HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 594 of 2005

REGINA

-v-

MATHIAS PESE

(Mwanesalua, J.)

Hearing: 19, 24, 25 April and 2, 3, 15, 16, 17, 30, 31 May 2007
Judgment: 2 July 2007

L. Ruschena for the Crown
R. Cananagh and R. Tovosia for the Accused

JUDGMENT

Mwanesalua, J: 

Charges

1.	The Accused in this case is Mathias Pese. He is charged with one count of murder, contrary to section 200 and one count of abduction, contrary to section 251 of the Penal Code (Cap.26) (the Code). The first count is that he murdered Palu Buake(the Deceased) on 28 April 2003 at Ngalemala via Duidui village in the Guadalcanal Province. The Second count is that he abducted the Deceased on 28 April 2003 at Duidui village in the Guadalcanal Province, knowing it likely that the said person would be subjected or be put in danger of being subjected to grievous harm. He pleaded not guilty to each of these charges laid against him in the information. 

The Case for the Crown

2.	The Crown alleged that the Accused abducted the Deceased at Duidui village on 28 April 2003. He later beat the Deceased repeatedly with a stick at Ngalemala beach to death.

The Case for the Accused

3.	The Accused denied abducting and killing the Deceased on 28 April 2003. He alleged that he arrived at Duidui village after the death of the deceased. He did not know what caused the Deceased’s death. He only helped with the digging of the grave and burying the Deceased in that grave at Ngalemala beach. That was done after the Deceased was pulled from a spot near Duidui river to Ngalemala beach by some men.

The Background

4.	Kolina village, Isuna Police Post, Veratita village, Vunusa village, Duidui village and Ngalemala beach are situated on the Weather Coast of Guadalcanal. Inaviti village and Tasmania village are also situated within the same area. The members of the Guadalcanal Liberation Front (GLF), led by Harold Keke and others, like Ronny Cawa, were also based on the weather coast of Guadalcanal before the arrival of the Regional Assistance Mission to Solomon Islands (RAMSI), in Solomon Islands in 2003. The Deceased was a civilian and a member of the Joint Operation Group (The JOG) based at Kolina village. The Accused was a resident of Veratita village and was taken to Kolina village for questioning on Saturday 27 April 2003. On the morning of Monday 28 April 2003, members of the JOG left base on a patrol to Duidui village. The Patrol was ambushed with firearms at a spot where the Isuna Police Post is located at the present. The Deceased was captured by the GLF led by Ronny Cawa and taken to a spot near the river at Duidui village. The Crown claimed that the Accused abducted the Deceased from Duidui village to Ngalemala beach. He then killed and buried the Deceased at the beach. The body of the Deceased was not exhumed and examined before this case was tried.

The Evidence for the Crown

5.	The Deceased came from Tasmania village. He was a civilian and a member of the JOG, which comprised of some Solomon Islands Police Officers and civilians. The tasks of the JOG, among other things, was to locate and arrest members of the GLF, who committed serious offences on Guadalcanal during the Ethnic Tension between 2000 and 2003.

6.	In his evidence, Clement Ledi said, on Monday, 28 April 2003, the members of the JOG left Kolina village on a patrol to Duidui village early in the morning. This patrol was comprised of more than 12 men. They were Solomon Islands Police Officers and civilians like the Deceased himself. They walked in a single line one after the other. The Deceased was close to the front of the line as the patrol headed towards a stone fence near the spot where Isuna Police Post is now located. When the patrol was within close range of the stone fence, the GLF, led by Ronny Cawa, ambushed the patrol with guns. During that ambush, two members of the JOG were shot dead and the Deceased was captured by the GLF. The JOG patrol retreated to Kolina village during the ambush.

7.	In his evidence, John Alven said, he was a resident of Vunusa village. On Sunday 27 April 2003, some members of the GLF, led by Ronny Cawa spent the night at Inaviti village near Vunusa village. Veratita village is situated just a little more than 200 metres east of Vunusa village, while Isuna Police Post is located less than 200 metres to the sea coast from Veratita village. On the morning of 28 April 2003, he heard gunshots coming from the direction of Isuna. He and his family were afraid of guns and escaped into the bush close to his village. Sometime later, he returned to the village to collect a small pig. When he was in the village, near a church house, he saw a group of armed boys, which he later knew to be Ronny Cawa and his men who came to live with them in his village after the ambush. He saw Ronny Cawa and his men taking the Deceased with them towards Duidui village. The Deceased was still wearing his clothes that time. He also saw Mathew Reisavi and Ephraim Rongomilepo separately, followed Ronny Cawa and his men towards Duidui village.

8.	In his evidence, Ephraim Rongomilepo said, sometime after 10am. on 28 April 2003, he came from the bush and saw the Deceased near the river at Duidui village. He saw the Deceased with Ronny Cawa, Robert Mou, Koroi and a person called Doctor who were armed with guns. He saw the Deceased being assaulted by Ronny Cawa’s men. The Deceased was in a bad way, with a wound above his right eye brow, his hands were tied, he was naked and was standing up. Mathew Reisavi, the Accused, Christian Sade, who was also called Kiri, Silas Sango who also called Silas Angorau or nicknamed Saela, and Andrew Koria were also there. Ronny Cawa then ordered the Accused, Christian Sade, Silas Sango and Andrew Koria to "capture" the Deceased and took him to Ngalemala beach. They did so, and took the Deceased to the Ngalemala beach. They carried a spade with them accompanied by Ronny Cawa who was armed. When they arrived at Ngalemala beach	 Ronny Cawa signaled to the Accused, Christian Sade, Silas Sango and Andrew Koria with his head to kill the Deceased. These four men went into the bush to cut sticks of about a metre in length. They brought the sticks to the beach and beat the Deceased repeatedly with them. Each of them beat the Deceased on his back, arms, chest and head while he was moving his body about on the ground. He was beaten until he ceased moving his body. He was dead. They then dug a grave on the beach with their spade and buried the Deceased in it, after Mathew Reisavi said a burial prayer. Ephraim Rongomilepo remained at the scene of the alleged murder until the Deceased was buried. He assisted in the burial as the Deceased was his nephew, and also, because Andrew Koria and Silas Sango threatened that he would be shot if he did not assist them with the burial. Andrew Koria warned him not to tell anybody about what occurred to the Deceased that day, otherwise he would be shot.

9.	PPF Officer, Paul William Tubman, took 9 photographs of the Ngalemala beach area on 9 August 2005. He said the location of the Deceased’s grave was not identified because Ephraim Rongomilepo was reluctant to go to Ngalemala beach with him during day time. The grave of the Deceased needed to be identified so that his body could be exhumed for an autopsy by a pathologist. The photographs were mounted in an album and tendered as Exhibit "P1" to the court.

10.	On 26 August 2005, a caution Statement was recorded from the Accused, in 3 tapes, by the Police Officers, Paul William Tubman and Mark Tucker of the PPF, and their interpreter, David Suri of the RSIP in Honiara. The Accused told the Police Officers that his home village was Duidui. He was born and lived there. He slept in that village until the morning of 28 April 2003. He woke up when he heard gunshots early in the morning. He did not know who fired the gunshots which came from Isuna direction, where the Police Post is situated at the present. He said that did not know about the JOG. He escaped into the bush behind his village with his father Mathew Vota, his uncle Francis and his grandmother, and he could not remember the names of the other people. After the gunshots, Ronny Cawa went up to the bush and told his people to return to the village about 12 midday. When he arrived, he saw more than 10 people in the village. They were Harold’s boys. More than 10 of them were armed whilst others were unarmed. Some of them were not armed in the village. He could only recognise Owen Isa and Ronny Cawa from that group. The only two civilians from Duidui village with Harold’s men at that time, were Andrew Koria and the Accused himself. Ronny Cawa then led them to Ngalemala beach where they saw a dead body lying on the beach. Ronny told him that the man was the Deceased. He saw the Deceased naked, his hands tied and there were wounds on his head, mouth and nose which were still bleeding. No one told him to kill the deceased. He saw the Deceased for the first time at Ngalemala beach. He did not see the Deceased before he was killed and did not know the cause of his death. He did not know how the deceased ended up at Ngalemala beach. They dug a grave at the beach with their hands and buried the Deceased in it. He told the Police that he did not know the persons called Christian Sade, Silas Sango, John Alven and Ephraim Rongomilepo. The tapes containing the record of interview were played in court and later tendered as Exhibit No. "P2". The transcript of that caution statement in the tapes was produced for identification as Exhibit No. "P3".

The evidence for the Defence

11.	The Accused gave evidence in court on oath. He was the only witness for the Defence. He said, his home village was Veratita. On Sunday, 27 April 2003, the JOG came to his village and arrested him along with Silas Sango also known as Silas Angorau and three other men, and took them to Kolina village for questioning about Harold Keke. They were suspected of being spies and informants to Harold Keke and the GLF about the JOG. The Accused said that he was bashed up and his tooth broken by the JOG before he was being questioned. The Accused gave no information about Harold Keke and Ronny Cawa. The Accused and the other men returned to Veratita village on the same day after they had been questioned.

12.	He slept at Veratita and on the morning of 28 April 2003, he was awakened by gunshots coming from Isuna direction, where the Isuna Police Post is situated at the moment. He knew that it was the GLF which ambushed the JOG and knew that Ronny Cawa was involved in that ambush.

13.	He and the members of his family escaped into the bush when they heard the gunshots. The members of his family who escaped were his father Mathew Vota, his brother Mathew Reisavi, his sister Helen, his uncle Francis, his grandmother and himself. The members of his family and the people of his village who escaped into the bush stayed in a single group in one place. He returned to the village towards evening when a person sent by Ronny Cawa told them to return home after the shootout between the GLF and the JOG.

14.	He returned to Veratita by himself and made his way to Duidui village. When he arrived near the river at Duidui village, he saw the dead body of the Deceased lying there, with Ronny Cawa, Owen Isa, his brother Christian Sade, Silas Sango, Andrew Koria and members of the GLF. Out the GLF members, he only recognized Ronny Cawa and Owen Isa. More than 10 of the GLF members were armed with guns.

15.	When he was near the river at Duidui village, Ronny Cawa said, take the dead body of the Deceased and bury it a little further away from the village.

16.	The Accused saw the body of the Deceased lying on the ground with his hands tied, was naked, his face and head were injured, with blood still running out from the injuries. His face, eyes and mouth were swollen. The deceased sustained no further bruises and injuries after his body was pulled from Duidui village to Ngalemala beach for burial, and that there was no bullet wound on his body.

17.	The Accused said that body of the deceased was pulled from Duidui to Ngalemala beach on a small road along the beach for burial. Those pulling the body went as one group, including the Accused himself. But he denied taking part in pulling the body. He and others dug the grave to bury the deceased with their hands. Mathew Reisave arrived at Ngalemala beach when they were digging the grave. No tools were used to dig the grave. Mathew Reisave did not say any prayer before the deceased’s body was buried. He did not know how the deceased met his death. Ronny Cawa did not tell him how the Deceased was killed. He did not discuss the death of the deceased with anyone after the burial. And he denied beating the deceased with any stick with Christian Sade, Silas Sango and Andrew Koria as described by Ephraim Rongomilepo. He was not sure whether Ephraim Rongomilepo was at Ngalemala beach on 28 April 2003.

The evidence not in dispute

18.	The Deceased was from Tasmania village. He was born on 15 October 1976. He was 27 years old on 28 April 2003. He was healthy and had no injuries on his body when he was captured by the GLF during the ambush on the morning of 28 April 2003 at Isuna. He was then a member of the JOG patrol from Kolina village to Duidui village.

19.	After the GLF ambushed the JOG patrol at Isuna on the morning of 28 April 2003, John Alven of Vunusa village, saw a group of armed GLF boys came through his village, heading towards Duidui village. They took the Deceased with them. He saw the Deceased looked well and still wore his clothes. He saw Mathew Reisavi and Ephraim Rongomilepo walking after the armed boys who took the Deceased towards Duidui village separately. John Alven knew that Mathew Reisavi, and Christian Sade were all brothers of the Accused. He recognized some of the boys as Ronny Cawa, Owen Isa, John Bote and Koroi when they returned to his village to provide security for the residents until RAMSI arrived in Solomon Islands in 2003.

20.	Clement Ledi, was also from Tasmania village, who said that John Chilivi, Lemuel Toda, Jimmy Losi, Robert Masugu, the Deceased, and himself joined the JOG patrol from Kolina village to Duidui village in the early morning of 24 April 2003. Some members of the JOG were armed with guns. The members of the JOG patrol walked in a single line one after the other. The Deceased was walking close to the front of line when the JOG patrol approached a stone fence at Isuna, when the members of the GLF ambushed them with guns. The members of the GLF used the stone fence as cover when they ambushed the JOG patrol. Jimmy Losi and Robert Masugu were shot dead and the Deceased was captured by the GLF.

21.	On Sunday 27 April 2003, the Accused with Silas Sango and other men were picked up by the JOG for interview about Harold Keke and the GLF. They were interviewed at Kolina village. The Accused was assaulted by the JOG and his tooth was broken. The Accused and his colleagues were released after they were interviewed and returned to their village. The Accused did not give any information about Harold Keke and the GLF to the JOG during the interview.

22.	The Deceased was Ephraim Rongomilepo’s nephew, being his sister’s son. He arrived at the river near Duidui village after the ambush after 10am. Upon arrival, he saw Ronny Cawa, Robert Mou, Koroi and a person called Doctor. They were GLF men. He saw the Deceased with them. He saw the GLF men assaulting the Deceased, who was standing, was naked, his hands tied and an injury above his right eyebrow which was bleeding. He also saw Mathew Reisavi, Christian Sade, Silas Sango, Andrew Koria and the Accused at that scene. The Deceased was killed and buried at Ngalemala beach on 28 April 2003. His grave was not located and his body was not exhumed for a pathologist autopsy to be performed on it for the purposes of this trial.

The issues in dispute between the Crown and the Defence

23.	The Crown said that the Deceased was alive when he was near the river at Duidui village. Ronny Cawa then ordered the Accused, Christian Sade, Silas Sango and Andrew to take the Deceased to Ngalemala beach where he was beaten to death by the Accused, Christian Sade, Silas Sango and Andrew Koria. On the contrary, the Accused asserted on oath that he first saw the Deceased near the river at Duidui village. At that time, the Deceased was already dead and lying on the ground. A moment later, the Deceased’s body was simply pulled to Ngalemala beach by some men for burial.

24.	The evidence for the Crown is that, Ephraim Rongomilepo saw the Deceased still alive near the river at Duidui village. With the Deceased at that time were Ronny Cawa, Robert Mou, Koroni and a person called Doctor. These men were assaulting the Deceased. Present at that time were the Accused, Christian Sade, Silas Sango, Andrew Koria and Mathew Reisavi. The Deceased was standing, was naked, his hands tied, an injury at his back and another above his eyebrow which was bleeding. He was standing about 10 metres away from the Deceased when this assault occurred. Ronny Cawa who was then armed swore at the Deceased with regard to Sgt. Runi, who was a member the JOG. Soon after that, Ronny Cawa ordered the Accused, Christian Sade, Silas Sango and Andrew Koria to "capture" the Deceased. The Accused, Christian Sade, Silas Sango and Andrew Koria took the Deceased to Duidui beach and then headed west to Ngalemala beach. This was done in accordance with Ronny Cawa’s directive that the Deceased be buried much further away from the village. According to Exhibit "P4", Ngalemala beach was almost 600 metres away from Duidui village. He followed them about 100 metres behind, as he wanted to see what they would do to the Deceased, his nephew. Ronny Cawa also went to Ngalemala beach armed. Upon their arrival at Ngalemala beach, Ronny Cawa signaled with his head to the Accused, Christian Sade, Silas Sango and Andrew Koria to kill the Deceased. In his statement to the Police the Accused said, he would kill the Deceased if he was told to do so as Ronny Cawa was armed (p44 of Transcript). Ronny Cawa was still on the beach, when the Accused, Christian Sade, Silas Sango and Andrew Koria went to the bush nearby to cut sticks of about 1 metre in length with a knife. They returned to the beach with the sticks and each of them beat the Deceased on the back, arms, chest and heard repeatedly while the Deceased was moving his body about on the ground. They continued to beat him until he stopped moving his body. The Accused, Christian Sade, Silas Sango and Andrew Koria then dug a grave 6 to 7 feet deep and carried the Deceased’s body into the grave for burial, after Mathew Reisavi said a burial prayer. According the evidence of the Accused on oath, Mathew Reisavi arrived at the scene while they were digging the grave. Ronny Cawa left the beach before the grave was dug. Ephraim Rongomilepo assisted to bury the Deceased as he was his nephew and also because Andrew Koria and Silas Sango threatened him that he would be shot if he did not assist them with the burial. During the burial, Andrew Koria warned Ephraim Rongomilepo, that he would be shot if he informed anyone of what occurred to the Deceased at Ngalemala beach on 28 April 2003. Ephraim Rongomilepo said, he knew Mathias Pese, Christian Sade, Silas Sango and Andrew Koria because they were from the same area of the Weather Coast of Guadalcanal as himself. 

25. (a)	The evidence of the Accused on oath in chief and re-examination was: that he woke up from his sleep at his home village of Veratita, in the morning of 28 April 2003, when he heard gunshots. His daddy, granny, uncle, sister, his brother Mathew Reisavi and himself escaped into the bush to a place about 300 metres behind the village. He returned to the village towards evening and made his way to Duidui river to the west of his village. Upon his arrival, he saw Ronny Cawa and Owen Isa, and more than 10 unknown armed members of the GLF there. Andrew Koria and Silas Sango from his area were there as well. He saw the Deceased lying already dead. He did not see the Deceased being beaten, hit or injured by any person. Ronny Cawa told them to bury the Deceased. They pulled the Deceased along a small road near the beach. They walked as a single group and eventually arrived at Ngalemala beach. They dug a grave at the beach and buried the Deceased in it. He said that he neither injured nor touched the Deceased between Duidui river and Ngalemala beach.

(b)	The evidence of the Accused on oath in cross-examination was that: his father was Mathew Vota, his brothers were Mathew Reisavi and Christian Sade. He knew the members of the GLF were staying in the bush. When he heard the gunshots he knew it was the members of the GLF who ambushed members of the JOG. He knew that Ronny Cawa was involved. He knew about the JOG in his area, as its members usually came around on patrol before he was arrested and taken to Kolina base on 27 April 2003 for interview about Harold Keke. He was angry with the JOG because they had bashed and broken his tooth at Kolina village on 27 April 2003. He knew the person who was captured by the GLF was a member of the JOG. The Deceased was dead when he saw him near the river at Duidui village. His hands were tied, he was naked, he had a wound on his face and/or head which was still bleeding. He saw no bullet wounds on the body of the Deceased. Further, he noticed that the Deceased’s face, eyes and mouth were swollen. Ronny Cawa told the Accused, Christian Sade, Andrew Koria and other unnamed boys to bury the Deceased. They did so. The Accused said that the Deceased incurred no further injuries on his body when he was pulled/dragged from Duidui river to Ngalemala beach for burial. He said that his brother Mathew Reisavi came to Ngalemala beach when they were digging the grave. He was not sure whether Ephraim Rongomilepo was standing at a distance of about 10 or 11 metres away from where the grave was dug. He returned to Veratita village after the burial .

Consideration and decision on issues in dispute

26(a).	The Deceased was captured by Ronny Cawa and his men on the early morning of 28 April 2003, at Isuna, when they ambushed the members of the JOG who were on patrol towards Duidui village. They took him via Vunusa village to Duidui village as seen by John Alven. At that time he still looked well and had his clothes on. Near the river at Duidui village, he was naked, his hands tied and they assaulted him while he was standing as seen by Ephraim Rongomilepo after 10am. The Deceased received a wound at his right eye brow from that assault which bled. There was confirmation on this by the Accused himself in his caution statement, when he agreed that a man was punched or being beaten. But he avoided telling the Police when he was asked on details of that punching and beating (see the last question at the bottom of p.16 to the first question of Mr. Tubman on p.17 of the transcript of the caution statement ). Then Ephraim Rongomilepo saw the Accused, Christian Sade, Andrew Koria and Silas Sango or Angorau took the Deceased to Duidui beach, and then to Ngalemala beach on the order of Ronny Cawa. The Accused confirmed this evidence under oath when it was put to him in cross-examination as follows: Q."Do you remember that Ephraim Rongomilepo said that he followed you, Christian Sade, Andrew Koria and Saele in company of Palu going to the beach at Ngalemala. That is what happened isn’t, you and those other three boys took Palu to the beach at Nagalemala, didn’t you?" A."Not only us, the names that you’ve mentioned, but many." [T.p.89]. The distance between Duidui village to Ngalemala beach was almost 600 metres (see scale in the map marked Exh "P4"). If the Deceased was dead and pulled for this distance, his body would have sustained bruising and severe abrasions. An abrasion is an injury resulting in the loss of the superficial epithelial layer of the skin. It may be produced by being dragged such as being described by the Accused in this case, (see the rough Land formation in photographs 1 and 2 in Exh."P1"). The Accused said when he was questioned in cross-examination. Q."Did he – did the body get lots of bruising when it was being pulled"? A."No, only the face, the eye and the mouth they were swollen." Q."Were they swollen before he was taken to Ngalemala"? A."Yes" (T.p.78). The Accused knew the Deceased who was captured by Ronny Cawa and his men was a members of the JOG, the members of which bashed him up and broke his tooth on 27 April 2003. He was angry with the members of the JOG, for such assault. In his caution Statement to the Police, he said that he would kill the Deceased if he were told to do that by Ronny Cawa as he was armed (R/p.44). Ephraim Rongomilepo saw Ronnie Cawa signaled with his head to the Accused, Christian Sade, Silas Sango and Andrew Koria to kill the Deceased at Ngalemala beach while he was at the scene while armed. The Accused, Christian Sade, Silas Sango and Andrew Koria went into the bush close to where the Deceased was and cut a stick each of about a metre in length with a knife, with which they all repeatedly beat the Deceased. There were trees standing at Ngalemala from which the sticks could be cut (See photographs 1 and 2 of Exh.1). According to PPF officer Tubman, Ephraim Rongomilepo was reluctant to go to Ngalemala beach at day time to identify the exact location of the Deceased’s grave to him. I think he was worried about his own safety, as Andrew Koria had warned him during the burial of the Deceased, that he would be shot dead if he reported what occurred to the Deceased at Ngalemala beach, on 28 April 2003 to anyone. That would be expected when Andrew Koria was implicated and was still living freely during the investigation of this case. I find that the Deceased was still alive when the Accused, Christian Sade, Silas Sango and Andrew Koria took him near the river at Duidui village to Ngalemala beach. He was not dead and pulled as claimed by the Accused. I reject the Accused’s evidence that the Deceased was dead when he was near the river at Duidui village, and was pulled to Ngalemala beach for burial. I find that the Accused was a party to the beating of the Deceased to death. Beating a person with a stick is an assault and an unlawful act. 

(b)	The Accused told the Police in his caution statement that he did not know Christian Sade, Ephraim Rongomilepo, John Alven and Nicholas Sekovania. Christian Sade was his blood brother. He lied to the Police when he told them that he did not know Christian Sade. On the other hand, Ephraim Rongomilepo, John Alven and Nicholas Sekovania all live at Vunusa village just beyond 200 metres west to his own village of Veratita (see Exh. "P4"). He once again lied to the Police when he told them in his caution statement that he did not know these men. He gave his statement to the Police voluntarily. He did not require the present of a lawyer during his interrogation and was provided with water to drink. In this evidence on oath, he said that he did not tell the police that he was frightened of them. He lied to the Police not because he was afraid, but rather, to obstruct the Police investigation to conceal his part in the offences which he now faces in this case.

(c)	The Defence submitted that the evidence of Ephraim Rongomilepo is unreliable and untruthful because the whole of it shows inaccuracies. They pointed to the following:

(i)	That he told the Police that it was Owen who went to call him from the bush, whilst in court he said it was Robert Tatave who went to call him. This inconsistency was caused by lapse of memory as he explained in Court;

(ii)	The identity of persons at Ngalemala beach where the Deceased was allegedly buried.

The inconsistency alleged here was that he told the Police that Ronny Cawa, Robert Mou, Sae, Mathew Reisavi and himself were present, when the Accused, Christian Sade, Silas Sango and Andrew Koria dug the grave, whilst in court he seemed, to suggest that only Mathew Reisavi and himself were present when the Accused, Christan Sade, Silas Sango and Andrew Koria dung the grave. This is a major inconsistency, but it was not on an element which the Crown must establish to prove guilt.

(iii)	Movement of Nicholas Sekovania

The inconsistency here was that in court he said that Nicholas Sekovania did not go towards Duidui beach, whilst he told the Police that Nicholas Sekovania went towards the beach. It seemed there was no inconsistency of evidence here. This was because Nicholas Sekovania escaped after crossing the Duidui river, before one could to go towards the beach.

(iv)	Description of Movements for Mathew Reisavi

The inconsistency here was that he told the Police that he and Mathew Reisavi came from the bush together to the place where the deceased was near the river at Duidui village whilst in court he said that came from the bush to where the Deceased was by himself. It seemed that this inconsistency was due to loss of memory. 

(v)	Description of movements for Silas Sango

Here he said in court that he did not see Silas Sango leave the accused, Christian Sade, Andrew Koria and the Deceased on the way to Duidui beach, whilst he told the Police that Silas Sango left the above group and moved back whilst carrying his spade to join John Alven, Nicholas Sekovania and himself who were following behind. It seemed, that there was no inconsistency here, because there was no evidence to say that Silas Sango was with his first group for the whole time from spot where the Deceased was taken near the river to the Duidui beach.

(vi)	Different version of the place he saw the Deceased and the nature of the injuries he observed. 

In his statement to the Police, he said that he saw injuries on the Deceased whilst the Deceased was near Duidui river, whilst in court, he said that he only saw injuries on the Deceased at Ngalemala beach. It seemed he was confused here, because there was evidence to show that Ronny Cawa and his men assaulted and caused injuries to the Deceased when he was near the river at Duidui village. And that later the accused, Christian Sade, Silas Sango and Andrew Koria beat and caused injuries to the Deceased at Ngalemala beach before he died.

(vii)	Delay/non response to some questions

In his evidence he said that he had not been to school nor speak pidgin well. These could be the reasons for the delay in his response to some questions. However, the explanation he offered was that he had already earlier answered the points which he was later asked, and saw no point in repeating himself. It would seem that he did not understand the trial procedure in the courts, which witnesses who do not know about it would see no point in answering questions they answered earlier.

The inconsistencies which the Defence pointed out, above, do not relate to the elements of the offences to be proved by the Crown for conviction. They were rather on peripheral matters. Those inconsistencies do not show that the witness was lying. They seem to arise from confusion and the common fallibility of memory. I reject the Submission by the Defence that the evidence of Ephraim Rongomilepo was unreliable and untruthful because the whole of it displays inconsistencies.

27.	Law and Conclusion

The burden of proving the guilt of the Accused on these offences is on the Crown. The Crown must prove every element of each offence beyond reasonable doubt to get a conviction against the Accused.

(a)	In count 1, the Crown must prove the following elements:

(1)	The death of the Deceased;
(2)	That it was the unlawful act of the Accused which caused that death; 
(3)	That such unlawful act was done with –

(i)	an intention to cause death or grievous bodily harm; or.
(ii)	knowledge that the act which caused death will probably cause death or grievous bodily harm.

(b)	In count 2, the Crown must prove the following elements:

(1)	The Accused by force compelled the Deceased;
(2)	To go from Duidui Village to Ngalemala beach;
(3)	In order that the Deceased may be subjected to grievous harm.

Murder:

(1)	The death of the Deceased occurred on 28 April 2003. The evidence of the Crown on this point was not disputed by the Defence. In fact, Accused saw the Deceased dead and helped in the burial that day.

(2)	The Accused beat the Deceased with a stick. That was an unlawful act (T p 199). The Deceased was well and had no injuries on him before he was captured by the GLF. He was made to walk from a spot near river at Duidui village to Ngaemala beach by himself. He died after he was beaten by the accused, with Christian Sade, Silas Sango and Andrew Koria (T p.121).

(3)	I find that the Accused, with Christian Sade, Silas Sango and Andrew Koria used sticks of a metre in length to beat the Deceased with intention to cause death or grievous bodily harm to the Deceased in accordance with the head signal made to them by Ronny Cawa (T pp.119 and 120).

(4)	I consider that the Accused was a party to the beating of the Deceased. He never enquired about Deceased’s cause of death, never spoke to anyone about his burial of Deceased when he returned to the village, and he never spoke to Andrew Koria about the death and their burial of the Deceased afterwards. These do not point to his innocence if he took no part in the death of the Deceased. They show the contrary.

Abduction:

The Accused, with Christian Sade, Silas Sango and Andrew Koria took the Deceased by force near the river at Duidui village to be subjected to grievous harm. He was naked, his hands tied and was in the captivity of the GLF the accused, Christian Sade, Silas Sango and Andrew Koria near the river of Duidui village. The Accused knew through the order by Ronny Cawa that the Deceased would be subjected to grievous harm, death and be buried at Ngalemala beach. Silas Sango carried a spade. The Accused was a party to the taking of the Deceased to Ngalemala beach with the knowledge of these actions to be done to the Deceased.

I find that the Crown has proved their charges against the Accused beyond reasonable. I convict the Accused of murder and abduction accordingly.

Francis Mwanesalua
Puisne Judge