HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 292 of 2007

REGINA

-v-

JOHN KADA, LEONARD D LULUMAE AND EDDIE MAKI MOON

(Mwanesalua, J.)

Hearing:	14,15,16,17,20,21,22,23,24,27,28,29,30 August and 4 September 2007
Judgment:	5 October 2007

Mr C K McConaghy for the Crown
Ms M Lidimani for John Kada
Mr K Averre for Leonard Lulumae
Mr R Tovosia for Eddie Maki Moon

JUDGMENT

1.	Mwanesalua, J: The Accused persons in this case are John Kada (Kada), Leonard Lulumae (Lulumae) and Eddie Maki Moon (Maki). They were jointly charged in an information for offences which the Prosecution alleged they committed at a dwelling house(the house) within the compound of Far East Enterprises (Far East), at Ranadi, in East Honiara, on 26 February 2006.

2.	Kada was charged and pleaded guilty to two counts of intention to cause grievous harm and one count of burglary, contrary to sections 224(a) and 299(a) of the Penal Code (Cap. 26) (the Code) respectively. He was convicted upon his own guilty pleas to these charges accordingly. He was also charged with two counts of attempted murder and one count of robbery contrary to sections 215(a), and 293(a) of the Code respectively. But, the Director of Public Prosecutions filed nolle prosequi under section 68(1) of the Criminal Procedure Code (Cap. 7) (CPC) in respect of these charges.

3.	Lulumae was charged and pleaded guilty to two counts of intention to cause grievous harm and one count of burglary, contrary to sections 224(a) and 299(a) of the Code respectively. He was convicted upon his own guilty pleas to these charges accordingly. But, he was also charged with two counts of attempted murder and one count of robbery under sections 215(a) and 293(a) of the Code respectively. The Director of Public Prosecutions filed nolle prosequi under section 68(1) of the CPC in respect of these charges.

4.	Maki was charged and pleaded not guilty to two counts of attempted murder, two counts of intention to cause grievous harm, one count of robbery, one count of burglary, one count of simple larceny, and one count of criminal trespass, contrary to sections 215(a), 224(a), 293(a), 299(a), 26 and 189(2) of the Code.

5.	Kada and Lulumae were further remanded at Rove Prison following their guilty pleas awaiting sentence while Maki is being trial regarding the charges laid against him which he pleaded not guilty during his arraignment. 

6.	The burden is now upon the Prosecution to prove Maki’s guilt on all the eight charges laid against him. The standard of proof is beyond reasonable doubt. The Court reminds itself of these requirements when considering the evidence adduced against him by the Prosecution and in considering the final conclusion to be reached on his case.

7.	The Prosecution called nineteen witnesses in all in the trial against Maki. Eight of them on the voir dire regarding the admissibility of his caution statement (Exhibit 1) (the first statement). At the end of that voir dire proceedings, the Court ruled that his first statement was voluntary and thus admissible against him. 

The first statement:

8.	Maki gave his first statement to the Police at the Central Police Station in Honiara on 6 October 2006. This statement contained a number of admissions on his part in the offences which he now stands trial before this Court. There is authority which states, that, in the normal cause of events, a person’s confession is admitted to prove that person’s own acts, knowledge or intentions. Further, in certain exceptional cases, a person’s confession may be admitted to prove other facts, provided that the person making the confession has personal knowledge of those facts. But admissions which are not based on personal knowledge are not admissible to prove such facts. Thus, in Surujpaul v. R [1958]3 All.E.R 300, the Privy Council at page 304 said:

"A voluntary statement made by an accused person is admissible as a "confession". He can confess as to his own acts, knowledge or intentions, but he cannot "confess" as to the acts of other persons which he has not seen and of which he can only have knowledge by hearsay …"

9.	In his first statement, Maki admitted that: on 25 February 2006, he stayed at his house at Burns Creek in the evening; he walked to King George Market with boys who came to call him to go there; he and these boys met other boys at the King George Market; a plan was then made at the King George Market to attack Far East to look for money; he and the boys, including Kada, Lulumae, Joe, Lawarence Kanake (Kanake), John Rii (Rii), Charles Isua (Isua) and Bebeni Kabe (Kabe) left the Market and walked to Far East at about 2 am; Lulumae, Isua and Joe were armed with knives; they walked to Far East along the road that went through the Soap Factory Labour Line at King George; upon their arrival, he and the other boys climbed over the perimeter wall into Far East compound; the dogs barked at them when they were in the compound; a Chinese came out through the entrance door to a dwelling house within the compound when the dogs barked; the Chinese walked out a few meters out from the entrance door to the house when Joe came from behind and cut the Chinese with his knife at the back; the Chinese fell to the ground; then he and the other boys ran through the open outer door into the house; their intention to enter the house was to steal; he took a CD speaker and went out from the house. Some of the other boys who entered the house also stole items from therein.	

Kanake’s evidence:

10.	Kanake lives at Burnscreek. He was charged with simple larceny and criminal trespass for his part in the far East intrusion on 26 February 2006. He was tried, convicted and given a non-custodial sentences at the Magistrates’ Court before he gave evidence for the Prosecution in this trial. That was entirely proper because, in this way, he gave his evidence free of any temptation to try and ingratiate himself with the court and the prosecution at the expense of Maki in this trial. Kanake was not charged with any of the serious offences laid against Maki in this trial.

11. 	Kanake’s evidence was that: he knew Maki well; he was present at the King George Market at about 10 pm that night when Kade, Maki and Joe made a plan to go to Far East. The boys who went to Far East that night included Kada, Lulumae, Maki, Joe, Rii, Isua, John Nicola (Nicola), Kabe, John Konley (Konley) and Kanake himself; he saw Kada, Lulumae and Joe armed with knives; they all climbed over the parameter wall into Far East compound and circled the house; a Chinese came out through the entrance to the house; he saw Joe approached the Chinese from behind and cut him on the back with his knife, and the Chinese fell to the ground; following that, Kada, Lulumae, Maki, Isua and Kabe ran through the open door into the house; Kanake himself remained outside the house in front of the entrance door; later Lulumae brought out a microphone; Kada brought out a speaker; Isua and Nicola brought out a video screen and Maki came out with decks, which Maki gave them to him. He confirmed in his evidence that there was never any problems between members of his family with Maki’s family members at any time in the past before he testified against Maki at this trial.

12.	Maki’s Advocate submitted that the court should not accept the evidence of Kanake as being truthful because Kanake entered a deal with the Prosecution to reach a bargain. That bargain led the Prosecution to charge and dispose of Kanake’s cases with non-custodial sentences before the Magistrates’ Court. It was further submitted that, it was Kanake’s part in that bargain that he would testify against Maki as he did in this trial. The court would reject these submissions for three reasons. First, there was no evidence of any bargain between Kanake and the Prosecution for Kanake to give false evidence against Maki in this trial. The Prosecution has no say in the type of sentence to be imposed on Kanake for his offences before the Magistrates’ Court. The Magistrate acted upon on his own discretion to pass the non custodial sentences on Kanake. And, third, it is the function of a presiding magistrate in any case, to decide whether the evidence given by a witness, against accused in Court is true or false. The evidence of Kanake can be accepted by this court as being truthful without corroboration from Kabe who was drunk that night and Konley who was an unimpressive witness.

13.	Maki raised a new point regarding his first statement after it was ruled voluntary and admissible against him. He asserted that the whole of that statement was false. He further asserted that the admissions in it were given to PC Samani by the boys who were actually involved in the Far East incident who falsely attributed such admissions to him, and which PC Samani had confronted him with, which he merely agreed with just to please PC Samani and his witnessing officer, PC Kona, when they recorded the statement from him. The court would reject this claim for three reasons. First, this statement is not false because he lives at Burnscreek with his mother, Ruth Sade, that his father is Robert Maki, that he attended class 1 to 4 at school, that on 25 February 2006 he was at his house at Burns Creek in the evening and went to King George Market when a group of boys who came to call him to go there. Second, he never put this claim to both PC Samani and PC Kona when they gave their evidence in the voir dire proceedings on his first statement. And, third, Maki himself clearly confirmed in his evidence during the voir dire proceedings that PC Samani and PC Kona had never forced him, promised anything or oppressed him in any way for him to give his first statement to them.

Alabi:

14.	Maki raised a defence of Alabi to the offences laid against him. That is to say, that he was elsewhere when those alleged offences took place. His evidence in Court was that: he was in his house at Burns Creek on the evening of 25 February 2006; he went to King George Market and sat down with Kabe and Rii there; they then walked to Tongs Building west of the market and met a group of other boys there; these boys included Kada, Kanake and Joe; these three boys were related and were his enemies because of a fight between him and them in 2005; only Kabe went to speak to Kada, Kanake and Joe at the Tongs Building; Kada, Kanake and Joe and the other boys then walked to Far East along the road between the houses at the Soap Factory: it was dark that night; Rii, Kabe and Maki himself followed the boys they met at Tong’s Building some distance behind: he became frightened that Joe might cut him with his knife as it was dark; so Maki said that he escaped back to King George Market without telling any one, even Rii and Kabe whom he had been walking with at that time; he arrived at King George Market, and chewed betelnut and smoked there; he then left to his house at Burnscreek to sleep; he arrived at his house and went to sleep before 24.15hrs; and that he slept at his house until morning on 26 February 2006.	

Alabi Witness:

15.	His alibi witness was his uncle, Basil Mauta, his father’s brother. Mauta’s evidence was that; he was security guard at a poultry farm at Burnscreek for his brother, Sade, on the night of 25 February 2006 until the morning of 26 February 2006; there was a security house at the farm in which a dog used to stay; he said Maki arrived at the security house to sleep at 24.55hrs; he recalled this because he looked at his watch when the dog barked as Maki was coming around the corner of the farm to reach the security house; this was the house which he and Maki used to sleep when Mauta lived at Burnscreek; and that Maki’s mother did not stay with them in that security house.	

Assessment of evidence of Maki and Mauta:

16.	The Court does not believe that Maki would just depart from Rii and Kabe without saying anything to them at Soap Factory area as they were walking together as a group. Kanake said that there was never any trouble between his family members and those of Maki at any time before the Far East incident occurred. There was therefore no reason for Maki to be afraid of Joe that night. Mauta could not remember the date when he began and finished being a security guard at the farm. He also could not remember when the dog barked at other people walking near the farm prior to and after the night of 25 February 2006. Maki was not being truthful when he said that his uncle, Mauta, lived in the same house as himself and his mother at Burnscreek in February 2006. Maki was silent about his alibi defence until he raised it by evidence after the close of the prosecution case in his own testimony. There was conflict on the evidence of Mauta and Maki about the time when Maki arrived at the security house. Maki said he arrived before 24.15hrs whilst Mauta said it was at 24.55hrs. There was a time difference of 40 minutes. The Court does not think that the alibi which Maki advanced as a defence in this case may be true, and it is therefore rejected accordingly. The evidence adduced by the prosecution proved beyond reasonable doubt that Maki was not at Burnscreek asleep from 2 am and until 3 am of 26 February 2006, but took part in the Far East burglary.

17.	The persons who occupied the dwelling house at the time of the burglary were Peter Zheng (Zheng) and his wife Tina Liu Zheng, Wei Lan Chan, his wife Jenny Xie Chan, his son Jessy Chan and Emanuel Asido, Jessica Ford and their child.

18.	The evidence of Zheng was that: he was the Director of Far East; there was that house and a timber yard within the Far East compound; he and his wife occupied the upper floor of the house, whilst Wei Lan Chan and Emanuel Asido and their families occupied the ground floor (See photo No. 19 of Exhibit 4); it was past 2am when the intruders were in the house; he saw four men escaping from the house when he stood at the verandah on the upper floor; he saw one of the men carried a video screen; the men threw stones at him; two Chinese occupants sustained wounds from the burglars that night; they were Jessy Chan, who sustained a single knife wound on his back, in front of entrance door to the house, and Wei Lan Chan who sustained a single knife wound to his back in Room G (See Sketch Plan No. 2 of Exhibit 4); he later telephoned the Police to come to Far East for help; the Police arrived and took Wei Lan Chan to the Hospital; he gave no authority to anyone to enter the Far East property and take away anything from the house.

19.	Ashido, his wife, Dessica, and their child occupied Room No. B (See Sketch Plan 2 of Exhibit 2) of the house. His evidence was that: he heard people in the house and opened the door to the room occupied by his family and saw a person carrying a video screen and holding a knife walking passed him towards the entrance door to the house; he was very fearful of this man and closed the door and looked around for any item in their room to defend himself should any of the intruders followed him into the room. But none of them did so. He could see the person and the things he carried as there was light at the ceiling of Room A (See Sketch Plan 2 of Exhibit 2) through which the person walked along to the entrance door to the house; he later went outside the house and found Jessy Chan lying wounded about three meters away in front of the entrance door; he took Jessy Chan to hospital in a vehicle after the intruders had left Far East property.

20.	Dessica also saw the intruders in the house. Her evidence was that: she saw men carrying a video screen and a box containing electrical goods out from the house; she went outside the house after the burglars had left Far East; she saw the men climbed over the perimeter wall of Far East compound and escaped from the property.

21.	Dr. Rutkowski worked as a Specialist in a Hospital in Sydney, Australia. She saw and examined Jessy Chan and Wei Lan Chan as patients in Sydney for the first time on 10 March 2006. Jessy Chan had a deep cut at his back below the neck. This single wound was about 20cm to 30cm in length and 5cm deep. The instrument which inflicted this wound would have been applied with great force. Jessy Chan’s nervous system had been severed and that he was paralysed on his legs and right hand. He could only be moved around on a wheel chair. His condition at the present is still life threatening. On the other hand, Wei Lan Chan also had a single wound on his back. His nervous system had been severed and 99% of his legs were paralysed. He would need assistance as his bowl, bladder and sex organ had been paralysed. He too could only be moved around on a wheel chair. Both Jessy Chan and Wei Lan Chan would need medical attention for the rest of their lives unless their current conditions improve in the future.

22.	Maki never discussed the things he mentioned in his first statement with Kada, Lulumae, Kanake, Conley and Kabe before he gave that statement to the Police. He gave it for the first time to PC Samani and PC Kona who recorded it from him. That confessional statement was confirmed in his second statement (Exhibit 6), in which he admitted "Me talem Samani (PC) finish now, me involved………Far East stabbing". He sought to qualify what he meant by "involved" during his evidence in Court by saying "What I meant by involved was I went from King George Market to Tongs Building, then to Soap Factory and I ran back to King George Market, and that’s all I know" TP.28). Clearly, this explanation was contrary to the clear admission in that second statement. That admission clearly referred to the Far East incident on 26 February in which Jessy Chan and Wei Lan Chan were seriously wounded. The Court would reject the qualifications which Maki sought to attach to his second statement. The aim of his explanation was clearly to undermine the damaging effect of the evidence against himself in his first statement and the evidence of Kanake.

23.	In paragraph 16 above, the Court rejected Maki’s defence of Alibi because of inconsistencies in the evidence of Maki himself and that of his alibi witness. The evidence of Maki and his witness did not have the ring of truth. His witness merely focused on the time when Maki purported to have arrived at the security house to sleep. He could not remember the dates when he began and finished being a security guard at the Poultry Farm. The evidence in his first statement and that given by Kanake proved beyond reasonable doubt that Maki was not asleep at Burnscreek about 2 am on 26 February 2006 as he and his witness claimed, but was in the house at Far East with other boys. In paragraph 7 above, the Court found that Maki’s first statement was voluntary and admissible against him. His admissions were set out in paragraph 9 above. The Court there finds the evidence in the first statement to be truthful and constitute evidence of the facts of matters referred to in the admissions.

The Law on parties to offences

24.	The Prosecution case was that Maki was a party to the two counts of attempted murder; two counts of intention to cause grievous harm; one count of armed robbery and one count of burglary, which Kada, Lulumae and Maki himself were jointly charged. The Prosecution cited Sections 21, 22 and 23 of the Code in support of their contention. It should now be noted that the attempted murder and the robbery charges against Kada and Lulumae have been nolled by he Director of Public Prosecutions on 16 August 2007. Maki was thus no longer jointly charged with any other person for attempted murder and robbery in this trial.

25.	The Prosecution did not identify evidence which would make Maki a party to the offences attempted murder, intention to cause grievous harm, robbery and burglary under Sections 21, 22 and 23 of the Code. They simply left it to the Court to pluck the essential issues, the relevant facts, the principles of law and allegations that rage about during the trial to connect Maki as a party to these offences. The Court would surely do that, but prosecution must also do that themselves in order to prove that Maki was by evidence a party to the offences.

26.	The view of the Court is that the liability of accused persons under sections 21 and 22 need separate requirements. Under Section 21 the requirements are: first, that there be a common intention by all accused to commit a particular offence; and, second, that particular offence was committed by one or more of those forming the common intention, the others aiding. For Section 22, there are three requirements: 

(1) A common intention to prosecute an unlawful purpose; 
(2) An offence was committed in the prosecution of the common unlawful purpose; 
(3) The offence committed must be the probable consequence of the prosecution of the common unlawful purpose.

27.	Maki admitted that the plan to attack the house at Far East was made at King George Market. Maki further admitted that he was involved in the incident. According to the evidence of Kanake, the plan was made by Kada, Maki and Joe at the King George Market. Further, according to the admissions of Maki, their intention to enter the house was to commit a felony, that is say, simple larceny. Zheng’s evidence shows that he gave no authority to Maki and the others to enter Far East Property. The electrical goods removed were owned by Zheng. They were removed from the house without his consent. There was evidence of stealing from the house from Zheng, Ashido, Dessica, Kanake and Maki himself. The items stolen were kept in Room C. The door into Room C had a door closer affixed to it. The door had to be pushed inward to open it and then it would automatically close itself again after entry was made into that room. In the reverse, the door into Room C had to be pushed outward from inside for one to come out of Room C to get to Room A, where Ashido and Desika saw the burglars walking out with the stolen items to the entrance door of the house, (See photo 20 in Exhibit 4 to see the door closer at top of the door to Room C). It is clear to the Court, that the plan made at the King George Market was to break into the house at Far East and steal therein. There was no evidence of common intention by Maki with the other parties to commit attempted murder, intention to cause grievous harm and robbery under Section 21. However, there was evidence of common intention by Maki, Kada, and Lulumae under this section to committed burglary.

28.	The Court would next consider the liability of Maki under Section 22. There was common intention by Maki, Kada and Lulumae to break into and steal at the house at Far East. It was the evidence of Kanake that Kada, Lulumae, and Joe were armed with knives. They circled the house when they arrived at Far East compound. Jessy Chan opened the entrance door and walked out of the house to see what the dogs were barking at. This provided the opportunity for Joe to maim, disable and silence Jessy Chan by cutting him down to the ground for the boys to gain access to the house before Jessy Chan could warn the rest of the occupants of the house about intruders outside the house. As Kada, Lulumae and Maki went passed the entrance door into Room A, they broke into Room C where Zheng kept his electrical goods. The entry door into Room C had a door closer as explained in paragraph 27 above. Maki would have been in Room C when Wei Lan Chan was struck with a knife at Room G. At the time of this assault, the entrance door into Room G would have been open, as Maki said that someone kicked that door closed. The evidence shows that Wei Lan Chan was found lying wounded on the floor of Room G, close to the door to Room G.

29.	The theft of the microphone by Lulumae, the theft of the video screen by Isua and Nicola and the theft of the decks by Maki as described by Kanake, occurred after Jessy Chan and Wei Lan Chan were seriously wounded. Kada and Lulumae already pleaded guilty to two counts of intention to cause grievous harm and one count of burglary each. 

Conclusion:

30.	The Court finds that Maki formed a common intention with Kada and Lulumae to break and enter the dwelling house of Zheng, Wei Lan Chan and Jenny Xie Chan and steal therein at Far East. He opened the door to Room C to steal the decks. He committed the offence of burglary, as charged; he was a party to the offences of intention to cause grievous harm to Jessy Chan and Wei Lan Chan in the furtherance of the offence of burglary; and that the commission of the offences of grievous harm to Jessy Chan and Wei Lan Chan respectively were the probable consequence of the prosecution (furtherance) of the burglary. Further, there was evidence that Maki committed the offences of simple larceny and criminal trespass as charged.

31.	Maki is thus found guilty of: 

a. two counts of intention to cause grievous harm to Jessy Chan and Wei Lan Chan respectively; 
b. one count of burglary; 
c. one count of simple larceny; and 
d. one count of criminal trespass.

He is convicted of these offences accordingly. However, he is acquitted of two counts of attempted murder and one count of armed robbery. 	

Francis Mwanesalua
Puisne Judge