R v Cawa [2007] SBHC 26; HCSI-CRC 312 of 2004 (19 April 2007)

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Mr McColm for the Crown
Ms Stewart for the 1st defendant, Ronny Cawa
Mr G Benn for the 2nd Defendant, Gedily Isa
Mrs M Swift & Ms C Habru for the 3rd Defendant, Allen Christian Bosage
Mr G Benn for the 4th Defendant, Owen Isa
Mrs M Swift & Ms C Habru for the 5th Defendant, Michael Kaptendou
Ms Stewart for the 6th Defendant, Carradine Pitakaka

The charges before the court arise from events which took place at Marasa Bay on the Weather Coast of Guadalcanal between Monday 16 and Wednesday 18 June 2003. At that time there appears to have been considerable civil unrest. ‘The situation was very dangerous and unstable’* [*see Keke v Regina (Court of Appeal) [2006] SBCA 1 at page 5.]

The 6 accused are each charged on joint Information with two counts of murder 28 counts of wrongful confinement 11 counts of arson and one count of membership of the Guadalcanal Liberation Front (GLF) - an unlawful society [see exhibit P48]. All are offences created by the Penal Code (‘the Code’)

The G.L.F., F.F.F. and the G.R.A. were ‘unlawful societies’ in June 2003, banned by Order of the Governor General on 4 February 2000 [see exhibit 48]. The GLF is an unlawful society within the contemplation of the Penal Code (hereinafter ‘the Code’) section 68. I so find.

It is conventional practice not to include multiple counts of murder in one Indictment (or Information) R v Jones (1918) 13 Cr App R 86 CCA per Lawrence J at 87 and R v Hofschuster [1992] NTSC 92; (1992) 65 A Crim R 167 at 387. It may be done in exceptional circumstances. Here, I considered that the Crown case gave rise to exceptional circumstances, namely the allegation of joint enterprise and the factual complexity of the charges and the matter continued on the basis of the unamended Information.

Each accused man pleads not guilty to the murder counts. Each man has been found guilty on his own confession of membership of an unlawful society. The accused Gedily Isa initially pleaded not guilty but latterly conceded through his counsel that he was a member of the unlawful society [see transcript day 60 page 5.3].

Apart from the counts of murder the accused have responded to the charges in different ways. Their responses are best set out graphically.

CHARGE	CAWA	ISA G.	BOSAGE	ISA O.	KAPTENDOU	PITAKAKA
1. Murder Lovana	NG	NG	NG	NG	NG	NG
2. Murder Bilo	NG	NG	NG	NG	NG	NG
3. Wrongful Confinement*	G	NG	G	NG	G	NG
4. Arson	NG	NG	G**	NG	G	NG
5. Membership Unlawful soc.	G	NG	G	G	G	G

**Bosage pleads not guilty to all the Arson charges but guilty to count 33 house of L. Lele.
* count 25 has not been made out against those who pleaded not guilty, G.Isa, O.Isa and Pitakaka

The prosecution alleges the circumstances of the offending by each man arises as a consequence of his having been a participant in a joint criminal enterprise between 16 June and 18 June 2003.

The prosecutor relies upon the provisions of sections 21(a),(b) and (c) of the Penal Code.

Christian Sopa pleaded guilty to the murder of John Lovana during trial. Accordingly convictions in respect of other counts were not pursued and the other charges stood aside. That plea has no bearing in relation to verdicts entered against co-accused in this prosecution

There are 48 counts in the Information. The Crown set aside count 25 (wrongful confinement of one Calbert Moana between 16 and 18 of June 2003) as against the accused Gedily Isa, Owen Isa and Carradine Pitakaka each of whom had pleaded not guilty to the charge. That count, count 25 is acknowledged by the prosecutor [see transcript day 61 at page 3] as not having been made out. I enter verdicts of not guilty in respect of count 25 and in respect of the accused Gedily Isa, Owen Isa and Carradine Pitakaka.

The convictions of the accused Cawa, Bosage and Kaptendou stand notwithstanding that at trial the evidence led was insufficient to prove the elements of count 25 in respect of the accused Gedily Isa, Owen Isa and Pitakaka.

Cawa, Bosage and Kaptendou pleaded guilty to count 25 before it was set aside. The basis of the plea was that they acknowledged wrongfully confining Calbert Moana. That plea required no more formal proof. I find the charge proved and record convictions in respect of count 25 in the Information against Cawa, Bosage and Kaptendou

Counsel for Bosage and Kaptendou applied for a View of the beach at Marasa and its environs with particular reference to the distances between the beach and the village of Samaria. I was assured (and I accepted), that those matters relate to the presentation of, in particular, Kaptendou’s defence.

I made inquiries of the possible logistical issues which may arise consequent upon a View at the Weathercoast being directed, from the Operations Manager of the RAMSI Law and Justice Program Case Support Unit Mr. Mark Stewart. I was informed by Mr. Stewart (in Court in the presence of counsel) that it would be most difficult to guarantee the safe custody of the prisoners were the Court to go to Marasa now.

It was submitted by counsel for the Applicants Bosage and Kaptendou that it would be proper for to Court to attend in the absence of the prisoners. Counsel for the DPP opposed the application for a View. Counsel for the other prisoners took no position as to whether or not a View should be conducted.

There is a provision in the Constitution for an accused person to absent himself or herself from his or her trial. [The Constitution section 10 subsection(2) (f)]

i. . . . . . except with his own consent, the trial shall not take place in his absence . . . ."

There was no consent forthcoming from the accused to be absented from any View which in my opinion may be considered to be a part of the trial.

There is authority, R v Maddock (1985) 18 A Cr R234 (NSW CCA) that a Judge may attend a crime scene without the prisoner or prisoners. In that case the Judge was hearing an appeal from a magistrate and visited a place relevant to the Appeal. The practice was considered fair by the appellate Court. Regina v Niulifia [2004] SBHC 119 is a judgment of the Chief Justice which includes the learned Chief Justice’s approval of the proposition that a Judge may attend the scene of an alleged crime in company with the Jury and prisoners.

English authorities do not address the question of viewing without prisoners as far as I have been able to establish. Two cases which I have found concern the absence of the Judge at a view. The authorities are Tameshwar v The Queen (1957) AC 479 in which Denning LJ gave the Judgment of the Court of Appeal and which was followed in R v Hunter 1985 1 WLR 550. The decisions are distinguishable here anyway. The point on which they turned is that there was a demonstration at the view and evidence taken about it later.

Had there been consent by the prisoners to absent themselves from the view I would not have granted this Application. In my judgment the logistical problems simply did not allow for the View to take place. The application was refused for the reasons given.

The Crown case broadly speaking is that in June of 2003 the now 6 accused men were members of the GLF. It was an unlawful society then [exhibit P48] and it still is. If the society or organization possessed formal objectives they are not in evidence except in the expressed opinions of the accused men (except Pitakaka who was not interviewed), in their interviews and in the evidence or dock statements of the accused.

The accused are alleged to have been participants in a joint criminal enterprise ‘to capture and detain the villagers and to cause the deaths of or grievous bodily harm to the villagers Lovana and Bilo and to set fire to the villages’.

The GLF received information that there was to be a supply of ammunition to the Government organization known as the Joint Operations Group (hereinafter the "JOG") on Sunday 15 June 2003 at Marasa Bay by boat. The JOG was an organization of full time special constables who were involved in security operations on the Weathercoast of Guadalcanal. The GLF members regarded the JOG as their enemy.

The prosecution alleges that the accused and other members of the GLF led by the ‘Supreme Operations Commander’ of the GLF, Ronnie Cawa, had gathered at Marasa Bay and waited in ambush for the JOG boats to arrive with the weapons and ammunition. The GLF planned to attack the JOG members and recover the ammunition and weapons.

The JOG boats carrying some personnel and ammunition arrived at Marasa Bay on Sunday evening. The JOG personnel ‘cleared the area’ by firing rounds into the intended landing area. The GLF members did not return fire until the JOG men had landed the boats. The GLF members then opened fire. The GLF at that time possessed military rifles including the models known as ‘SLR’ and ‘SR 88’, tear gas launchers and a general purpose machine gun (‘GPMG’). Some weapons were used at the ambush.

A gun battle ensued. Following the attack, ammunition and cash belonging to the Government were seized by the GLF. Weapons fell into the sea from the supply boats. JOG members were forced to flee. There were casualties among the JOG members.

No charges are brought concerning the events of Sunday. (Much of the evidence about the events of Sunday came from the evidence of the accused Gedily and Owen Isa. Bosage spoke of the events of Sunday in the Dock statement he made.)

The GLF group remained overnight at Marasa and gathered under the command of Cawa at the seaside on the morning of Monday 16 June. Cawa was armed with an SR 88 high powered rifle. The members of the GLF were variously in possession of firearms, knives and/or sticks.

Following the orders and under the command of the accused Cawa most of the GLF members went up to the Marasa villages (of which there were many), and ordered in excess of 400 villagers from their houses and escorted the people to the seaside at Marasa. A number of villagers had their hands tied by GLF members before being taken to the beach.

Once at the beach the villagers were seated together in a large group. Some groups of villagers arrived earlier than others. The prosecution case is that the accused Cawa addressed the villagers at the beach. He told them that ‘he was Ronnie Cawa and that he was a follower of Harold Keke’.

Cawa said that the villagers were believed by the GLF to be followers of the government. He told them that Harold Keke had said that if they tried to escape they would be killed.

Among those whom the GLF members ordered to go to the beach on Monday morning were two young men, John Lovana and Adrian Smith Bilo.

John Lovana was brought from the villages to the beach by the accused Owen Isa and other GLF members. Initially Lovana had no bindings. Isa was spoken with by a man as he, Owen Isa, descended to the beach with Lovana in his custody. The man gave him information that Lovana was associated with the JOG. Lovana’s wrists were tied behind him. They then continued to the beach.

Once at the beach John Lovana was placed in front of the assembled villagers and there began a systematic beating of Lovana involving numbers of GLF members who at first punched and kicked him. I note that the English verb ‘to kill’ translates into Solomon Islands Pidjin as ‘kil or kilim– ‘to hit or beat’. It does not mean to end the life of a person. To avoid potential ambiguity I have used the expression ‘kill dead’ and ‘cause the death of’ in this judgment’.

Bilo, seated among the captive villagers, was noticed by the accused Owen Isa. Isa’s evidence is that he recognised Bilo as one who was with the JOG at the beach the day before. Owen Isa then ordered Bilo to the front near Lovana where Bilo was also set upon and beaten by members of the GLF the first blows of which were commenced by Owen Isa.

Lovana and Bilo were ordered to dance .They tried to do so. The wrists of both men were still tied behind them. Then they were ordered to kick each other. They did so.

Money was produced and torn up by GLF members and placed in the mouths of both Lovana and Bilo. Members of the GLF forced the money into the back of their throats using a stick and small round beach stones. The Crown characterizes the behavior as humiliation and ‘torture’.

Cawa went to the village of Sughu in a boat to chase a JOG vessel which had retreated the previous night after the ambush. He left for Sughu with three other GLF members, William Hence, Kronikal Kleary (otherwise known as ‘Koroni’) and Gedily Isa.

The prosecution alleged that it was during Cawa’s absence that Lovana arrived on the beach and the beatings started. During the continuous and systematic beating of Lovana and Bilo, Cawa, Gedily Isa and the others returned to the beach, having returned from Sughu by boat. There were now two boats - the boat in which Cawa had traveled to Sughu and another, which was the property of the JOG.

The beatings temporarily ceased and the GLF members who were doing the beatings ran to the water’s edge to help pull the vessels up on to the beach.

Cawa, Gedily Isa and Hence were in one boat. The man known as ‘Koroni’ was in charge of the JOG boat which they had brought back with them from Sughu.

When the members of the GLF left off beating John Lovana and had run to the water’s edge, Lovana seized the opportunity to escape and ran, Lovana was caught up with when he entered the river and was escorted back to a place near to and just behind where the villagers were positioned. There he fell.

The GLF member Christian Sopa cut him diagonally and deeply across his back with a long bush knife. The cut measured approximately 200mm in length and 65 mm wide passing through skin, muscle and fatty tissue.

Thereafter John Lovana was dragged or carried back to the place which he had formerly occupied in front of the crowd and the beatings by the GLF ‘boys’ resumed on both he and Bilo. By all accounts the attack increased in ferocity. Both timber and rocks were used on each man. The two men died.

Following the deaths of Lovana and Bilo, Cawa said to the villagers "the evil men who were spies for the government are now dead, if any one of you villagers helps the government you will be killed."

Their bodies were buried some hours after their deaths on the Monday afternoon. One man was sent to fetch a shovel and on his return with it villagers were sent to dig the pit into which the bodies of Lovana and Bilo were finally placed.

Months later on 12 September and 13 September 2003, the bodies were exhumed and a post mortem was conducted. The Pathologist, Dr Dodd, found that the most likely cause of death in the case of both young men was "blunt force trauma to the chest". See exhibits P12 and P13 and [transcript day 24 page 21]. He noted that the wrists of each body was tied and that the arms were behind the exhumed remains in each case.

The villagers were confined by the GLF members on the beach at Marasa until the afternoon of Wednesday 18 June. The Crown case is that with some exceptions each of the accused remained at the beach and continued carrying out GLF duties for the period from early Monday 16 June until late the following Wednesday afternoon.

On Tuesday following a message received from some source believed to be Harold Keke, a group of Melanesian Brotherhood members were released and Reverend Longarata who had been tied and left near the bodies of Lovana and Bilo and later tied to a boat on the beach, was untied and allowed to rejoin the other villagers.

On the late afternoon of Tuesday 17 June Kaptendou addressed the villagers and said that he was very angry with them for supporting the government and using Marasa as a landing place for supplies. Kaptendou thereupon ordered the GLF members to burn the villages of Marasa which they commenced on Tuesday afternoon and continued to do on the following day.

Late in the afternoon of Wednesday the villagers were released. They returned home and found that their houses and the contents of them had been destroyed by fire. They saw that the only two buildings in the whole of the complex of Marasa villages remaining standing were the church and a meeting hall.

Some months later the accused men were arrested and questioned by police. There is no evidence that Caradine Pitakaka was questioned about the matter. The other accused were each interviewed by police and their responses recorded. Their responses are in evidence.

An important issue is the existence or otherwise of a joint criminal enterprise between the accused to do the matters charged - in particular to capture and detain the villagers and to cause the deaths of, or grievous bodily harm to, the villagers Lovana and Bilo and to set fire to the villages.

For reasons which I now set out I am satisfied that the allegations of fact contained in the opening address of the prosecution are proved beyond reasonable doubt. The issues which remain for determination relate to the personal involvement of each accused in each charge.

Proceeding in the order of appearance in the Information, the defence of each accused in the briefest summary is as follows:

Ronnie Cawa (pleaded not guilty to the murder and the arson charges and guilty to the charges of wrongful confinement and the charge of membership of an unlawful society. He neither gave nor called evidence)
Cawa placed the Prosecution on proof of his guilt of the charges of murder and arson. He suggests that it is reasonably possible that the beatings leading to the deaths were those administered by an unruly mob not arising from any order or direction given by him. There was no joint criminal enterprise as alleged.

Gedily Isa (pleaded not guilty initially to all charges but later conceded to being guilty of ‘membership of an unlawful society’ and gave but called no evidence).The defence he presented is that while he delivered some blows on John Lovana he did not physically touch Bilo and left the immediate scene to do security before any further beatings by others occurred. He had no intention that grievous bodily harm be inflicted on either Lovana or Bilo. He had no intention to kill either Lovana or Bilo or that they be killed by others. He knew nothing of the intentions of other accused. There was no joint criminal enterprise as alleged.

Allen Christian Bosage (pleaded not guilty to the charges of murder and arson (except count 33 burning the house of Luke Lele to which he pleaded guilty) and guilty to the charges of wrongful confinement and membership of an unlawful society. He made a statement from the Dock and called no evidence). His defence was that while he acknowledged punching and kicking Lovana he did not intend that grievous bodily harm be inflicted on either man nor that they be killed. He left the scene to carry out security duties. He knew nothing of the intentions of the other accused and knew nothing of any plan to inflict grievous bodily harm on, or to cause the deaths of Lovana and Bilo. There was no joint criminal enterprise as alleged.

Owen Isa (pleaded not guilty to the charges of murder arson and wrongful confinement but guilty to the charge of membership of an unlawful society and gave but called no evidence.) His defence was that he acknowledged punching and kicking Lovana he did not intend that grievous bodily harm be inflicted on either man nor that they be killed. He left the scene to carry out security duties. He knew nothing of the intentions of the other accused and nothing of any plan to kill Lovana and Bilo. There was no joint criminal enterprise as alleged.

Michael Kaptendou (pleaded not guilty to the charges of murder but guilty to arson, wrongful confinement and to membership of an unlawful society. He made a Dock statement and called no evidence). His defence was that he was following the orders of superiors in taking the villagers to the seaside and that he did not physically touch Lovana or Bilo and did not intend that they should be inflicted with grievous bodily harm nor that either man should meet his death. He knew nothing of the intentions of the others and nothing of any plan to inflict grievous bodily harm on or kill John Lovana or Adrian Bilo. There was no joint criminal enterprise as alleged.

Carradine Pitakaka (pleaded not guilty to the charges of murder, arson, wrongful confinement and guilty to the charge of membership of an unlawful society. In his own defence he gave no evidence and called no evidence and did not participate in a formal interview by police). He put the Crown to proof. There was no joint criminal enterprise as alleged.

In this trial the prosecution carries the onus of proving beyond reasonable doubt each element of the counts presently contested. No shifting onus arises for consideration. When I use the expression ‘satisfied’ in this judgment I mean ‘satisfied beyond reasonable doubt’. The Accused carry no onus or burden of proof.

There is however a requirement that since the prosecution has alleged a joint criminal enterprise, the Court, that is the Judge not the jury, must be satisfied that reasonable evidence of common intention - ‘preconcert’ -exists. I find that there is evidence of preconcert in the case of each accused except for the accused Allen Bosage and Carradine Pitakaka for reasons which I set out later in this judgment.

"any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder..."

"malice aforethought may be express or implied and express malice shall be deemed to be established by evidence proving either of the following states of mind preceding or co-existing with the act or omission by which death is caused, and it may exist where that act is unpremeditated –

"grievous harm means any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, membrane or sense."

"harm" has its own definition. It means "any bodily hurt, disease or disorder whether permanent or temporary".

I adopt the statutory phrase "grievous bodily harm" when describing that element of the definition of malice aforethought in this judgment.

The prosecution must, in order to establish the guilt of a person charged with murder, prove beyond reasonable doubt that the accused intended to cause the death of or grievous bodily harm to the deceased or knew that the deceased would be killed or inflicted with grievous bodily harm and was responsible for the deceased’s death.

"255. Whoever wrongfully confines any person is guilty of a misdemeanor and shall be liable to imprisonment for one year or to a fine of four hundred dollars."

The elements of the offence of wrongful confinement are that the prosecution must prove beyond reasonable doubt that –

. in this case acting in the course of an understanding or arrangement amounting to an agreement with another or other accused;

. confined those other persons named in the Information, namely the Marasa villagers.

. "319 (a) any person who willfully and unlawfully sets fire to any building or structure whatever, whether completed or not:

(subsections (b), (c) and (d) not relevant), is guilty of a felony and liable to imprisonment for life."

The elements of the offence of Arson are that the prosecution must prove beyond reasonable doubt that:

. in this case acting in the furtherance of an understanding or arrangement with the other accused amounting an agreement with them;

. any building or structure whether completed or not, here the houses in the villages of Marasa.

In matters involving the existence of joint criminal enterprise there is only in the very rarest of cases evidence which neatly sets out the parties to and the terms of the proposed criminal venture and the time and place when it was to commence. One can usually only determine what the objective of any joint criminal enterprise is from proved circumstances.

It seems to me that having regard to the opening and closing addresses of the Crown Prosecutor, the preliminary questions for determination are at least:

. Was there an understanding or arrangement amounting to an agreement in existence at all material times between each of the accused men to beat Lovana and/or Bilo to death or to inflict grievous bodily harm on each man?

. if not an express or oral agreement may it be inferred from the evidence at trial?

For reasons which follow I have concluded that there was an agreement to kill or to inflict grievous bodily harm on both John Lovana and Adrian Smith Bilo between some of the accused which I have inferred from their actions at Marasa on Monday 16 June 2003. I set out those reasons later in this judgment. For the moment I resume consideration of the allegation of joint criminal enterprise.

In the present case, the Prosecutor opening the Crown case and identifying the joint criminal enterprise he said:

"as to the charges of murder and arson the accused were engaged in a joint criminal enterprise to capture and detain the villagers and to cause the deaths of, or grievous bodily harm to the villagers Lovana and Bilo and to set fire to the villages."

‘joint criminal enterprise in my submission happens where two or more persons carry out jointly a criminal activity. And if they do that each is responsible for the acts of the other or others in carrying out that enterprise. And it exists where two or more persons reach an understanding or an arrangement or make an agreement between them that they will commit a crime. . . . putting it in the context of the present case that members of the GLF reached an agreement and understanding to assault Lovana and Bilo. Now, that agreement that understanding is something that can be expressed but its existence can be implied from circumstances. It is something that did not have to be reached before the particular crime is committed and it can exist where in fact there’s unspoken understanding or rumour between one or more to commit a particular crime and put in this circumstance that this rumour or understanding to assault Bilo and Lovana that that agreement that one person starts assaulting Bilo others join in and participate and they come and go. They were the group of people and associated themselves with this group his intention is to assault Bilo and Lovana.’ (sic)

The Code, section 21, governs the law concerning the joint criminal enterprise and its application in the present case. The section is identical in form and expression with section 7 of the Criminal Code of Queensland.

I have made reference to and I have adopted and cite some statements of the interpretation of the law as it relates to both sections 21 and 22 of the Code from ‘Carter’s Criminal Law of Queensland’ 15th edition.

"21. when an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say –

(a) every person who actually does the act or makes the omission which constitutes the offence;

(b) any person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(d) any person who counsels or procures any other person to commit the offence;

In the last mentioned case he may be charged either with committing the offence or with counseling or procuring its commission.

A conviction of counseling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

Any person who procures another to do or to omit to do any act of such a nature that, if he had himself done the act or made the omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission; and he may be charged with doing the act or making the omission.

This section bears the marginal note "principal offenders". By section 21 of the Act criminal responsibility is extended to a person who is party to an offence. The sections deems to be guilty those persons who:

. do an act aiding another to do it, (principal in the second degree at common law)

. who aid another to do it or, (principal in the second degree aider and abettor)

. counsel or procure another to do it. (accessory before the fact at common law)

The words "where an offence is committed" do not require that the perpetrator be convicted before another may be found liable as a party to the offence. It is enough that the commission of the offence by someone is established in the case against the alleged accessory [Carter 7.25].

The mere fact that the prosecution cannot nominate which of two persons acting in concert committed a criminal act does not prevent the conviction of both where the commission of the offence by someone is proved on the case of each person: R v Warren and Ireland (1987) A Crim R 317. [Carter 7.25]

A person charged may be convicted of a lesser offence than that committed by the perpetrator: R v Barlow (1997) 188 CLR 1. [Carter 7.27]

The prosecution must establish by evidence admissible against the accessory that the offence was committed by the principal offender. R v Warren and Ireland (infra)[Carter 7.30]

Paragraph (a) of section 7 (of the Queensland Criminal Code) may be read distributively as meaning all persons who actually do the act or one or more of the acts in the series which constitute or constitutes the offence.

It is necessary that the accessory know what offence was or might be committed - R v Beck 1990 1Qd R 30. It is actual knowledge of the principal offence which is required: recklessness will not suffice. Georgianni v R [1985] HCA 29; (1985) 156 CLR 473 [Carter 7.40]

Where it cannot be established beyond reasonable doubt that the accused was the person who physically committed the offence charged, the Crown may seek to prove that the accused aided in the commission of the crime by participating in a joint criminal enterprise. Such is the Prosecution case here.

A person participates in a joint criminal enterprise either by committing the agreed crime or by being present and (with the necessary knowledge) intentionally assisting in or encouraging another to commit that crime.

The judgment of Hunt CJ at Common Law in R v Tangye (1997) 92 A Crim R 545 per Hunt C at 556 - 557 provides a direction for the present case. I adopt the following direction by Hunt CJ:

"The Crown needs to rely on a straightforward joint criminal enterprise only where - as in the present case – it cannot establish beyond reasonable doubt that the accused was the person who physically committed the offence charged. It needs to rely upon the extended concept of joint criminal enterprise, based upon common purpose only where the offence charged is not the same as the enterprise agreed.

So far as a straight forward joint criminal enterprise is concerned, the jury should be directed along these lines:

(1) The law is that where two or more persons carry out a joint criminal enterprise each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused.

(2) the joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be expressed and its existence may be inferred from all the circumstances. It need not have been reached at any time before the time the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime.

(3) A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to encouragement to the other participant in the joint criminal enterprise to commit the crime.

(4) If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission."

The direction in Tangye is appropriate to the present case in the context of sections 21(a), (b) and (c) of the Penal Code since a joint criminal enterprise "arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime". McAuliffe v R [1995] HCA 37; (1995) 183 CLR 108.

The understanding or arrangement need not be express and its existence may be inferred from all the proven circumstances. Furthermore the arrangement may alter and broaden over time Miller v R (1981) 55 ALJR 23 and it not need be reached at any time before the crime is committed – Mohan v R [1966] UKPC 3; [1967] 2 AC 187. [Carter 7.45]

Where both or all participants in an attack inflict a blow or blows that combine to cause or contribute to the resulting death (in a charge of manslaughter ) then section 21 (a) applies - R v Sherrington (2001) QCA [Carter 7.45] It follows that where the charge is a charge of murder that same combination will arise.

Where it is not possible from the whole of the evidence to determine which accused committed which act then the case may be left on the basis of 21 (a) (b) or (c) but knowledge of the intention of the others is critical to the success of the Crown case against the one. [Carter 7.45] In the present case it is not possible to determine which of the accused if any, delivered the fatal blow or blows.

Aiding by encouragement [Carter 7.50] which is voluntary and deliberate during the commission of a crime without opposition or real dissent may be evidence of willful encouragement or aiding. Intentional encouragement may also come from expressions gestures or actions intended to signify approval. R v Beck [1990] 1 Qd. R 37.

Aiding and abetting means (in the context of section 21) doing one or another of three things while being aware that a crime is being committed:

A person does not need to be present at the commission of the crime to have taken part in committing the offence but assistance must have been given in committing the offence, which must mean that the participant is at least aware of what is being done or perhaps will be done by the other actor. [Carter 7.50]

Concerning section 21, since criminal liability of an accessory will necessarily depend on the commitment of the accessory to any understanding or arrangement, his or her timely withdrawal or countermand is to be regarded as "one aspect of the central factual issue whether an accused has aided, counseled or otherwise done the acts which would constitute the offence on his part" R v Menniti [1985] 1 Qd R at 520 per Thomas J at 530.

On the issue of withdrawal from an agreement, Thomas J. appears to hold the view that the conduct said to constitute withdrawal must effectively countermand acts of aiding and that the accused must have made timely communication of the withdrawal and to have taken action to undo the effect of previous encouragement or participation. There is no evidence of any one of the accused in the present case doing an act or acts which effectively countermand acts of aiding or withdrawing from the joint criminal enterprise.

The distinction between sections 21 and 22 of the Code stems from the issue of whether the joint criminal enterprise is a ‘straightforward’ one or an ‘extended version’ involving the considerations of ‘probable consequences’ set out in section 22 of the Code.

The Court of Appeal had occasion to consider the provisions of Part 6 of the Code in Raebo Ligabutu and others v Regina Criminal Appeal no. 2 of 2006 delivered 23 November 2006 where the Court was asked to consider whether the appellants or any of them was in law also criminally responsible for the murder of the victim of Ligabutu’s shooting ‘either as a participating party under section 21 of the Code or, as a joint offender.’ sharing in the prosecution of a common purpose under section 22 of the Code’.

Ligabutu was decided on its peculiar facts. In the course of their Judgment their Lordships said, following R v Barlow (1997) 188 CLR, "in order to render such a secondary offender liable under the corresponding provisions of section 7 of the Queensland Criminal Code, that person must be proved to have given aid or assistance knowing that the offence was being or was about to be committed by the primary offender’ . . . and concluded that "in the present case therefore section 21(c ) of the Penal Code required proof that each of the accused appellants realized when they assisted (the principal offender) that he intended to kill or do grievous bodily harm . . . . . which is to be determined subjectively".

Their Lordships then go on to consider the meaning and effect of section 22 of the Code which they note is identical with s.8 of the Queensland Criminal Code, considered in Barlow supra.

Their Lordships concluded that the question was (1) whether the appellants (the secondary offenders) "formed with the principal offender a common intention of killing someone or causing him grievous bodily harm and (2) whether the killing of (a person other than the intended victim) was a probable consequence of carrying out that intended purpose.". . . adding that the second question is to be determined objectively. Their Lordships further said that when considering section 22 of the Code "What is to be proved was described in McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108 at 114 as "an understanding or arrangement amounting to an agreement ... that they will commit a crime", which, need not be express and may be inferred from all the circumstances."

"the doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be described as a joint criminal enterprise. Those terms – common purpose, common design, joint criminal enterprise – are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime."

I now turn to consider the allegations of joint criminal enterprise and the application of the doctrine in this case.

In the present case it is the submission of counsel for each accused that the Prosecution by virtue of its opening address has nailed its colours to the mast in the way in which it opened the prosecution case and therefore to seek to rely on section 22 would be wrong. I disagree. In any event for reasons which I will now set out, resorting to section 22 by the prosecution in this case is unnecessary.

The present case is not an ‘extended version’ joint criminal enterprise case. It was always the Crown case that the actions of the accused involved a straightforward joint enterprise.

All Counsel submit that any agreement to ‘kill dead’ came by understanding or arrangement reached after a renewed attack on Lovana and Bilo had commenced (following the cutting of Lovana) to which no identifiable accused was a party; and that such enterprise was an attack by some unidentified people ‘off on a trip of their own’.

I do not regard that as a reasonably possible inference to draw from the whole of the evidence. This was a straightforward understanding or arrangement (see Tangye supra. at p17). There was no altered agreement. It was always the understanding that supporters of the JOG were to be killed dead or inflicted with grievous bodily harm.

The prosecutor said in his opening address ‘as to the charges of murder and arson the accused were engaged in a joint criminal enterprise to capture and detain the villagers and to cause the deaths of or grievous bodily harm to the villagers John Lovana and Bilo and to set fire to the villages.’

The opening of the prosecutor signals one enterprise in a general sense, the intent was plain namely that the enterprise included at least three criminal objectives.

I asked the prosecutor directly about the interaction if any of sections 21 and 22 of the Code in the Crown case here and he said [day 63 page 68]

"I say section 22 kicks in, (this is again referring to Hunt CJ in Tangye). The Crown relies upon the extended concept of joint criminal enterprise based upon common purpose only where the offence charged is not the same as the enterprise agreed. . . . it gets down to what is found to be the agreement of what they set out to do jointly . . .The biggest problem is not so much in relying on section 22 . . to prove murder. I say a bigger problem in this particular case is for the (Court) to find that there was an intention to commit another unlawful purpose – for instance of just confining persons."

Counsel for Isa and Isa (with Counsel for Cawa, Bosage, Kaptendou, Pitakaka and the Isa brothers adopting the submission) made the submission that since the Prosecutor opened on section 21 of the Code (concerning a joint criminal enterprise) he is confined to it. Mr. Benn submits that the prosecutor may not now resort to the provisions of section 22 (common purpose) nor may he invite a finding there was an extended consensus amounting to an agreement to kill or to inflict grievous harm. See transcript day 60 pages 74 to 82 where he made the points:

. It is now not open to the Crown to resort to proof or argument of its case by use of section 22 – because there is law to the effect that counsel for the defence are entitled to be told what the basis or nature of the Crown case is during the crown opening address. citing - Tangye supra and King v The Queen(1996) 16 WAR 540 as support for that proposition;

. the crown cannot now argue on the basis that there was one criminal enterprise, to kill dead or to inflict bodily harm (a beating), and then proceed to argue a broader separate and distinct joint criminal enterprise;

. No mention was made to the villagers being brought to the beach as to the intent of the accused (if there was such an intent) to do anything except conduct a meeting;

. there is an inference reasonably open to the Court that the participating people (I took counsel to mean ‘GLF members) did not know of a grand plan to pick out specific people and to beat them to death.

Mr McColm [transcript day 63 page 65] submitted that the prosecution is not bound in such a way. He made the following points:

. the prosecution case is not restricted by the opening he made or restricted at law;

. the prosecution has not presented the case in a way which confines the case to section 21(a);

. It has presented the case alleging various accused had various roles in particular on Monday 15 June 2003;

. joint criminal enterprise goes beyond 21(a) and extends to include those participants in the joint enterprise who assist or encourage other participants in particular aiders and abettors pursuant to section 21(c);

. section 22 was contemplated by the prosecution in opening this case. It ‘kicks in’ where the offence charged is different to the enterprise agreed upon, here an agreement to murder;

. the problem is not so much the concept of section 22 ‘kicking in’ – it is if the Court finds that the agreed criminal act to be committed was to simply ‘confine persons’ if in the confining someone dies, then proof of malice of forethought is the ‘biggest problem’.

I find that the three common objectives opened on by the Crown existed from early Monday morning and perhaps from earlier as between Cawa, the Isa brothers and Kaptendou.

That Lovana and Bilo were not personally identified at the outset as those supporting the JOG (in Lovana’s case he was identified on the way down to the beach and in Bilo’s case the identification occurred at the beach) is not to the point. The common objective on the Monday was always, I find, to kill dead or inflict grievous bodily harm on any JOG supporter. That common objective crystallized when two such supporters (Lovana and Bilo) were identified. This is not an alteration or extension of the original joint enterprise in the sense contemplated by section 22. The evidence establishes ‘preconcert’ and I so find.

I find that it was the understanding of each accused (with the exception of Pitakaka whose presence at the beach has not been satisfactorily established and Bosage whose presence at the beating was very brief and who I find did not have the requisite knowledge to pursue the common objective, that the accused would kill dead or inflict grievous bodily harm on both Bilo and Lovana. I also find that up until the point at which Lovana and Bilo were identified, the agreement was to bring the villagers down to the beach so that the presence of any supporters of the JOG could be detected and dealt with.

The understanding or arrangement need not be express and its existence may be inferred from all the proven circumstances. The agreement need not be reached at any time before the crime is committed – Mohan v R supra. As to the charges of murder or infliction of grievous bodily harm to Lovana and Bilo, the crime to be committed was not from an express agreement but one to be inferred from all the circumstances.

What were all the circumstances from which an agreement between the accused may be inferred? The first circumstance is what clearly was a planned and understood activity to capture and unlawfully confine the villagers – all 400 or so of them, ‘450 plus’ if Cawa’s statement to police is to be accepted and bring them to the beach. There is independent evidence that most of the accused were involved in one way or another in the forcing of the villagers to the beach, an exercise which on any view of it required direction, understanding and complicity on the part of those involved.

Next there is evidence that some members of the GLF who had gone into the villages had ‘discovered’ that John Lovana was a supporter of the JOG – resulting in Lovana’s hands being tied and his being positioned in a certain way on the beach . Then Bilo is recognised on the beach and treated in the same manner. The GLF members and the accused in particular, I infer, believed that Lovana and Bilo were the men who had been seen by members of the GLF at the ambush at Marasa Beach armed and in support of the JOG on the Sunday evening 15 June. They were singled out from among the villagers as a result.

Next, Owen Isa, Gedily Isa and Allen Bosage on their own accounts had commenced beating Lovana in the presence of fellow villagers. This is prima facie suggestive of joint enterprise.

The evidence in my opinion is objectively sufficient to lead to the conclusion that the GLF in general and the accused in particular had engaged in the sorts of deliberation which amount to preconcert spoken of by Dixon CJ in Tripodi (above) and I so find. I find that there is ample evidence of the accused acting in ‘preconcert’. The evidence of preconcert as between the accused is their coming together as armed members of the GLF at Marasa beach on 16 June, their going to the villages and bringing down the villagers to the beach, of seating the villagers together, of bringing out the ‘spies’ and of the beatings of Lovana and Bilo commencing. The attendance of the accused at Marasa (with the exception of Pitakaka) was no coincidence. I am satisfied that the accused were at Marasa Beach in the early hours of Monday 16 June preparing to deal with, i.e. to kill dead or inflict grievous bodily harm on any JOG active supporters who may be found among the villagers or at the villages and thereafter to burn the houses.

There is in my view, no confusion or unfairness in the prosecution opening address. ‘The obligation of the Crown Prosecutor in opening the Crown case is to outline the facts which the Crown proposes to establish and ...indicate in conceptual terms, the nature of the Crown case’. Tangye, supra per Hunt CJ at CL, 556.

It is true that the opening was broad, but I perceive the opening simply to chronologically list the objectives.

I find that, what began as a broad agreement to kill dead or inflict grievous harm to supporters of the JOG did not change but simply crystallized when the ‘supporters of the JOG were ‘identified’ in person. The discovery followed the recognition of first Lovana and then Owen Isa’s recognition of Adrian Bilo as a JOG supporter.

I say in passing, evidence of piquets or the conduct of security duties, prima facie indicates that, at the time of the beatings of John Lovana and Adrian Bilo, a plan or direction was being implemented by some person or persons in mounting this mass capture of people. In general terms, leaving the scene to conduct security duties will not exonaterate an accused in a case where joint criminal enterprise and their knowledge of it and participation in it is established.

Special rules relate to joint trials where pre-concert is found to exist as between the accused. The question which immediately arises in this joint trial is the extent of the admissibility of the statements made by one accused against another.

The statement of one accused to police about the activities or statements of another or other accused, is not admissible against another or each other since by the time the police arrive the relevant joint criminal enterprise usually no longer exists. An exception is where such statement is adopted by the co-accused as his own.

In relation to joint trials based on joint criminal enterprise, a rule that applies is that "when two or more persons are bound together in the pursuit of an unlawful object anything said done or written by one in furtherance of the common purpose is admissible in evidence against the others .The combination implies an authority in each to act or speak on behalf of the other: Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1 at 7. Thus anything said or done by one conspirator in pursuit of the common object may be treated as having been said or done on behalf of another conspirator. That being so, once participation in the conspiracy is established, such evidence may prove the nature and extent of the participation . . .the principle lying behind the rule is one of agency." – Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87 at 94 – 95.

Dixon CJ added in his judgment in Tripodi (supra), "the basal reason for admitting such evidence is that the combination or preconcert to commit the crime is considered as implying an authority to act or speak in the furtherance of the common purpose on behalf of the others." He went on to say "some conversations are just as much acts. They are not narratives of past events; they are not admissions they are simply directions and are admissible on that basis."

As a consequence of that rule, once the Court becomes satisfied that preconcert existed between the accused or any two or more of them, then evidence of directions, instructions, arrangements or utterances accompanying acts given or made by one of the persons in the absence of others in the furtherance of the common purpose becomes admissible against the other or others, assuming it to be not otherwise inadmissible.

In this case, the operational effect of the rule enables the words and deeds of the accused in the furtherance of the common objective as recounted by the captive witnesses at Marasa Beach to be considered, whether or not a particular accused about whom the witnesses speak is found to be present or not at the material time.

I take the law to be and I apply it in the sense that where an accused enters the witness box (here in the case of Gedily Isa and his brother Owen Isa), and gives evidence in the course of a joint trial, then what he says becomes evidence for all the purposes of the case including the purpose of being evidence against his co-defendants subject to the necessary corroboration warning.

The prosecution called 41 witnesses. 33 were villagers who are alleged to have been seized and taken to the beach at Marasa Bay by the accused and other members of the GLF.

Other witnesses included a Pathologist, Dr Dodd and police officers Liversidge, McIntyre, O’Shea and Toaki. There were no suggestions from the defence that the pathologist and the police officers gave their evidence other than in an honest and accurate manner. I have no doubt having considered their evidence that I may safely depend upon it

The evidence of the villagers poses another set of difficulties. Some were partisan to the prosecution case. Many were quite evidently very angry at the accused by reason of the manner in which the accused had treated the deceased, their fellow villagers and themselves. Most of them had lost their residences and personal possessions in the fires lit by members of the GLF.

It has been suggested by counsel that the evidence of some if not most of the villagers called to give evidence may have had their recollections of events, in particular as to their recollection of the roles played by the accused, contaminated or wrongly reinforced by discussions with other witnesses over the some three and a half years since the days of June 2003.

Many of the villagers were present at a ‘reconciliation ceremony’ at Marasa village. Some the witnesses called to give evidence said under cross-examination that they had had participated in a reconciliation ceremony at the Weathercoast. That ceremony took place in early October 2006 according to the accused Kaptendou.[Kaptendou unsworn statement day 58 page 50] .

Kaptendou cross examined the witnesses about exchanges at the reconciliation ceremony relevant to the evidence they were giving in Court, but, it in the end, produced nothing which suggests to me that they had consciously sought to mislead the Court or significantly changed their evidence as a result of the ceremony. Indeed, their evidence was largely that they, the villagers, didn’t discuss responsibility for particular acts by any particular accused at Marasa in June 2003, rather, they had discussed how to reconcile differences which sprang from the events.

In fact, no evidence emerged which would suggest that the account of those who attended the ceremony was affected adversely in any significant way by their having attended the ceremony.

What is important is the credibility of the witnesses. I noted that counsel for the accused during cross examination, typically suggested to the witnesses that they were ‘mistaken’ about some matter.

The problem of memories fading with the passage of time is important here. I carefully considered what people have said about some matter in issue. I formed the view that almost all of the witnesses were doing his or her very best to recall what was said and done over those June days in 2003. At the conclusion of the evidence I was satisfied that the ‘eye-witnesses’ had attempted to truthfully recount events as they now recalled and perceived them.

Having made that finding, I immediately acknowledge that there are areas of evidence which clearly cannot be the fact. Sometimes, by comparing what one witness has said about a matter with the evidence of another makes it quite plain that they both cannot be correct.

I acknowledge the submission of defence counsel that the emotions which arose among many of the witnesses, arising from fear, personal anxiety, anger, confusion and sometimes just from the scale of the event, adversely affected the capacity of some of the witnesses to give reliable evidence. I will refer to their evidence as I consider the evidence and the submissions of counsel shortly.

Some witnesses frankly admitted that they looked away at critical moments during the beating of the boys. I accept that evidence without hesitation. Whoever the captors of the villagers may have been in the main they were armed and aggressive. It has to be said that both Owen Isa and Kaptendou asserted that they had ‘re-assured the villagers who were captive that they would not be killed or injured’. Owen Isa was carrying a military rifle when he gave that re-assurance. Of the people who gave evidence I have no doubt at all that they were helpless to rectify their situation, and it is plain, were in fear of their own physical safety and the safety of their loved ones.

Investigating officers conducted no line up and made no formal photo boards during this investigation. On the issue of the proper identification of the accused, some witnesses were invited to make what may be broadly described as a ‘dock identification’. I make it clear that I gave little or no weight to the process during trial. I give it little weight now. I regard the identifications made in court here as being admissible but lacking weight for the purpose of these proceedings.

In an ideal investigation setting, crime investigators arrange a formal identification process. In relation to the murder, arson and wrongful confinement charges the proper procedure was to have set up identification parades - Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395 per Gibbs CJ at 401.

"it is most undesirable that police officers who have arrested a person on a charge of having committed a crime should arrange for a potential witness to identify that person except at a properly conducted identification parade. Similarly, speaking generally, an identification parade should, wherever possible, be held when it is desired that a witness should identify a person who is firmly suspected to be the offender."

It must of course be said, that the accused may have objected to an invitation to participate in an identification parade but here no opportunity was afforded the accused to participate. There may be many good reasons which have caused the investigators to fail to seek evidence by way of an identification parade, but it is not for this court to speculate as to why no parade was organized

Similarly, it was always open to the investigating officers to have prepared a properly constructed photo-board - Alexander (supra). That course was not taken. Therefore to have resorted to in-court identification procedures three and a half years after the event is a weightless exercise.

The evidence of family relationship falls into the category of recognition evidence here. It arose where there was relationship between the identifying witness and the accused. In such cases some advantages are available and may be obtained.

In some cases of ‘family relationships’ witnesses, when cross examined about their evidence, often admitted not having ever met the ‘brother, cousin-brother’ or ‘son of my mother’s sister’, whom the witness identifies as being the accused.

There is evidence from some witnesses that those from the GLF - those believed by the witnesses to have been the leaders - the commanders, those in charge, - ‘introduced themselves’. Other witnesses said that it was too difficult to take it all in because the ones introducing themselves were ‘yelling out their names’ in an aggressive way so that their voices lacked clarity to those attempting to make out the announced names.

Counsel submit that the ‘introduction by voice’ evidence carries no weight. If the court accepts that there were introductions of themselves by the accused men, the possibility of error is high. I agree but it is necessary to examine each witness and consider their certainty as in any identification warning.

There is very little evidence by way of reliable identification or recognition evidence before the court. The court is therefore placed in the position of looking to evidence elsewhere in the trial to determine, just what part if any, the individual accused played in the events at Marasa.

Before commencing consideration of the defence presented by Cawa I consider briefly the matters led by the prosecution about his role.

. the evidence of the eyewitnesses of what he said and did at Marasa beach at the material times;

. that he was "number two" to his uncle - Harold Keke in the GLF and he, Cawa, was "the Supreme Operation Commander" of the GLF;

. of the weapons used at the operation on Sunday 15 June conducted by the GLF at Marasa when under his command they seized 250 SR88 point 5 caliber bullets and money;

. that he and the GLF members with him decided to gather the civilians from the villages together

. the GLF boys banged them until they were dead in the presence of the civilians;

that the two boys had been seen by the GLF helping the JOG to catch the GLF "so we kill them too";

. that the boys were already dead when he arrived on the scene and he said to others present ‘how are the two men dead?’;

. that the GLF had seen the two who were ‘spies’ come in against us’ (answer to Folau’s Q107);

. it was expected that when the GLF meet the Government force ‘anyone who is Government armed have to be dead now’ (answer to Folau’s question 122);

. that he burned the houses using sago palms in the villages and instructed others to do so as well so the police will have nowhere to stay.

The statement he made to Police is not admissible against his co-accused. Cawa gave no evidence and made no Dock statement.

The thrust of Ms Stewart’s submissions are that Lovana and Bilo were dead by the time that Cawa returned from Sughu and as a consequence (she says) he could not have been a party to any agreement to kill them. In so saying she adopted the submission of Counsel for the Isa brothers that any agreement to kill was a new agreement not reached until Lovana was cut. The Crown cannot now rely on an altered or extended argreement implicating Cawa.

I have already found the existence of a joint criminal enterprise to kill dead or inflict grievous bodily harm in place prior to the cutting of Lovana.

Ms Stewart carefully summarized the evidence of the eyewitnesses concerning the movements of Cawa after the return of the boat (day 62 page 2). She submitted that where evidence of the eyewitness implicated Cawa it was unreliable by reason of various significant discrepancies between their evidence and evidence of other witnesses.

The unqualified admissions made by Cawa to police are strongly inculpatory. I am satisfied that Cawa spoke freely and voluntarily with the Police officers Folau and Green and did so well knowing that the consequences of so doing may lead to his being arrested and charged with breaches of the law.

When one adds the evidence of his self introduction to the assembled villagers early on the Monday, and the observations of his activities made by the villagers over Monday, Tuesday and Wednesday, I am left with no doubt that Cawa was the leader and the director of the entire operation at Marasa beach.

I am satisfied that the "two" deceased referred to as the "spies" by Cawa during his interview by police were Lovana and Bilo. Cawa told police that the civilians – and by ‘civilians’ I am satisfied that Cawa meant the villagers – were gathered to watch what was to happen to the spies. The villagers were assured that the GLF was not after money - but rather the GLF sought to demonstrate that the villagers should understand that the GLF didn’t want money but "land rights due to them".

Cawa told police that the two men were beaten to death because they were seen to be carrying guns against the GLF so they were to be killed. Cawa said that he personally delivered no blows on the boys, that the GLF boys did the beating and he arrived at Marasa after Lovana and Bilo were already dead. I note that Cawa’s version of arriving and finding ‘the boys were dead’ is at odds with practically every other account of the moments after the escape and recapture of John Lovana.

On either side it is not denied that there were approximately 400 villagers, men women and children held on the beach at Marasa against their will on 15 June 2003 - Cawa says so - [exhibit P35 answer to question 114]. I am satisfied that at some time around 11:00am that morning, the villagers had all been escorted to the beach and held there against their will by the GLF members and that Cawa was one of those members.

The capture and holding against their will of the villagers is not evidence which has been challenged by any of the accused. Pitakaka has said nothing about what he was doing then.

I am satisfied further that the GLF men who brought the villagers down to the beach at Marasa that Monday did so as a result of orders and directions conveyed to each of them. Those orders and directions amounted to an understanding or arrangement which was passed to them by word of mouth and consequently they set about their various tasks on Monday morning. Cawa was clearly on the beach at the time of the arrival of John Lovana. He had spoken and may have still been speaking to the villagers at the moment of Lovana’s arrival after which the evidence satisfies me that he left for Sughu.

I am satisfied that the exercise in which the GLF was engaging – the capturing of the villagers the threats against the villagers’ personal safety and the threats against their property was driven by Cawa as their commander.

I am satisfied that Cawa was the ‘field operations commander’ as he himself described his role to police. . I have already found the existence of a joint criminal enterprise to kill dead or inflict grievous bodily harm on JOG supporters. This is admitted to by Cawa where he tells police. "As we have been ordered before that we go in we meet with the Government Force anyone who Government armed, they have to be dead now." (sic) [answer to q.122 record of interview].

The evidence of his presence and influence in the deaths of the two young men is overwhelming. The case against him from the eyewitnesses and by virtue of his answers to police questions is strong.

I find that on Monday 16 June Cawa spoke with the villagers on the beach after which he left by boat with Gedily Isa, William Hence and ‘Koroni’ for Sughu. He was absent for some hours. I find that on his return Lovana and Bilo were on the beach. Lovana had attempted to escape. As Lovana was being brought back to stand next to Bilo, Cawa and the others exited the boat. It is difficult to be more precise than for the Court to find that Cawa exited the boat and as he did so, Lovana was returned to the place next to Bilo.

I noted the submission of Ms Stewart that there are frailties in the evidence of the villagers. I have taken those into account. The evidence of the villagers where it is sufficiently cogent and not subject to criticisms of partisanship, guessing, or hearsay identification, may be measured against the answers which Cawa gave police.

The evidence from the villagers from not only reinforces the idea that the GLF were moving in accordance with some pre-arranged understanding but in many cases the evidence of one villager confirms in a material particular the evidence of another or others about Cawa and his role.

There was no identification parade or photoboard evidence from which Cawa was identified. Not many witnesses claimed to have known him. Few said they recognized him then or now. Some witnesses said that they overheard others say the name Cawa. In the end I consider that the weight of the evidence concerning his identification is that his self introduction was remembered well by some of the eyewitnesses and is sufficient to identify him.

There was evidence that Cawa introduced himself to the villagers at the beach early on Monday morning - telling the villagers his name. For example, the villager Thomas Venjo says (and I accept him as a reliable witness) that on introducing himself Cawa said:

"my name is Ronnie Cawa, I am part Choisel and I’m the Commander of this group".

I find that Cawa did so introduce himself. It must be said that there was some evidence from eyewitnesses that the introductions which included that of Cawa, were done loudly and aggressively with people speaking over the top of on another making it difficult to hear the names. But I conclude that Venjo heard Cawa’s name properly and not all the witnesses had difficulties in hearing Cawa’s name. He was prominent and a figure of authority during those days.

Cawa told police that he arrived at Marasa after the deaths of Bilo and Lovana. I find the two men Lovana and Bilo were still alive when he returned from Sughu and that he went to where the beating was occurring and where Lovana and Bilo were in the process of being beaten. I have no doubt of Cawa’s presence during the continued beating administered to both Bilo and Lovana following the cutting of Lovana’s back. It is plain that by his very presence he was encouraging the killing dead or the infliction of grievous bodily harm on the 2 men (Code s21(b)).

I find that the witnesses had heard Cawa introduce himself early on the Monday morning and knew who he was at the time his boat returned from Sughu.

For example witness Virua (whom I accept as a reliable witness) places Cawa at the time of his return from Sughu in the vicinity of the now resumed beatings. Virua says

In addition to the evidence of the villagers, it is open to the Court to make use of the evidence of the Isa brothers concerning Cawa and his activities, subject to the warning that the Court must take great care when dealing with the evidence of co-accused. I find that the evidence of the Isa brothers can be relied upon to establish that Cawa was a leader of the GLF and present at Marasa on Monday. Significantly, Gedily Isa traveled with Cawa to Sughu and back. His evidence is that he (Gedily Isa) arrived back with Ronnie Cawa to Marasa just as Lovana had been recaptured and that he left the boat and Cawa left the boat and as they did both Lovana and Bilo were alive. I so find. Gedily Isa’s evidence about Lovana and Bilo being alive on Cawa’s return is confirmed by the evidence of a number of the villagers as above.

I am satisfied that Cawa arrived precisely as Gedily Isa says - at the time when Lovana was attempting his escape. I am satisfied that Cawa was present in the vicinity of Lovana when Lovana was cut by the man Sopa and present as the further beating was administered by other unidentified persons.

I am not prepared to find that Cawa said ‘kill them dead’ but by his presence as the operational commander of the GLF and by his expressed approval of the deaths in his answer to police ("Anyone - it didn’t matter . . so it’s ok ". . ) there is no doubt in my mind that he was encouraging and an aider and abettor to the actions of those GLF members who were assaulting Lovana and Bilo (the Code s21(b), (c)) leading to their deaths.

I am satisfied that Cawa controlled the ‘operation’ on Monday 16th including the rounding up and directing of the people to the beach from their villages. Cawa believed and intended that those who were armed by and spying for the Government were to be ‘killed dead’.

I am satisfied that Cawa gave instructions to the GLF members on Tuesday afternoon to burn the villages and again early on Wednesday morning. I am satisfied that those orders were carried into effect. I am satisfied that he joined in the burning of the houses himself and that by the end of Wednesday the houses and their contents had been totally destroyed. His intention was that the villages were to be burned by reason of the assistance that the villagers had given and as far as he was concerned, were continuing to give the Government Force. In those senses he was the operational commander he claimed to be when he was interviewed by Folau and Green.

I am satisfied that all counts against Ronnie Cawa have been established beyond reasonable doubt.

Gedily Isa’s evidence is [day 54 page 11] that he is 24 years old and from Tamanu village. He was a member of the GLF in June 2003 [day 54 pages 12 – 13.] (In fact it seems that he didn’t really know how long he’d belonged to the GLF in any of its characterizations and when pressed by Sgt O’Shea in his police interview to ‘guess’ how long he’d been a member he said four years). I am satisfied that he was no newcomer to the GLF.

He said that he ‘didn’t go to school’. He said that messenger came to him from Veuru to tell him to come to Veuru. He walked alone from Calvary village to Veuru and later to Marasa village. He arrived at Marasa on Sunday 15 June. His purpose in going to Marasa, he says, was ‘to stop the operation of the Government force’.

He said that he had stayed at Marasa that evening and next morning he had gone to Sughu with Cawa, William Hence and Koroni who drove the boat. They were looking for a JOG boat.

By now in his examination he’d not mentioned going to the villages to bring down the inhabitants to the beach but that clearly had been what he had done. He says that the people coming to the seaside occurred after Sughu. [day 54 pages 15]. This is clearly incorrect. Later in his evidence says "I just brought the people down and we left Marasa and went to Sughu."

He acknowledged that he was carrying a ‘gun’ on 15 June 2003. He later described it as an ‘esler’ - an SLR capable of firing "single shots and lots of shots" [day 54 28]

He says that he brought ‘one of the villagers down’ and that the only person he could remember from that village was the witness May Sauvusi. [day 54 p.15] He says that he doesn’t remember the names of the others he was with. When he brought the villagers down and arrived at the beach there were already more than 20 villagers there.

His counsel asked him "Why did you take the people from the village to the beach?" and he responded "It’s hard for me to say anything about it I was only following what we were doing" . . ."I didn’t hear any orders about the villagers at Marasa" . . ."I was just following what we were doing."

It is clear that he went to Sughu and in company with Cawa and the others. It was to recover a JOG boat. His evidence is that it took two hours to get to Sughu and two and a half hours return. Given the time at Sughu, the time interval between departing and arriving back at Marasa with 20 minutes at Sughu [day 54 p.20] was in the order of five hours.

When Gedily Isa arrived at Marasa, Bilo was standing up and John Lovana had run away. He says that he was in the boat with Cawa and Hence and that Koroni was driving the JOG boat. Isa acknowledges that when Lovana was brought back that he kicked and hit him ‘and it’s finished there’. [day 54 22]

He says he saw Bilo’s face as swollen. He says he didn’t touch or speak with Bilo as he, Gedily Isa, moved up the beach at that time. He saw the other GLF members bring Lovana down to the beach but before he reached the place where Bilo was standing he, Gedily Isa, punched and kicked Lovana maybe three or four time, "twice in the belly and twice in the face" – "after that I left him and went and did security work where they were standing". "I kicked him because he ran away and the boys held him back."

He maintained that he had not been given any orders about Adrian Bilo and John Lovana. As to the wounding of Lovana by the man Christian Sopa, his evidence is that he ‘heard that he’d been cut’ but that he didn’t ‘see it with his own eyes’.

His job doing security was to watch for the JOG and while doing that he could not see things happen (to Bilo and Lovana presumably). When he returned from security work he saw the dead bodies of Lovana and Bilo laying on the seaside.

He acknowledged having remained on the beach for 17 and 18 June, the Tuesday and Wednesday. He had no orders given to him and heard nothing about orders with his own ears.

He says that he is unable to say anything about the GLF members going up to the villages and setting alight to buildings on Tuesday night. He remained at the beach on Tuesday and Wednesday.

He acknowledges that he was interviewed by police at Kolina on 2 October and later was flown to Honiara by helicopter in company with Police. On the 3rd of October he acknowledges that he was interviewed by police again.

He was asked about his responses to police questions. He said that when he used the expression ‘helped kill the two guys’ he meant that he helped to beat them. He says that when he said to police that "they are killed at the one time and are killed together" he meant "because when I came back and saw the dead bodies they were laying together."

He was asked by his counsel, "at question 43 Detective O’Shea asks, ‘did you intend for them to die when you were beating them? – you wanted them to die? Then you remember what your answer to that question? Is it possible that what you said was your intention was to kill them dead? Is it possible that‘s what your answer was at the time?

Gedily Isa responded "Yes, I think that was my answer". His counsel said "So why did you say it was your intention to kill them dead at that time?"

Gedily Isa replied "Why I said that was because I saw their dead bodies. So the answers that I gave were general answers". [day 54 p.33] He then asserts - "what I thought was, I thought that those men wouldn’t be killed. I thought it was just to teach them for what they’d done. . . I didn’t hear any orders that said they would be killed. [day 54 p33.]

His evidence is that when he arrived at the cells at Central Police station Honiara he was not settled – that he had heard things that were being said by people he believed to be JOG officers say "now you’ve come to our place - at your place you show off" through the window of the room he was staying in. He says he was frightened. He complained and police moved him. He said the police "chased them (JOG) out of the area that night."

He says that as he left the Central Police station next morning that "they (members of the JOG) were still standing around that place". The presence of men outside the Central Police Station shouting in the direction of Gedily Isa was confirmed in the cross examination of Det Sgt O’Shea by [day 52 p37] but she added when asked about it that she drove him out of the police station but that she was unable to say what they were saying.

It is clear that Gedily Isa held the view when he was questioned by Det Sgt O’Shea that after the so-called shoot out at Marasa late on Sunday 15th, that the GLF members went to the villages and burned the houses. He acknowledged that houses were burned on Tuesday night.

His counsel took Gedily Isa through questions by Sgt. O’Shea and answers he gave her which clearly needed some explanation in light of the evidence he gave in chief.

He acknowledges that he told O’Shea (Interview question 66) that Ronnie Cawa had ordered the group he was with to "take all the people down to the beach" but he explains that he didn’t hear Ronnie give the order only that he thought that it might be Cawa who gave the order, and that is why he said what he said to Police. [day 54 p40.]

He acknowledged that he had said to police that he had "taken 3-400 people to the beach" and that when he told O’Shea and Sae (Q. 69.) that he was ‘only guessing’.

He acknowledged in evidence in chief that he had told O’Shea at the interview that Ronnie "selected some of his men to go and burn the houses" and his explanation for saying that to O’Shea is that ‘I didn’t hear him saying them to me. I only saw those so I thought maybe Ronnie was given the order’.

At Q 83 in the interview he told O’Shea that "They arrested the two boys (Lovana and Bilo ) because when on Sunday the boys(GLF) lay down at Marasa for the full day they witnessed them and they were assisting the joint force (JOG) to spy around the area’. He said to his counsel here ‘that – why I said it because I only heard stories’

Concerning O’Shea’s question 36 of him, he had said to her that after he had got off the boat he had spoken to Bilo at the beach and asked " ‘ how are you the one who do the joint operations?’ . . and I also asked ‘it’s that you are asked to do the spy at the scene area?’ and in reply he said ‘yes’. That’s what he said and I really hear with my ears. He said "yeah" its true I was told by the group to do it to spy for them". And at the same time I looked up and I saw that they took John Lovana back".

He was then asked by his counsel "did you talk to Bilo after you got off the boat?" and he replied "what I knew was only John Lovana". His counsel asked "when you got off the boat did you have a conversation about whether he was a spy?" He replied - "Like I said I only heard stories".

At question 96 Gedily Isa was asked whether by killing he meant "killing dead" he replied - "Okay, it’s like this, you know when we find out that he was a member of the joint force so when we killed him our intention is to kill him dead" His counsel said "why did you say that Mr. Isa?" and he replied - "yes what I meant because I saw the dead body so when they questioned me in the interview I did not mean that I helped to kill until died so the answer I gave included us all of us."

Gedily Isa agreed that he had told Det Sgt O’Shea that he’d used hands and legs to hit ‘both of them’ "but after I hit them I left them I left them and some of the boys continue to kill them until they died."

Gedily Isa was questioned about a number of other answers he gave to Det Sgt O’Shea. He explained them. Some were of considerable significance in determining what to make of his credibility. O’Shea’s question 105 is such a question. His counsel said "O’Shea asked, ‘when you left you knew that they were going to be beaten until they were dead?’ and you say "yes" why did you say "yes". Gedily Isa’s response was "why I said yes was because when I came back (from) the place where I was doing security I saw the 2 dead bodies that’s why I said Yes". I do not regard his explanation as being a reasonable possibility consistent with his innocence.

Counsel for Gedily Isa principally submitted on behalf of the Isa brothers that the Crown is only able to establish a joint criminal enterprise to kill or inflict grievous bodily harm on Bilo and Lovana from the point of what I call the final beating that occurred after the knife cut when Lovana was brought back next to Bilo and the two are beaten to death. That does not make them part of the joint criminal enterprise, Counsel says, because they both say they left the area before that joint criminal enterprise to kill or inflict grievous bodily harm is ever formed. I have already given reasons as to why this argument is flawed and I have found that the joint criminal enterprise came into existence much earlier than the time at which Lovana was cut.

Counsel also argues that the cause of death being ‘blunt force trauma to the chest’ was the cause of death and that no other single injury would have caused death and there is no evidence that either Isa was involved with the use of rocks or a rock as a weapon (in other words, they did not inflict any injury that caused the death of either Bilo or Lovana). Counsel further argues that there is no evidence that the grievous bodily harm was not caused until after the beating and there was no significant evidence of the two dying by asphyxiation from torn up bank notes or from coconut fibre being lodged in their airways. The airways were found to have been clear.

I have found (see final paragraph of these Reasons) that the cause of death was the blunt force trauma to the chest of the deceased. I reject the argument that the possibility is that the injuries to the chest were caused after the death of the deceased.

. The only civilian witness who speaks of Gedily Isa is May Sauvusi and her evidence supports his. [day 24 page 63 and 64 and day 25 p.60.] She’s from Poisughu, the same area and has seen him at the market at Tari and can identify him. She was not asked to identify him in Court. Her evidence is that he came near to her and said a prayer on Monday night. She says that she did not see him among those beating the Lovana and Bilo after the beatings resumed.

. There is evidence from May Sauvusi that she was among those first on the beach and Lovana and Bilo arrived after her. She says Ronnie Cawa made a speech.

. Gedily Isa says first he saw nothing or remembers nothing of a speech from Cawa before his leaving for Sughu, then he says there may have been but he could not hear what Cawa said, then he said Ronnie did address the crowd before they left. May Sauvusi’s evidence coupled with others suggests the boat in which Gedily Isa went to Sughu had set sail for Sughu before Lovana and Bilo arrived and Gedily therefore was not present at the commencement of the fatal beatings, which is in clear contrast with the evidence of his brother Owen.

. May Sauvusi says in her evidence that when it came back Gedily Isa went down to meet it. May Sauvusi cannot be right since Gedily Isa arrived in the boat. Therefore in some important respects she is unreliable.

. Gedily Isa gives specific reasons as to why he kicked and punched Lovana, namely that he had heard of Lovana before the Marasa incident and that Lovana had been assisting the JOG.

. The blows would not have caused grievous bodily harm and there is no evidence of an intention to kill so therefore he should be acquitted of the charges of murder of both Lovana and Bilo.

. The Court should find that any concerted effort to kill the deceased occurred after Lovana was caught up with and brought back and at a time when Gedily Isa had gone to do other duties without any knowledge of the activities intended to kill or do grievous bodily harm by others.

. The essential points of difference between Gedily Isa’s sworn evidence and what he told police are:

. he told police he beat Lovana and Bilo - in court he says that he only beat only Lovana.

. his statement to police says that he spoke to Bilo. In Court, he says that ‘that didn’t happen its is something he just heard about’

. he told police that he beat Lovana for 20 minutes. In court he says ‘that was just a guess’.

. he told police that it was intended and he knew of an intention to kill the deceased men, in court he says that he arrived at that conclusion after he saw the bodies.

. he told police of things he appeared to know about having seen them - in court he said that he was telling police about things that he had heard about.

. he told police the identity of who gave orders - in Court he gave very little information about the persons from where the orders had come.

Counsel submitted that there are sound reasons which may explain why the foregoing differences exist namely that,

. He was unsettled at the time of the interview by his experiences at the police station and the calling out as he was driven away.

. that, not being used to interviews he gave police answers which he thought to be the case, not what he himself saw, said or did rather that which he’d been told by the others. He used the first person plural ‘we’ because he was describing collectively his colleagues’ experience not his. See [day 56 p.12] ‘yes I saw them even if there were something I didn’t do I would say that I did it’.

. the extensive yet imprecise English into Pidgin Pidgin into English translation at both the police station and at Court is a factor to be borne in mind when assessing the record.

. his lack of education and the lengthy interview process may have .had an adverse effect on him may have caused misunderstanding and also needs to be brought into account when assessing him.,

. his protestation of his own personal honesty should be considered and why he thinks that honesty is important.

Counsel also made submissions about any evasiveness exhibited by the defendant (if found) during his evidence in chief.

In response to a prosecution submission that Gedily Isa was evasive in his evidence, Mr Benn, submitted that should the Court find that he was evasive the possibilities for his evasiveness are twofold:

. he knew about the activities of others but did not want to say because he didn’t want to ‘dob’ his friends in - he has been in close custody with them for years now but it doesn’t follow he has lied here about his own involvement; or,

First, I do not accept that counsel’s submission exhausts the possible reasons for Gedily Isa’s evasiveness. There are more possibilities. For example he could be lying. However, the telling of a lie will ordinarily do no more than affect the credit of the witness who tells it. Edwards v The Queen (1993) 178 CLR 208, 360 – 361. Deane, Dawson and Gaudron JJ added, "That is equally true of a lie told by the accused’.

Gedily Isa was certainly evasive. I say that because of his constant attempts to exculpate himself with unconvincing explanations of what he really meant by his various answers to the questions of Det Sgt O’Shea. I do not find him to be a witness of truth.

Gedily Isa’s statement to the police on the major issues is crucial. He was being given fairly and squarely an opportunity to explain himself. It seems to me that he did seize the opportunity.

On the second of October 2003 at Kolina Gedily Isa told O’Shea and Det Sae [Q. 43 of the interview,] that he intended for the boys to die at the time of beating them. On third October he repeated the assertion. O’Shea asked him [Q90] "OK when you - when you say killing him, do you mean to, hurt him, or do you mean for him to be dead?" Det Sai interprets, then at that point Gedily Isa responds

"OK it’s like this. You know when we find out that he was a member of the Joint Force so when we killed him our intention is to kill him dead." . "but I helped kill them, but I don’t help to kill them until they actually died. I helped to kill them when they were still alive and I left them." (sic)

I comment about his explanations. I have considered carefully the fact of his almost non existent formal education, his age, his lack of sophistication, his having been under considerable pressure in custody and the fact of his lack of understanding of the processes of the justice system and most of all his clear difficulty in communicating precisely and accurately what he was attempting to convey first to the police and second to the Court. Having considered all those factors and on the basis of his evidence in chief I find that he was telling the truth in that exchange between himself and O’Shea and Sae.

In relation to his police interview, and the submissions made in this regard, I find that Gedily Isa’s responses to police questions give no indication that he was unsettled. He understood and plainly answered the questions. He made no application to have the interview set aside on the ground of unfairness. As to the submission that his answers in interview reflected what he had been told by others (as opposed to what he saw or heard for himself) I have already commented on the in-court explanations in that regard and I conclude that Gedily Isa has given those answers in examination in court so that he is able to step around his clear acknowledgement to police of his own criminal behavior.

I consider that from his responses and his conduct in the court that Gedily Isa is an intelligent and alert young man well able to understand what was going on around him following his coming to Honiara from the Weathercoast. As regards the difficulties associated with the translation process, it is a factor to which all the witnesses were subjected and one which he (Gedily Isa) appeared to have no difficulty with during the time of his giving evidence. I regard Gedily Isa’s protestations of his honesty as being self serving statements made in an effort to avoid being held responsible here and they carry no weight. The unqualified admissions made by him to police are strongly inculpatory. I am satisfied that he spoke freely and voluntarily with the Police officers.

When asked if he regarded Lovana as the enemy, Isa responded that he had been told by his community that Lovana was on the side of the JOG and had spied but that he Isa would not kill him dead without an order. He repeated the proposition when directly questioned as to whether he would have killed dead John Lovana if ordered to do so he replied "no one gave me an order".

I regarded that series of answers by Gedily Isa [at day 54 page 55] as avoiding the issue. Isa acknowledged membership of the GLF and he settled on his membership extending back four years. He agreed Harold Keke was the leader of the GLF and that Cawa was No. 2. He was not sure about Pitakaka being No.3 but that he’d heard it said in Court that Pitakaka was No.3.

Gedily Isa was pressed about the answers he had given Sgt O’Shea at Kolina and at the Central Police station. When the prosecutor asked him who was at Veuru and he said . . I didn’t see the boys at Veuru but maybe they were there and then proceed to repeat the answer ‘. . . maybe they were there’ when pressed.

In particular the prosecutor specifically put to him that he had told O’Shea that Ronnie, Francis, Sam Leketo, Pitakaka Francis Lela Joses and Nesti were present at Veuru he said "that answer I just thought of it so I said it."

When asked about Pitakaka’s actual presence at Veuru, Isa appeared to me to become resistant to the questions and unco-operative. The prosecutor asked: ‘just forgetting about your answers to the interview you saw Pitakaka on the Sunday night correct?’ Isa said "My answer would be the same, maybe he was there maybe he wasn’t." [day 55 p23.]

Isa’s answers to questions of which men were with him on the walk to Marasa from Veuru were given in the same reluctant fashion he’d used when asked about Veuru. His reluctance I believe was based on his desire not to specifically implicate others and to say as little as possible about understanding or arrangements amounting to agreements as he could. Invariably he would say that he had heard no orders given about much at all.

Isa said that he was not interested in how John Lovana met his death. He said that he was given no orders to bring villagers down to the seaside but orders most probably were given to do that but not to him [day 55 page 45].

Those answers and many of the exchanges with counsel were not open or direct answers; I got the impression that he was not telling the court the truth.

At [day 55 page 49] he was asked about Sgt O’Shea’s question no.65. It was suggested to him that he’d said in answer to Sgt. O’Shea, "when we go up to take the people and come down during that time we only following Ronnie’s Orders. Sae said ‘so Ronnie gave you that Order’ and he said "Yes". The response from Isa was "I’ve already tried to explain it . . I didn’t hear him say it to my ear so when I saw those things happened like that I thought Ronnie gave the order because I’m a man who didn’t go to school, I don’t understand questions like that like you giving now so the answers that I gave some of them were what I thought I’ve always said that the things I said in my interview that’s why you like to hear that."

The impression I initially formed about the unreliability of Gedily Isa was a strengthened impression as he attempted to explain what he meant by answers he gave Sgt. O’Shea and Det. Sae.

I am satisfied Gedily Isa knew or understood from his presence at the beach that both Lovana and Bilo were involved in assisting the JOG. Bilo had personally told him that he Bilo was a spy. Lovana he had heard about.

I’m satisfied that it was not just his inclination or personal anger about Lovana that moved him to physically assault both Lovana and Bilo but that he intended, by beating them and assisting the others to beat Lovana and Bilo until they died, in pursuit of a common objective, to kill dead or inflict grievous bodily harm on Lovana and Bilo. I am satisfied that he followed the beating and encouraged and supported it. If he did leave to go on security duty it was shortly after the two men had died.

I hold the view that Gedily Isa’s evidence may only be relied upon where it is supported by other credible evidence about some incontrovertible fact in issue.

Counsel suggested that there is no independent evidence which contradicts Gedily Isa’s account in Court and there is one witness, May Sauvusi, who supports the account.

The argument is flawed. First, what Det. Sgt O’Shea says - that she heard him admit to her in the interviews - is independent of Gedily Isa’s evidence. There is not any evidence which supports Gedily Isa’s account of his having struck minor blows and delivered kicks on Lovana, then leaving – merely neutral evidence that May Sauvusi ‘did not see him during the beatings’.

I’ve considered carefully what counsel has asked me to consider. Some of the matters advanced in Gedily Isa’s favour, have some weight. However on having observed and having heard what Gedily Isa said in Court, I don’t believe Isa to be a witness of truth.

I am convinced beyond reasonable doubt that he was present and engaging in the beating just as he told police and that he was present until not long before the deaths of Bilo and Lovana. I am satisfied that he was committed to killing the two men, Lovana and Bilo, dead or inficting grievous bodily harm as a participant in the common objective (which I have already found to exist).

I am satisfied that his account to police was an attempt to be truthful and to tell police accurately what part he played in the enterprise. In particular I am convinced that he was a principal in the second degree (section 21(b) and (c) of the Code) and that he assisted and encouraged the others who were privy to the agreement and by his behavior encouraged who ever it was or whatever final act it was as between the participants that caused the deaths of Lovana and Bilo.

I cannot find that I am satisfied that Gedily Isa was a participant in the beatings following the cutting of John Lovana’s back however, a find that he was at all times a participant in the carrying out of the common objective whether or not he was doing security (as he says) or actually physically present. I find him guilty on all counts.

Allen Bosage has pleaded not guilty to the charges of murder, not guilty (except for count 33) to the 11 counts of Arson and guilty to the charges of wrongful confinement and being a member of an unlawful society. He chose to make a statement from the Dock.

In summary, in his statement, Allen Bosage said that in 2002 he was living in his village at Kologhaughau. He was 17 years old at that time.

The time when the JOG arrived, the Melanesian Brothers were resident at his village. The Brothers intervened and stopped the burning of the village by the JOG.

He said ‘the JOG beat my father. I saw them beat my daddy with the butt of a gun"....‘They took him to Kwaisughu. They told him that they were going to shoot him dead. They gave him a spade to dig his own grave. Then they demanded from him $1000 and a pig’.

Bosage said that the JOG men said "we have come to save you people in the weather coast from Harold Keke".

Bosage said that Harold Keke had never threatened him or his family nor had Harold Keke made demands the way that the JOG had done on his father.

After RAMSI came, Koroni said "don’t be afraid of RAMSI, they will find a good solution to straighten up everything to help us".

Bosage says that he was told by Koroni that RAMSI have a place at Tari in between the JOG and GLF areas.

Bosage says that he was compelled by his custom to tell everything and not to lie. "If I do not tell everything and tell the truth then according to custom my opponents can come to me at anytime and kill me and the fight will restart"

Bosage told the Court that it was the reason why, when he was talking with RAMSI, he told them everything that he had done and that he spoke the truth to them. He explained "I only pleaded guilty to some of the charges of burning a house because I only went there in the first evening"

He said "I would like to say I am sorry to Luke Lele for burning his house, to Tokovi for having burned his kitchen and Ricky’s house. I was only following orders. I am sorry for what I did".

Bosage says "I only hit John Lovana and then I left the beach before they took Adrian (Bilo) out of the crowd".

The Dock statement is a statement. It is not evidence. It is not to be treated as evidence is treated. It is not admissible as against other accused.

The following summarizes what Bosage told Police. (Station Sgt. Phillip Magness with Det. Sgt Joseph Leguhavi) at Kolina village on 9 October [see Exhibit P40], that

. he said that he left by canoe after 4:00 pm on Wednesday with Meto and Steven Kejoa.

What he told police is evidence against him and is inadmissible as against any co-accused.

The Prosecution directs my attention to the evidence of the eyewitness Marion Dakinibugodu. She gave evidence that she saw Bosage and knew him as being from Kologhaughau and from his attending school at Tanagarare. She said that she knew Lovana (her cousin’s sister’s son) and Bilo (her uncle’s son).

She says "I saw that they Lovana and Bilo were beaten with stones and one using stones in attacking the two men was Allen Bosage" [day 19 page 09.].

Ms. Dakinibugodu says that she knew Allen Bosage because ‘his dad is my uncle - he is my mother’s cousin brother’. She said that she had made a statement to police 25 August 2003 and didn’t mention Allen Bosage’s name – that she forgot to mention it in her statement. That evidence of her omitting to mention Bosage’s name is to be used to assess her credit or lack of it – and it is solely in the way I use it here. I concluded that she was a sincere witness doing her best to give a truthful account of what she saw.

However, I have concluded that she is not a reliable witness. Perhaps it is the passage of time - perhaps it is the fact of her having been so unsettled by what she saw but I find that she possibly has reconstructed her evidence - it would seem so - if one considers the sequence and timing argument advanced by Bosage’s counsel.

Derek Kitolo says that he saw Bosage kick and punch Lovana and that thereafter he ‘stayed around’ and did not leave - contrary to what Bosage has said he did. In examination in chief Kitolo said that he saw some of the boys at the beach. In cross examination [day 21 page 40] he was asked by counsel for Bosage whether Bosage’s hitting Lovana was before Bilo came out and he replied, ’No by that time, both of them were there’ in contrast to Bosage’s account to police. Further cross examination made the reliability of his evidence about the presence or absence of Bilo at the time Bosage left, uncertain when Mr Kitolo gave an ambiguous answer.

Edwin Dato says that he knew ‘Allen’ and that he saw Allen at the seaside when everyone started beating and Allen delivered some three punches into John Lovana’s face, not kicks - then Allen sat down in the vicinity - contrary to Bosage’s account of his having left. What Dato does not say is that ‘Allen’ hit Lovana or Bilo using stones as Ms. Dakinibugodu says.

Arthur Magale says that he knew Bosage "because he is my uncle" [day 31 page 81] and saw Bosage at the seaside ‘get a stone and throw it at the two of them’. [day 31 page 80] - which is contrary to Bosage’s account. I must say there appears to be no challenge to the alleged ‘stone throwing’ by Bosage’s counsel. The evidence of stone throwing is not mentioned by other witnesses. I am not satisfied that Bosage threw a stone at Lovana and Bilo.

The prosecutor submitted [transcript: day 49 page 43] that Luke Lele described Bosage holding a stone and using it to hit Lovana’s face, contrary to Bosage’s account. He describes Bosage pushing a stick on Bilo before Bilo died - which is contrary to Bosage’s statement that he did not assault Bilo.

I can find nothing said by Luke Lele which remotely approximates the submission of the prosecutor. Lele does not identify or refer to Bosage by name at all. I believe that the prosecutor was referring, in part anyway, to the evidence of Martin Maganamate.

Martin Maganamate said that he knew Allen Bosage and had seen Bosage and could identify him because he and Bosage attended a clinic at Mbanmbanakira and saw him at Marasa for church days, he had seen and talked with him many times before 16 June. He knew Bosage to be from Kologhaughau. He identified Bosage as one of those who had helped ‘beat John’. Bosage held a stone and helped beat his face with it. There is no other evidence that stones were used until after the point at which Lovana was cut.

He identifies Bosage as being involved in the beatings which continued after Lovana was cut. Significantly Maganamate said that he saw Allen hold a stone and beat Bilo. Maganamate said that both Lovana and Bilo were laying down and Allen beat them while they were on the ground.

If Lovana and Bilo were laying down then I conclude that if the incident Maganamate says he witnessed happened it had to have occurred after Lovana was cut.

Maganamate said that he saw Allen Bosage use sticks - 2 feet long by 4 inches square, to beat Lovana and Bilo. No other witness describes Bosage in a situation involving Lovana and Bilo being beaten with sticks of those dimensions.

I conclude that the identification of Bosage by Maganamate has not been established beyond reasonable doubt. His evidence does not align with the other witnesses. I am unable to depend upon the evidence as establishing that which the Crown asserts it does. Maganamate appears to suffer from the same difficulties experienced by other eyewitnesses and which arise from confusion as to the fast moving events that he was watching.

Jack Rauna says that he saw Bosage punch and kick Lovana which accords with Bosage but Rauna says that Bosage ‘did not leave the beach’ which may be contrary to the account given by Bosage of doing security at the Marasa River (probably the Lamulaghi River – see exhibit P1). If the river and the beach coincided then it may not be contrary to what Bosage says.

Counsel for Bosage suggests that the evidence of the witnesses listed by the prosecutor about these matters at Marasa must be scrutinized very carefully because the witnesses show striking similarity in the reactions they have to cross examination – for example a significant few said, using a strikingly similar phrase when challenged: ‘I was there and saw things with my own eyes’.

The phrase ‘I was there and saw things with my own eyes.’ may be a phrase which has an attraction for witnesses. I am simply unable to say whether it has sinister significance. Nor can counsel for the accused. I have had to assess the witnesses. I don’t think that the phrase arose by reason of the witnesses having colluded or by overhearing other witnesses and adopting the phrase

I have been alert to the need to look for any significant piece of evidence which would suggest that the evidence of some witnesses was rehearsed. There is very little to go on. In fact with the notable exception of George Mazini I have formed the opinion that they were all honest witnesses attempting to recall to the best of their ability, precisely what happened at Marasa. I found Mr. Mazini’s evidence so much out of line with the great weight of the evidence that I determine not to use his evidence save and except where he is supported by the evidence of other witnesses about some matter.

I bear in mind that the prosecution carries the obligation of proving the guilt of Bosage beyond reasonable doubt. There is no onus shifting to Mr. Bosage to prove his innocence in this case.

There is no evidence that Bosage had any relevant and timely state of mind about the undertaking or arrangement amounting to an agreement to kill Lovana and /or Bilo or to cause them grievous bodily harm.
He told police that he did not ever intend to kill either man and that he knew nothing of any agreement that they would be killed. He reasserted that in his dock statement.

I am satisfied that he was not a part of the common objective to "kill dead" or inflict grievous bodily harm and I must therefore consider whether he can be found guilty on any other basis of murder.

I am satisfied that while he struck blows on Lovana, he left the vicinity of where Lovana was standing before Bilo was brought from the crowd.

If what he says is true about the absence of Bilo when he struck John Lovana (and I accept that it was) it locates his departure as very early in the beating sequence of events. It creates a reasonable possibility that he was not present when Bilo was ordered by Owen Isa to stand in front of the crowd, let alone what followed.

The eyewitness evidence in this regard does not align. It does not persuade me beyond reasonable doubt that Bosage was either a participant in the common objective or that he was involved in using rocks and sticks on Bilo or Lovana or present after Lovana was cut.

Bosage was an ill-educated young man at the time of the Marasa incidents. I understood Bosage to be telling the Court that he joined in with the activities of the GLF as a result of the treatment he in particular had received at he hands of the JOG and saw this as a way of resisting the JOG behavior as well as doing the right thing by Guadalcanal.

In his statement to the Court Bosage says that he traveled to Marasa by canoe with Charles Fox and Gordon Sopa. He had no knife and no gun. Cawa had sent Bosage a message for him to "bring clothes for him". Ronnie "did not tell him about what would happen at Marasa". Bosage stayed on the beach for a short while and saw people start to arrive.

He said ‘’I helped the other GLF boys to stop people from leaving’. - I don’t know whether Lovana and Bilo were the enemy I was just doing what I was told - following orders. Tosi told me and the others to beat John Lovana. So I did beat him following Tosi’s orders. I didn’t touch Bilo only John Lovana. Tosi did not tell us to beat to ‘killem die’.

He said ‘I beat Lovana on the face the right side of the jaw not too strong’.

I kicked Lovana in the belly once and I hit him once while he was standing up. I kicked him in the back on his bottom - hard. He was standing and he didn’t fall down. I didn’t hit him with a stone or stones, After me plenty boys hit him but I didn’t bother to look as I was leaving, Ronnie Cawa as there I didn’t see him hitting or kicking Lovana’.

Bosage said "I did see Roddy Seko kick him on his bottom. If I had not obeyed the order to kick, then I would have been killed because the orders were given to stand for our rights. I was following orders and I kicked and hit him I thought that he would only take a week to recover. I didn’t see Lovana die. I was doing security at the Marasa riverside when that happened".

Bosage says – "I did not touch Bilo nor did I throw stones at him. I was not there to bury them I was at the Riverside since the start of the afternoon [QW.170] until the evening. I went and helped burn houses down because Ronnie told me to. I burned down Rick’s house. I started it by burning a mattress. I knew him - he came to our village. I followed orders. His house was a copra house at Veravoalu. I knew Rick - he came to our home sometimes".

"I also burned the house of Luke Lele at Tasali. It was a copra house and I did know Lele but I didn’t know him well. I used a match on a mattress to burn the house. I also burned Charles Tokovi’s kitchen at Tasali. I burned the houses by myself no-one helped".

"I was at Marasa on Monday Tuesday I was security on watch. I stayed until four o’clock at Marasa on Wednesday and then went I left Marasa by boat with Willie Meto and Steven Kejoa. I had no job on Wednesday and the boys told us to leave. Ronnie Cawa was our ‘in charge’."

Bosage left the Marasa area with Willie Meto at 4:00pm Wednesday. He admits that he burned Tokovi and Luke Lele’s houses. On any view of it the weight of the evidence would suggest that the houses were first burned on Tuesday afternoon or evening and what remained on Wednesday morning.

I conclude from the whole of the evidence having given consideration and taken into account what Bosage said in his statement, that I am satisfied of the following matters;

I am satisfied that Bosage is guilty of being a member of an unlawful society as pleaded on his own confession. I find him guilty him on that count.

I find him guilty of 29 counts of unlawful confinement. With regard to those 29 counts I am satisfied that he was a lookout, or as he puts it ‘as security’ against the attack or arrival of the JOG or anyone who would offer force against the GLF while the GLF members were engaging in the beatings of Lovana and Bilo.

I find that Bosage carried out those duties in his capacity as a member of the GLF force at Marasa near the Lamulaghi River - at least on Monday and Tuesday, perhaps Wednesday on his own confession.

Bosage frankly admits having ignited buildings - the premises of Charles Tokovi, Luke Lele and ‘Rick’.

I am satisfied that he ceased personally burning houses after lighting the houses of Tokovi, Lele and Rick. That does not, in the circumstances of the case, absolve him from responsibility however, for other houses being set alight at Marasa.

Bosage was adamant that he had not touched Bilo. There is evidence from Ms. Dakinibugodu and Martin Maganamate to the contrary. I have dealt with that evidence. I find that it is reasonably possible that Ms. Dakinibugodu is mistaken when she identifies Bosage as using rocks late in the attack on Lovana and Bilo.

As to the evidence of Martin Maganamate, it is Maganamate who identifies Alan Bosage as being the member of the GLF who pressed the stick across Bilo’s neck until he died. Counsel for Bosage squarely put it to Mr. Maganamate that he was mistaken and that Bosage had only hit and kicked Lovana prior to Bilo’s arrival at the front of the crowd. Maganamate maintained that Bosage had put a stick on Bilo’s neck. I have already made findings as to Maganamate’s evidence.

I warned myself about the need for care in assessing the evidene of any witness who purports to identify the accused. I do so in accordance with the relevant legal principles set out above. Several of the witnesses identify Bosage as being present through the continuation of the beating and past the point at which Lovana was cut but none of the witnesses who purport to identify Bosage align with each other. They have him doing different acts. One has him throwing a stone. Some have him sitting down. One has his using sticks and rocks. I have noted that the evidence generally allowed me to conclude that there were many GLF members involved in the beatings both before and after Lovana was cut. The stress on the witnesses watching these events is said to have been high. I accept that however, the dangers of misidentification are manifest with respect to Alan Bosage.

Bosage admits punching John Lovana twice in the right side of his jaw, kicking Lovana’s bottom and his belly – a total of two punches and two kicks. He then says that he left and went to his place to carry out his duty as security.

I accept the statement of Bosage when he says that he struck and kicked John Lovana in the manner in which he told the police and the Court – namely a punch to Lovana’s right jaw, another punch and a kick to the belly followed by a kick to John Lovana’s lower back.

I find that following those assaults on Lovana, Bosage left John Lovana alone and left Lovana’s vicinity to ‘do security’ that is to watch out in particular for any approach of the JOG.

I find that none of the assaults which Bosage admitted to were intended to cause death or grievous harm to Lovana either alone or in combination with blows or kicks from any other person on the body of John Lovana.

I specifically find that at the time of his assaults on Lovana that Bosage did not regard himself as being a part of any understanding or arrangement amounting to an agreement, express or implied to kill and/or to inflict grievous harm on Lovana. I find that he did not assault Bilo, nor did he intend that others should kill Lovana and/or Bilo nor encourage them by remaining and acting as security. In other words I am not satisfied that he had the necessary knowledge.

I find that the Prosecution have not made out the charges of murder against Bosage.

He is guilty of manslaughter pursuant to the Code section 199. The basis for so finding is that he omitted to discharge the statutory duty he was carrying at all material times to preserve the life or the health of Bilo and/or Lovana whose lives he was compelled to consider by any standard. The life or health of Lovana at least must have been at serious risk having regard to the activities of others in the group of GLF members who were beating Lovana as Bosage left the scene to ‘do security’.

Owen Isa said he is 25 and is from the village of Tamanu. He had some years of formal education. Gedily Isa is his brother.

In June 2003 he was staying at Dui Dui and he received a call to go to Mbiti. He went. At Mbiti he met his ‘General’ Harold Keke who instructed him to go to Marasa to ambush two JOG boats and steal the ammunition supplies which he Keke expected would be in the two boats.

He and Koroni traveled on foot to Marasa in company with Koroni arriving in the early hours of Friday morning. He was armed with an SLR – a military rifle. He and Koroni waited until Sunday when the JOG boat arrived. No-one was directing the ambush he says "At that time no-one gave orders to us. When joint operation was shooting we were shooting too because we were not depending on anyone and you know when – when you see an enemy you can shoot him."

Owen Isa gave an account of the ambush. He said that the men ran off when ambushed and so "we took what we liked." [day 56 page 62]. I pause to say that I put the statements of what happened on Sunday to one side when considering the issues here. The events of Sunday are not part of the Crown case under consideration although they become part of some defence cases.

The Crown case begins from early in the morning of 16 June 2003. Then Owen Isa’s account is of going to the villages. He met people coming down. He went to the villages because Ronnie told him to follow up on the joint operation to clear up that village so that no joint operation members could stay there.

A runner came to him and said that the people had to go to the seaside so he sent the people to the seaside. Then he in company with two other GLF members, Koivo and Steven Pita, came upon a deserted village except for one man who told him that the population had gone into the bush because they were frightened by the shooting. Thereupon Owen Isa directed the man to tell them to come back. He called out. Three people came out of the bush. He directed them to the village and they left and he stayed a lengthy time. Then John Lovana arrived.

What followed he says, was that Lovana wanted to run but Owen Isa talked him out of it and suggested that they all follow the other people to the seaside. They set out and near a small bridge at a lower village which is identified by counsel as Samaria, they met another boy who "must have been a GLF member because he supported what the GLF stood for" according to Owen Isa. Owen Isa didn’t recognize the boy but the boy remonstrated with Owen Isa for not having tied the hands of John Lovana. The boy said "that’s one of the boys who ruined those people" [day 56 page 66]. The boy then tied Lovana’s hands. Then Owen Isa and Christian Sopa continued to escort Lovana to the beach.

What Owen Isa says about events at the beach on 16 June is quite different from the evidence given by those villagers who, as captives of the GLF, witnessed the events which followed the arrival of John Lovana at the beach.

He says [day 56 page 68] that when he and Lovana arrived at the seaside he recognized some GLF members. He said "I saw Koroni with some of the boys".

That cannot be correct if one assumes that what Gedily Isa says is true. He places Koroni with Ronnie Cawa, William Hence and himself Gedily in the boat which by now is heading for Sughu. Owen Isa says someone told him that ‘Ronnie’s group had gone to Sughu so I came and I left John Lovana. I pushed him toward the front. I said to him, "you sit down there and wait until Ronnie comes back" and then we’ll ask him (Lovana) about some stories. At the same time I pushed John Lovana that was when all the boys shouted and they said, "this is one of the boys we’re looking for and so they killed started killing John Lovana . . .and so at the time I also helped to kill . . .I mean I kicked him and I punched him in the belly and on one of his thighs. . . . he’s one of the boys who joined with the joint operation .... I didn’t intend to kill him dead because I hadn’t heard any orders to kill him so I intend to do that while waiting for Ronnie and that to hear more stories from him because they said he was the one that joined with the joint operation."

The evidence of Owen Isa is that after he and the others had initially hit Lovana he left Lovana there and went and sat "at the place where we usually sit down.

After I went and sit down no one had hit him yet and he was still standing" which does not appear to sit with his other evidence [day56 page 73.5] where he says "it was when I was hitting John Lovana they came also . . .then we left John Lovana there".

Owen Isa saw Bilo in the crowd and called him out. He said that he had seen Bilo on the Sunday evening. He said that he spoke with Bilo and said "were you the boy that was following the joint operation on the Sunday? And so he said to me well, me, I was forced to come down. After I asked him I just left him there."

Owen Isa says that he kicked Bilo in the leg pushed him and Bilo went to stand next to John Lovana and said "you wait here we are going to ask you about some stories". He says he had had no orders about Bilo at that point.

Owen Isa then describes John Lovana’s escape attempt which, according to Owen Isa "made the boys very cross". He went to the place ‘where we look out sea’, as I understand him, his security station. He couldn’t or didn’t see what happened then - he was about 100 – 200 metres away from where the beating is said to have happened.

Following the escape attempt by John Lovana, Owen Isa’s evidence is that after he had stopped beating Lovana the others stopped beating because ‘I told them to stop beating them". "we’ll have to wait for Ronnie to come and to hear from him". He was unable to make out who the other beaters were because there were lots of new faces and so "I thought, those boys, I wonder where they come from."

After Lovana was brought back Owen Isa says that he didn’t see any beating because he went up to the place where the people were being held and comforted them by telling them not to be afraid "not to worry". At the time he said that to the villagers he was carrying ‘a gun’.

As for Bilo and John Lovana he didn’t think anything would happen to them and he didn’t see any incidents involving money or coconut husks being forced into their mouths nor did he see them being made to dance.

Then the boat arrived. Before it arrived he had been going around talking to people then the boat arrived and Ronnie Cawa and Gedily Isa and William Hence got out and Koroni was in the other boat. Owen Isa helped pull the boat in and just then there was a shout that John Lovana had run away.

He then says that he had no more to do with Lovana and Bilo but simply went to the lookout position where he’d been before. 100 – 200 metres from Lovana and Bilo
He says that he saw nothing of a beating of Lovana and Bilo except for a little time he saw John Lovana being kicked. He heard no orders being given about John Lovana and Bilo. He saw no cut on Lovana.

The next he saw of them was when he was coming back he saw the ‘men pulling them to go and bury them’.

Mr. Benn then took him through the interview he had had with police at Kolina and Honiara Central Police station.

Owen Isa says that when he told police that "we took them to the seaside and then we beat them and they watched . . Ah, it is the order from Peter Carradine" he meant that "I was only working from what I thought. So I thought it must be an order from Peter Carradine that was why." He added that he really heard no orders.

He said that he did tell Sgt Green that he was given the order to beat Lovana and by "Pita Pita" but that "for me to really hear who gave the order to kill the two I did not hear it that was only what I thought".

Then he was asked by his counsel "you said to Sgt Green (question 56 P36 37) "all guys who are killing then he tells us kill them he’s tell us stop no more he’s just kill them, we kill them", tell the Court what you meant when you said that."

Owen Isas response to the Court was "that one I did not mean that I was in it I put it as ‘us’ the GLF."

Owen Isa’s counsel asked what he meant when he told Sgt Green that he was "punching and kicking for let’s say one hour" Owen Isa replied "I did not mean that I beat him for one hour, that I meant the beating that went on until they died I did not mean that I was beating them for 1 hour."

Counsel for Kaptendou and Bosage established through cross examination of Owen Isa that at the moment Lovana was brought to the beach there were security lookouts posted by the GLF at the beach proper, high in the hills and in the village area.

The prosecutor cross examined Owen Isa carefully and at length [transcript day 57 p.17]. Owen Isa acknowledged that as a member of the GLF that he would follow the orders of the commanders of the GLF and if Keke or Cawa who were commanders of the GLF gave an order he would follow the order if he could.

Owen Isa said that Pitakaka had not given him any orders ever and he had not heard Pitakaka ever give any other GLF member orders and that he was unsure that Pitakaka was a commander in the GLF [day 57 page 19]. The prosecutor then referred him to the questions asked of him at Kolina when Inspector Folau was questioning him at question 12. He was asked whether Ronnie gave him an order and Owen Isa said to Folau "it is the order from Peter Carradine" and then acknowledged that Peter Carradine was known as Pita Tose or Pitakaka. [transcript day 57 page 21, 22].

Pitakaka, according to Owen Isa anyway, was present and giving orders in the absence of Cawa on the Monday morning. Owen Isa acknowledged to the prosecutor that he told Folau at Kolina in 2003 that Pitakaka was the operational commander at Marasa on 16 June 2003.

Owen Isa gave evidence that on the Tuesday night he went to do security on top at the main road from Mbanbanakira to Marasa. He went because he was at a place called the copra house and some boys went past and said "we need a gunman to come with us" so he went and in doing so he knew of the setting fire to the houses and he agreed to act as security while they did so.

Owen Isa said that he didn’t know Mike Kaptendou at the time and cannot now say whether he heard him giving any orders. The orders he understood he was bound by on those Marasa days were to be from Ronnie Cawa and ‘Peter Toss’ Pitakaka.

Owen Isa said ‘Ronnie spoke to the people when he told them that they were released. I saw Longarata at the time when Ronnie spoke on the Wednesday afternoon’. He acknowledged that he had accompanied an old man up to man’s village with some GLF boys. When I got to the village I just said to the woman with the old man ‘I’m going back’.

He says that he saw the Melanesian Brothers when their hands were not tied sitting together. He saw them after he had moved from hitting John Lovana. They were sitting closest to the place where John Lovana was beaten.

Owen Isa saw May Sauvusi but she was not from his village and therefore he didn’t know her in that way ‘maybe Gedily knew her but I did not’. He says that Ivy Vatarangi is his aunt but he didn’t see her at the seaside – he didn’t ‘bother’ to see her.

He recalled that a letter was sent and it was read then the Tasiu were released. It was in the afternoon but he has no memory of when. He says that Ronnie spoke to them as well. At that time he didn’t hear anyone speaking of burning the houses but it could have been said.

Owen Isa acknowledged that the JOG were the enemy of the GLF. He said that before he was at the Marasa beach he was at Duidui with Koroni. Koroni was a very dark man. He said that at Pite Harold Keke gave orders to Koroni and Keke spoke about the boats. He said to meet other GLF boys at Veuru and to go and lay abuse on the JOG and get ammunition. Keke didn’t name the boys. They stayed at Veuru about three hours and left at about 2:00am. He was carrying an SLR rifle. And they were told that a GPMG ‘three leg’ would be sent down to them. "At Marasa Ronnie had not arrived he came after. I can’t remember Kaptendou was there. I didn’t know him until we were in prison. There were many new faces".

On the Sunday he said he saw Adrian Smith Bilo there he was holding a gun there wasn’t any firing yet. He said three men came down and followed the road. [day 57 page 56.] Bilo was the third one. ‘I didn’t know John Lovana was there until when John Lovana and I met Koivo. Koivo told me ‘this is one of the men who join them tie his hands’ [day 57page 59] that is to be compared with what he said earlier in his evidence which was that a stranger who must have been friendly to the GLF told me (not Koivo) [day 56 page 68].

Owen Isa said that GLF got money and ammunition from the boats to his knowledge. "On the morning I went up into the villages to my mind the briefingon Monday morning was for us to follow the joint operations and clear them out of the village". He said that if he encountered a JOG man and there was shooting he would shoot but if he didn’t shoot there would be nothing. The Prosecution suggest to Owen Isa that the village to which he went was Tasali and he responds that he didn’t know.

Owen Isa said that he remembers Nicodemus Valena giving evidence and that he can’t remember whether it was Valena he saw as the lone man at the village. He says that he was with Steven Peter and Robert Tatave who was carrying a gun and he said that it was hard for him to say whether Tatave shouted out "you come out of the bush we have not come from civilians we just come for those holding guns". He said he asked the man at the village where all the people were and he received the reply that they’d run away.

"I said that he should call them tell them not to be afraid and to come back. The man then shouted in language.." People came out. "Tatave went off to another village and then a boy I didn’t recognize came running up and said tell the people to go down so I did accompanied by that boy and Steven Pita."

John Lovana came out. "When Lovana came out I didn’t ask his name and didn’t ask why he tried to run away. We then went down and at the small village with the church and a small bridge I tied Lovana's hands". "I saw Sam Leketo while going down and at that time I had not tied Lovana’s hands. I saw Koiva and Leketo at the same time"...."I tied Lovana’s hands when this boy recognized him and that ‘s when we tied his hands".

Owen Isa says that he didn’t think anything would happen to Lovana at that time when he realized he was a member of joint operations. Why he tied him and took him down was "to speak to Ronny Cawa to be really sure about him but Cawa wasn’t there". Pita Tosi however was there. Owen Isa has Cawa off the beach when he arrives with Lovana.

On the encounter with Lovana, Owen Isa says that he said to Lovana "is it true that you work for the joint force?" and that Lovana replied, "oh I work for the Government but I’m on holiday that’s why I’m here". Then, Lovana says, "I started to hit and kick him in front of the people".

Owen Isa continued in his evidence, "I started to get cross in front of the people when I heard some boys shouting...he’s also one of them so when I heard those words I pushed him and kicked him" He said "I don’t know who was shouting".

His response was that someone told him that "Ronnie had gone to Sughu". He said that he heard no members of the GLF calling out their names at the beach. He said that when he was kicking Lovana, "the boys came along and started really kicking him hard" – then he qualified his earlier answer and said "I wasn’t sure whether they kick strong so I thought he should be questioned first and I stopped them. I was the first to hit him because I brought him down it wasn’t Allen Bosage – I didn’t know him then".

As to Bilo,"I was walking around because the people were very afraid. I know they were because I saw their faces after a number had kicked Lovana".

Owen Isa says "We didn’t take to beating the boys as a warning to the villagers not to join the JOG". I said to Bilo "Oh I recognize you it was you following those men on the Sunday evening".

Owen Isa said ‘When I pushed him (Bilo) on to the ground and kicked him his hands were never tied. I note that when Dr Dodd exhumed the body identified as Bilo’s the wrists were bound behind.

Owen Isa says "I saw him (referring to Bilo on the Sunday night) and recognized him and I kicked him". The Prosecutor made the point that, if a short time before he had stopped other boys from kicking and hitting Lovana, why do this? Isa said "I thought they would wait . . .If the boys had kicked Bilo I would have seen it. I don’t know about coconut and money being forced into their mouths and I don’t know about their being forced to dance. I saw money on Marasa beach’.

In cross examination he said "I heard the story and I don’t know the person who told me." He went on to say to the prosecutor," there was no kicking as the boat was approaching the shore" - He saw the three people come from the boat up the beach and following that he saw John Lovana being brought down " and then people started beating him again and I don’t know whether my brother was one".

He said ‘I did not join in and I did not pick up a rock or stone and hit John Lovana. I don’t know how they died - if sticks and rocks were used I don’t know’. It was put to him that after Lovana was brought back from running away, an order was given to kill him dead and his response was "I’ve already answered that for you" but when pressed he said "some were beating him there" . He added that he doesn’t know what happened because he didn’t go close enough and he was unable to say what happened to Cawa because after Cawa had gone amongst and mixed in with the people he, Owen Isa, didn’t see him again.

Owen Isa conceded that there could have been a speech by Kaptendou but that he was unable to hear.

I have considered very carefully the defence submissions put by Mr Benn on behalf of Owen Isa. I have already dealt with his principal submissions above where those submissions were put jointly on behalf of both Isa brothers. I need not repeat my discussion or conclusions here (refer to ‘Discussion and Conclusion’ in relation to Gedily Isa).

As to the remaining submissions, they broadly depend upon my acceptance of Owen Isa as a witness of truth. I say at once, I reject him as a witness of truth. I specifically find that he was evasive and untruthful in the giving of his evidence. I do not accept the evidence he gave in this Court save and except where it is supported by other evidence which I have found to be of fact. I say this for two reasons. Firstly, by reason of his attempts to explain in Court what he meant by his inculpatory answers to police questions. I formed the very strong impression that he was simply attempting to evade the difficulties that his answers to police had created for him. I reject his explanations of those answers. Secondly, I watched him carefully in the giving of his evidence. I formed the very strong opinion that he was attempting to mislead the Court to escape conviction. In so saying, I remember at all times that the onus of proof remains with the prosecution and not with Owen Isa.

An example of his dishonesty is his evidence on the issue of the tying of John Lovana’s hands. He first said that Lovana’s hands were not tied as they left the village where the people had run away and when John Lovana came out. Then he said he tied John Lovana’s hands at the small village with the church and a small bridge. He says he saw Koivo who recognized Lovana and alerted him that Lovana was a JOG supporter. Not very much later, while still giving evidence, he said that a boy whom he thought was a supporter of the GLF (not a member) had told him that Lovana was a JOG supporter and to tie his hands. It is evident to me that he was saying whatever came into his mind.

I am satisfied that the admissions given by Owen Isa to the police are the truth of the matter. I am satisfied that he gave those answers of his own free will and that he was treated fairly by police.

I find that Owen Isa was committed to carrying out the common objective of killing dead or inflicting grievous bodily harm on JOG supporters and on Lovana and Bilo particularly, and the confining of the villagers and burning of the villages. I have no doubt at all about this.

He had seen Bilo armed and acting in support of the JOG on Sunday 15th June. I so find. He had been instructed to go to the villages and bring down the villagers early on Monday morning. I find that this was an order that had come from his commander at Marasa. I find that in the process of carrying out those orders he discovered that Lovana was a JOG supporter and that at this point Lovana’s hands were tied and Owen Isa brought him down to the beach in that condition (noting that the hands were tied behind the back of the exhumed remains of Lovana).

He had personally assaulted Lovana at the beach before he (Lovana) ran away and I am satisfied that he knew of the intention of the accused to ensure that Lovana and Bilo were to be beaten to death or to be inflicted with grievous bodily harm and that he was present and encouraging of the others in the beatings before the deaths of Bilo and Lovana, after which he left to ‘do security’ but with an understanding and a commitment to the beating going where ever it may go including infliction of grievous bodily harm on Lovana and Bilo or to killing them dead.

I find that Owen Isa went to the villages on Tuesday night at the request of some boys at the copra house "to do security on top".

I make one final observation about Owen Isa’s evidence. Owen Isa says [day 56 page 68] that when he and Lovana arrived at the seaside he recognized some GLF members. He said "I saw Koroni with some of the boys". That cannot be correct if one assumes that what Gedily Isa says is true namely that at the time when Owen Isa arrived at the beach with John Lovana, Gedily has Koroni with Ronnie Cawa, William Hence and himself in a boat which is heading for Sughu. However that Cawa was present when Owen arrived at the beach with Lovana aligns with the evidence of a number of the captive eyewitnesses including Stanley Suala and Thomas Venjo.

Kaptendou contests the charges alleging his participation in the murders of John Lovana and Adrian Smith Bilo.

Putting it as succinctly as one can, his defence is that it was not within his contemplation that anyone should be murdered or in receipt of grievous bodily harm, and in any event he was not at the beach at the time material to the beatings of John Lovana and Adrian Bilo nor did he encourage those who beat Lovana and Bilo and he did not physically touch them.

Kaptendou pleaded guilty at the outset to the charges of wrongful confinement of some 29 villagers, 11 counts of arson and one count of membership of an unlawful society.

He has delivered a Dock statement in the conduct of his defence. I have taken into account what he has told me. It was not sworn evidence. I give it due weight. What he told the Court now follows:

Kaptendou sets out a history of his associating with the GLF and in doing so begins with his having left the Melanesian brotherhood in 1983 of which he had been a member for the past five years.

In 1987 he was appointed ‘Catechist’ by his church. In 1998 he heard news of the formation of a Group known as the GRA. He did not join the group but supported the idea of the formation of such a group.

In 2000 he was appointed the Chairman of a zone containing 5 local churches and his own church and from there he worked looking after those churches.

In 2002 he heard that there was to be a meeting between Sir Allen Kemakeza and Harold Keke at Peachakuri village. Kaptendou says although he was not personally invited to attend he decided to do so because he was interested in the outcome. So he went to the meeting at Peachakuri between Sir Allen Kemakeza in company with ‘Y. Sato’ and ‘Augustin Geve’ talking about peace.

The leader of the Malaitans on Guadalcanal, says Kaptendou, was one Jimmy Rasta. Jimmy Rasta was keen to make peace with the People of Guadalcanal and Harold Keke. To that end Harold Keke called a meeting of the chiefs and the big men of the Church, again at Peachakuri, three weeks after the first meeting.

Harold Keke had peace talks in mind and Jimmy Rasta and some Malaitan leaders were invited. They were to meet again at Peachakuri village. Jimmy Rasta and his leaders failed to attend.

A feast had been prepared at Peachakuri. Kaptendou and the others waited. Keke came and announced that the Rasta group would not be attending after all. The food was eaten. Those assembled then went back to their homes.

Two weeks later Keke wrote to Michael Kaptendou inviting him to a fellowship prayer meeting with Keke and others at Inakona a village on the South East Weathercoast. Kaptendou attended. It was a prayer fellowship fasting meeting which lasted a week.

At the conclusion of the week, Kaptendou says that he returned home to his village with Harold Keke’s programme about the service. Not long after he received another letter from Harold Keke inviting Kaptendou to a repeat the same week long fellowship.

Kaptendou accepted Keke’s invitation but sent nine of his church members - ‘boys’ to represent him. They were due to stay for a week but returned the Saturday. They were sent back with the explanation from Keke that the JOG had attacked the ‘West side - at Haliatu village’.

Another fellowship meeting was organized after that and Kaptendou sent six boys to a fellowship gathering, due to be of one week’s duration, this time at Calvary village. While they were there, a JOG group led by ‘Francis Netana and Reginald Billy ‘threatened the fellowship and said that they should join the JOG at the place where Harold Keke was staying’.

When the boys reported the threats to Kaptendou he told the boys that they would neither join the JOG nor the Keke group that they were to remain ‘in the middle’ – as I understood his statement neither siding with the GLF nor the JOG, since he and the boys were from Guadalcanal.

Thereupon, Kaptendou says, he moved the ‘three villages he was looking after’, into the bush to observe what was about to happen. He moved the villages to the bush he says, because the JOG had started to threaten him and the villagers.

Kaptendou said that he always willing to join in and assist Harold Keke with the program of the church. In addition he was supportive of the GRA but he was still observing what was happening and that was why he moved in to the bush with his people and had not sided with the GLF.

Then the JOG attacked his people took three of this boys and beat them and took two away to Poisoghu village. The following day the JOG returned with further threats. He advised the people to make a customary offering of ‘a pig and food and $1000:00’ to the JOG to stop them threatening his people. The JOG received the gift. The following day the JOG came down and again ‘threatened the people and beat two boys and tied up their chief and threatened the women’.

Kaptendou says that he himself, had already gone bush because the JOG officers had threatened him by saying "if you don’t approve of your people joining the JOG then we will put a bullet in your brain".

Kaptendou then says he sent a message to his villagers to ask the Chiefs at Veuru village if he and his villagers could move and live at Veuru. Permission was given. Kaptendou and the villagers moved there in August 2002.

When his people had moved to Veuru, the JOG, Kaptendou says, burned their villages and their contents at Savuna, Iruiru and Sanilisi villages. The JOG he says ‘stole chickens pigs spoiled their gardens and burned the houses in which he and his 33 families had been living in the bush’.

He said in his statement to the Court that on 14 June (a Saturday) he heard that some of Harold Keke’s boys had gone over to Marasa village. So he joined them. He told the Court - ‘I have already told that story to the police’ (I took him to be referring to Exhibits P43 and P44) and that he did not plan to repeat what he had already told police. He says at first he did not believe that Keke’s boys had gone to Marasa so he just remained quiet.

I now interpolate what Kaptendou said to police about how he became involved at Marasa at this point.

Kaptendou told Det Inspector McIntyre and Det Cst Sae at Kolina on 9 October 2003 [see Exhibit P44] that (in summary):

. on Monday morning he and the others were ordered up to the villages by the ‘operation commander’ [Ronnie Cawa] to bring people down and did so [Qs.32 and 53].

. He walked to Marasa with Ben Baku (or Dika) and Gedi and carried a GPMG [Q.46].

. He went because he knew that if he disobeyed orders he would be punished.[Q.74].

. none of those at the villages carried weapons only the Mamana road security guards[Q.81].

. I followed I came to the beach and then went up again to do security I was up doing security for two hours [Q.97].

. I saw money torn up on the beach after I came down. I didn’t see Tose holding it [Q.104+].

. I spoke to the villagers on the beach and told them that I wrote a letter to Father Longarata saying ‘don’t let the JOG come they bring death’[Q.108].

. Of the villagers I knew Hala, Pego, Magale, Mangale, Lauvota, Longarata, Esmie Mazini Nicodemus Valena, Tabulo, Stanley Suala Thomas Venjo, Eddie Leo, Kitolo, Peroa, Edwin Dato, [Q.124+].

. I burned the house of Tokovi, his kitchen, Jonathon Leo, Stanley Suala I did not have their permission. I was angry with them and I was following orders by Ronnie [Q. 163 & 171.

Resuming the Dock statement which Kaptendou made to the Court he said that on the Tuesday 17 June he returned to Veuru from Marasa to get food arranged for the Marasa villagers and presumably for the GLF members. He says that on arrival at Veuru he ordered the people to prepare food and went to get some sleep.

Cawa came to Veuru while Kaptendou was asleep and sent a boy to ask Kaptendou to come with him back to Marasa seaside and to act as his translator for a speech Cawa proposed to make to the people. Kaptendou agreed. He left with Cawa. The food was not ready and was not brought.

Kaptendou says that when he came back with Cawa on the Tuesday he told the villagers that we were going to burn their houses but said that the words ‘came from his mouth but not from my heart ‘– that "it wasn’t my thinking but I just said what someone else had told me to say."

After Marasa, Kaptendou went back to Veuru. There he received news that Keke wanted to make peace. He, Kaptendou, was happy to hear the news.

Then from Mbiti the news came to Kaptendou that Keke wanted to see him and others. Harold said that ‘big men were coming to make peace.

Kaptendou said that it was only after Marasa that he was referred to as ‘Commander’ but he was not a Commander - not in the GLF or at all. Since Marasa, he says, ‘his heart has been with God.’

Kaptendou went to Mbiti. He met Ben McDevitt (the then Participating Police Force Commander) and Nick Warner (the RAMSI special Coordinator) and he heard their speeches. They promised that RAMSI would make peace for the GLF.

Keke reassured Kaptendou that it was so that RAMSI would make peace and then appointed Koroni to take over the GLF following his going to the ship by helicopter. Then the RAMSI soldiers came and took the weapons of the GLF boys and broke the weapons at Mbiti.

Just 2003, he received a call to attend a meeting at Duidui. He did not go but sent his boys to attend the meeting. When they returned the boys told him that ‘some ( GLF) would go to the place where Harold Keke was staying and they would learn mechanics and carpentry and the like’.

Kaptendou said that the boys told him that "‘you will be lying’ - that I helped kill people or burn houses, so that they will take me to the place where Harold Keke stays so that I could learn mechanic and carpentry".

Kaptendou was told by the ‘boys’ that he would be next to go with RAMSI police. And he was. On Wednesday 8 October he walked to Kolina and was taken into custody. He says that he reported to Police honestly what he did at Marasa. He was taken to Rove Prison and there he remains to this day.

On 7 October 2006 he sent a message to his chiefs at Kologaugau, Iruiru, Sanlisi, Savuna and Veuru villages and instructed them to make a reconciliation with the people at Marasa. On 7 October 2006 the reconciliation was brought about from his own instruction.

Kaptendou completed his Dock statement by apologising to his first cousin Charles Tokovi, his uncle Jonathon Leo, and his uncle Stanley Suala for burning their houses. He acknowledged that what he did was wrong and he is truly sorry for what he did and that what he was telling the Court in his Dock statement was the truth.

Counsel for Kaptendo helpfully analysed the evidence of the various eye-witnesses, who purported, says counsel, to identify Kaptendou and his activities at certain significant times during each of Monday, Tuesday and Wednesday.

She adopted the submissions of Mr Benn as regards the joint criminal enterprise namely that any agreement to kill was a new agreement not reached until Lovana was cut and that the Crown cannot now rely on an altered or extended argreement implicating Kaptendou or any of the accused. I have already rejected this submission and made my finding that the joint criminal enterprise commenced much earlier and that recourse to section 22 of the Code is unnecessary.

Kaptendou was the subject of reference to a greater or smaller degree by many of the witness villagers. His counsel relied in submissions upon a comparative time frame which she urges can be shown if one considers her client’s movements when bringing villagers to the beach, by relating distance and times referred to by the witnesses.

There is force in her analysis. I do not propose to repeat her closing submissions which I have noted and to which I give due weight. They are to be found in the transcript [day 62 page 61 et seq.]

Principally counsel was able to establish from police officer Liversidge that for him to walk from the Marasa beach to Samaria it took him about 30 minutes; from Samaria to Tasali about 28 minutes, from Veravaolu to Kohabuha 10 minutes and from Tasali to Horobogho took 10 minutes. The thrust of her arguments in this regard were that the proven distances and times cast doubt upon the evidence of some of the eyewitnesses as regards her client’s presence at the beach at certain times.

The witness Rev Longarata saw Kaptendou he says in his village Kohabuha, ordering witnesses down to Veravaolu. Longarata says that Kaptendou was not on the beach when Longarata first arrived there – that Kaptendou arrived after Longarata. Yet Longarata has both Bilo and Lovana standing in front, injured, as he arrives at the beach. Torn money was in their vicinity and no Kaptendou present according to him. It is significant to note that Kaptendou says that he knew Rev Longarata before Marasa.

Longarata says that the Kaptendou (whom he refers to ‘the leader’) was talking to the villagers once he’d arrived. Longarata sees no physical attacks by Kaptendou on the boys.

I am asked by counsel therefore to conclude that it is reasonably possible that Kaptendou was not yet back from clearing the villages when the early beatings and the money being torn and forced into the mouths of the two victims had occurred as Kaptendou himself told police.

Kaptendou said to police that when he came back to the beach Lovana was standing and tied (answer to question 98). This places him at the beach prior to Lovana being cut. He also said that he spent time talking to the villagers on the beach. By his own account therefore, he was present on the beach for some time and I find that he was present before Lovana was cut. This is confirmed by the fact that numerous villagers gave evidence as to his presence at the beach and to his acts and statements while there. In his statement he said he was conducting security duties for 2 hours prior to coming back to the beach.

The above provides ample evidence as to his participation in the joint criminal enterprise. I find that he was encouraging the other accused by his presence and his assistance both at the beach and in the conduct of security duties. I accept and find that while it is a reasonable possibility that he did not physically beat the deceased men, what of his bringing down the villagers and what of his exhortations to them? I find that he knew of and that he was committed to the joint criminal enterprise. He captured people and detained them. His role as a Chief made him known among the people. He played a serious role in the whole exercise. If his heart did not go with the things he said at Marasa to the villagers, he still said those things to a terrified and helpless group.

Kaptendou was a vocal member of those addressing the villagers at the beach. According to some of the villagers he acted as a leader and was known as ‘Commander’.

I infer from all of the evidence that he understood and accepted all along that orders were to be obeyed and that any JOG supporters were to be killed dead or inflicted with grievous bodily harm. He was encouraging of the plan and continued in his encouragement following the identification of Lovana and Bilo. His "mind went along with that plan".

I am satisfied from the whle of the evidence that he is guilty of the murder of Lovana and Bilo on the basis of his participation in the joint criminal enterprise to kill Lovana and Bilo or inflict grievous bodily harm, to capture and hold the villagers and to burn their houses. In each of the counts I find him to be a person who aided (section 21(b)(c) of the Code) in the objectives of the plan by encouraging by his presence and by carrying out security. He of course has pleaded guilty at trial on his own confession to the other counts in the information. I formally find him guilty of all counts.

The accused Pitakaka in this trial was competent to give evidence but chose not to do so. He declined to speak to police. In both respects he was simply exercising a right to remain silent. The right is one which he possessed and possesses. In that sense I give full acknowledgement to the rule in R v Bathurst (1968) 2 QB 99 at 107, 108. I do not draw any adverse inference from the omissions.

Pitakaka appears have a number of ‘otherwise known as’ names (to use a neutral phrase), for some reason. He is known alternatively as Peter Tosi, Peter Toss, Pita Tosi and Peter Tose, Peter Caradine or Caradine Pitakaka and perhaps others.

In his address the Prosecutor referred to Pitakaka. He said [transcript day 60 page 39] that the co-accused Owen Isa places Pitakaka on the beach on Monday notwithstanding suggestions to the contrary by counsel.

The Crown case is that Pitakaka is an member of the GLF in respect of all the criminal enterprises and that he is snared by the joint criminal enterprise rule in that by his presence and knowing the objectives and physical actions of other members he encouraged the others to commit the offending he was a participant as a principle in the second degree pursuant to section 21(b) of the Code.

The conduct of his defence appears to have been that he has not been proved by the prosecution to have been present at the material times and those who say he was so present are mistaken or are giving hearsay evidence.

The prosecution is left here with the evidence of the eye witnesses who report his presence and his action. I include as ‘eye-witnesses’, including the brothers Isa. The evidence of the Isa brothers is however to be approached with care, for they may have interests of their own to serve. (see R v Prater [1960] 2 QB 464 and latterly, R v Jones (Wayne) and Jenkins [2003] EWCA Crim 1966; [2004] 1 Cr. App. R. 5 CA.). I conclude that I simply do not accept their evidence about Pitakaka and his alleged activities.

If a prosecution case is one which utterly depends on identification evidence then the Court has an obligation to advert to the warning that where the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the Judge should warn the jury of a special need for caution before convicting the accused in reliance on the correctness of the identification or identifications.

Turnbull goes on to warn of the need to examine closely the circumstances in which the identification came to be made.

One of the witnesses, Esmy Mazini said "I know his name is Pitakaka because two nights and three days is too much even if it was an animal I would know it’s name." [transcript day 31 page 22.]

Ms. Mazini’s evidence is that she had never seen him before. She became aware of the name Pitakaka [transcript page 23 day 30] when she first heard the name Pitakaka on the beach ‘I got it because they called their names out at the beach’ . . . ‘he was the one who ordered Chris and Allen a lot’.

Ms. Mazini was cross examined about hearing Pitakaka’s name. She said at [day 33 page 39] - the name Pitakaka, I heard it being shouted out’.

Significantly she says [transcript day 31 page 6 et seq.] ‘I saw Pitakaka take a stone and he hit him (John Lovana) on his cheeks his two cheeks’.

I do warn myself about Ms Mazini. Ms. Mazini has every reason to note Pitakaka’s appearance and his behavior. What was done in her presence by people (of whom she says Pitakaka was one), was unusual, atypical, exceptional behavior. It was moreover terrifying. Strangers, some armed, capturing villagers forcing them to walk in some cases a long way to the beach, sitting them down, beating young men whom she knew to death in her presence, would give her every reason to note well who the perpetrators were and what they looked like.

The flaw is that she may well have settled the wrong name on the correct figure or vice versa. She was not asked to identify that person as Pitakaka. If she had it would have been dock identification and valueless in the absence of identification parades and so on.

Counsel for Pitakaka went through the evidence of those who spoke of Pitakaka. It amounts to this:

Arthur Magale said he had never seen Pitakaka before in his life and he knew him because ‘he is Ronnie’s brother and Harold’s uncle.’

Thomas Venjo says that at the time of the killings he did not know Pitakaka but he introduced himself after the killings and gave considerable detail about things which Peter did - including wearing a singlet. He later describes Pitakaka as wearing a shirt. He made no reference to Pitakaka in his statement to police at the early stage which of course goes to the assessment of Venjo’s credit as a witness. I assess him to be a truthful witness whose evidence is sometimes confused and in the latter sense, unreliable.

Martin Maganamate knew nothing of Pitakaka before16 June but identified him because all others would call out his name.

Eddie Leo said Pitakaka introduced himself on the beach but that he had not seen Pitakaka before 16 June. He identified Pitakaka as being the one who released the people on the Wednesday when the weight of the evidence points to Cawa and Kaptendou - Cawa making speeches and Kaptendou translating and releasing the people.

Michael Lovana had not met Pitakaka before and recognized Pitakaka because he mentioned his name.

Stanley Suala, Jack Rauna, Charles Tokovi, Patteson Matakako and Ivy Mataragi say nothing of Pitakaka.

Sila Peroa says that he heard Pitakaka speaking after the deaths of John Lovana and Adrian Bilo.

Counsel for Pitakaka submits as to the co-accused, Gedily Isa, he says that he knew a man called Pitakaka Carradine and he knew him simply as ‘Peta’.

I regard the witness Gedily Isa as being an untruthful man. I formed the view that the penny slowly dropped as Counsel for Pitakaka cross-examined him into agreeing that while initially he had said that Pitakaka had been at the beach on the Monday morning he was now able to be sure that Pitakaka was not on the beach on Monday morning. It was in my judgment a patent attempt to rescue Pitakaka and quite untrue. I cannot rely on Gedily Isa on this issue.

Counsel submits that Gedily Isa does not mention ‘Pitakaka’ in his interview with police. That is not so. ‘Pita‘ and ‘Peter’ are mentioned in a way which clearly the translator took to mean Pitakaka at Qs 31 and 49. Notwithstanding those exchanges, the contents of the interview of Gedily Isa are not admissible against Pitakaka or the others.

I cannot satisfactorily conclude that the evidence of Owen Isa may be depended upon concerning the fact or otherwise of Pitakaka giving orders. Great care is needed when considering the evidence and whether it may be used against a co-accused. I conclude that I am unable to use the evidence of Owen Isa safely to conclude that Pitakaka was even present at the beach, let alone giving orders. Owen Isa says that someone must have given an order to kill dead and "I thought that it must be Pitakaka but in the absence of commander, anyone can give an order". He denied that he heard such an order when McColm put it to him.

The evidence presented by the prosecution against Caradine Pitakaka is challenged by Pitakaka’s plea of not guilty and the cross examination of his counsel. I conclude that I am unable to be satisfied that Pitakaka was present at Marasa Beach at all material times Monday, Tuesday and Wednesday of June 2003 acting in the furtherance of the joint criminal enterprise or at all.

It is probable that Pitakaka was extensively involved in the planning and execution of the joint criminal enterprise but the Crown has not led evidence which enables me to conclude beyond reasonable doubt that Pitakaka was so involved.

I find Pitakaka not guilty of each of the counts relating to the murders of John Lovana and Adrian Smith Bilo, to the wrongful confinement of the villagers at Marasa and not guilty of the arson charges brought against him. He is guilty however on his own confession of being a member of an unlawful society.

In this extensive and lengthy trial I have had the opportunity to consider the evidence of more than 30 witnesses – eyewitnesses who were present at Marasa at the relevant times.

In assessing the witnesses’ evidence I have taken into account the circumstances in which events happened in particular the conflicts apparent in the evidence of many witnesses. Counsel have been of considerable assistance in pointing out these disparities in their submissions.

I have noted their submissions in this regard along with the evidence of the Isa brothers and the statements of Bosage and Kaptendou.

I am satisfied beyond reasonable doubt about the following matters. That at all material times but in particular between the 16th and 18th of June 2003 (inclusive):

. the organization known as the Guadalcanal Liberation Front ("the GLF") was an unlawful society [see Exhibit P48].

. each of the accused,Ronnie Cawa, Gedily Isa, Alan Bosage, Owen Isa, Michael Kaptendou and Caradine Pitakaka (hereinafter "the accused") was a member of the GLF.

. each of the accused men, Ronnie Cawa, Gedily Isa, Alan Bosage, Owen Isa and Michael Kaptendou were present or in the vicinity of the beach at Marasa Bay or were approaching Marasa Bay on Sunday 15 June with the intention of intercepting two Joint Operations Group vessels and to steal ammunition and weapons and to that end were armed with some military style weapons which included SLR and SR 88 rifles and a general purpose machine gun – ‘GPMG’. I am satisfied that the orders they were given came from the man Harold Keke.

. each of the accused men was prepared to follow orders to carry out duties in connection with his membership of the GLF.

. one Harold Keke was and was regarded as by the members as the overall commander of the GLF.

. the accused Ronnie Cawa was Keke’s second in command and carried the title ‘Supreme Operational Commander of the GLF’.

. the accused Michael Kaptendou was a senior member of the GLF and went by the name ‘Commander’ among the membership of the GLF.

. I infer and find from the whole of the evidence that it was widely understood by the members of the GLF present at Marasa Bay on 16 June, that the villagers were to be brought to the beach by members including the accused and there to be confined and kept confined until further orders.

. I find that the intent of the membership of the GLF in so confining the people was to warn the villagers of Marasa in the strongest possible terms that if they gave support to the Government force known variously as the Joint Operations Group or Joint Operations Force they would suffer severe consequences at the hands of the GLF.

. I find that the accused Owen Isa encountered John Lovana at the village right at the end of Marasa [transcript day 56 page 63]

. I find that while in the process of accompanying the young man John Lovana to the beach the accused Owen Isa [day 56 page 66 ] formed the belief as a consequence of what he had been told by another member one Koivo, that John Lovana was associated with the Joint operations Group and had been present at Marasa Beach on Sunday 15 June actively assisting the Joint Operations group ‘one of the men that also ruined the people’ [day 56 page 66].

. I am satisfied that Gedily Isa, in company with the accused Ronnie Cawa, on completion of his duties directing the villagers to the seaside, departed in a boat with the man Kronical Kleary (‘Koroni’) and another GLF member William Hence to the village of Sughu in pursuit of one of the two boats used by the Joint Operations Group which had been robbed of it’s cargo of ammunition weapons and cash but which had escaped following the robbery.

. I am satisfied that there was a widespread belief among the GLF members that John Lovana was assisting the Joint operations group and was a ‘Government spy’.

. I am satisfied that there was an understanding or belief among the members of the GLF that if any person was either armed or was offering support to the Joint Operations group in the ammunition robbery operation at Marasa that the GLF member should ‘kill them’ that is to take the life of the person.

. I am satisfied that a large number of villagers probably in the order of 400 were directed by members of the GLF including the accused Cawa, Kaptendou, Gedily Isa, Owen Isa and Allen Bosage, in the very early morning of Monday 16 June to leave their houses and to go to a ‘meeting’ at the seaside at Marasa Bay.

. the ages of those villagers, the men women and children who went to the beach, ranged from one month [see Rhoda Kalesi transcript day 23 page 19] to 110 years, [see John Hala day 21 page 55].

. I am satisfied that on reaching the beach John Lovana was directed by the accompanying GLF member to stand in front of the villagers who were sitting where they had been told to sit by GLF members.

. I find that at a time very soon after he arrived, the accused Owen Isa recognized and ordered Bilo to join Lovana at the front of the villagers down on the beach and called out ‘this is one of the men we’re looking for" [ T day 56 page 68] and commenced to beat John Lovana by kicks and blows with their hands. I find that the beatings probably commenced between 10 and 11:00 am on 16 June. I am satisfied that the accused Owen Isa inflicted kicks and hard blows on John Lovana at this time.

. I find that soon after the beatings commenced Owen Isa noticed the Adrian Smith Bilo seated among the villagers and that Owen Isa went to Bilo, kicked him and ordered him to stand next to Lovana in front of the crowd. I find that Owen Isa recognized Bilo as being a ‘gunman’ for the JOG on the evening of Sunday during the robbery of ammunition.

. I find that the two men Bilo and Lovana were ordered by the GLF men to dance and then to kick each other.

. I find that Bilo was immediately systematically kicked and beaten by Owen Isa and the other members of the GLF and that at the same time the beating of John Lovana continued.

. I find that money was produced by one member of the GLF and torn up. It was then placed in to the mouth of Bilo and the mouth of Lovana and that one GLF member forced the torn banknotes into the mouths using a stick or a stone to force the money into the mouth of each man.

. thereafter I find that coconut husks were forced into Bilo and Lovana’s mouth and that they were ordered to eat the husks.

. I find that there was no evidence of shredded bank notes or coconut husk having been found by the forensic pathologist Dr Dodd in the airways of the remains

. I find that during the beating the boat carrying Cawa, Hence and Gedily Isa and a captured JOG boat returned from the village of Sughu.

. I find that those who had been beating Lovana and Bilo left off the beating ran to the place where the boat containing Cawa, Gedily Isa and William Hence was beaching.

. I find that at that time John Lovana then ran off towards the nearby Lamulaghi River in order to escape. I find that Bilo started to run away but was told to return to his position by villagers some said.

. I find that Lovana was caught up with by GLF members and that he had entered the river at that time. I find that he was ushered back to a position near the rear of the seated group of villagers where he fell down and that his hands were tied behind his back.

. I find that while down, the GLF member Christian Sopa inflicted a cut diagonally across Lovana’s back with a bush knife he Sopa was carrying causing John Lovana a wound measuring.

. I find Lovana was then walked or was dragged back to the position in front of the villagers back next to Bilo.

. I find that the systematic beating of John Lovana and Adrian Bilo resumed and that the attacks on the already injured Bilo and Lovana increased in intensity in that a rifle butt was used to hit Lovana and that lengths of timber of various sizes and rocks large and small were used to beat the men.

. the largest rock was one described by several witness as being about "2 feet long by 18" wide were used by GLF members and held and brought down on to the chests of the now prone Lovana and Bilo.

. I am satisfied that at a time proximate to the use of the large rock and the heavy timber, that the death of Bilo and Lovana occurred. I am unable to say which of the two died first.

. I find that their deaths of Lovana and Bilo occurred in the very early afternoon of Monday 16 June 2003.

. I find that not long after the deaths occurred the witness Reverend Lionel Longarata was called out by the accused Kaptendou and his hands were tied and he was placed next to the bodies of the boys and that he remained in that position until the following day Tuesday 17 June except for short periods when he needed to "throw waste or piss".

. I find that the GLF members kept the villagers on the beach until the evening of Wednesday 18 June.

. I find that John Lovana and Adrian Smith Bilo died as a consequence of blunt force trauma to the chest of each man, at Marasa beach on Monday 16th June 2003 and that the relevant injuries were inflicted in each case by a large rock wielded by a member or members of the GLF. I have already found that Ronnie Cawa, Gedily Isa, Owen Isa and Michael Kaptendou were participants in a joint criminal enterprise to bring about the deaths or infliction of grievous bodily harm on both Lovana and Bilo. I find that the act or acts causing death were in furtherance of that plan.

CHARGE	CAWA	G. ISA	BOSAGE	O. ISA	KAPTENDOU	PITAKAKA
MURDER (John Lovana)	GUILTY	GUILTY	NOT GUILTY MURDER BUT GUILTY OF MANSLAUGHTER	GUILTY	GUILTY	NOT GUILTY
MURDER (Adrian Bilo)	GUILTY	GUILTY	NOT GUILTY MURDER BUT GUILTY OF MANSLAUGHTER	GUILTY	GUILTY	NOT GUILTY
WRONGFUL CONFINEMENT 28 COUNTS	GUILTY OWN CONFESSION	GUILTY OF COUNTS 3-30 INLCUSIVE BUT NOT GUILTY COUNT 25	GUILTY OWN CONFESSION	GUILTY OF COUNTS 3-30 INLCUSIVE BUT NOT GUILTY COUNT 25	GUILTY OWN CONFESSION	NOT GUILTY
ARSON 11 COUNTS	GUILTY	GUILTY	GUILTY	GUILTY AND ON COUNT 33 ON HIS OWN CONFESSION	GUILTY OWN CONFESSION	NOT GUILTY
MEMBERSHIP OF AN UNLAWFUL SOCIETY	GUILTY OWN CONFESSION	GUILTY	GUILTY	GUILTY	GUILTY OWN CONFESSION	GUILTY OWN CONFESSION

High Court of Solomon Islands

R v Cawa [2007] SBHC 26; HCSI-CRC 312 of 2004 (19 April 2007)