High Court of Solomon Islands

1

On behalf of the two accused Mr. Kwaimani and Mr. Fefele, it is submitted at the end of the Crown case that there is no case to answer in respect of the 3 charges of attempted murder, doing grievous harm, and conspiracy to murder.

2

There is no evidence that either of the accused were parties to any agreement to kill Moses Garu. Therefore the conspiracy charge cannot stand. I note that the Crown did not submit otherwise.

3

As to the other two charges, part of the Crown evidence is two statements given to police by Mr. Kwaimani and dated 17 November 2003 and 8 January 2004.

4

In those statements he states that he was the driver of a white taxi registration number A6358 who on the morning of 10 May 2000 drove three men to the Chinatown branch of the Development Bank of Solomon Islands.

5

In his second statement, Mr. Kwaimani said that before this occurred he had that morning been at the Malaita Eagle Force (MEF) Central Lions Camp, and had seen there the commander of the camp Jimmy Rasta (who is Jimmy Lusibaea). He says he drove the three men to the Bank from that camp.

6

He states that on arrival outside the Bank, the three men got out of his taxi, pulled their hoods down to their eyebrows, and went into the Bank.

7

He further states that a couple of minutes later the three men came out of the Bank walking very fast, that at that stage he for the first time saw that they were carrying weapons, that he saw some blood on some of the weapons, and that he drove the men very fast away from the scene. In his second statement he says that he and the three men returned to the MEF Lions Camp, and that they were talking of just having killed a man.

8

It is, of course, the position that the mere rendering of assistance to a person who actually commits a crime is not sufficient for liability to attach as a party to an offence or as a party to an unlawful joint enterprise.

9

In this case, Mr. Kwaimani asserts in his statements that he had no knowledge as to the purpose of the trip by the three men to the Bank, that the first time he saw weapons was when the three men came out of the Bank, and that it was only after he had driven the men away from the scene did he know that they had attacked a man at the Bank.

10

If the statements were accepted as true, it would follow that Mr. Kwaimani would have no liability.

11

However, reasonable inferences can be drawn from facts. Reasonable inferences which could be drawn from the facts in this case would include:

(a) That the three men Mr. Kwaimani transported to the Bank were the attackers of Moses Garu.

(b) That the three men were armed when they entered the taxi (there would appear to have been no later opportunity for the men to have armed themselves).

(c) That Mr. Kwaimani must have seen one or more of the weapons in the vehicle on the way to the Bank (the weapons were described as an axe and two bush knives, the axe being variously described as between 30 and 50 centimetres long, and the bushknives around 50 centimetres, making them very difficult for the carrier to conceal while seated in a vehicle).

(d) That while waiting at the Bank Mr. Kwaimani manoeuvred his taxi into the best position for a quick getaway (the evidence of Christina Raike was that when she first saw the taxi it was stopped directly outside the Bank’s front door, whereas at the stage the three men rushed out of the Bank there is a body of evidence that the vehicle was up a side alley giving access to the main road and pointing in that direction).

12

Recognising that reasonable inferences can be drawn from the facts, I consider that it would be open for this Court to find that Mr. Kwaimani was a knowing participant in a plan to attack a person at DBSI.

13

I consider that there is sufficient evidence upon which a court could properly convict Mr. Kwaimani on either of the charges. In other words,

I am satisfied that taking the prosecution evidence at its highest, it would be open for this Court to find that the essential ingredients of either charge have been proved beyond reasonable doubt.

14

Mr. Fefele:

It was argued that there was inadequate identification of Mr. Fefele as one of the attackers and that for this reason a verdict of not guilty should be entered at this stage.

15

The only witness who gave evidence that he recognised Mr. Fefele as one of the group of three men running to the taxi, and by inference was one of the attackers, was Sergeant Michael Manetevua (then a Police Constable with the Royal Solomon Islands Police Force).

16

Initially in his evidence he stated that he did not see the faces of the three men, as they were running towards the car when he saw them.

17

Later in his evidence in chief he stated that he had seen the side of the face of one of the men and recognised the person as Alick Fefele. He stated that his head was covered down to the level of his ear but from the ear down it was not.

18

Sergeant Manetevua also stated that he had known Alick Fefele since he was a teenager, and that he could tell it was him from his build and shape and how he walked (describing the walk as "a little bit bow leg").

19

Various other witnesses gave evidence as to their recollections of the headgear that the three men were wearing, which differed in detail but not to an extent that it could be said to be contradictory in this respect to the evidence of Sergeant Manetevua.

20

I am conscious of the special need for caution before an accused is

convicted on identification evidence. Nevertheless, I consider that the prosecution evidence, taken at its highest, is capable of supporting a conviction against Mr. Fefele on either of the two charges. In my view, this is not a case where the evidence of identification from Sergeant Manetevua is so little or unconvincing that a conviction could not be supported.

Result:

21

In the result, I enter Not Guilty verdicts on the conspiracy to murder charges against Mr. Kwaimani and Mr. Fefele, and they are acquitted and discharged in respect of those.

22

On the attempted murder and causing grievous harm charges, I find both accused have a case to answer, so I decline their applications in those respects.