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Reginam v Dausabea [2007] SBHC 103; HCSI-CRC 461 of 2007 (1 August 2007)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 461 of 2007

REGINAM
Crown

-V-

CHARLES DAUSABEA, NELSON NE’E
Accused

AND

ALEX BARTLETT

Date of Hearing: 27 and 30 July 2007
Date of Ruling: 1 August 2007

Mr McColm and Mr McConaghy for the Crown
Mr Ashley for Charles Dausabea
Mr Lawrence & Ms Munamua for Nelson Ne’e
Mr Averre for Alex Bartlett

RULING ON
NO CASE TO ANSWER SUBMISSIONS

Cameron, PJ

Introduction

1. This case concerns charges arising out of the riots in Honiara in April 2006 at Parliament House, Point Cruz and Chinatown, commonly all known as the Chinatown riots. The charges range from conspiracy to murder, inciting the riots, and intimidation. Two of the accused, Mr Dausabea and Mr Ne’e, were at the time and still are members of Parliament.

2. At the close of the Crown case, the defence made submissions that no prima facie case had been established in respect of all charges against all three accused.

3. The Crown conceded that no prima facie case had been established against any of the accused in respect of the conspiracy charges contained in Counts 1 and 2 of the indictment.

4. In respect of Count 3, the inciting a riot charges in relation to Parliament House:

(i) the Crown conceded that there was insufficient evidence to support a conviction against Mr Bartlett

(ii) As to Mr Dausabea, the Crown conceded that there was insufficient evidence to support a conviction against him in respect of the incitement to riot charge relating to the destroying of buildings (Section 80 of the Penal Code), but contended that there is a prima facie case in respect of the alternative charge of inciting a riot (section 75).

5. In respect of Count 4, the Crown conceded that there was insufficient evidence to support a conviction against Mr Ne’e in respect of the incitement to riot charges relating to Chinatown.

6. In my view all these concessions on the part of the Crown are properly made on the evidence adduced.

Nelson Ne’e - (Count 3)

7. As to Count 3, namely the charges of inciting persons to riot at Parliament House, there was evidence from a Mr Kauha that when the accused Mr Ne’e and other parliamentarians were leaving Parliament grounds on a bus on the day of the election of the new Prime Minister, Mr Kauha heard words being shouted

from the direction of the bus. These included “break down the Parliament” and “Dynamite the Parliament”.

8. The witness was unable to say whether the words had come from a person or persons within the bus or from the surrounding crowd.

9. The witness also said that the words he heard were said more than once and by more than one person.

10. The other relevant evidence to consider with this is that of Mr Ne’e in his police interview, when it was put to him that he had shouted to the crowd at Parliament on that day “Dynamite the Parliament”. Significantly, the time and location within the Parliament grounds of when and where he was alleged to have said those words was not put to him.

11. Mr Ne’e’s answer in his interview was to the effect that he had said to the people that day “so you want to blow up the Parliament?”, and that it was intended to convey to the people the futility of any such proposed course of action.

12. Mr Ne’e was not asked and nor did he say at what time or stage in events he said this, whether or not his words were in response to words being shouted from the crowd, the number of people to whom he made the statement, or where within the Parliament grounds the words were spoken.

13. The questions in the interview which preceded that question and answer related to an allegation of intimidation said to have occurred on a date following the riots, so no assistance as to when

and in what circumstances these words may have been said can be gained from the context of the interview.

14. The result is that there is no evidence of any connection between what Mr Kauha said he heard and what Mr Ne’e said he had told the people.

15. I therefore do not consider that there is evidence capable of supporting a conviction against Mr Ne’e for inciting a riot in the absence of evidence of the context in which such words may have been spoken.

16. The evidence from a Medley Kwalemanu that Mr Ne’e may have contributed money to buy sweet biscuits at a later point in the day is irrelevant, given that there was no admissible evidence that such biscuits were intended for Parliament House.

17. As this is the only evidence against Mr Ne’e relating to the two charges in Count 3, I consider that no prima facie case has been established against him on these charges.

Nelson Ne’e – Count 6

18. Mr Ne’e also faces a charge of intimidating Anna Nuaiasi, following the election of her husband as a member of the government at the April 2006 elections. Mr Ne’e was at that time a member of the Opposition.

19. The alleged intimidation centres around a phone call said to have been made by Mr Ne’e to Mrs Nuaiasi on 20 April 2006.

20. In a written statement made to Police which Mrs Nuaiasi reluctantly accepted in Court was the truth, she said that during
that call Mr Ne’e urged Mrs Nuaiasi to persuade her husband to join the Opposition. She said various things were said by him including that the Nuaiasi’s house had no security fencing, that it was not safe, that it would be risky for the family if her husband didn’t comply, and that those who didn’t comply would have their necks chopped off by a group or groups said to be operating at the time.

21. She further said in her statement that the words were spoken harshly to her by Mr Ne’e and that she had felt threatened and frightened as a result.

22. There was an obvious reluctance by Mrs Nuaiasi to revisit these issues in Court. In Court she asserted that it was not Nelson Ne’e but a Mr Tatai (who had made several visits to her around that time) of whom she felt fearful.

23. However, as she acknowledged the truth of her earlier statement, what was contained in that has to be considered as well.

24. Taking all the evidence from this witness at its most favourable to the prosecution, it is in my view capable of supporting a conviction against Mr Ne’e.

25. There is, then, a prima facie case against him in respect of the intimidation charge.

Mr Bartlett – (Count 4)

26. It was submitted that no prima facie case had been established

against Mr Bartlett on the inciting a riot charges relating to Chinatown.

27. Colin Noah gave evidence of having seen Mr Bartlett in Chinatown on 18 April 2006, and of hearing him say to a crowd “Burn down these houses, leave my houses alone, you can burn down the Chinese”.

28. That evidence is fortified to an extent by the evidence of Mr Tiri and Mr Tavake. Mr Tiri says he saw Mr Bartlett in Chinatown at the time of the riots, and that he heard Mr Bartlett say to those he was with “move in boys, move in”. Mr Tavake says he heard Mr Bartlett used the words “go on boys” when walking through Chinatown at the time of the riots.

29. The Crown properly concedes that the evidence of Mr Tiri, and Mr Tavake, without that of Colin Noah, would be insufficient to establish a prima facie case of inciting a riot against Mr Bartlett. In other words, the evidence of Mr Noah is essential to the Crown case against Mr Bartlett on the inciting a riot charges relating to Chinatown.

30. The Crown says that the evidence of Colin Noah, along with the evidence of Mr Tiri and Mr Tavake, establishes a prima facie case against Mr Bartlett.

31. If one accepted at face value the evidence of Colin Noah (corroborated in part by Mr Tiri and Mr Tavake), it would, in my view be capable of supporting a conviction against Mr Bartlett.

32. However, even taking the prosecution case at its highest, I am of the view that the evidence of Colin Noah is so manifestly unreliable,

and has been so discredited in cross examination, that no reasonable tribunal could properly convict Mr Bartlett based on it.

33. I have formed this view based on the combination of the following factors:

(a). The inconsistent statements Colin Noah made concerning the accused, Mr Dausabea. These are relevant when considering the evidence Colin Noah gave against Mr Bartlett because they demonstrate a real lack of credibility.

(i). This witness gave evidence in this trial that he had seen and heard Mr Dausabea interacting with the riotous crowd in Chinatown on 18 April 2006, and that he was in effect encouraging the people to continue rioting.

(ii). However, it transpired from the cross-examination that the witness had previously given a number of conflicting versions as to whether or not he had seen Mr Dausabea in Chinatown that day.

(iii). In version one, a statement he gave to the police on 30 May 2006, he said that he had seen Mr Dausabea in Chinatown that day and witnessed him speaking to the crowd.

(iv). In version two, a statement dated 16 August 2006, (described as an affidavit) and given to lawyers then acting for Mr Dausabea, he retracted his earlier statement and said he had not seen Mr Dausabea in Chinatown that day.

(v). In version three, on the first day of giving evidence in the preliminary inquiry against Mr Dausabea, he told the Court that he had only seen him (Mr Dausabea) at the Mendana Hotel that day, and not in Chinatown (Exhibit 11).

(vi). In version four, on the second day of his giving evidence at that preliminary enquiry, he said that what he had said in Court the previous day was not the truth as he had in fact seen Mr Dausabea in Chinatown that day.

(vii). In version five, the evidence he gave to this Court, he re-asserts that he saw Mr Dausabea in Chinatown that day.

(b) As described, he admitted to having lied to the Magistrate’s Court on the first day of giving his evidence

(c) He admitted that he had been prepared to change his statement for money when he accepted $200 from a Mr Natei to retract his first statement about having seen Mr Dausabea in Chinatown on the day of the riots. The witness said that he was forced by threats to retract his first statement, but he provided the Court with no details as to this so I disregard this assertion.

(d) He denied in this Court receiving any money relating to his being prepared to give evidence for the prosecution in this trial, and it was only when confronted by irrefutable documentary proof that he was forced to admit to receiving significant sums of money from the Case Support Unit over a significant period of time in 2006. I am quite satisfied that the witness deliberately lied about this.

(e). He was deliberately evasive in consistently refusing to acknowledge that he had told this Court on the first day of his giving evidence in this trial that he had met a John Raravete in Chinatown on the day of the riots. Even when the relevant questions and his answers were read back to him, establishing beyond doubt what he had earlier said, he refused to acknowledge he had said that.

(f). He admitted to fabricating evidence in this Court when he said that he saw the accused Mr Bartlett driving out of Chinatown that day in the direction of Lawson Tama - when confronted with his earlier statement to the Police where he stated he saw Mr Bartlett driving out in the direction of the old Mataniko Bridge (the opposite direction to Lawson Tama), he admitted that he made up his evidence in Court about Mr Bartlett driving in the direction of Lawson Tama as he could not remember what he had said about this in his previous statement.

(g).

(i). He is clearly a dishonest person. He admitted to being a thief and having a long history of prison sentences for serious offending. For example, he was sentenced to 3 years imprisonment for burglary and larceny in 2001.

His most recent sentence was 28 February 2007, when he received 3 years and 11 months imprisonment for two burglaries, an assault, and a liquor offence, the sentence being suspended for two years.

(ii). It is apparent from the evidence that the fact that he was willing to give evidence for the prosecution in this trial was made known to the sentencing magistrate on 28 February 2007, and no doubt was a contributing factor to his receiving a suspended sentence. This raises a further question as to his impartiality in giving evidence in this Court.

34. For these reasons, I find that the evidence of Mr Noah is not capable of supporting a conviction against Mr Bartlett.

35. Mr Bartlett in a subsequent written statement to the Police, told them he was not in Chinatown on 18 April 2006. A number of Police Officers and other witnesses gave evidence that they saw him there, which evidence I accept. I therefore consider that Mr Bartlett was being untruthful in denying his presence in Chinatown to the Police. However, there are a variety of reasons as to why Mr Bartlett may have told such a lie, and it was not necessarily to disguise guilt.

36. For these reasons I find that the prosecution has failed to establish a prima facie case against Mr Bartlett on either of the charges contained in Count 4.

Charles Dausabea – Count 3 (Alternative Charge)

37. While the Crown conceded it had not established a prima facie case against Mr Dausabea on the charge of inciting a riot to destroy buildings at Parliament, he faces an alternative charge of inciting a riot at Parliament.

38. A number of witnesses gave evidence of Mr Dausabea speaking to the crowd in the grounds of Parliament House on 18 April 2006. For example, Lawrence Nare gave evidence of Mr Dausabea saying to people at Parliament House “All my people, we have lost now. You can do what you want to do now”.

39. Mr Ariaria gave evidence of Mr Dausabea saying to the crowd at Parliament “we have lost the election now so do what you can do”. Mr Natei, says he heard Mr Dausabea say at Parliament “we have lost, anything you want to do go ahead and do”.

40. Mr Iro gave evidence that after Mr Dausabea had left Parliament that day and returned to Iron Bottom Sound Hotel he heard him say to people “You can go and tell those at Parliament that they have to wait until Snyder Rini has resigned” and also “If he does not resign you can do anything that you want to do”.

41. Taking all the prosecution evidence at its highest, it is in my view capable of supporting a conviction on the inciting a riot charge.

Charles Dausabea – Count 4

42. Mr Dausabea faces charges of inciting a riot in Chinatown. Various witnesses have described seeing Mr Dausabea in Chinatown on 18
April 2006 and speaking with or shouting what could be said to be words of encouragement to the crowd, as well as gesticulating. For
example, Mr Karaori gave evidence that at the time of the riots that he saw Mr Dausabea driving through Chinatown yelling “go ahead” to the crowd with a raised arm.

43. Mr Takika said he saw Mr Dausabea driving through Chinatown at
the time of the riots calling out to the people “go ahead, go ahead”, and at the same time waving his arm outside the car.

44. In my view the prosecution evidence (excluding the evidence of Colin Noah) is capable of supporting a conviction against Mr Dausabea for inciting a riot to destroy buildings in Chinatown and the alternative charge of inciting a riot.

Charles Dausabea – Count 5

45. This is a charge of intimidation.

46. The primary evidence is that of Mr Hou, a security guard at the time for the Honiara Hotel. He stated that on the night of the riots, on the road outside the Honiara Hotel, Mr Dausabea said to him “Wait for me, when I come back, I’ll burn this hotel”.

47. There is some corroborative evidence from a Mr Mua (another security guard) that Mr Hou, following what he said he had been told by Mr Dausabea, was concerned about how the hotel could be protected.

48. Taking this prosecution evidence at its highest, it is capable of supporting a conviction of intimidation (which under s.231 Penal Code includes a threat to cause injury to any property a person has an interest in).

Summary

49. Nelson Ne’e

In respect of Mr Ne’e, I enter verdicts of Not Guilty in respect of the charges contained in Counts 1, 2, 3 and 4 of the indictment.

There is a prima facie case established in respect of Count 6, the intimidation charge.

50. Alex Bartlett

In respect of Mr Bartlett, I enter verdicts of Not Guilty in respect of the charges in Counts 1, 2, 3 and 4 of the indictment.

Mr Bartlett is accordingly acquitted and discharged on all charges contained in the indictment.

51. Charles Dausabea

In respect of Mr Dausabea, I enter verdicts of Not Guilty in respect of the charges in Counts 1 and 2 of the indictment.

I also enter a verdict of Not Guilty in respect of the first charge contained in Count 3, namely inciting persons to riot to destroy buildings (Section 80 of the Penal Code).

I consider a prima facie case has been established against Mr Dausabea in respect of the alternative charge in Count 3 (the

inciting a riot charge relating to Parliament House), both the inciting a riot charges relating to Chinatown contained in Count 4, and the intimidation charge contained in Count 5.

THE COURT