerated from liability."

Conclusion

For those reasons I do not find that the facts have sufficiently disclosed a case which would have given rise to the defence of compulsion under section 16 of the Code. The evidence did not disclose that the murder in this case was committed only because K was compelled to do it because of some specific and direct threat from Cawa to kill or do grievous bodily harm if the shooting as ordered was not carried out.

For that reason, K must be convicted of the murder of Gatu and sentenced to life imprisonment.

Orders of the Court

1. Convict K of the murder of Brother Patteson Gatu contrary to section 200 of the Penal Code.
   

2. Sentenced to life imprisonment.

The Court.

^[1] Joses Kejoa and Owen Isa v. Regina CASI-CRC 28 and 31 of 2005 31^st May 2006 at page 2
^[2] Harold Keke is the leader of GLF.
^[3] Hese v. Regina CASI-CRC 32-05, 31^st May 2005.