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Regina v Ome [2011] SBHC 27; HCSI-CRC 265 of 2006 (6 May 2011)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 265 of 2006

REGINA

V

JOHN OME AND DAVID SUITI

HEARING: 22-25 March, 28-31 March, 1st April, 4-5 April, 8 April 2011
JUDGEMENT: 6 May 2011

J. Naigulevu and J. Seuika for the Crown
L. McSpedden and S. Kalu for John Ome
R. Tovosia for David Suiti

Palmer CJ.

The accuseds, John Ome ("Ome") and David Suiti ("Suiti") were each charged with 8 counts of offences. Counts (1) and (2) relate to the attempted murder of Fangidua Kirite'e and John Suifasia respectively. Count (3) was in respect of the arson charge over the burning of the buildings and structures of Fangidua Kirite'e and his family at Abuna'ai village, East Kwara'ae. Count (4) relate to the discharge of firearms in a public place; count (5) to the offence of going armed in public with two automatic assault rifles without lawful occasion and causing fear to persons within the village at Kona; count (6) possession of firearms without firearms licence; count 7 intimidation; and count 8, assault occasioning actual bodily harm.

Ome entered not guilty pleas to all 8 counts; Suiti entered guilty pleas on all counts save counts 1-3. The offences were alleged to have occurred on 16th September 2000 at Kona village apart from the arson offence which occurred at Abuna'ai village.

The offence of attempt to murder.

Section 215(a) of the Penal Code prescribes the offence of attempted murder as follows:

"Any person who –

(a) Attempts unlawfully to cause the death of another; ... is guilty of a felony, and shall be liable to imprisonment for life."

Section 378 defines attempt as follows:

"When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.

It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfilment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.

It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence."

The issue is whether prosecution have established to the requisite standard, that of proof beyond reasonable doubt, the crucial element of intention on the part of the defendants to kill Fangidua Kirite'e ("Kirite'e") and John Suifasia ("Suifasia"). Intention can be established by words usually in the form of threats[1] and accompanied by corresponding action, referred to as the overt act.

Evidence of intention.

1. Evidence of prior threats. Threats were first made on 8th July 2000 by Kakomae Luina ("Kakomae") and Amota Samodai Luina ("Amota"); sons of Luina. This was that they were going to burn their place at Abuna'ai and use the Malaita Eagles Force ("MEF") to kill them. Those threats arose it seems from an ongoing land dispute between the two families. The family of Luina had disputed the validity of the sale and rights of the land owner who sold the land to Kirite'e. They had also made claims to some coconut trees which they allege Kirite'e had felled in the land. Kirite'e however says that the claim was but an excuse to extract compensation from them.
   

Similar threats were repeated by Amota on 9 September 2000 that if they did not pay for those coconuts the MEF would come and burn their place and kill them. He also set a dead line for 13 September 2000 when they would return to collect the money.

On 13 September they attended at their place and attacked members of the Kirite'e family. Those who were involved in that attack were Luina, Kakomae and Amota. They were armed with a stick, iron bar, knife and a sling. David Kirite'e lost two of his front teeth from a sling shot, Suifasia suffered an injury to his arm from being hit with the iron bar and Kirite'e dazed on the back of his head also with the bar. Ome and Suiti however were not involved in that incident or the issue of any previous threats. The prosecution however have sought to link Ome by marriage to the Luina family; he married the daughter of Luina's sister. Suiti too was connected as a close relative; he is Luina's nephew.

Prosecution's case is that the events of 16 September 2000 should be viewed together with the earlier threats that made by members of the Luina family and that Ome and Suiti were engaged or became involved through their close association with them. They were also members of the MEF.

On 16 September 2000, on arrival at the village of Kona, a warning shot was fired by Ome, followed immediately by a demand for the payment of $1,800 for compensation for coconut trees that had been felled, and a threat that they would burn their village and kill them if they did not give the money. I am satisfied that the events of the 16th September 2000 were related to previous threats and that Ome and Suiti became embroiled in that long standing dispute by their involvement that day.

The critical question however remains whether on that day they had intention to kill or came with intention to kill. I have had opportunity to carefully assess the evidence on this issue but do not find that prosecution have established to the requisite standard that at that point of time they had the necessary intent to kill. I am not satisfied they can be described as killers and came with intention to kill any member of the Kirite'e family. There is no evidence to suggest that at that point of time anyone in particular was targeted or the focus of that visit.

The threats that had been earlier issued were only general threats. The threat made by Ome on their arrival that day was also a general threat that he was going to shoot them all if they did not give the money. This in my view is relevant to the charge of attempted murder which relate specifically to two members of the Kirite'e family and not others.

This case can be contrasted with the case of Salafilamo v. Regina (ibid), where the threat issued by the defendant (Salafilamo) was specific to the victim (Eto'o Gwaoka), that he would kill her if she left him and to kill anyone who tried stopping him from marrying her.

The facts in this case showed that when the rest of the Kirite'e family fled out of fear for safety, one of the sons, Stephen Mani ("Mani") actually remained behind. They did not shoot him however and instead pursued the other two who ran off. If there was an intention to kill at that time, there is no reason why they did not shoot Mani who was standing right in front of them. This in my view does not support the submission of a nexus between the threats and intent to kill.

Also I find that because the threat issued was conditional; if they did not give the money demanded, and that everything happened so fast, there was hardly time for Kirite'e to respond, whether to accept or refuse. There is no evidence to suggest that there had been a refusal to the demand which would have given cause to the defendants to shoot them. The nexus between the demand, the threat and intent would seem to break down in that regard, if not ambiguous. It appears that as soon as the warning shot was fired and threat made, Kirite'e and his family ran off immediately, apart from Stephen Mani. I find insufficient evidence to support Prosecution's case that they formed the intent there and then, to kill those who were running away.

This raises the next crucial question whether at any other time Ome and Suiti formed the intent to kill, whether at the time they gave pursuit or when they fired aimed shots at Kirite'e and Suifasia.

There is un-contradicted evidence which showed that Ome fired a shot at Kirite'e but did not give chase. It was Suiti who gave chase instead. Did Ome intend to kill Kirite'e when he aimed his rifle at him and fired a shot? Taking aim and firing a shot with reckless indifference whether death is caused or not, where death does not occur, is not evidence of intent[2]. In this particular instance, it is my considered view that there is insufficient nexus between the intent and the overt act complained of. I have pointed out during submissions that Ome could have shot straight at them when they arrived at the village but did not.

Prosecution however have submitted that the warning shot could have been fired to give opportunity to Ome and Suiti and the others to round them up before killing them. There is nothing on the evidence though to support such submission. It could equally have been so that they would gather them to talk to them. In my view the evidence does not support the submission of Prosecution of an intent to kill, for not only was one shot fired but when Suiti caught up with Kirite'e, he did not shoot him, even though the opportunity to do so was there. Even when the rifle was pointed at his head, I am not satisfied it had established that Suiti was going to shoot him at that moment. In his evidence Kirite'e had told the court that he grabbed hold of the barrel of the rifle because he thought Suiti was about to shoot him then. He says that a struggle ensued and in the melee which followed a shot was discharged. I am not satisfied however that the shot was intended to kill him. It is equally possible the shot was discharged as a result of the struggle that ensued. This is consistent with the events that transpired thereafter because after the struggle, Kirite'e was dragged towards their vehicle on the road. Along the way Talen Suiti kicked Kirite'e on the leg and Suiti hit him with the butt of the rifle on his ribs. There was opportunity again for him to shoot him at that time but he did not do so. Suiti has pleaded guilty to the charge of assault occasioning bodily harm in respect of that assault.

The charge against Ome and Suiti of attempted murder in relation to Kirite'e therefore has not been proven beyond reasonable doubt and they must be both acquitted of that charge.

2. Was there an intent to kill John Suifasia? On the evidence before me, I am satisfied there were at least two shots that were fired at John Suifasia. The first shot was when he ran off into the bush and was shot at by Suiti. This shot missed because according to him he fell down at the very moment the shot was fired, it wheezed past his head. The second shot came from Ome when Suifasia ran across the road and into the swamp where he hid until they had gone away. There may have been other shots but I am not satisfied these had been established to the required standard.
   

The evidence before this court was that these were aimed shots directed at him. The issue however is whether it had been established beyond reasonable doubt that these aimed shots were intended to kill? Prosecution relies on the earlier threats and threat issued that day, the relentless pursuit of the two victims, in this case Suifasia and the aimed shots; in Suifasia's case it was two shots. I am not satisfied however that prosecution had established beyond reasonable doubt that there was sufficient nexus between the threats, the pursuit and the aimed shots, as being necessarily consistent with and reflective of an intent to kill. Apart from the threats there was nothing else said which would support prosecution's case of an intent to kill. The shots could equally have been intended to frighten him so that he does not run away or to stop him from getting away, including merely to injure him but not to kill. I have pointed out in this judgement that taking aim and firing a shot with reckless indifference whether death is caused or not, where death does not occur, is not evidence of intent[3]. Accordingly I cannot be satisfied that prosecution had established the element of intent to kill and dismiss this charge also against both defendants.

3. Arson of Abuna'ai village.
   

The prosecution's case for arson is primarily based on circumstantial evidence. They say that after the group had attacked the Kirite'e family at Kona village, they went back to Auki and dropped off there before catching a separate lift in another vehicle driven by Ronny Maefasia ("Maefasia") who dropped them off at Foubaba village. From there they walked to Abuna'ai village, razed it to the ground, shot one of Kirite'e's pig, took his shell money (called in the local dialect "Baniau ono") and returned through Foubaba village again. They were seen on their return carrying a dead white pig. The prosecution say this white pig belonged to Kirite'e which was left at his village when they vacated the property on 13 September and went to stay at Kona village. The Baniau ono was seen when it was presented by Amota at the supposedly reconciliation ceremony on 18 September 2000 and identified by Kirite'e and his family as the one they had left locked in their store. They say it was taken by the same group at their village when they went to burn it down on the 16th September 2000.

The evidence. I find the following facts established beyond reasonable doubt.

1. I am satisfied there were threats to burn the village made prior to 16 September 2000. These were made by members of the Luina family. These were made on 8 July and repeated on 9 September, 13 September and 16 September 2000.
   
2. On the morning of 16 September the threat to burn the village was repeated by Ome when he fired the warning shot. It was repeated later as they left the village in the hilux that morning.
   
3. I find that Ome, Suiti and others were picked up at Auki by Maefasia in his vehicle later that same day 16 September 2000 and dropped off at Foubaba village. Maefasia recalls the name of Ome being mentioned by the group that he picked up but did not personally know Ome.
   
4. That link or connection is strengthened or supported by their identification at Foubaba village by Saul Samani ("Samani") and Tony Ramoitolo ("Ramoitolo"). Those two witnesses gave clear un-contradicted evidence which linked these two defendants to Foubaba village at around 2.00 – 3.00 pm in the afternoon of 16 September 2000. Their arrival at Foubaba is consistent with the evidence of being dropped off there by Maefasia. But even if Maefasia's evidence may be discounted there is no reasonable doubt in my mind that these two defendants and their group were seen at Foubaba village that afternoon.
   

4.1 Although Samani did not recognise these two defendants, he knew and recognised Salole, one of the members in the group. Salole was also one of the persons that had accompanied them to Kona village earlier that day. Samani saw him at Foubaba village with a group of men, including two whom he described as "militants" carrying a "gun" each. This is entirely consistent with the description of these two defendants who were seen earlier at Kona as the only two carrying an assault rifle each.

4.2 He also gave un-contradicted evidence that Salole told him that they were going to burn Abuna'ai village. He also saw two containers of what he believed was petrol which they carried.

4.3 This witness also saw them returning later carrying a dead white pig with them, which is consistent with the evidence of Kirite'e that he had two pigs, one white in colour which he had left behind at Abuna'ai village. The description that it was a big pig coincides with his description of a grown up pig.

5. Samani's evidence was supported by Tony Ramoitolo ("Ramoitolo") who confirmed that the group of men he saw at Foubaba village included these two defendants. I am satisfied about his identification of those two defendants and their presence at Foubaba village that afternoon. He knew these two defendants from previous associations and so identification was never an issue with him. He confirmed they were carrying guns at that time. He also saw them carrying two containers of petrol. He confirmed in court that while he did not know what was inside those containers save the colour of petrol, red, they themselves disclosed to him that it was petrol. He also gave evidence that two of the members in the group, Talen Suiti and Alick Luina said that they were going down to Abuna'ai village and when they left they did so in the direction of Abuna'ai village.
   
6. I am satisfied as well that by Sunday evening, 17 September, Abuna'ai village had been razed to the ground. When Kirite'e met Simon Anisi ("Anisi") one of the Malaita Eagles Force Commanders that evening he was told that his village had been completely burnt to the ground. The village therefore could only have been burnt any time after the group left Foubaba village and the next day.
   

There is no evidence to suggest that the village was burnt anytime before that or after Sunday 17 September. When their group left Kona village on the morning of 16 September 2000, Abuna'ai village could not have been burnt down as yet, because they would not have issued any threats to burn the village if it had already been burnt.

7. There is no contrary evidence to suggest that anyone else had sufficient motive to burn down their village apart from the defendants and their group. There is no evidence to suggest that anyone else had issued any threat to burn their village. While there may be other aggrieved persons regarding the purchase of that land by Kirite'e, no evidence has been adduced that would raise doubt in my mind that the burning of Abuna'ai was possibly the work of anyone else apart from these defendants and their group. That possibility is quite slight and fairly remote.
   
8. I find that the purported reconciliation ceremony held on Monday 18 September for what it is worth in custom can only support prosecution's case that the defendants and their group were directly involved in the burning of that village. While Ome was not present, Suiti and most of those in the group, Talen Suiti, Salole, To'oga Luina and Buabu Fera were present at that ceremony. Amota spoke on their behalf and admitted that they had burnt the village down and that they should not return. Although what Amota admitted is not evidence against both defendants, it is not inconsistent with the prosecution case that the burning was the work of anyone else other than their group.
   

Amota also presented a shell money but which Kirite'e and his family later identified as their own baniau ono which they had left locked behind in their store. I am satisfied on the evidence before me that the shell money belonged to them. How they came into possession of that shell money further supports prosecution's case that they somehow had involvement in the burning of Abuna'ai village and no one else. That shell money had been locked up in their store when they left and no one else could have accessed it apart from those who had gone to destroy their village. No other evidence has been adduced other than mere assertions, that the shell money was anything apart from the one belonging to the Kirite'e family. The identification of their shell money used in the reconciliation ceremony is consistent with the prosecution version they were responsible for the burning of Abuna'ai village.

9. I find sufficient nexus in the evidence which showed beyond reasonable doubt that the two defendants were directly involved in the burning of Abuna'ai village and convict them both for this offence.
   
4. Discharge of firearms in a public place. I am more than satisfied that Ome must be convicted of this charge as well. The evidence against him is overwhelming. I do not need to repeat the evidence that has been adduced by prosecution. He has been clearly identified by witnesses who knew him from previous encounters, connections and relationships and recognised him easily on that occasion. There is clear evidence of one warning shot fired in the air by him when they arrived at Kona village and several shots being fired in the direction of Kirite'e and Suifasia at varying times on that occasion. I have no reason to doubt the evidence of those prosecution witnesses who described the use of the rifles that they had at that time. They were very clear, objective, consistent, certain and confident about their identification and account of the events in relation to the shots that were fired by him and Suiti. I note Suiti had voluntarily pleaded to this offence.
   
5. Going armed in public without lawful occasion. I am satisfied also on the evidence before me that Ome should be convicted of this offence. The evidence is overwhelming. He had no lawful reason or excuse to be armed with an assault rifle on that occasion. Several witnesses testified how it was their first time to hear such loud sounds from such rifle and were terrified by it.
   
6. Possession of firearms without firearms licence. I do not see how anyone can plead not guilty to such charge when it is obvious that under the laws in Solomon Islands only shotguns and .22 rifles were standard issues. The witness Robert Alufurai, former Firearms Licensing Officer with the Ministry of Police and National Security and based at Rove Police Headquarters confirmed this. The SR 88 assault rifles identified as being used at Kona village were military style weapons and had been previously obtained by the Government of late Solomon Mamaloni to be used at the Border between Solomon Islands and Papua New Guinea to stop incursions by the Papua New Guinea Defence Force into Solomon Islands territory around the Shortlands and Choiseul areas. They were never released for use by any member of the Public; they were confined primarily for use by the Police Field Force who had been specifically trained for their use. They became available to the public following the unlawful raid and entry into the Police armoury in June 2000 by members of the MEF and had been widely used illegally throughout the ethnic tension period, which included that period of 16 September 2000. I am satisfied Ome must be convicted of this offence as well.
   
7. Intimidation. The facts in relation to this offence also have been established to the requisite standard. There is little doubt in my mind that a lot of people that were around in the vicinity at that time including Kirite'e were terrified and intimidated by their actions. Ome is also convicted of this offence.
   
8. Assault occasioning actual bodily harm. Suiti was the only one charged with this offence and he has pleaded guilty to this charge. He is convicted of this charge including counts 4-7 which he has also pleaded guilty to.
   

ORDERS OF THE COURT:

1. Acquit John Ome and David Suiti of charge of attempted murder in counts 1 and 2.
   
2. Convict John Ome and David Suiti of the following charges:
   

i. Arson contrary to section 319(a) of the Penal Code;

ii. Discharging firearms in a public place contrary to section 44 of the Firearms and Ammunitions Act (cap. 80);

iii. Going armed in public contrary to section 83 of the Penal Code (cap. 26);

iv. Possession of firearms without firearms licence contrary to section 5(2) of the Firearms and Ammunition Act (cap. 80); and

v. Intimidation contrary to section 231(2) of the Penal Code (cap. 26).

3. Convict David Suiti of the offence of assault occasioning bodily harm contrary to section 245 of the Penal Code (cap. 26).
   

The Court.

^[1] See Salafilamo v. Reginam [1995] SBCA 8; CA-CRAC 10/94 (12-04-95), at page 2, para. 4
^[2] See Alister v. The Queen [1984] HCA 85; (1984) 154 CLR 404, 50 ALR 41, per Gibbs CJ, who quoted with the approval this statement in R. v. Whybrow (1951) 35 Cr App R 141 per Lord Goddard (at 146-147).
^[3] See Alister v. The Queen [1984] HCA 85; (1984) 154 CLR 404, 50 ALR 41, per Gibbs CJ, (ibid)