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Regina v Su'u [2007] SBHC 144; HCSI-CRC 333 of 2006 (1 March 2007)

HIGH COURT OF SOLOMON ISLANDS


Criminal Case No. 333 of 2006


REGINA


-v-


MOSES SU’U, JOHN TOLI, JOHN FO’OGAU,
HENRY DODO, JIMMY SIRAOA AND ENOCK FISU


(Mwanesalua, J.)


Hearing: 13,14,16,20,21,22,23,28,29,30 of November 2006; 4, 6 of 2006, 22,23,25, 25 January 2007, 8 February 2007
Judgment: 1 March 2007


Mr. C Weir for the Crown
Mr. C Baker for Moses Su’u
Mr. P Southey for John Toli
Mr. H Barkclay for John Fo’ogau
Ms. P Fa’asau for Henry Dodo
Mr. D O’shea for Jimmy Siraoa
Mr. D Drumgold for Enock Fisu


JUDGMENT


Mwanesalua, J:


1. Moses Su’u, John Toli, John Fo’ogau, Henry Dodo, Jimmy Siraoa and Enock Fisu are the accuseds in this case. Each accused is a person against whom an information is filed alleging that he committed the offences of murder and attempted murder, under the Penal Code (Cap. 20).


2. Each accused has the right, before being required to plead to the information in the usual way, to enter a plea of autrefois acquit or convict or pardon, under Section 255 of the Criminal Procedure Code (Cap. 7).


3. Section 255 provides:


"255. Any person against whom an information is filed may plead –


(a) that he has been previously convicted or acquitted, as the case may be, of the same offence; or

(b) that he has obtained the Queens pardon for his offence.

If either of such pleas are pleaded in any case and denied to be true in fact, the court shall try whether such plea is true in fact or not.


If the court holds that the facts alleged by the accused did not prove the plea, or if it finds that it is false in fact, the accused shall be required to plead to the information."


4. The court pointed out this section to Advocates when the Accused made no pleas before the hearing began. Prosecuting advocate then submits that this section did not apply in this case because the accuseds had not been pardoned for their alleged offences. The court rejected the submission. The view of the court was that the section applies to this case because: First, the word "pardon" has a wide meaning and it includes immunity, amnesty, indemnity and like aspects of what used to be known as the prerogative[1]. And Second, the section sets out the procedure to be follow when an accused proposes to enter a plea of autrefois acquit or convict or pardon.


5. In Solomon Islands, "The Queen’s pardon" is to be taken as reference to pardon granted by the Governor-General, in the name and on behalf of the Queen – see section 45 of the Constitution.


6. Each accused then pleaded that he has been immuned from criminal prosecution for his alleged offences under the Penal Code. Each accused relies on the Amnesty Act 2000 (The Amnesty Act). This Act was assented to by the Governor-General on 19 February 2001 and came into force on 13 June 2001.


7. The Amnesty Act was passed by Parliament to give full legal effect to the provisions of the Townsville Agreement[TPA] signed by the Malaita Eagle Force(MEF), the Isatambu Freedom Movement(IFM), the Malaita Provincial Government(MPG), the Guadalcanal Provincial Government(GPG) and the Solomon Islands Government(SIG) on 15 October 2000.


8. Paragraphs [3] and [4] of Part Two of the (TPA) which are relevant to this case are in these terms:


"[3] Amnesty


(1) Weapons Amnesty


Members of the MEF and IFM who are currently in possession of weapons shall surrender the same in accordance with paragraph [4] of this Part and in consideration of handing over any such weapon the person so doing shall be granted immunity from prosecution in respect of the stealing or possession of that weapon (or any of a similar kind) at any date after the 1st January, 1998 up to the date of this agreement and the SIG undertakes to do all things necessary, including passing legislation to give full legal effect to this provision.


(2) General Amnesty


Members, leaders and other civilian advisors associated with the MEF, IFM, and any Police, Prison Service or RRU or PFF officers who participated in military operations during the cause of the ethnic crisis up until the date of execution of this Agreement shall, subject to such conditions in an Act of Parliament, be granted amnesty or immunity in respect of Criminal acts done –


(a) in connection or in association with the forceful eviction from the Province of Guadalcanal of certain persons in furtherance of the demands of the indigenous people of Guadalcanal;


(b) by Malaitans, including members of the MEF, in retaliation against the forceful eviction of Malaitans from Guadalcanal;


(c) in the execution or purported execution of the para-military operation conducted on 5th day of June 2000, and the Joint Para-military security operations carried on thereafter until the date of the coming into operation of this agreement;


(d) the amnesty or immunity referred to in this clause, shall be inter-alia be on condition that:-


(i) all weapons and ammunition presently in possession of the two groups be surrendered; and


(ii) in this clause "Criminal Acts" means unlawful acts which are directly connected with matters specified in paragraphs (a), (b) and (c) and in particular –

(3) Civil Liabilities

..........................


(4) Remaining in unlawful possession


For avoidance of doubt it is hereby declared that any person who unlawfully possesses, uses, controls or in whose custody is found, any firearms and ammunition or identifiable stolen property and who after the period described in Part Two, Clause [4](b) refuses or fails to surrender the same in accordance with the terms of this Agreement shall not be granted amnesty or immunity for any offence whatsoever.


[4] Surrender of Weapons and Property


(a) subject to this clause, there shall be surrender of arms and ammunition ("weapons") in return for granting of amnesty;


(b) within thirty days after the execution of this Agreement all weapons in the hands of the MEF, IFM and the officers shall be handed over to their selected Commanders who will then place the weapons under the control of the International Peace Monitoring Team (IPMT) at such places as it may determine in consultation with the SIG., MPG and the GPG.


(c) ................................................"


9. Sections 2 and 3 of the Amnesty Act are in these terms:-


"2. In this Act –


"Townsville Peace Agreement" means the Agreement signed in Townsville, Australia on the fifteen day of October, 2000, by the Malaita Eagle Force, Isatambu Freedom Movement, Malaita Province, Guadalcanal Province and the Solomon Islands Government.


3(1) Notwithstanding any provisions of the Penal Code or any other law, the following persons shall be granted an amnesty or immunity from criminal prosecution as hereafter provided –


(a) Leaders, members and other civilian advisors associated with the Malaita Eagle Force;


(b) Members of the Solomon Islands Police Force;


(c) Leaders, members and other civilian advisors associated with the Isatambu Freedom Movement;


(d) Members of the Solomon Islands Prison Service.


(2) Subject to the provisions of subsection 4, the amnesty or immunity from criminal prosecution referred to in subsection (1), shall be in respect of any criminal acts committed in the execution or purported execution by any person -


(a) of the Isatambu Freedom Movement in connection or in association with the forceful eviction from the Province of Guadalcanal of certain persons during the period commencing 1st January 1998, and ending 15th October

2000 in furtherance of the demands of the indigenous people of Guadalcanal;


(b) of the Malaita Eagle Force, in retaliation against the forceful eviction of Malaitans from Guadalcanal; and


(c) in execution or purported execution of the Para-military operations conducted on the 5th day of June 2000, and the joint Para-military/Malaita Eagle Force security operations carried on thereafter, until the signing of the Townsville Peace Agreement on 15th October 2000.


(3) The Amnesty or Immunity from prosecution referred to in this section shall be on condition that all weapons and ammunition and stolen property in possession and in the custody of the militant groups referred to in subsection (2) are surrendered in the manner and within the periods specified in the Townsville Peace Agreement or such other date the Minister may specify by Notice published in the Gazette.


(4) In this Section "Criminal Acts" mean unlawful acts which are directly connected with matters specified in subsection (2) and in particular –

(5) The Amnesty or Immunity referred to in this section does not apply to any criminal acts done in violation of international humanitarian laws, human rights violations or abuses or which have no direct connection with the circumstances referred to in subsection (2)(a), (b) or (c) of this section."

Issues for Consideration in this hearing


10. The relevant issues for consideration in this hearing are whether: (i) the Accused are members of the Malaita Eagle Force (MEF); (ii) the killing of Francis Sale was done in combat conditions or in connection with the armed conflict on Guadalcanal; (iii) the killing of Francis Sale took place in the execution or purported execution of a joint paramilitary/MEF security operation carried out between 5 June 2000 and 15 October 2000; (iv) all weapons and ammunition in possession and in the custody of the Accused were surrendered within thirty days from 15 October 2000 or such other date the Minister may specify by Notice published in the Gazette; (v) the killing of Francis Sale was a violation of human rights and; (vi) the Accused are immuned from criminal prosecution under the Amnesty Act.


Accused Members of MEF


11. Moses Su’u collected two SLR rifles, three SR88 riles, one LMG and one Gas Launcher for the Tiger Camp on various dates between 8 June 2000 and 11 November 2000[2]. He was the Commander of the Tiger Camp[3]. John Toli was a member of the Tiger Camp[4]. John Fo’ogau collected one 303 rifle, two greener guns and one LMG for the Lion Camp on 2 July and 7 August 2000 and was a member of the Lion Camp[5]. Henry Dodo was the Cook for the Tiger Camp. He was a member of the Tiger Camp[6]. Jimmy Siraoa, who is also known as Jimmy Lidimani was member of the Lion Camp[7]. Enock Fisu was a member of the Tiger Camp[8]. The Lion and Tiger Camps were manned by MEF members[9]. This means that Moses Su’u, John Toli, John Fo’ogau, Henry Dodo, Jimmy Siraoa and Enock Fisu were members of the MEF.


Killing of Francis Sale


12. The Tiger Camp was located at the west end of Alligator Bridge at Alligator Creek east of Henderson Airport, on Guadalcanal. There is evidence to suggest that unidentified members of the IFM fired gunshots at the Camp prior to MEF patrol to Kaimamosa village on Guadalcanal, on 23 September 2000. The MEF patrol was to clear IFM members from the areas beyond the Camp[10]. It was this MEF patrol which shot Francis Sale at Kaimamosa village on 23 September 2000[11]. The Accuseds’ partrol fired gunshots at Francis Sale when he and his friends were preparing their motu and cooking cassava which killed Francis Sale.


Whether Francis Sale was killed in the execution or purported execution of a Joint Para-military/MEF security operation.


13. The phrase "The Joint para-military/Malaita Eagle Force security operations" is not defined in the Amnesty Act. But I think it means joint security operations conducted by Police, Prison Service or RRU or PFF officers with the MEF between 5 June 2000 to 15 October 2000 when the TPA was signed. This view would be consistent with paragraph 3(2) of the TPS. If this view is correct, then there is no evidence to show that members of Police, Prison Service, RRU and PFF were part of the MEF patrol which shot Francis Sale on 23 September 2000. That security operation was conducted only by the MEF[12]. That would mean that the killing of Francis Sale at Kaimamosa village on 23 September 2000 was not done in the execution or purported execution of a Joint para-military/MEF security operation within the terms of s.3(2)(e) of the Amnesty Act.


Surrender of Weapons


14. Moses Su’u surrendered a weapon to Police in early August 2003. John Toli surrendered a weapon at Auki on 15 December 2000[13]. John Fo’ogau surrendered one LMG and 20 rounds of ammunitions to the Police either the end of 2002 or the beginning of 2003. Henry Dodo is the same person called Henry Diki. He surrendered his GB gun at Auki on 15 December 2000[14]. Jimmy Siraoa is also known as Jimmy Lidimani. He surrendered his weapon[15]. And Enock Fisu surrendered a SLR rifle at Auki on 15 December 200[16].


15. I find that the accuseds were members of the MEF; that the killing of Francis Sale was done in connection with the armed conflict on Guadalcanal; that it was accuseds’ MEF security operation which killed Francis Sale between 5 June 2000 and 15 October 2000 and that the Accused surrendered their weapons as required under the TPA and the Amnesty Act.


Immunity from Criminal Prosecution under Amnesty Act


16. The Amnesty or Immunity from criminal prosecution referred to under the Amnesty Act does not apply to criminal acts done in violation of international humanitarian laws, human rights violations or abuses or which have no direct with the circumstances referred to subsection 2(a), (b) or (c) of section 3 of the Amnesty Act.[17]


17. I have found that the killing of Francis Sale was connected with the armed conflict on Guadalcanal within the scope of section 3(2)(b) of the Amnesty Act. That would have entitled the Accused for immunity from criminal prosecution as they have surrendered their weapons. But killing takes away the life of a person. Where life is taken away through an unlawful act, the accused in such a case might be prosecuted and convicted of murder or manslaughter if found guilty by a court of law.


18. The right to life is a human right. A killing which amounts to murder or manslaughter is a violation of a right to life. The International instrument dealing with human rights is the International Bill of Human Rights which covers: The Universal Declaration of Human Rights; The International Covenant on Economic, Social and Cultural Rights; The International Covenant on Civil and Political Rights; The First Optional Protocol to the International Covenant on Civil and Political Rights and the Second Optional Protocol to the International Covenant on Civil and Political Rights.


19. I will confine myself to the Universal Declaration on Human rights (The Declaration) and the Solomon Islands Constitution for the purpose of this Judgment. The Declaration was adopted by the United Nations General Assembly on 10th December 1948. It has 30 articles, setting out the human rights and the fundamental freedoms to which all men, women and children every where in the world, are entitled, without any discrimination. Article 3 is the first cornerstone of the Declaration. It proclaims the right to life, liberty and security – a right essential to the enjoyment of all the other rights.


20. The Declaration is a common standard of achievement of all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration Constantly in mind, shall strive by teaching and education to promote the respect for these rights and freedoms, and by progressive measures, national and international, to secure their universal and effective recognition and observance both among, the peoples of member states themselves and among the peoples of territories under their jurisdiction.


21. Solomon Islands was a Protectorate of Britain, a member of the United Nations before Independence on 7 July 1978, and in consultation with our relevant Leaders, approved, the current Solomon Islands Constitution. Section 3(a) of this Constitution, gives every person in this country a right to life, liberty, security of the person and the protection of the law.


22. The Declaration States a common understanding of the people of the world concerning the inalienable and inviolable rights of all members of the human family. The Declaration is truly universal in scope, as it preserves its validity for every member of the human family, every where, regardless of whether or not governments have formally accepted its principles or ratified the covenants.


23. Section 3(a) of the Solomon Islands Constitution is an adoption of the right to life under Article 3 of the Declaration. The right to life is an inalienable and inviolable right under the Solomon Islands Constitution. That is further demonstrated by subsection (5) of section 3 of the Amnesty Act, which excludes persons who commit criminal acts which violate human rights from being immuned from criminal prosecution under Solomon Islands Law.


24. The Result is that, the Accuseds are not immuned from criminal prosecution under the Penal Code for the alleged murder of Francis Sale at Kaimamosa village on 23 September 2000. They will plead to the information on murder at the relevant date. However, they are immuned from prosecution on the attempted murder charges also laid against them.


Francis Mwanesalua
Puisne Judge

[1] See The State v. Ratu Timoci Silatolu and Josefa Nata, Criminal Action No Ham 008 of 2000 and No Ham 010 of 2002 (High Court of Fiji)

[2] Exhibit “P5”

[3] Exhibits “P8”, “P14”, “P15”, “P19” and “P20”

[4] Exhibit “P15”

[5] Exhibits “P5”, “P7” and “P6”
[6] Exhibit “P18”
[7] Exhibit “P7”
[8] Exhibit “P7”

[9] Exhibits “P8” and “P14”

[10] See Title on p.1 of Exhibit “P5”, “P7”, “P14” and “P15”

[11] See Statements of Moses Su’u and Johnson Wale – Exh “P20”

[12] Exhibit “P15”
[13] Exhibit “P9”

[14] Exhibit “P10”

[15] Exhibit “P11”

[16] Exhibit “P12”

[17] Also see s.2 of the Constitution (Amendment Act 2001 (No. 2 of 2001))

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