HIGH COURT OF SOLOMON ISLANDS

Case name: 	R v Felega 	
		
Citation:		
		
Date of decision: 	14 October 2024	
		
Parties: 	Rex v Jonathan Felega 	
		
Date of hearing: 	28 & 29 August 2024 (Trial) 	
		
Court file number(s): 	12 of 2024	
		
Jurisdiction: 	Criminal 	
		
Place of delivery: 		
		
Judge(s): 	Keniapisia; PJ 	
		
On appeal from:		
		
Order:	I will convict JF for the murder of PH. I impose a life imprisonment sentence, being the only mandatory punishment for murder. I will convene next to determine JF’s parole entitlement period.	
		
Representation: 	Counsel; Mr. Kelesi (DPP) and Ms. Oroi for the Crown.
Counsel; Mr. Alasia for the Defendant.

Catchwords: 		
		
Words and phrases:		
		
Legislation cited:	Penal Code Act [cap 26]S 202 (b), S 207	
		
Cases cited:		

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 12 of 2024

REX

V

JONATHAN FELEGA

Date of Hearing: 28th & 29th August 2024 (Trial).
Date of Judgment: 14th October 2024.

Counsel; Mr. Kelesi (DPP) and Ms. Oroi for the Crown.
Counsel; Mr. Alasia for the Defendant.

Keniapisia; PJ
JUDGMENT ON A CHARGE OF MURDER 
1. 	On the 10/8/2023, Mr. Peter Hamusin (“PH”) left his house at Minisi Settlement (“MS”) on Moe Island, East Russell, Central Province and went to Sagelua Village (“SV”). According to his wife Ruth, PH went to SV to help prepare for a community organised activity on land matters. PH stayed the whole day there and late into the night. PH was returning to MS after 01:00 am in the early hours of 11/8/2023, when he met his fate on the bush track (road) between SV and MS.
2. 	Mr. Jonathan Felega (“JF”) and his nephew Renaldo Keraho (“RK”) also stayed late the same night at SV. JF and RK were also returning to MS, around the same time. JF and RK came across PH lying on the road between SV and MS seriously injured and unconscious.
3. 	Mr. JF is charged for the murder of PH. JF denied the charge. Trial proceeded from the 28/8/2024 - 29/8/2024. The two issues, I must determine are: - 
(i) 	Whether or not JF unlawfully caused the death of PH?
(ii) 	Whether or not JF had malice afore-thought to cause death or grievous bodily harm to PH? 
	Whether or not JF unlawfully caused the death of PH?
4. 	On the night of 10/8/2023, JF and RK left MS and went to SV on Moe Island to buy betel nut. After buying betel nut at Kasimiro’s house, JF and RK went to Isaiah Selo’s house. JF joined other men at Isiah’s house to drink beer, tell stories, play music and dance to the music (drinking party). RK went to a nearby house belonging to his grandmother Midi to wait for JF there. 
5. 	The other men JF joined for the drinking party at Isaiah’s house are; PH (deceased), Sam Agalo, Isaiah Selo, Bruno Sale, Francis Selo and Reginald Hamusin (brother of PH). The drinking party lasted until 12 midnight of 10/8/2023 and into the early hours of 11/8/2023. PH and his brother Reginald left Isiah’s house at around 01:00 am on 11/8/2023 and walked back to MS.
6. 	Not long after, JF and RK also left Isaiah’s house and walked back to MS. JF and RK called in at John Veani’s house along the way. JF took a plate of cooked fish and cooked banana from Veani’s house and they followed PH on the road back to MS. At this point on I will focus on the evidences from JF and RK. Their evidences disclosed their encounter with PH lying unconscious and seriously injured on the road back to MS.
JF’s evidence – Record of Interview (“ROI”) (Exhibit PE10) dated 21/08/2023
7. 	The ROI made in the Pijin language is tendered as PE10. At QA 36, the main allegation was put to JF. I will translate into the English language: - 
(i)	On Thursday evening the 10/8/2023, you were at SV to look for betel nut. Sometimes after 01:00 am early morning of Friday 11/8/2023, you and your nephew Renaldo were returning to your village at MS.
(ii)	On the road when you were about to turn onto the road that goes straight to your house, you saw a man holding a half firewood which has fire at one end on the other road on top of the cliff that also goes to the village (MS). You knew that person was PH your cousin brother. He was at SV when you were there.
(iii)	You walked after him and caught up with him on the cliff and called him and punched him with your closed right-hand fist.
(iv)	Your punch landed straight on his mouth, so he fell backwards, and landed on his back. Then you held his two hands and dragged him towards the high end of the cliff. Before you reached the end of the cliff, you threw him down and continued to kick and punch him. Then you lifted him up and pushed him over the cliff.
(v)	Then you and your nephew went back on to the same road where you left to come up to the cliff. And went around to where PH landed at the bottom of the cliff. There you rubbed his face with his shirt and carried him to the village. When you came near to your area, you left him there and went to call people to come and see PH who fell from the cliff.
8. 	JF’s answer is recorded at QA54 of the ROI. I will translate into the English language: -
(i) 	True story is like this. Early in the evening my nephew and I went down to SV. We finished looking for betel nut and went up to a group of men at Isiah’s house, who were about to start a generator to charge their mobile phones. I reached Isiah and the men. We tell stories until 12:00 mid-night. That time my nephew was playing with Isiah’s boys and went to sleep at my aunt Midi’s house.
(ii) 	Then Isiah Selo, Bruno Sale, Sam Aqalo, Francis Selo, Reginald, PH and I were having a good time telling stories and laughing until midnight. Then I asked Isiah, if my nephew was playing inside his house. Isiah went to check and told me that RK was not inside his house. He told me to go and check at Midi’s house. I found that he was there. I asked aunty Midi to send her son to wake my nephew up. Then we sat down for a little while to chew betel nut. After that my nephew and I went back home to MS. 
(iii) 	We went to brother John Veani’s house in the bush, went inside his kitchen, took cooked fish and cooked banana in a plate. Then I told the small boy to take our torch light, as I was holding the plate of fish and we walked down to our house. My nephew walked in front. We went down the cliff and walked a bit further when the small boy flashed the torch light on PH lying down on the road.
(iv) 	Then he said, “This man must have fallen down because I saw blood on his face, blood in his mouth and nose”. “His eyes too were rolling around”. I gave the plate of fish to the small boy. I helped PH to sit up. And I called his name twice, “Peter! Peter!” He did not respond. I lifted him up. I put him down gently. Then I told my nephew I will go and call his brothers and wife to come and help me to carry him. I ran to their house.
(v) 	I woke John Hamusin. John told me to wake his wife Ruth. I came back to John. Both of us went to carry PH. John carried his two legs. I carried him under his two arm pits.
(vi) 	We reached PH and his wife’s house. Ruth washed him with water and called out his name. But he did not respond. Then Reginald Hamusin came and told us that he was very drunk. He told us to leave him to sleep until he has recovered before we could ask what happened to him.
(vii) 	So, we lifted him to the veranda of his house and I went down to my house. Not long after, one of my nieces, Miriam Hamusin came and told my father to perform custom magic rituals over PH, in case he was killed by Vele spirits.
(viii) 	My father went to PH’s house, but discovered that PH already died. My father came back and told me that PH already died. So, we went to PH’s house and stayed there until day break. That is my story. That morning we took his body to Louna village. He was buried there.
RK’s evidence – 3rd statement to the police dated 20/8/2023 (Exhibit D3)
9. 	Defence tendered RK’s statement to the police dated 20/8/2023, made in Solomon Pijin and marked as Exhibit D3 after cross-examination. This is a crucial evidence against JF. I will reproduce D3 in English: -
(i) 	Today I will tell my true story about what I saw on the night of Thursday 10/08/2023 but already into the early hours of Friday 11/08/2023. The two previous stories I told the police were false, because I was afraid of my uncle who was also at Yandina police station at that time. Additionally, I did not want to tell the police the true story because my uncle told me not to tell the police the true story. I felt intimidated to talk because my uncle was there too that time. 
(ii) 	On the night of 10/08/2023, I was already asleep. My uncle Jonathan came and woke me up to go to SV to buy betel nut. We used a torch to go to SV because it was already dark.
(iii) 	We went to Kasimiro’s house, bought betel nut, chewed betel nut and went to Isiah’s house. There I saw some men were drinking beer and playing music. The men I saw drinking beer at Isiah’s house are; Isiah, Sam Galo, John Midi, Fabi, Francis Tifa, Reginald (brother of PH) and PH, the deceased. They sat down and were already drinking Sara beer.
(iv) 	My uncle Jonathan went and sat with Fabi. I went to the veranda of Isiah’s house and sat with Francis Lifa (Selo), who was the DJ man playing the music. I saw Isiah gave one Sara beer to Jonathan and he sat down to join the drinking party with the group.
(v) 	At that time when I saw PH, he was wearing a red cut shirt with number “23” in front. The words at the back of the shirt, I do not know because I cannot read. That was the shirt that the police showed to me. My uncle Jonathan was wearing a black t-shirt. 
(vi) 	As I listened to the music at Isiah’s house, a boy, Vincent came and took me to my grandmother Midi’s house behind Isiah’s house.
(vii) 	I slept for quite a long time at Midi’s house. Then Raymond came and woke me up and told me that Jonathan wanted us to go back to our place at MS. I came and sat for a while, with the men who were still telling stories and playing music at Isiah’s house. I went and sat with my uncle Jonathan. Then I heard Reginald, brother of the deceased said to Isiah, “PH and I will leave now”.
(viii) 	PH the deceased went inside Isiah’s kitchen, came outside and I saw him holding a firewood stick with fire on it. He went back to MS, following Reginald, who left earlier. My uncle Jonathan and I sat down for a little longer at Isiah’s house.
(ix) 	Then about 12 midnight or 2 am, my uncle Jonathan and I left Isiah’s house at SV and went back to MS where we lived after we said good night. 
(x) 	We followed the main road. We were walking at a very fast pace, not at normal speed. We reached Veani’s house along the way and stopped to have a rest. My uncle Jonathan went inside Veani’s kitchen and got cooked fish and cooked banana on a plate. He did not ask for the fish before taking it.
(xi) 	Then we started to walk again. We followed the same main road. Jonathan continued to eat fish and banana as he followed me from the back. I walked in front with the torch light.
(xii) 	We followed the main road until we got to the point where we have to turn down to the short cut to our houses. Just then we saw a man holding a firewood light walking on the road in front of us. Then I knew it was PH. At the same time my uncle Jonathan said to me, “Take this road”. We did not follow the short cut to our houses. We walked up straight to the deceased. That time we were walking faster than before. Then my uncle Jonathan said to me, “Look at that man at the front, today I will beat him to death. Last time him and his brothers beat me up severely”.
(xiii) 	That time he came to the front, gave me the plate of fish and took the torch light away from me. We reached PH, who was walking slowly and my uncle Jonathan grabbed him on his left side shoulder. He pulled him back and I heard my uncle said to the deceased, “You and your brothers beat me up last time?” At the same time my uncle Jonathan flashed the torch light into the deceased’s face. Jonathan lifted up his right hand and punched the mouth of the deceased with full force. I was standing with the plate of fish close to them. 
(xiv) 	Then again, I saw Jonathan flashed the torch light into the deceased’s face and lifted up his right hand and with full force punched the left side chin (left side mouth). Then I saw the firewood fall from the deceased’s hand. Then I saw that the deceased tried to fight back but could not balance himself to stand up. Jonathan wasted no time. He kicked the left side leg of the deceased. Deceased did not fall to the ground.
(xv) 	Then I saw Jonathan bend down and picked up a dry stick of a branch of a tree 24 inches long, like a bush knife’s length and as thick as a toilet paper. Jonathan held the stick in his hand, flashed the torch light into the deceased’s face and hit the deceased’s right neck with full force. That time the deceased did not do anything. Jonathan with the big stick on his right hand hit the deceased on the right neck, the same place again. The stick then broke in the middle. At the same time the deceased fell to the ground and was shaking. 
(xvi) 	Jonathan gave me the torch. Jonathan dragged the body of the deceased to the side of the cliff. Jonathan grabbed the two hands of the deceased; facing downwards that time. By that time, he already threw the stick into the bush.
(xvii) 	At the edge of the cliff, the deceased struggled to stand up. So, Jonathan let go of him. As the deceased tried to stand up, Jonathan used his right leg and kicked the deceased’s left side ribs using full force. The deceased fell to the ground on the stone. He struggled to stand up but could not managed to stand up. At the same time I saw my uncle Jonathan used his two hands to carry the deceased facing downwards. He carried him with his right hand on his knees and left hand on his chest and threw him down over the cliff.
(xviii) 	I was on the cliff. I could hear when the deceased landed at the bottom of the cliff. He was like someone trying to breath and it sounded like a log that was thrown and landed at the bottom of the cliff. 
(xix) 	After the deceased landed at the bottom of the cliff, Jonathan turned back to me and said, “If people ask you, you will tell them that we met PH on the road and came back to the road that leads down to our house”.
(xx) 	From SV to the cliff where the deceased died, I saw him wear the red cut shirt with number “23” written in front of it. I cannot read, so I don’t know the writings in front and at the back. If police show me the shirt I can recognise.
(xxi) 	We both came down, went around the cliff until we got to a cut nut tree. I could hear the deceased trying to take his breath. I was afraid. So, I stopped and flashed the torch light towards the side of the cliff underneath the bottom of an inkori tree. I flashed the torch light and saw the deceased lying down trying to turn around to take his breath.
(xxii) 	We both moved towards him. I stood up, with the torch, as Jonathan knelt down to take the deceased’s shirt (red shirt). He used it to rub the deceased’s bleeding mouth and nose. After that Jonathan put the shirt inside a small basket that the deceased was carrying on his body. Jonathan called out the deceased’s name three times, “Peter! Peter! Peter!”, but the deceased did not respond.
(xxiii) 	Then Jonathan carried the deceased from the bottom of the inkori tree down to the road leading towards our house and left the body next to a cut nut tree. Jonathan put the deceased there behind our house. And we went to his big brother Mr John Hamusin’s house, to wake him up. Jonathan told John that “A guy is lying on the road”. John asked, “Who is that guy”? Jonathan answered, “Peter”. Jonathan and John ran to where the deceased was lying. They carried him to John’s house. They washed his head and body. I could see the deceased still breathing. Then I left and went back to my house. 
(xxiv) 	My uncle Jonathan woke up with the deceased’s family until day break. I heard the deceased’s wife crying.
(xxv) 	All the actions Jonathan did were in front of my eyes. I could see properly because I was holding the torch light. And he used the torch when kicking, punching and hitting the deceased. The torch was bright.
(xxvi) 	Only Jonathan and I were there at that time when Jonathan killed the deceased. That place is just a walking distance to our village in the bush. I didn’t know the exact time Jonathan killed the deceased. But I went to sleep a little while and it was already day break on 11/08/2023, coming out from the night of 10/08/2023.
(xxvii) 	RK’s statement mentioned the following towards the end; plate of fish was with him till morning, Jonathan took the deceased’s slipper to his house, body of deceased was taken to Louna for burial, his uncle Jonathan followed the dead body to Louna after feeding pig, Jonathan went and put the deceased’s slipper at the edge of the cliff where he threw Peter down, Jonathan is the small brother of RK’s father, the deceased is RK’s uncle because his father and uncle Jonathan are first cousins, Louna is their big village and Minisi is their small settlement. (Underlining are my emphasis).
Analysis of the evidences
10. 	RK also gave oral evidence under oath. Substantially RK’s oral evidence in chief, is identical to Exhibit D3, in terms of how RK saw JF assaulted, dragged and threw PH over the cliff. However in cross examination, RK virtually agreed to all the propositions Mr Alasia put to him (See WIT:KERAHO R – XXN Mr Alasia, page 50 -70, of transcript). Consequently, at the end of cross examination, there were two stories from RK’s oral evidence about what happened to PH on the road from SV to MS.
11. 	RK’s first story is identical to JF’s story in the ROI. That JF and RK saw PH lying on the road, with blood on his face, mouth and nose. RK’s second story is identical to Exhibit D3. That JF assaulted PH, dragged him to the cliff and threw him down over the cliff.
12. 	Counsel Alasia capitalised on this discrepancy in his written submissions to attack the credibility of RK and to call for the exclusion of RK’s evidence on the ground of an unreliable witness. At the conclusion of Mr. Alasia’s cross examination, I hold the same view as Mr Alasia. However, in re-examination, Crown managed to repair the damage Mr Alasia did. Crown put to RK that he had just told the Court 2 differing stories. And so DPP put to RK which story he will want the Court to rely on. Then RK realised what he did. He quickly managed to retract and said the second story is the true story. That JF assaulted, dragged and threw PH over the cliff. I suspected that RK was confused. Hence, he basically just answered yes to all the questions defence counsel put to him in cross examination.
13. 	Additionally, RK in answering all the questions from defence counsel in the affirmative, he effectively admitted to the defence’s theory that the police had threatened RK when they obtained his third statement on 20/08/2023 (Exhibit D3).
14. 	I realised that RK was just a child (12 years) and was going through the intimidating court process for almost a whole day. He started in the morning after the doctor and went into the whole afternoon of 28/08/2024. He was not thinking properly before answering the questions. I observed this because he was going “Ha… or Huh… What…”, with facial and body expressions of drowsiness before answering the questions. Even before counsel could finish a question or a repeated question, I noted that RK was already jumping the answer Yeah! All of RK’s answers or most of them were “Yeah” (meaning yes, to affirm all the propositions defence counsel put to him in support of defence theory).
15. 	I suspected that RK was tired, lost concentration and did not quite clearly understood the court process. I had to ask RK if he understood the court process and he confirmed to me that he did not understand the court process.
16. 	However, the important thing is in re-examination two different stories were put to RK. RK realized and said that the story on JF assaulting, dragging and throwing PH over the clip is the true story. RK made this clarification quite confidently with calmness and body expressions to indicate he made a mistake. 
17. 	Defence counsel also attacked RK’s evidence saying he gave a false story in Exhibit D3 (second story) against JF because Police Officer Denis threatened RK, his family and his granny of imprisonment. Defence again submitted that I must disregard RK’s entire evidence as not truthful because the evidence RK gave to the police on 20/08/2023 (Exhibit D3) was obtained under duress. I found this submission as an easy way to throw out this case.
18. 	I say easy way, because Crown has repaired the damage that defence caused already in re-examination. And the defence is putting forward some lousy allegation against a Police Officer that needs a thorough scrutiny rather than just some mere propositions being answered under confusions or fatigue in court. Any complaints against Police Officers has a due process to address.
19. 	The other credibility issue defence raised is RK gave 3 statements to the police that have major variations. The three statements were made on the 12/8/2023, 17/8/2023 and 20/8/2023. RK explained in his oral evidence under oath and in his last statement to police on the 20/8/2023 (Exhibit D3) that the first two statements he gave to the police were false. RK was afraid to tell the police the truth because his uncle JF was also present at Yandina Police station at those times of giving the 2 prior statements. RK also said his uncle JF told him not to tell the true story. RK gave the third statement (D3) after JF was remanded at Yandina police station on 20/08/2023.
20. 	I have to understand that RK is a child. Yet he was subjected to a stressful criminal investigation process. I say stressful because even the autopsy was made 4 weeks after burial. And RK was also giving statement to the police against his own uncle. I can imagine, this is also stressful. He must have courage to be doing this. And so, I can understand and I am happy with the answers RK gave to clarify the inconsistent statements he made to the police in Exhibits D1 and D2. I accept the clarifications as honest and reasonable because I cannot think of a reason why RK would turn against his own uncle.
21. 	Exhibits D1 and D2 essentially resemble the brief evidence contained in JF’s ROI. I am of the considered view that this strongly supports RK’s assertion that his uncle JF told him not to tell the true story (repeat paragraph 9 (i) above). By implication his uncle JF told him to tell the false story, which he did prior to 20/08/2023 in Exhibits D1 and D2. The stories in D1 and D2 are in my considered view, the extended versions of what JF told RK to tell people about what happened to PH on the road (repeat paragraph 9 (xix) above). I am satisfied RK was telling the two stories in D1 and D2 under fear according to strict instructions from his uncle JF.
22. 	I must also understand that the police criminal investigation is a dynamic and progressive process. The work of the police is to go out and look for stories (evidence) to explain what happened in a particular crime of interest. And when they do that, their findings are always subject to change. But then I must also understand that the investigation and statements they take are not the evidence. The evidence is what the prosecutor produced in Court through the witnesses, despite any prior statements, the witnesses may have given to the police. The Fijian case of Vinod Prasad relevantly stated: -
	“Indeed, there is no law that requires witnesses to give evidence strictly in accordance with their statements. Most witnesses give greater or lesser details in Court. Much depends on their memories, the skills of whoever took their statements and the way their evidence is led in Court. Inconsistencies between evidence and statement may assist the Court in weighing up reliability and credibility. What is said in the witness box is the evidence.  (My underlining)
23. 	Prosecution’s other witnesses, whose statements were admitted by consent (PE1 – 9 and PE16 - 18) contained evidence of events prior to and after PH was murdered. The only direct eye witness is RK. Dr. Roger Maraka performed an autopsy report to ascertain the probable cause of the deceased’s mysterious death. I will focus my consideration of the evidences coming from JF (ROI), RK (direct eye witness) and Dr. Roger Maraka (specialist) who performed the autopsy on PH’s body about 4 weeks after burial. I read all the admitted statements just to have a wider understanding of the immediate circumstances only.
Essence of JF’s evidence (ROI)
24. 	At night on 10/08/2023 JF and RK left MS to look for betel nut at SV. After taking betel nut at Kasimiro’s house, JF and RK went to Isiah’s house. JF, PH, Reginald and other men spend the night telling stories at Isiah’s house until 12 mid-night and into the early hours of 11/08/2023.
25. 	JF and RK did not sleep at SV. They returned to MS after 01:00 am, the early hours of the 11/8/2023. JF’s evidence was very brief. JF centred his brief evidence to the time JF and RK saw PH’s body lying down on the road going up the cliff just beyond the short cut junction turning down straight to JF’s house at MS. JF did not even mention the drinking party.
26. 	JF and RK saw PH lying on the road going up the cliff with blood in his face, mouth and nose and his eyes were rolling around. Then JF run down to MS to get assistance to carry PH to his house. JF called John Hamusin (deceased’s brother). John Hamusin and JF carried PH to his house.
27. 	JF’s evidence would have me to believe that JF did not know what happened to PH on the road and ultimately what caused the death of PH. That JF only saw PH seriously injured lying down unconscious on the road junction at the cliff.
28. 	After reading JF’s ROI, I am still wondering what happened to PH on the road, which caused him to die so quickly in the early hours of 11/08/2023? I am however cautious that JF does not have to proof anything. Prosecution bears the burden to proof everything.
RK’s oral evidence in Court and statement to police on 20/8/2023 (Exhibit D3), essentially identical
29. 	Before I consider RK’s evidence in more detail, I should just quickly say that I will not contemplate RK’s 2 prior police statements in Exhibits D1 and D2. I am already satisfied with the honest and reasonable explanation RK gave to clarify the making of the 2 prior false statements (repeat paragraphs 19 and 20).
30. 	RK’s oral evidence under oath and statement to the police in Exhibit D3 are essentially similar. That JF assaulted PH using his hand (closed fist) and a wooden stick (thick as a toilet paper and lengthy as a 24 inches bush knife). PH fell to the ground unconscious. JF dragged PH’s body and threw it over the edge of the cliff. Then JF and RK went around to the bottom of the cliff. JF carried PH’s seriously wounded body and left it at the bottom of a cut nut tree. Then JF ran to PH’s brothers and his wife seeking help to carry PH’s body to his house. PH eventually died from the serious wounds on the early hours of 11/8/2023 around 03:00 am or 04:00 am or 05:00am.
31. 	RK’s substantive/core evidence on JF assaulting and throwing PH over the cliff remain clear and unaffected in my mind. I will summarise quickly: -
(i) 	JF and RK saw PH on the short cut road going up the cliff to MS. 
(ii) 	JF went straight to PH and punched him on the mouth with full force. 
(iii) 	JF then punched PH on his left chin. 
(iv) 	JF picked up a stick and hit PH on the right neck twice with full force. 
(v) 	PH fell to the ground and his body was shaking (meaning he was unconscious). 
(vi) 	JF dragged PH to the edge of the cliff. Before JF threw PH over the edge of the cliff, JF kicked PH again on the left side ribs with full force. 
(vii) 	JF held HP with his right hand on his two knees and his left hand on his chest with his body and face facing downwards and threw PH’s body over the cliff. 
(viii) 	JF assaulted and threw PH over the cliff as a revenge for a previous incident which PH and his brothers beat JF severely. 
32. 	Talking about the cliff, it was a treacherous high rocky cliff. The height is 840 cm or about 8.4 meters (almost the length of this court room according to a measurement I took using my tape measure). The cliff is actually a big high rock. SV and MS are located on an island in East Russell called Moe. From the photos we can see stones everywhere, even at the bottom of the high rocky cliff. We all know that Russel Islands are mostly made up of rocky islands. The cliff can be seen at Exhibit PE14 crime scene photos 1, 4 and 7 and is indeed a high rocky cliff. I can imagine that it is very scary for someone to fall from such a height.
Doctors evidence – autopsy report (PE11).
33. 	Dr Maraka’s autopsy written report found two main causes leading to PH’s death; (i) probable multiple injuries to chest and mandible and (ii) blunt trauma to the chest and mandible.
34. 	Other important findings from the doctor’s oral evidence elaborating further on the two main causes are: -
(i) 	Ribs were fractured – Two ribs on the left side were fractured at the anterior aspect. Four ribs on the right side were also fractured at the anterior region of the chest. Eight ribs on the right side got fractured at the lateral side. These are too technical. I will just say a total of 14 ribs (long curved bones) were fractured under the chest area. 
(ii) 	Lower jaw fractured – The lower jaw (mandible) was fractured and 26 teeth of the upper and lower jaws were mobile. 
(iii) 	Assault and cliff fall - Doctor also say PH died as a result of assault and the falling down over the cliff. The doctor firmly believed that the multiple injuries to the mandible/jaw and ribs were most probably caused by a height fall rather than from assault (punches or kicks).
RK and Doctor’s evidences complement each other
35. 	When I connect the doctor’s evidence to RK’s evidence as summarised in paragraphs 31, 32, 33 and 34, there is a perfect matching. JF assaulted PH, dragged him to the edge of the cliff at MS and threw him over the cliff with his body and face facing downwards unconscious. This explained logically why there were multiple fractures and injuries to the ribs and jaw (mandible). PH’s chest, face and mouth must have landed brutally on the stones (blunt trauma) at the bottom of the high rocky cliff at MS causing the fatal ribs and mandible fractures, which eventually led to PH’s death. These multiple fractures could not have been caused by JF’s assault on PH only. The evidence shows that JF assaulted PH on the mouth, chin, chest and right neck using his hand and a stick. Yet the multiple fractures were actually located on the rib (bones) and mandible. I noted above in paragraph 9 (xvii) that JF kicked PH on the left side of his rips/chest just once.
36. 	PH was partying with friends on the night of 10/8/2023. PH returned to his house between the early hours of 01:00 am and 04:00 am on 11/8/2023. JF and RK saw PH lying on the road with blood on his face, mouth and nose and his eyes were rolling around (unconscious). If indeed PH fell to the ground at the body’s height, was it possible that such a fall could result in multiple fractures to 14 rip bones and the jaw (mandible)?
37. 	On the evidence I will answer and say JF assaulted PH by punching and hitting him with a stick. PH fell to the ground unconscious. JF dragged PH to the edge of the cliff and threw him over the cliff with his body facing downwards. PH must have landed at the bottom of the cliff (stones) on his chest, face and mouth. PH got multiple ribs fractures on his chest. PH also got fractures to his lower jaw (mandible) and 26 teeth on his lower and upper jaw were mobile. The cliff is actually a stone, is very high and the bottom of the cliff is all stones (repeat paragraph 32 above). I am satisfied beyond reasonable doubt that JF assaulted PH, dragged him and pushed him over a high cliff causing multiple ribs and mandible fractures. All these are unlawful acts, which eventually led to PH’s demise. As I ponder on the 14 fractured ribs, it makes me go nervous because the heart, lung and esophagus are all situated below and surrounded by ribs under the chest region.
Whether or not JF had malice-aforethought to cause death or grievous bodily harm to PH?
38. 	Prosecution relied on the second limb of malice-aforethought in Section 202 (b) of the Penal Code Act (Cap 26). The second limb suggests that in the absence of express intention to cause death as in premeditation or preplanning, JF can still be found guilty of causing the death of PH through implied intention/knowledge taken from all the available evidences. Court should convict JF on the charge of murder, because impliedly (from all the available evidences) JF knew or had knowledge or ought to have known that what he did to PH will probably cause his death or cause grievous bodily harm to him.
39. 	In view of my findings on the evidences above, I do not have much difficulty to conclude that JF knew or had knowledge or ought to have known that assaulting and throwing PH over the deadly high rocky cliff at MS, will probably cause his death or cause grievous bodily harm to him. In reaching this conclusion, I repeat my findings on the evidence again and concisely state that: -
(i)	JF knew or had knowledge or ought to have known that by assaulting and throwing PH over the deadly high rocky cliff at MS, with rocks everywhere at the bottom of the cliff, will probably cause the death of PH or cause grievous bodily harm to him. 
(ii)	Undeniably the doctor’s finding revealed, that the 2 main causes leading directly to PH’s death are; (i) multiple injuries to the chest/ribs and mandible and (ii) blunt trauma to the chest/rib and mandible, resulting from a height’s fall rather than assault alone. 
40. 	Concerning the definition of “causing the death…” as the Crown submitted on pursuant to Section 207 of the Penal Code Act (Cap 26), I do not need to bother myself with some fancy and lengthy statutory definitions. I can simply apply my common sense, to the facts before me to determine the “cause of the death” here.
41. 	I can simply ask, “What acts substantially or significantly contributed to PH’s death from the entire evidence? It is not a philosophical or scientific exercise, to determine the cause of the death. Rather it is a factual test the judge can determine applying common sense to the facts whilst appreciating that the purpose is to attribute legal responsibility in a criminal matter.
42. 	In so doing, and in view of my conclusions on the entire evidence, sitting comfortably on the doctor’s findings, what contributed substantially or significantly to PH’s death were assault and height fall which led directly to the 2 main causes for PH’s death? JF was the one responsible for the assault and height fall, which caused the demise of PH.
43. 	JF knew or had knowledge or ought to have known that assaulting and pushing PH over the deadly high rocky cliff at MS, will probably cause the death of PH or cause him grievous bodily harm. And it certainly did as the doctor concluded in his findings. On the criminal standard, I find JF guilty of the murder of PH on the second limb of malice-aforethought under Section 202 (b) of the Penal Code Act (Cap 26). I will convict JF for the murder of PH. I impose a life imprisonment sentence, being the only mandatory punishment for murder. I will convene next to determine JF’s parole entitlement period.
THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE