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Luina v Regina [2009] SBCA 12; CA-CRAC 32 of 2008 (26 March 2009)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

Amota Samodai Luina and Wilson Kakomae Luina ("the Luina brothers") were convicted for arson in the High Court and each sentenced to serve 4 years in prison.

The trial judge found in his judgment that there had been a long standing land dispute between the family of the Luina brothers with that of the victims, who were members of the Fangidua family. The Fangidua family resided at Abuna’ai village that was burnt down.

Prior to the burning down of Abuna’ai village on 13 September 2000, members of the Luina family visited the victims and their family at the village and issued threats against them regarding their occupation of the land. Those threats however did not expressly mention the burning down of their village. As a consequence of this, the victims and their families vacated the village and moved to Kona village.

The learned trial judge found that the Luina brothers were with a group that attended at Kona village in a vehicle in the early part of 16 September 2000 and inter alia, uttered words to the effect that they were going to burn Abuna’ai village down. It has however not been established that the Luina brothers actually uttered those words. Later that day, another group attended at Foubaba village, located about 1-2 kilometres distance from Abuna’ai village, in a different vehicle and uttered words to the effect that they were going to burn Abuna’ai village. Shortly after that visit Abuna’ai village was razed to the ground. There were no eye witnesses to the burning of the village. Apart from the naming of another co-defendant, Alick Luina who had also been convicted together with these two appellants but had not appealed, there was no evidence that the Luina brothers were part of the group that visited Foubaba village.

Following the burning down of the village, two days later on 18 September, a custom reconciliation ceremony was held, arranged by one, Simon Anisi. The Luina brothers attended with others including two other co-accuseds who had absconded bail.

The members of the family of the victims who gave evidence told the court that the Luina brothers admitted involvement in the burning down of the village and paid compensation. Evidence however from others not part of the Luina family, more objective persons, including police officers and members of the Malaita Eagles Force ("MEF") stated otherwise, that one of the co-accused, John Ome was the spokesman and represented the family of the Luina brothers. In his finding the learned trial judge held he was not satisfied on the evidence that Amota Luina (one of the appellants) spoke on behalf of their family although he was satisfied he was present at that ceremony.

In submissions before this court, Mr. Kausimae for the Crown conceded that apart from the presence of the Luina brothers at Kona village in the earlier part of that day, there was no evidence that they were with the group that visited Foubaba village in a different vehicle.

The only other evidence purportedly linking the Luina brothers to the burning of Abuna’ai village was their attendance and participation in the customary reconciliation ceremony arranged between their family and the Fangidua family. While admissions were made to the burning down of Abuna’ai village there was conflicting evidence as to who was actually speaking at that ceremony. The learned trial judge held there was insufficient evidence to conclude that the Luina brothers made any admissions that day apart from being present at the ceremony.

The learned trial judge convicted the Luina brothers essentially on circumstantial evidence. He found sufficient nexus in the earlier incidents at Kona village, Foubaba village and the reconciliation ceremony held on 18th September. He held there was sufficient previous association and nexus in those incidents which when taken as a whole provided overwhelming circumstantial evidence of being involved in the arson of Abuna’ai village.

We are not satisfied however that the findings of the learned judge can be sustained on the evidence before him. There is insufficient evidence of the causal link between the incident at Kona village and Foubaba village to the actual burning down of Abuna’ai village. Not only couldn’t the Luina brothers be sufficiently identified at Foubaba village but the vehicle used was also different. The causal link further breaks down at the reconciliation ceremony when the only admissions made were by the co-accused, John Ome. His admissions however cannot be evidence of any admission by the Luina brothers despite their presence and attendance at that ceremony and the fact that John Ome was their spokesman. We form the view that the causal link of previous association found by the learned judge cannot be sufficiently established on the evidence. There may have been a lot of suspicions that the Luina brothers participated in the burning of Abuna’ai village but that is not sufficient to establish beyond reasonable doubt they actually did.

We are satisfied the learned trial judge erred in fact and law and accordingly the appeal must be allowed and the convictions quashed. It is not necessary therefore to consider the appeal on sentence.

Orders of the Court:

1. Allow appeal of the appellants against their convictions.

2. Set aside orders of conviction of the High Court against the appellants.

3. Direct the release of the appellants forthwith.

Sir Albert R. Palmer
Chief Justice

Vice-President of the Court of Appeal of SI.

Williams JA
Member of the Court of Appeal of SI.

Hansen JA
Member of the Court of Appeal of SI.