HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 94 of 2005

REGINA

-v-

ANDREW TOGHOVOTU

Date of Hearing:	 5 to 28 May 2008
Date of Judgment: 31 July 2008

L. Kleinig for the Crown
T. Wallwork and J. Kinai for the Accused

JUDGMENT AFTER TRIAL

Cameron PJ

 1	The accused Andrew Toghovotu (also known as Andrew Te’e) pleaded Not Guilty to 4 counts of murder, and one of attempted murder or in the alternative unlawful wounding.

 2	The events relate to shootings which occurred at Ghaliatu, Weathercoast, South Guadalcanal Province, on 10 October 2002.

 3	That time was during the ethnic tensions experienced by Solomon Islands from 1999 to 2003. One area particularly affected by the tensions was the Weathercoast, a portion of which was known to be controlled by an armed group led by Harold Keke. Harold Keke was reputed to be responsible for continuing civil unrest in that area, and it was the wish of the authorities that he be apprehended and brought to justice.

 4	For this purpose a group of people travelled from Honiara to the Weathercoast in October 2002. Sergeant Derek Runi of Solomon Islands Police gave evidence that the previous year and as a police officer he had trained a group of more than 50 persons as special constables, whose role was to help the Police restore law and order 

 5	He stated that in August 2002 the then Commissioner of Police had assigned he and others to go to the Weathercoast and become part of a group whose task was to attempt to arrest Harold Keke and his men. He was advised by the Commissioner that the accused Andrew Te’e and a Jerry Futa were to be the leaders of this group. The group itself was to be made up of police officers, prison officers, special constables and civilians, and was to be known as the Joint Operations Group.

 6	Sergeant Runi and two other special constables then travelled by boat to the village of Malagheti on the Weathercoast, arriving on 2 October 2002. Sergeant Runi met Andrew Te’e there, and Te’e and another person provided him with a pump action shotgun. He described seeing other persons with various types of high powered guns at Malagheti.

 7	At Malagheti village, Sergeant Runi attended a meeting of about 40 people, where an intended assault on the neighbouring village, Ghaliatu was discussed. This village was believed to be the Harold Keke stronghold and was adjacent to Malagheti, separated only by the Hoivara River. This river was the boundary between the two opposing villages. Both villages were next to the sea and had an extensive beach area. According to Sergeant Runi, it was known to the Malagheti people that the Harold Keke stronghold across the river included fixed bunker positions lining both the river and the sea. It was thought that Keke’s group was armed. The Joint Operations Group led by Andrew Te’e and Jerry Futa was in turn armed with various high powered guns. The meeting established that the Joint Operations Group was going to try and push through the bunkers at Ghaliatu and then try and locate and arrest Keke. In addition, there was an apprehension that Harold Keke’s group may have been holding villagers against their will, and another objective was to release any such persons. Te’e was present at that meeting.

 8	I accept the evidence of Sergeant Runi as outlined. In the event, he was sent inland and was not a participant in the subsequent assault on the village.

	Identification

 9	Various witnesses from Ghaliatu village gave evidence of an assault on that village on the morning of 10 October 2002. A number of those witnesses identified Andrew Te’e as being at the forefront of that assault.
	
10	While Andrew Te’e in his dock statement admitted he was part of the Joint Operations Group that day, and that he was in the bush area behind Ghaliatu when the shootings on the beach took place, he denied being present during the shootings.

11	Accordingly, identification was directly in issue during the trial.

12	It was common ground that the general circumstances which existed on that morning was that there was rain, the waves from the adjacent sea were large, and that those who say they observed Andrew Te’e were all extremely frightened for their own safety, and were in the process of escaping from gunfire.

13	Against that background, John Meti, who was on the beach and witnessed some of the killings, gave evidence of having looked at Andrew Te’e "for about 20 seconds", from a distance of about 30 metres. At the time, there was gunfire and John Meti was escaping the scene. He said he saw Te’e come out of the bush with an SR 88 (which is a rifle) and advance on Chris Tova and then Lianga Lini while shooting. We said the rain was moderate at the time. He said that he recognised Andrew Te’e as he had seen him on a number of occasions prior to 10 October 2002. He was extensively cross-examined, particularly as to his assertion of having seen him on prior occasions, but his evidence remained consistent. I consider this to be strong evidence of identification. While Meti was at the time of giving his evidence a remand prisoner awaiting a committal hearing for 2003 allegations relating to murder, I nevertheless found his evidence on the point of identification to be credible.

14	I refer also to the evidence of James Menime, who said he saw Andrew Te’e on the beach that day for about 30 seconds from a distance of about 40 metres. He said he saw his face and he was shooting towards the sea, using an SR 88, and he described what he was wearing. He said he had seen and talked to Te’e many times prior to 10 October 2002, as in 1996 and 1997 they had both lived in the same area at Kukum village, Honiara for about a year. While challenged extensively in cross examination, I found his evidence to be consistent and reliable, and I regard it, too, as strong evidence of identification.

15	It is, of course, necessary to be very careful before accepting evidence of identification. It has to be recognised that an honest witness may be mistaken and that a number of honest witnesses may also be mistaken – see R v. Turnbull and Others (1976) 63 Cr. App. R. 132.

16	I also take account of the fact that a number of other witnesses claim to have seen Andrew Te’e on the beach that day. I refer to the evidence of Derrick Vacha, who said he saw Andrew Te’e shooting down to where Mr. Vacha’s brother Christopher Tova was lying on the beach. He said he was using an SR 88. Derrick Vacha said Andrew Te’e was 80 metres from where he was standing. He said his view was "very clear" at the point he saw him shoot down to where his brother was. Derrick Vacha gave evidence that he had seen Andrew Te’e on two occasions prior to 10 October 2002, and on one occasion since then.

17	Then there is the evidence of Luke Chachikai, who stated he saw Andrew Te’e standing about 40 or 50 metres away from him on the grass at the beach that morning and firing shots with an SR 88. He said he saw Te’e’s face for about 2 seconds, after which he jumped into the sea and escaped by swimming away. His evidence was that he recognised Andrew Te’e from having seen him at a meeting on an occasion prior to the date of the shooting.

18	Mesi Lepo gave evidence that he had seen Andrew Te’e on the beach carrying a rifle on the day of the shooting. He said he saw him at a distance for "quite a while", but couldn’t say what he was wearing. The witness said he was standing still when "I fasten my eye at him". He was unable to tell the Court how old he was at the time, but told police in a statement made in 2004 that he was 17 years old at the time. He said he recognised Te’e from having seen him at a meeting on an occasion prior to the shooting. There is also the evidence of William Ngele, who said that he saw Andrew Te’e on the beach that day from about 100 metres away, holding a gun and shooting. He said that he had seen him on 3 occasions prior to 10 October 2002.

19	The position is, then, that the evidence of both John Meti and James Menime as to having seen Andrew Te’e on the beach that day is corroborated by four other witnesses. All six of the witnesses claim to have recognised Andrew Te’e from having seen him prior to 10 October 2002. While I consider the evidence of the four corroborative witnesses as to recognition to be of lesser quality, nevertheless I found each to be of sufficient strength to attach some weight to it.

20
	I accept that there were some instances of witnesses providing answers which on the face of it might suggest that they were tailoring the truth. For example, Derrek Vacha said "yes" when it was put to him that "you will answer questions when you believe that the person asking the questions wants to get a certain answer." However, the witnesses were unsophisticated villagers, being asked questions through an interpreter which at times were not simple and the meaning and significance of which was not always entirely clear. The question posed above is a good example. Also, it is not altogether surprising that a number of the witnesses had difficulty with identifying the actual year that they claim to have seen Andrew Te’e prior to the shootings, as dates clearly do not assume the same significance to persons living a simple rural existence.

21
	The fact that some of those witnesses gave statements to the police for the first time in 2004, in circumstances where they were told that unless they did so the charges against Te’e may have to be dropped, does not in my view adversely affect their credibility.

22	I accept that it was in fact Andrew Te’e who the witnesses saw on the beach that day. That has been established by the Crown beyond reasonable doubt. In coming to the conclusion, I do not rely on the "dock identifications" of Andrew Te’e made during the course of the trial, except to the extent that they have satisfied me that this is not a case where witnesses might have come to believe a particular person was Andrew Te’e when in fact the real Andrew Te’e was another.

Veramatanga Beach Hut, Ghaliatu

23	The Crown case was that members of the Joint Operations Group situated in the bush behind the beach opened fire on a group of men and boys who were in a leaf hut. This leaf hut was on the beach at Ghaliatu only a few metres away from a frontline bunker overlooking the Hoivara river. James Menime said the hut was about 10 metres from the bush, and I accept this.

Christopher Tova and Lianga Lini

24	John Meti gave evidence that he and others were in this leaf hut on the morning of 10 October 2002 when he heard gunshots coming from the bush behind the hut. The bullets were landing in the hut and he saw Jimmy Lasi, (who is in fact Patrick Jimmy Lasi), who had been in the hut prior to the shooting, fall to the ground. John Meti then ran, and while escaping saw Chris Tova, who had also been in the hut, fall onto the sand. He said Chris Tova then tried to stand up but could not because he had been hit by what John Meti said was a bullet in his leg.

25	John Meti then saw two men emerge from the bush onto the sand, and recognised them as Andrew Te’e and Paul Lavu. Both men were carrying guns. When Paul Lavu got to where Jimmy Lasi was lying down, John Meti saw him fire shots at him with his gun.

26	He then saw Andrew Te’e advance on Chris Tova firing shots at him. Chris Tova was still moving at the time. Derrick Vacha gave evidence that his brother Chris Tova had a raised hand and was wiping tears from his eyes when he saw Te’e shooting at him. According to his father John Weni, Chris Tova was 15 years old at the time.

27
	It is apparent from the agreed facts and the post mortem examinations of Dr Dodd performed nearly two years after the shootings (following exhumations of the remains) that both Patrick Jimmy Lasi and Chris Tova died as a result of wounds fired from high velocity rifles, and I find they were killed by gunfire on the morning of 10 October 2002. The Doctor’s evidence was that the rounds used were high velocity, and that an SR 88 is a rifle which fires a high velocity 7.62 calibre projectile (the Doctor had an extensive background in ballistics, and so qualified himself in this respect). I accept his evidence as to this. Several witnesses gave evidence that Andrew Te’e was carrying an SR 88 rifle that day, which evidence also I accept.

28	I have not overlooked the fact that the examination of the skeletal remains of Chris Tova nearly two years after the shootings disclosed only one massive wound to the head, which Dr. Dodd said, and I accept, would have been immediately fatal. Because the body was reduced to a skeleton his findings do not, of course, exclude the possibility of gunshot wounds to flesh and muscle, for example the legs, which did not involve bone damage.

29
	John Meti also gave evidence that after he saw Te’e shooting at Chris Tova, he then saw him advance to where Lianga Lini was sitting on the beach. The evidence was that Lianga Lini was one of Harold Keke’s men and had been manning the bunker closest to the Veramatanga beach hut that morning (I accept this evidence). John Meti said he saw Lianga Lini sitting on the beach holding a gun, but he was not pointing it in the direction of anyone. He said he saw Lianga was trying to walk but could not because of his leg. He said that he then saw Andrew Te’e shooting at him and coming towards him, and that he saw Lianga fall down.

30
	Alfred Sekovania gave evidence of seeing the dead body of Lianga Lini that day and observing wounds on his right arm and chest. Andrew Hese gave evidence of seeing Lianga Lini dead with "his hand smashed". I accept this evidence. 

31
	I found the evidence of John Meti in the respects outlined to be persuasive. I note his evidence as to Chris Tova was corroborated by Derrick Vacha, and I accept the evidence of Vacha, in these respects. I also find Chris Tova was initially wounded and immobilised, and then subsequently shot and killed. As to Lianga Lini, I readily infer from the evidence that he was first injured by gunshot while on the beach and subsequently killed by further gunshot. I infer this despite the absence of a subsequent post mortem examination, and it is my view that this has been established by the Crown beyond reasonable doubt.

32	I mention here that the Crown has discharged the onus of establishing beyond reasonable doubt that neither Andrew Te’e nor any of his group were acting in self defence in respect of any of the killings. The evidence from John Meti was that Lianga Lini while sitting down was not pointing his gun in the direction of anyone. I accept this evidence. 

33
	A defence was mounted to the effect that as bullets were coming from everywhere, it cannot be known from whom the victims received the fatal gunshot wounds. Thus the argument was the possibility of "friendly fire" being the cause cannot be excluded.

34
	Almost without exception the evidence of the witnesses was that the gunshots were coming from the direction of the bush, and not from the beach where the Ghaliatu men and boys were gathered. While the evidence was that some of Harold Keke’s men were armed, including Lianga Lini and Ralph Enoch, most of the Crown witnesses who gave evidence on his point said that the villagers of Ghaliatu were not. I accept this evidence, and reject the evidence of Andrew Hese that John Meti and James Menime were armed. I found Andrew Hese to be a somewhat unresponsive witness, and on that point his evidence conflicts with other Crown evidence which I prefer.

35
	There is also the evidence of Luke Chachikai that no one from the Ghaliatu side was firing back, the evidence of William Ngele that the only shooting was from the bush coming to the beach, and that of Wilson Lomon to similar effect. James Menime gave evidence that the shots were coming from where he had been (the leaf hut) and where he saw Te’e was. John Meti’s evidence was that when Te’e was firing at Chris Tova and Lianga Lini, he had not seen anyone fire back. While Meso Lepo’s evidence at one point was that there were gunshots from both sides, he later contradicted that by saying they came only from the Veramatanga direction. There is the evidence from Derrick Vacha, which I accept, that which he was running away he saw Lianga Lini lying down and firing back to where the shooting was coming from. I infer that this was prior to him receiving a gunshot wound which immobilised him. I do not consider it a reasonable possibility that the firing by Lianga Lini injured or killed any of the victims, particularly as he was firing in the direction of Andrew Te’e’s group. For all these reasons I do not accept it was a reasonable possibility that Patrick Jimmy Lasi, Chris Tova or Lianga Lini were killed by "friendly fire", or indeed that any of the killings were as a result of this.

36
	I find from the evidence as outlined that the Crown has established beyond reasonable doubt that both Chris Tova and Lianga Lini, who were first wounded and immobilised by the initial gunshots, were then subsequently shot and killed by Andrew Te’e. I am also satisfied beyond reasonable doubt that in the circumstances described, Andrew Te’e’s intention at the time of the shootings was to cause the death of those two persons. I find that both had been shot and were injured and immobilised when Te’e advanced on each of them in turn firing shots. There can be no other conclusion than he intended to and in fact killed them both on the beach.

37
	Accordingly the elements of section 202(a) of the Penal Code have been proved beyond reasonable doubt against Andrew Te’e in respect of both Chris Tova and Lianga Lini.

	Patrick Jimmy Lasi

38
	As to Patrick Jimmy Lasi, both John Meti and William Ngele gave evidence that after the shooting started they saw him fall. William Negle said that he fell a distance of 2 or 3 metres away from the beach hut. William Ngele said that after he fell, he did not see Jimmy Lasi move again. John Meti gave evidence of seeing Paul Lavu and Andrew Te’e coming down from the bush to the beach and Lavu then firing shots at the prone Jimmy Lasi. John Meti did not say whether he saw Jimmy Lasi still moving or not. I accept the evidence of John Meti and William Ngele as to what they observed in relation to Jimmy Lasi. I note from Dr. Dodd’s evidence that he died from injuries consistent with high velocity gunshot, having suffered injuries to the chest and spine, and to his left shoulder. The Doctor’s evidence, which I accept, was that there was definitely one, and possibly two, gunshot wounds. His evidence was to the effect that the spinal injury would have resulted in a rapid death. I cannot exclude the reasonable possibility that Jimmy Lasi had already died from the initial shots fired from the bush at those in the leaf hut before Paul Lavu was seen firing shots at him while he lay prone, although the likelihood is that Lavu would not have shot at him had he been obviously already dead. I find, then, that Jimmy Lasi was killed either by the initial gunshots from the bush or by Paul Lavu on the beach.

39 
	Paul Lavu is not, of course, an accused in this case. The issue is whether Andrew Te’e is liable for the death of Jimmy Lasi when there is no direct evidence as to which person or persons fired the shots from the bush, and when he may have survived those shots and then been killed by gunshot from Paul Lavu while lying on the beach.

40
	It is apparent from the evidence of John Meti, William Ngele and Mesi Lepo that the gunshots which started from the bush were directed to the hut where the group of men and boys was gathered. I also infer from the evidence that it was immediately after that initial firing that Andrew Te’e, followed by Paul Lavu, emerged from the bush. Then, as described, Paul Lavu focused his shooting on Jimmy Lasi, whereas Andrew Te’e went after first Chris Tova and then Lianga Lini. It is also clear that various other men aligned with Andrew Te’e came out of the bush – James Menime said he saw 4 or 5 people with Te’e on the beach, whereas James Meti said he saw about 20 boys with weapons come out of the bush and down to the leaf hut following the shooting of Chris Tova. Whatever the actual number, it is clear that there was a large group of men in the bush behind the leaf hut at the time of the assault on its occupants, and that the leaf hut was well within the range of the rifles which were fired from the bush.

41
	The evidence established that after the initial hail of bullets and while those that could were escaping, Andrew Te’e and Paul Lavu emerged first from the bush and were shooting at the injured. The inescapable inference is that Andrew Te’e and Paul Lavu were part of the group which ambushed and fired upon the men and boys from Ghaliatu. I also find that this ambush was in furtherance of the plan which was discussed at the meeting about which Sergeant Runi gave evidence, namely to overrun defensive positions in Ghaliatu, attempt to capture Harold Keke and his men, and to free anyone being held against their will.

42
	I find that there were no warning shots fired, there was no attempt to capture the group at the leaf hut, that it was an ambush by gunfire, that the shots were clearly directed at the group from Ghaliatu in and around the leaf hut, and that the group on the beach was unarmed with the exception of Ralph Enoch and Lianga Lini (I find that Lianga Lini was in the bunker adjacent to the beach hut at the time of the ambush). From all these circumstances I draw the inference that there was a common intention on the part of the armed men in the bush who staged the ambush to overrun those on the beach by firing bullets at them with high velocity rifles.

43
	Accordingly the first of the two elements of section 22 of the Penal Code, relating to joint offenders, has been established by the Crown beyond reasonable doubt. That is, that Andrew Te’e and Paul Lavu were participating parties in the unlawful purpose of intending to fire upon a group of people with high velocity rifles.

44
	I also consider that in carrying out that plan by firing a number of shots with high powered rifles at those persons, it was a probable consequence that one or more of them would be killed. Thus the second element of section 22 of the Penal Code is also established against Andrew Te’e beyond reasonable doubt. Thus if in fact Jimmy Lasi was killed by the initial gunfire, Andrew Te’e is guilty of his murder.

45
	If Jimmy Lasi was still alive following the initial assault, I also consider the evidence establishes that Andrew Te’e is guilty of his murder. I am satisfied from the evidence that both Paul Lavu and Andrew Te’e were acting together on the beach with the common intention to kill any of those left wounded and incapacitated by the initial gunfire. This is borne out by the evidence that while Paul Lavu was shooting at a prone Jimmy Lasi, Andrew Te’e was walking towards an injured Chris Tova, firing shots at him.

46
	It is, of course, a probable consequence of firing directly and at relatively close range at a person with a high powered rifle that the death of that person will be the result. I find that if in fact Jimmy Lasi was still alive on the beach after the initial shooting, then it was Paul Lavu who killed him. In the circumstances as the other participating party, I am satisfied that both elements of section 22 of the Penal Code have been established against Andrew Te’e beyond reasonable doubt, and that he is guilty of the murder of Patrick Jimmy Lasi.

	Ralph Enoch

47
	I now consider the situation with respect to Ralph Enoch.

48
	Various witnesses gave evidence that both Ralph Enoch and Wilson Lomon were in the leaf hut at the time it came under fire from the direction of the bush behind it, and I accept that evidence.

49
	Meso Lepo, who I accept was also in the beach hut at the time, told the Court that when the shots started coming from the direction of Veramatanga (the bush) he ran, and then witnessed Raolo (Ralph Enoch) fall. He said he did not see Raolo move again. Wilson Lomon, who was also in the beach hut, said after the firing started he saw first Chris Tova and then Raolo fall. His evidence was that Raolo fell on his knee and cried out "oh God help me", and at that time he threw down the gun he was carrying. Wilson Lomon said he then picked up the gun and moved away, and because the gunshots were too much he did not look back to see what then happened to Raolo. I accept the evidence of Wilson Lomon in these respects.

50
	From the agreed facts and the evidence of Dr. Dodd, it is clear and I accept that Raolo Enoch died as a result of gunshot wounds from a high velocity rifle. Dr. Dodd’s evidence was that there were several sites of injury found on examination of his remains, two being related to the lower back and one the right upper arm. He said the injuries to the lower back would have resulted in death after "a matter of moments or longer". I accept that evidence.

51
	From the evidence I infer that Ralph Enoch either died of gunshot wounds received from the initial hail of bullets from the bush or, having been wounded by that initial volley, was subsequently shot and killed on the beach by an unidentified person.

52
	If Ralph Enoch was killed by the initial hail of bullets, Andrew Te’e is liable for his murder for the same reasons (including my findings) as outlined in respect of Jimmy Lasi. That is, Andrew Te’e is caught by the provisions of section 22 of the Penal Code.

53
	If Ralph Enoch was not killed by the initial fire but was subsequently shot and killed on the beach by an unidentified person, then the clear inference from the evidence is that this was carried out by one of the group of which Andrew Te’e was a member. As I have found, Andrew Te’e was part of a joint criminal enterprise to despatch those wounded by the initial fire, the parties to that joint enterprise being Paul Lavu and anyone else in Andrew Te’e’s group who may have participated in this activity. Therefore if Ralph Enoch was killed on the beach and not by the initial gunfire, then whether or not it was Te’e or another member of his group who killed him he is caught by the provisions of section 22 of the Penal Code and is guilty of murder.

	Wilson Lomon

54
	In relation to Wilson Lomon, he gave evidence that he was asleep in the beach hut when the gunshots from the bush started coming, and that he was then hit by a bullet in the upper left armpit. He then escaped. I accept his evidence in these respects. 

55
	I repeat my finding that the group of which Andrew Te’e was a part had the unlawful purpose of intending to fire upon the group of Ghaliatu men and boys at the beach hut. A probable consequence of firing at such group with high powered weapons was the death or injury of the targets. In the case of Wilson Lomon, it is fortunate that he suffered only an injury. 

56	The evidence falls short of establishing that all the participants in the ambush group had an intention to kill those gathered on the beach when they were initially fired upon. While it is clear from their subsequent actions on the beach that Andrew Te’e and Paul Lavu intended to kill, it cannot be established that this was the intention of all those in the ambush group. Nor does the evidence establish who fired the bullet which injured Wilson Lomon.

57 	Therefore I do not consider it has been established that there was an attempt to murder Wilson Lomon. However, I find it was a probable consequence of the prosecution of the unlawful purpose of firing on the group that one or more of the victims would be injured by the bullets.

58	For these reasons I consider the Crown has established beyond reasonable doubt that Andrew Te’e is guilty of the unlawful wounding of Wilson Lomon under the joint offenders provision in section 22 of the Penal Code.

59	I have not overlooked the evidence from Sergeant Runi that it was the Commissioner of Police in Honiara who authorised and indeed it would seem instigated the mission against Harold Keke. Be that as it may, the evidence does not establish that the authorities in any way authorised or sanctioned unlawful killings, and nor did that backing render the killings lawful.

60	Nor have I overlooked Sergeant Runi’s evidence that there was an apprehension among the Joint Operations Group that some villagers may have been being held against their will. In the result the evidence did not bear this out and that apprehension alone can in no way justify or provide a lawful excuse for the killings which took place.

61
	I also mention that there was an unsuccessful application for a mistrial on the basis that a Crown witness gave incriminating evidence against Andrew Te’e in relation to an unrelated matter. I made a finding that such evidence was inadmissible and I have disregarded it completely.	
		
62	Accordingly, on Count 1 in relation to the murder of Patrick Jimmy Lasi, I find the defendant Andrew Te’e Guilty.
On Count 2 in relation to the murder of Ralph Enoch, I find the defendant Andrew Te’e Guilty.

On Count 3 in relation to the murder of Lianga Lini, I find the defendant Andrew Te’e Guilty.

On Count 5 in relation to the murder of Christopher Tova, I find the defendant Andrew Te’e Guilty.

On Count 4 in relation to the attempted murder or alternatively the unlawful wounding of Wilson Lomon, I find the defendant Andrew Te’e Not Guilty of attempted murder but Guilty of unlawful wounding.

Convictions in accordance with these verdicts are entered in respect of each of the 5 Counts.

BY THE COURT

Hon. Justice IDR Cameron
Puisne Judge