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Regina v Maoma - Application for Amnesty [2008] SBHC 49; HCSI-CRC 300 of 2006 (8 August 2008)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 300 of 2006

REGINA

V

WILLY MAOMA, TOME FUTA, BRIAN
SUAKE, NIXON MAETOIA, DANIEL KAPINI

Dates of Hearing: 12 November 2007 to 27 May 2008.
Date of Decision: 08 August 2008

R Cavanagh for Willy Maoma,
George Squier for Tome Futa
Edward Cade for Brian Suake
Doko Kari for Nixon Maetoia
'Amelia Fa'asau for Daniel Kapini
Edward Fitzpatrick, with him
Ricky Iomea for the Crown

JUDGMENT

ON APPLICATIONS FOR ORDERS GRANTING AMNESTY

Commissioner Lewis:

1 The Accused and each of them have made an Application for an Order pursuant to the provisions of the Amnesty Act 2001 section 3 (the Act) granting Amnesty from prosecution.

Onus of Proof

2 It is submitted and I accept that concerning findings of fact, the onus should rest with the Applicants 'to the reasonable satisfaction of the tribunal - the 'Briginshaw onus.' Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 per Dixon J at 361-362. The prosecutor also directs my attention to R v Coughan and Young CA (1976) 63 Cr. App. R. 33 at 35 per LAWTON L. J.

3 The Accused carry the burden of establishing a right under the act, the burden of proof and the burden of evidence. This Application invokes the criminal jurisdiction of the High Court "The matter is one, the direct outcome of which may be the trial of the Applicant and (their) possible punishment for an alleged offence by a court claiming jurisdiction to do so, the matter is criminal." Amand v The Home Secretary [1943] AC 147.

4 Each Accused has already been prosecuted for offences arising from a series of incidents which occurred in August 2000 above the village of Savekau in Marau Sound Gaudalcanal in. In some cases three of the counts have been jointly charged. The Information charged 3 counts of murder, one count of attempted murder, one count of unlawful wounding two counts of aggravated robbery and one count of going armed in public.

5 Findings of fact determined in the Criminal trial R v Maoma and Others 300 of 2006 are used as the basis for determination of the present Application.

6 The offences took place in August 2000. Verdicts were delivered today, Friday 08 08 08. The verdicts are annexed to this Ruling in a schedule marked 'Verdicts R v Maoma & 0thers. 300 of 2006.' Findings have been made, but no convictions have been recorded at the time of publishing this ruling.

7 Section 3 of the Act provides:

"3. (1) Notwithstanding any provisions of the Penal Code or any other law, the following persons shall be granted an amnesty or immunity from criminal prosecution as hereinafter provided –

(a) leaders, members and other civilian advisors associated with the Marau Eagle Force; and

(b) leaders, members and other civilian advisors associated with the Isatambu Freedom Movement.

(2) Subject to the provisions of section 4, the amnesty or immunity from criminal prosecution referred to in subsection (1), shall be in respect of any criminal acts committed in the execution or purported execution by any person –

(a) of the Isatambu Freedom Movement on Guadalcanal in connection with the Marau conflict during the period commencing 1st January 1999 and ending 7th February 2001; and

(b) of the Marau Eagle Force on Guadalcanal in retaliation against the acts committed by the Isatambu Freedom Movement on Marau during the period commencing 10th June 2000 and ending 7th February 2001.

(3) The amnesty or immunity from prosecution referred to in this section shall be on condition that all weapons and ammunition and stolen property in possession and in the custody of the militant groups referred to in subsection (2) are surrendered and returned and returned in the manner and within the periods specified in the Marau Peace Agreement or such other date the Minister may specify by Notice published in the Gazette.

(4) In this section "criminal acts" means unlawful acts which are directly connected with matters specified in subsection (2) and in particular –

(a) offences relating to arms and ammunition;

(b) killing or wounding in combat conditions or in connection with the armed conflict on Guadalcanal; or

(c) damage done or loss caused to any property during or in connection with military or security operations.

(5) The amnesty or immunity referred to in this section does not apply to any criminal acts done in violation of international humanitarian laws, human rights violations or abuses or which have no direct connection with the circumstances referred to in subsection (2)(a) and (b) of this section."

8 The accused claim that all material times they were members of the Marau Eagle force. I conclude that they were members of the Marau Eagle Force – that is the thrust of the evidence. I so find.

9 I am satisfied that the Amnesty sought is from criminal prosecution referred to in subsection (1) in respect of "criminal acts" found to have been committed by the accused on 21 08 00 (set out in the schedule annexed hereto entitled "Verdicts R v Maoma and others No. 300 of 2006").

10 The accused claim – and I find, that the killings here were in retaliation against acts committed by the Isatambu Freedom Movement (IFM) in -

(a) in retaliation for the death of Shadrach Hariu,

(b) in retaliation for acts by the IFM that caused people of Malaitan descent to leave their homes.

11 I make it clear that I do not find that it is reasonably possible that the death of Shadrach Hariu was caused during an IFM operation lead by Joseph Sangu with people from Savekau in attendance since I am not prepared to accept the evidence of the witnesses presented by the accused Maoma as being reasonably possible nor am I satisfied that it is reasonably possible that the evidence of the witness Anthony Suava is a true and correct account of his activities in this matter.

12 I am not satisfied that the alleged acts of the accused in murdering the three boys, Fox Mono Sebastian Abele and Jonathon Talanimaina Kennedy were "killing or wounding in combat conditions or in connection with the armed conflict in Guadalcanal" section 3. (4)(b) or (c) "damage done or loss caused to any property during or in connection with military or security operations".

13 The acts contemplated by section 3.(4) (b) and (c) are eiusdem generis to be acts conducted in a military and operational sense. I conclude beyond reasonable doubt that the residents of the hideout huts were neutral that is neither bearing allegiance to MEF or the IFM. They were civilian. The deceased were murdered in their sleeping hut. There were no sentries protecting them, no resistance was raised and offered to the attack, no weapons were seen at the hideout huts in the hands of the residents and lastly by at least one account, some had expectations that they expected they would be visited by the MEF that very morning.

14 That conclusion was reached after my having considered the kind of evidence led by Maoma from the some twelve witness he called to show that it was reasonably possible that the Savekau villagers were pro IFM. I find the witness Anthony Suava unreliable. I believe that Suava was attempting to mislead this Court.

15 As to the provision relating to the surrender of firearms it is manifest that each accused handed in the .303 rifle and the pump action shot gun to their commanders and that the commanders surrendered their weapons.

16 The accused gave evidence of their compliance see Exhibit P26 "Guadalcanal Firearms From (IPMT, PMC and NPC Amnesty Periods from 29 November to 13 February 2003 page 22 entries 821 and 822 Johnson Apeo.

17 Section 3(3) of the Act makes grants of Amnesty conditional upon the applicant for the grant proving the surrender and return of all weapons ammunition and stolen property in the possession of the Applicant within the manner and the periods specified by the Minister by Notice published in the Gazette.

18 The accused all submit compliance, with each of the requirements imposed.

19 The Crown takes issue with the accused and each of them and submits that:

the condition precedent of weapon and ammunition surrender and return has not been proven - vide Exhibit D26 says that no weapons were surrendered in Marau as at 09 03 01,

Albi Ham an Assistant Supreme Commander of the MEF (or at least that is the rank he gave himself when he signed the Marau Peace Agreement in 2001),surrendered weapons at Niu Island on 09 03 01,

Ten men went to Vonu and back on 20 – 21 08 00 and only six weapons were surrendered by Albi Ham who had received them on behalf of the accused following the return of the weapons by the accused on 21 08 00, demonstrating that not all the weapons issued were returned, and the ones which were not returned are not identified,

the surrender does not include the 'Ultimax Light Machine Gun' in the possession of Moama on 21 08 00, however that gun was surrendered at 'Hell's Point' on 1 June 2002.

Suake said that he was issued with and carried a '.22' rifle on the 21 08 00. There is no record of that weapon having been surrendered anywhere,

Albi Ham was given a 'Greener shotgun' see D26 (5) page 4. A 'Greener' was surrendered at Niu Island on 19 03 2001 but the serial number on the surrendered weapon is not the same as the serial number of the gun given to Ham so that the Greener in Ham's possession, issued to Kapini has not been shown to have been surrendered.

The tendering by the accused (without objection) of certificates of surrender of firearms proves nothing other than the fact of that which appears is on the face of the certificate.

the certificates entitled 'Certificate of Surrender of Firearms/Ammunition/Explosive' received into evidence in the case for Suake [Exhibit D 26(Suake)] are three in number namely one for Maoma numbered '0013 purportedly signed by Minister of Police National Security and Justice (whose signature is indecipherable) has provision for particulars but no particulars are provided

The 'Certificates' purport to certify that a weapon or ammunition or explosives (with no particularity set out) was surrendered or returned to Solomon Islands Government Ministry of police, National Security and Justice on a date or dates unknown.

Two other blank Certificates are tendered as a part of exhibit D26 (Suake), one in the name of Daniel Kapini numbered '0054' and the last in the name of ' Mae Nixon' (sic) numbered '0008' each document is apparently a photocopy and each has a signature appearing above the Minister's printed title.

The Crown submits that the mere handing over of a weapon of a weapon to another member of the MEF is insufficient proof falling short of that required to establish the requirements of the Act.

Section 3 (3) of the Act surrender and return of weapons

20 I am not satisfied that there has been proper compliance with the provisions of section 3(3) of the Act. The evidence of each of the accused is:

Maoma, - "I handed the weapon to Jude Hariu"

Futa - "the guns were left in the boat at Waimamaru camp"

Suake - "when we got there (Waimamaru) everyone got out of the boat, the guns remained in the boat . ..'[21 04 2008 p.69]. . . . . . the pump action and the '.303 . . Jude Hariu returned them to Alby Ham...I think in the middle of 2001...I do not know what Alby Ham did with them' [21 04 08 at p. 71].

Maetoia and Kapini gave no evidence about the surrender and return of 'guns'. They say in their Dock statements

Maetoia - " I left the SLR that I carried with me that morning on the boat....."

Kapini - "I left the gun in the boat at Komuta'a."

21 Section 3(3) of the Code requires compliance by the accused and is a condition precedent to the granting of the Amnesty sought.

22 A proper interpretation of section 3(3) requires the Court to give the section its plain meaning. It means for present purposes, that the person claiming Amnesty show to the reasonable satisfaction of the Court that:

all the weapons (the act must mean 'all weapons a particular applicant used or carried at a material time"),

were surrendered and returned to the authorities in accordance with the provisions of the Marau Peace agreement executed on 7th February 2001. [Exhibit D 26 Suake]

Clause 7 of the agreement provides the procedure for the return.

23 Clause 7 of the Marau Peace agreement provides among other requirements that 'within 30 days after the signing ..all weapons....in the possession of the IFM and the MEF shall be surrendered in accordance with part two of the TPA (Townsville Peace Agreement).

24 The Townsville Peace Agreement has neither been referred to nor been tendered as an Exhibit by counsel in this trial I am placed in the position of not having an important document to complete the chain of proof required.

25 The argument by the accused is that the accused having raised the matter of compliance with the provisions of the Act, now require that the Crown prove beyond reasonable doubt that the surrender and return of the weapons has not happened and therefore the accused are precluded from a grant of the order sought. That submission I say with respect, is flawed. The Act requires the accused to prove proper compliance not merely prima facie proof of compliance thereby raising a shifting onus.

26 Alby Ham was not called as a witness. The events of the 21 08 00 occurred about 5 months prior to the execution of the Marau Peace Agreement. No constraints were placed on any accused to surrender or return weapons in August 2000.

27 In its present state therefore the evidence presented by those claiming Amnesty is that the weapons were left in a boat. One accused, Suake, can say that the weapons were in the hands of one 'Alby Ham' . We have no evidence from Ham (albeit that his apparent signature appears prima facie to be on the Marau Peace Agreement copy at page 19 [exhibit D 26 Suake] where he is described as 'Assistant Field Commander Marau Eagle Force'').

28 I raised the matter of section 3(3) of the Act with counsel very early in these proceedings and directed their attention to the possible difficulties in interpreting section 3(3).

29 There is no proof of the proper surrender and return of weapons etc. – indeed there is doubt raised as to the surrender and return in the very documents relied upon namely the bundle annexed to exhibit D26.

30 The certificates tendered with D26, are in blank and yet bear a signature, underneath which appears to be an assertion that the signature is that of the Minister of Police National Security and Justice. I take no judicial notice of the signature as being that of the Minister. I am surprised that the Prosecution allowed the documents to be admitted without objection [Wed 23 04 08 at p. ].

31 The Certificates in the names of Maoma, Futa and Suake and bear no official seal. [see the Evidence Act 1845 (8 & 9 Victoria c.113) section 1.] The Certificates in my opinion have neither force nor effect. The only use to which they may have possibly been put is that they are evidence on which an accused may prove a belief that he possessed some kind of official acknowledgement of his having returned a weapon. That assertion of belief is neither implied or articulated in the evidence of Maoma, Futa and Suake and does not appear from the statements of Maetoia or Kapini.

32 No proper proof of the surrender and return of the weapons held by the accused has been made out. Section 3(3) of the Act has not been complied with. It is the clear obligation of each accused to prove the positive return of the weapons. Proof of the surrender and return of weapons is a condition precedent to the granting of an order for Amnesty.

33 Given the findings and my judgment that the cases do not fall within the ambit of the Amnesty Act 2001, I do not propose to consider the International Treaties Tribunals and the International Criminal Court decisions.

34 For the foregoing reasons, the Applications for Amnesty are refused.

IT IS ORDERED THAT:

35 The Application for Amnesty by the accused Willy Maoma, Tome Futa, Brian Suake, Nixon Maetoia and Daniel Kapini be refused.

J. W. Lewis
COMMISSIONER of the HIGH COURT