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Regina v Bolami [2011] SBHC 28; HCSI-CRC No.331 of 2005, 454 and 455 of 2007 (4 May 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona J)

Criminal Case No: 331 of 2005, 454 of 2007 and 455 of 2007.

REGINA

V

BOLAMI, NIMELIE, LEINGA AND TEVARA 2

Dates of Hearing: 4/4/2009, 27/4-1/5/2009, 4/5-5/5/2009, 12/5-15/5/2009, 18/5-22/5/2009, 25/5-29/5/2009, 6/7/2009, 8/7-9/7/2009, 15/7/2009, 21/7-22/7/2009, 24/4/2009, 27-30/7/2009, 3/8/2009, 23/3/2010, 12/4/2010, 26/4/2010, 10/5/2010, 25/6/2010, 12/4/2010, 26/4/2010, 10/5/2010, 25/6/2010, 28/7/2010, 12/9/2010, 29/11/2010, 2/12/-/3/12/2010, 7/12/2010-10/12/2010, 13/12-14/12/2010, 18/2/2011.

Date of Judgment: 4th May 2011.

For Prosecution: Mr Barry and Ms Taeburi
For Bolami: Mr Nori
For Nimelie: Mr Mane
For Leinga: Ms Waqavonovono
For Tevara 2: Ms McSpedden.

JUDGMENT

Faukona J: On 18th February, 2010 I said I will make a ruling on the application by Ms McSpedden to discharge her client, accused Tevara 2. I now do so.

At the closing submissions Counsel for Tevara 2, Ms McSpedden reiterates her application of 17th September 2010 of which this Court has ruled against on the same date. She relies on the same four grounds as stated on page 1 of the ruling. The Prosecution Mr Barry opposes the application and submits that there has not been any change in circumstances since the ruling on 17th September 2010. He submits that discharging of an accused from a trial would only be granted if there is high degree of need; Winsor v Regina ([1]). He also referred to the case of Regina v Sang ([2]).

2 After my ruling on the same nature of application on 17th September 2010, there has not been any change in circumstances, so far as my health is concerned. In that ruling I have explained my personal situation in a very plain language. I do not seem to understand why I have to hear and determine the same application twice. Is it not an abuse of process which to me it seem it was. If Ms McSpedden indeed was serious and was grief of the ruling, she should have pursued an appeal to the Court of Appeal rather than instituting twice in this court. Nevertheless I still stand on my ruling. The cases refer to by Mr Barry indeed render assistance to this circumstance. The order sought to discharge Tevara 2 at this stage, is therefore refused.

3 Accused Bolami, was charged for murder of the deceased Andrew Nieda on 11th October 2001, at Lord Howe Island, Santa Cruz. From that incident he was also charged with accused Nimelie, Leinga and Tevara 2, for conspiring on 12th October 2010 to defeat the course of justice. Subsequently accused Bolami, Lienga and Tevara 2, were charged for perjury for giving material evidence in the High Court proceedings on 25th August 2003 at Lata, which they knew to be false or did not belief to be true, that Tana killed Nieda.

4 When arraigned on 24th April 2009, they all pleaded not guilty to the charges. A trial was therefore commenced. It was a long trial involving fifty eight witnesses altogether from both sides.

I have reminded myself of the burden of proof which remains with the Prosecution throughout, and proof must be equated to the standard set by law that is proof beyond all reasonable doubt. Should there be any doubt in any of the charges, though trivial it may, the accused should have the benefit of doubt and be acquitted accordingly.

The brief facts.

5 Before the date of the incident, a long standing history of hostility and grudges, even skirmishes occurred between members of the Bolami family and Namona family. Accused Nimelie has highlighted few of those incidents in his unsworn evidence.

6 On the morning of 11th October 2001 accused Bolami, Leinga and Tevara 2, PW1 Laulae and PW2 Nokali including the deceased went to the bush area where the Nila people had damaged. The three accused were armed with homemade guns and ammunitions. PW1 Laulae was the leader. He was armed with a 303 gun. On their way they saw three women from Nila. PW1 Laulae fired a shot in the sky with the 303. This was according to plan. That was to warn, scare, and to indicate they were ready to fight. The women then escaped and the party returned home to Bamoi village.

7 In the afternoon about 1 pm the party returned to the bush including the deceased. This time was to check on any respond from the Nila people. At the tave junction the team divided into two groups. PW1 Laulae, accused Bolami, Leinga and deceased took one road and accused Tevara 2 and PW2 Nokali took another. However, both roads led to the same place. The first group got to the end of the creek and they heard a noise. It was like hammering something to a wall. PW16 Thomas Tolikanga was sited hammering the notice to the wall of
Vaike's copra drier. After that the Nila people started to sing war song. They blew cone shells, shouting and started to advance.

8. The group retreated to safe area and accused Bolami ordered PW1 Laulae to open fired, but he refused. Accused Bolami got angry. At that time accused Tevara 2 opened fire, after, accused Bolami fired another. Accused Tevara 2's gun was not fired but accused Bolami was, with a low sound. After that PW1 Laulae opened fire. At that time the deceased told the group not to discharge any firearms until he returned from home. Then he went to Bamoi village to remind the people that the fight had started. On his journey home he confronted accused Bolami and Leinga near the tave tree junction. The deceased was telling both accused to tell PW1 Laulae not to shoot people but in the air to scare them. The deceased was standing on one road whilst, accused Bolami and Leinga were standing on the other side of road at the junction. Both were standing together and not far away from the deceased. Then accused Bolami said, "what is this that you are saying, why are you always talking, do you want me to shoot you". He was talking to the deceased. Accused Bolami was angry. He further mentioned "if you keep on talking like that, do you want me to shoot you?" Accused Bolami then said, "what are you always saying?" He lifted his gun, pulled the trigger and shot the deceased on his left side. The deceased staggered for about ten meters then he fell down.

9 On 12th October 2001 PW4 Dagi called a meeting in the COC house. At that meeting PW8 Leuba attempted to urge all the accused in particular accused Leinga to say he saw Tana shot Neida. A second meeting was called by accused Nimelie outside of Vaike's house on the same date in the afternoon. He was angry because the operation had failed. At the meeting he urged PW1 Laulae that he must have seen Tana shot the deceased. At that point accused Bolami, Leinga and Tevara 2 decided to say it was Tana who shot the deceased. The outcome of that meeting was a collaborated agreement by all the accused to blame Tana for the shooting of the deceased. Consequently accused Bolami, Leinga and Tevara 2 indicated Tana in their statements to Police recorded in 2001. Again in their evidence at Lata High Court trial. And again in their statements given to Police in February 2005.

The Crown Case

10 The Crown case is that accused Bolami murdered the deceased and that all the accused then conspired to falsely blame Tana for the murder and thus defeat the course of justice. Accused Bolami, Leinga and Tevara 2 then made statements falsely incriminating Tana and ultimately lied in the High Court about Tana.

The Defence Case

11 All the accused have denied the respective charges against them. Accused Bolami denied possessing evil motive. He has never got angry with the deceased who was his real uncle. To fire a gun shot at close range at his uncle was a motive developed by the prosecution which lacks credibility. Accused Bolami denied manufacturing homemade gun and had never possessed one before, during, or after the incident. The gun which the Crown referred to as homemade short gun which accused Bolami used to shoot and kill the deceased was not capable of firing life ammunition. It did not have the appropriate mechanism capable of discharging gun pellets. The multiple pellet wounds sustained by the deceased was a feature of a short gun fired from a distance of 25-30 metres as oppose to a single large wound, the effect from a shot fired from a distance between 5 to 10 metres away.

12 All the accused denied that there was a meeting on 12thOctober 2001 in front of Vaike's house which they conspired by collaboration and agreed to falsely implicate John Tana in the murder of the deceased. That led on to involve accused Bolami, Leinga and Tevara 2 giving evidence at Tana's trial at Lata on 25th August 2003 purposely to defeat the course of justice.

Background facts.

13 The chronology of this case stem from the incident occurred on 11th October 2001, at Lord Howe Island, Santa Cruz which Andrew Nieda was shot by a short gun riffle. The initial perpetrator was John Tana. On 25th August 2003 a High Court trial was held at Lata on the murder charge against Tana. John Tana was eventually convicted and was gaol for life.

14 An appeal was filed in the Solomon Islands Court of Appeal. On hearing of the appeal Counsels by consent agreed that prisoner John Tana be acquitted on the grounds of fresh evidence being unveiled. John Tana therefore acquitted accordingly.

15 Following that decision a fresh investigation commenced. Subsequently the current accused were charged for a number of offences against their names.

Allegation of bribery.

16 Consensus by Counsels to avert the progress of the appeal and allow for fresh investigation poses questions. Mrs Brown former Counsel for Bolami attempted to unveil the allegation of bribery through her cross examinations of certain prosecution witnesses. Allegation was directed against Police and certain members of Namona family for paying
witnesses with money in order to change their stories.

17 PW1 Laulae denied being paid by Police to change his story nor was he motivated by family issues and land dispute to change his story. PW20 Basia denied collecting money from people to assist Tana. He admitted giving $6,000.00 to Chief Superintendent Osi to assist Police in reconciling the parties. This was consistent with PW21 Osi's evidence.

18 After intense cross examination of those witnesses the allegation gradually disappeared and eventually was not pursued from thereon. As such it would be best to allow it to die its natural death.

Count 1 - Murder

19 Accused Bolami was charged for murdering the deceased Andrew Nieda on 11th October 2001, at Lord Howe Island, Temotu Province. A plea of not guilty was entered when he was arraigned on 24th April 2009. The usual elements of murder are:

1. The actus rea
2. The mens rea, and
3. Identification

Events before the incident

20 A month before the deceased Andrew Nieda was shot. PW9 George Teveko stated that he had a meeting with accused Nimelie and his brother Mr Vaike at Lata Prison Service. The discussion was premised on what the brothers contemplated as launching an assault on the Nila people. At that meeting the brothers intended to send the witness to Mr Maluaki and asked for $12,000.00 compensation because Mr Maluaki had sworn at their people. Accused Nimelie also told the witness that if they did not pay he will give them a deadline after he returned from Honiara.

21 The witness also said that prior to 11th October 2001 he saw Namola, PW8 Morris Leuba, accused Leinga and Tevara 2 manufacturing homemade short guns in their kitchens and were possessing them. The same corroborates with PW5 Tevara1's evidence who said he saw homemade guns carried about at Bamoi village by accused Bolami, Leinga and Tevara 2, before 11th October 2001.

22 In September 2001, PW25 Richard Tawalavake took over the post of Provincial Police Commander (PPC) Temotu from accused Nimelie. Upon handing over and checking of the armoury at Lata, he discovered that firearms record book was missing and there were firearms missing from the armoury

23 On 9th October 2001, PW1 Laulae met accused Nimelie at Lata. Accused Nimelie authorised him to command a group from Bolami family to launch an assault operation on the Nila people. The deadline should be Thursday 11th October 2001. Accused Nimelie then gave the witness a red plastic containing six ammunition shells and a cocking spare part for the 303 rifle. Accused Nimelie then told the witness that short gun rifles were already at home with his brothers, more precisely accused Tevara 2 who was in possession of the gun.

24 On 10th October 2001, PW4 David Dagi met accused Nimelie at Lata. Accused Nimelie asked the witness why PW1 Laulae and the boys did not launch an assault on the Nila people. He had already provided sufficient arms and ammunitions. He further mentioned that he gave further ammunitions to PW1 Laulae to go and fight against the Nila people.

25 Evidence of prior occurrence is important to the prosecution case. It reflected that what had actually transpired on 11th October, 2001, was orchestrated by accused Nimelie. He provided ammunitions and the 303 rifle cocking spare part. Besides, it manifested the continuous deep feeling of antagonism towards the Namona family.

26 Accused Nimelie in his dock statement denied having a meeting with PW9 George Taveko and PW4 David Dagi. On those dates he had already left for Banua village on annual leave which commenced on 1st October, 2001. His alibi would have rendered impossible to meet both witnesses on either of the dates as asserted. However, he admitted meeting PW1 Laulae at Lata as coincidence, but denied authorising him to command an assault operation on the Nila people. He also denied giving any ammunition or the 303 cocking spare part to the witness. What he said after listening to him was that PW3 Taliave, Bartholomew Nubanop, the deceased Nieda, Willie Mepoulo to congregate together and find ways and means to settle the problem of hostility between the two families. Even to the extent of inviting chiefs from Bimbir and Nangu villages to assist in settling the long outstanding row.

27 PW25 Tawalavake's evidence stated that firearms record book was missing and there were firearms missing from Lata Police Station armoury. Accused Nimelie said that when he took over as Acting Provincial Police Commander in early 2001 from Inspector Satu, the handover notes stated clearly that there had already been a break in at Lata armoury. And information about the break in had been related to Police Headquarters for investigation, and in fact investigations had already been underway.

28 What transpires from the evidence is that the accused Nimelie did not deny the continuous ill feelings and hostility between the Namona and
Bolami families. He even pointed out in his dock statement, the incidents that took place in the Reef Islands between both families. Secondly there is no denial that a 303 rifle was in the hands of the Bolami family living at Bamoi village though two 303 rifles had been confiscated by police from Vaike, the brother of accused Nimelie. This was confirmed by PW1 Laulae in his sworn evidence.

29 On that day of incident PW1 Laulae was in possession of the 303 rifle and was using it by firing bullets out of it. A significant point is the parallel evidence of PW3 Charles Taliave the paramount chief of Bamoi village. He is the chief of all the accused. He said on the morning of 11th October 2001, he was called to accused Tevara 2's house to assemble the 303 rifle. He did it by getting the bolt out and putting it back again. Eventually it was fixed. PW8 Mr Morris Leuba, the pastor of Bamoi COC Church told the Court that after the 303 had been fixed he test fired it. He said he went to the side of the lake, held the gun to his chest and fired it. It worked. When he returned he gave the rifle to PW1 Laulae.

30 The gun was hidden underground according to PW1 Laulae. When he got the spare part it was dug out; fixed, and test fired, and was working. An important question is where would PW1 Laulae get the spare part from? 303 rifles are government properties distributed to police stations in Solomon Islands for security and rehearsal purposes. Only police officers have easy access to them. And no member of public should be in custody of such.

31 If no spare part was given to PW1 Laulae, as denied by accused Nimelie, then the entire activities occurring that morning, fixing the rifle by putting in the spare part, test firing it, and involving two prominent figures at Bamoi community proved otherwise. The denial on the part of accused Nimelie was purposely to conceal the plan orchestrated by him to fabricate and diverted from the whole truth.

32 I noted from PW1 Laulae's evidence that accused Bolami, Leinga and Tevara 2 were present at the meeting with PW3 Charles Taliave (the chief), PW8 Morris Leuba (the Church pastor), the deceased and David Namola on the morning of 11th October 2001. When PW1 Laulae mentioned what accused Nimelie said, they felt free and welcome him into the family. It would appear that the Bolami family had anticipated a final ultimatum reached to end the continuous feud between the two families. The participatory effort by the paramount chief and the Church pastor was a reflection of the consensus reached. Could that be part of the fabricated evidence instilled by PW 1 Laulae? Was he the instigator that led to the splitting of the Bolami family in this case? It affirmed that there are truths in PW1's evidence on this point.

Is Bolami armed with homemade short gun rifle before, during and after the incident?

33 There is no dispute that a 303 rifle was possessed and carried by PW1 Laulae and fired shots out of it on 11th October 2001. The witness said that apart from the 303 rifle, he also saw homemade short guns. He described them as similar to a real short gun. The barrels are the same. The body was made of vasa tree. Rubbers were used to pull the trigger. Next day being 11th October 2001 morning, the witness ensured they had ammunitions. He said he carried the 303 rifle whilst accused Bolami, Leinga and Tevara 2 each carried a homemade short gun with ammunitions.

34 In Addition PW9 George Teveko said that prior to 11th October 2001, he saw Namola, PW8 Morris Leuba, accused Leinga and Tevara 2 manufacturing homemade short guns in their village at Bamoi. The homemade short guns were carried about in the village by accused Bolami, Leinga and Tevara 2. This is corroborated with PW5 Tevara 1's evidence.

35 Immediately before the incident PW9 Teveko met PW1 Laulae, accused Bolami, Leinga, Tevara 2 and PW2 John Nokali at Ponave's garden. They were eating pawpaw. PW2 Nokali confirmed in his evidence that he saw PW9 Teveko at that time. PW9 Teveko in evidence saw PW1 Laulae carried a rifle. It was a big one. Accused Bolami, Leinga and Tevara 2 were carrying guns too. They were holding homemade guns.

36 PW2 John Nokali was the witness who accompanied the group led by PW1 Laulae on both occasions. In the morning of 11th October 2001, before they left to the bush he saw PW1 Laulae carried a 303 rifle and accused Tevara 2 was carrying a homemade rifle. At that time accused Bolami and Leinga were carrying bush knives. In the afternoon when they returned to the bush he saw PW1 Laulae carried the 303 rifle, accused Bolami, Leinga and Tevara 2 were carrying homemade short guns. This was corroborated with PW1 Laulae who said when they went back they were armed with guns except for PW2 Nokali and the deceased. He was armed with 303; accused Bolami, Leinga and Tevara 2 were armed with homemade short guns. PW2 Nokali had a pair of binoculars and the deceased carried a basket and a knife. Cartridge and shells were given to accused Bolami, Leinga and Tevara 2 by PW1 Laulae. Accused Bolami was given one red shell, accused Leinga had one black shell and accused Tevara 2 was given a cartridge.

37 PW7 Sarah Bolami stated as she was returning from her garden she saw PW1 Laulae's group in possession of rifles, four in all. One white man gun and three homemade guns. At that time they were going towards the boundary between Bamoi and Nila. Later, after the deceased was shot only accused Leinga was there. As they were returning home she saw accused Bolami running out of Daiwo's plantation. He was carrying a homemade gun.

38 PW10 Veronica Taonga said she was waiting for Margaret Dagi near Daiwo's copra drier. Eventually she arrived and both were sitting together when they heard a gunshot. After that, they returned to the village. Upon passing the drier they saw accused Bolami came out of the bush. He was holding a gun. The gun was a homemade gun.

39 On 11th October 2001, PW12 Elizabeth Daiwo was sick and was in her house. She said accused Bolami and Leinga went to her house and left a rifle at the veranda of her house and then they paddled to Dedu. She saw it, it was a homemade gun.

40 When the gun was left at PW12 Mrs Daiwo's house, PW3 Taliave went there to observe the rifle. He noticed that the gun had a smelt of smoke that it was just fired. It was a homemade short gun. PW3 Taliave said he experienced the smell because he had a licence for .22 rifle. When he inspected the gun there was no ammunition.

41. The volume of evidence adduce by the prosecution cannot be left unchallenged. Accused Tevara 2 in his dock statement said the evidence given by PW1 Laulae was false. Accused Bolami stated in his sworn evidence that he did not see anyone from Bamoi village manufacturing homemade short guns. And he did not know how to make one, and did not know how it looks. But he saw people in the village making diving guns which made of wood and rubbers, tied to its end and a long wire as spear was used. He did not see a real short gun prior to the day of incident.

42 In the morning of the date of incident the accused denied being armed with a gun. He said only PW1 was armed with a 303 rifled. This in fact consistent with PW2 Nokali's evidence on his part. He also saw 303 cartridges. He was never shown a short gun bullet.

43. In the afternoon the accused admitted being part of the group PW1 Laulae led into the bush. He denied possessing any gun on 11th October 2001. Upon arrival of Police he did not lend over any homemade short gun except for the 303 which was retrieved by Police.

44 On the summary, seven (7) prosecution witnesses had seen accused Bolami, with two other accused were armed, and were in possession of homemade short guns before, during and after the incident. One prosecution witness saw accused Leinga and Tevara 2 involved in manufacturing homemade short guns before the 11th October 2001. In defending the volume of evidence adduced by the prosecution, accused Bolami denied being armed with homemade short gun at all. Accused Nimelia denied having knowledge of those guns and denied giving shells and cartridges to PW1 Laulae.

45 Undoubtedly, the volume of evidence adduced to proof that accused Bolami, was armed before, during and even after the incident, is credible. Evidence that any tribunal of fact would consider as carrying high veracity value. The defence evidence lacks strength and value to defend. In such circumstances I am satisfied that there is proved beyond reasonable doubt that Bolami was armed and in possession of homemade short gun before, during and even after the killing of Nieda.

Was John Tana armed and in possession of a real short gun before and during the incident on 11th October 2001.

46 On the morning of 11th October 2001 three women from Nila village had escaped from their gardens following the discharge of 303 rifle by PW1 Laulae. Being dismayed, the Nila people decide to go to the boundary area to check on what had actually happened. PW13 Augustine Namona with his group (about ten) left Nila village. They were armed with knives and two bows. John Tana was with them but he was not armed with any gun. PW14 Bartholomew Tolikanga said, when they left Nila village he was carrying a knife with others as well. John Tana carried a knife and a stick, none of them carried a gun. PW15 Naphtali Napiabo said when they left Nila village all of them
carried knives. None of them carried a gun. PW 16 Tomas Tolikanga said when they left Nila village he carried a bush knife. Others also carried bush knives. There was no gun carried by any member of their group.

47 PW23 George Nagive is from Nibanganoi village on Lord Hove Island. He stated when his group arrived at Nila village he saw Nila people gathered together and were sitting down. They were ready to go and see who fired the gun shot. His group went together with Nila people to the garden area. They followed the same road. He said the Nila people were armed with knives and their baskets. He saw John Tana carrying a bush knife. PW 24 John Paenalo from Nibanganoi village stated when he arrived at Nila village he saw people were talking and planning to go to the bush. Eventually they went to the bush. When Nila people left the village he did not see any of them carrying anything as a gun. PW27 Victor Kake who was also from Nibanganoi village said on the morning of the day in question, he and others were at Nila village. After they arrived they went to Medei's garden. He saw Nila men holding sticks when they were sitting down. That morning he did not see any gun with any one from Nila village. The witness saw John Tana that morning he was sitting with the people. PW32 Joseph Ningalo from Nila village said, when they went to check their gardens they carried two bows and arrows, knives and sticks. John Tana was in possession of a stick. The witness admitted he wrote the notice which was displayed at Vaike's copra drier. PW33 Michael Medai was present at the meeting held by Nila people. Whilst there he heard Nila people were planning to attack Bamoi people. He saw Nila people armed with slings, bows and arrows; reinforce iron (short one) and knives. The witness saw John Tana sitting with the people. He had a bow. PW34 Mary Legio was in Nila village when the men went to the bush. She said they were angry because of the earlier shooting. When they left they took knives, bows and arrows. She did not see them carrying any gun.

48 PW35 Bartholomew Dagi was from Nibangonoi village. He went to Nila that morning to hoe PW33 Michael Medai's kumara garden. He went to Nila about 1:30pm. He saw people were sitting down. They were having a meeting. Only men were in the group. When they left to the garden he saw John Tana went to his house. As he was returning he had an object under his shirt. He pulled down his shirt to hide the object. When he returned the witness asked him what he was hiding. He replied he said "something ba now ia," (meaning a gun). He continued by saying that the man who was so proud, that his body be eaten by a crab today. The witness said he saw the Nila people carried bows and arrows, knives, slings and stones. Actually he did not see what Tana was carrying because he did not see his hand out from his shirt. On the other hand, he was carrying a knife. The witness did not see any gun at Nila village but he heard they had guns. PW36 Christopher Nabosi a sixteen years old student at Nila school. The morning of incident he went to Nila village with three other boys. At Nila village he saw John Tana, a person known to him. The witness saw John Tana shooting with a rifle. He was shooting a coconut which stood close to his house. He shot one coconut fruit and broke it, (simply he shot one coconut fruit down). He described the gun saying the bigger portion of the gun was brown that is the bottom part. At that time others were also there close to him. There were a lot of them about ten people. He fired once. The witness was close by about ten metres away. The sound of the gun was very loud and deafening. Then John Tana went back to his house and he went away with his friends.

49 PW37 Clement Dagi from Nibanganoi village also went to Nila village that morning. On his way to Nila village he saw John Tana following the road by himself. They greet each other then he told him that he would shoot Tevara 2. At that time the witness saw John Tana holding a gun under his ambit. He was wearing a cut shirt. He could see the gun. The gun was short and coloured like read in particular the bigger part. The gun was about 1½ feet or 2 feet big (actual description said in court).

50 PW38 Ishmael Dapenavelo stated that on 11th October 2001 he and others went to Nila village. At Nila village PW13 Augustine Namona was talking. He urged people to go out and fight. While he was talking, John Bamete blew the corn shell and PW32 Joseph Ningalo was writing the notice. John Tana also attended the meeting. The witness saw Tana went back to his house. As he returned he was putting down his hand on his side. He was carrying something in his right hand. This part of evidence is consistent to the evidence of PW35 B.Dagi. The witness also saw Nila people carrying bows and arrows, iron, slings, rein force, sharpened wires and bush knives. Later John Tana held up his shirt and showed the witness a gun. It was not a long gun. The same length was described by PW37 C. Dagi. The colour of the gun was brown. The other part of the gun was under his shirt.

51. The accused Bolami said in evidence that before Nieda was shot he saw John Tana running towards the tave junction. He was bending law and possessed something like a gun. He placed his gun across his front body. From where he was, he could see him properly because it was cleared.

52 DW9 Ezekiel Mendeisame was sent to Nila village on 11th October 2001, in the morning. He was carrying a letter to be delivered to the Deputy Headmaster at Nila Extension Primary School. Whilst at Nila village he attended a gathering by the Nila people. At that meeting he saw the Nila people prepared their weapons for fight. They were sharpening their knives, tightening bows and arrows. The witness also heard John Tana said, "today someone will be eaten by the crabs in the bush." The witness saw Tana ran to his house, got his gun and placed it under this armpit. He saw a gun sticking out from his back.

53 PW17 John Tana denied in possession of any gun. He said none of them carried any gun. He was carrying a bush knife when they went to the garden area.

54 The question whether John Tana was armed with a short gun on the day in question is significantly crucial. Eleven prosecution witnesses stated in Court that they went to their gardens as far as Vaike's coconut plantation and air drier. They were armed including John Tana but without any gun. PW34 Mary Legio was at home when all the men returned. She did not see any of them carrying a gun that day as they were returning home. John Tana himself denied in evidence being armed with any gun on that day.

55 On the other hand four prosecution witnesses together with DW9 Mendeisame and accused Bolami stated in Court that they saw John Tana armed with a gun in the morning and before the incident. Accused Bolami saw him running and bending low towards the tave junction. He was armed with a gun. That was immediately before a gun was fired at the junction. Accused Tevara 2 who refer to his previous evidence in court that he saw John Tana with a gun. He fired a shot at him but he jumped away and the shot was missed.

56 It is quite unusual for the prosecution to call four prosecution witnesses whose evidence they know are contrary to the evidence given by the rest of the prosecution witnesses in this issue. I can speculate that if they are not called then defence will call them. For whatever reason I cease venturing to discover the strategy employed by prosecution.

57 The problem with evidence against John Tana, on the issue of gun possessory, is that PW35 Bartholomew Dagi said he did not see the object John Tana was carrying. The reason being that John Tana did not release his hand from his shirt. Again PW37 Clement Dagi saw John Tana hiding a gun under his arm pit under a cut shirt he was wearing and had it under cover. The witness attempted to give a measurement about how big the gun was which he said was 1½ feet to 2 feet. And then the evidence of PW38 Ishmael Dapenavelo which is similar to PW35 above. However, PW38 actually saw the gun when John Tana lifted his shirt up and showed to him. It was a short gun. DW9 Mendeisame said the gun was sticking out of his back.

58 By normal standard and measurement a real short gun cannot possibly be hidden under a cut-shirt and a short pair of trousers. The gun is logically too long and too big to be hidden in a manner described by the witnesses. However, if it is 1½ feet or 2 feet as described by PW37, and that it was a short gun according to PW38, then the gun must be something less than a .22 rifle. DW9 Mendeisame told the Court that the gun was sticking out of his back. That information was gathered during cross examinations of prosecution witnesses. It was the Court for sure has pursued those line of questions to ascertain whether a real short gun be possibly hidden under a cut shirt.

59 And then PW36 Christopher Nabosi a sixteen year old student said, he saw John Tana shot at a coconut tree and shot down a coconut fruit. The problem with that evidence is if John Tana was using a short gun rifle there was likelihood that two coconut fruit would have fallen, because of the multiple pellet that spread over some small span
or diameter.

60 Another problem is that if John Tana had opened fired at a coconut tree, witnessed by ten people, why would he hid the gun under his shirt. He had shown the gun and had fired a shot publicly and would be illogic to hide it when they left to the bush. That piece of evidence is not convincing at all.

61 From the assessment, I would be able to say that the evidence suggesting John Tana was armed with a short gun on the morning of 11th October 2001, is unconvincing. Eleven prosecution witnesses did not see it. Their evidence is much more convincing than four who said they did. I will deal with evidence of accused Bolami and Tevara 2 in regards to the issue of Tana being armed in latter course of this judgment. Even so I am satisfied beyond reasonable doubt the evidence adduce by the prosecution that John Tana has never been armed or in possession of any short gun real or otherwise, on the day in question.

Is homemade short gun capable of firing life ammunition?

62 It appears from cross examinations and submission on no case to answer that defence will rely on the major issue of non-possessory of any gun by accused Bolami. However after a ruling on no case submissions accused Bolami change Counsels. Part of his defence strategy is the issue that a homemade short gun is not capable of firing life ammunition.

63 The Counsel for Bolami called an expert witness, DW6 Mr Emmanuel Maepurina. Mr Maepurina said he worked as an armourer in the former Police Field Force (PFF). He did short courses of how to fix guns and ammunitions. He said he also attended an amour course in New Zealand on arms and weapons.

64 He said his training involve functions of the gun; how to repair them and how to set the scopes, and how to identify those which are not functioning properly and, those which are functioning properly. He also knows how to identify weapons which are not functioning and cannot be used.

65 In his work and training as Police Officer he came across various guns as 303, .22 and short guns. The differences with rifles are in regard to the firing of bullets. They have to have a trigger, bench block, firing pin and firing spring. And they need a barrel. The barrel must have a chamber and groves which are inside. When it fires it spins the projectile. The groves are inside 303, .22 but not in a short gun.

66 He further describe that the trigger is attached to the spring which connects to a sheer and then attached to a hammer. The trigger and hammer are made of iron, and they work together. When the rifle is coked and ammunition is inside the chamber, and forward working parts including handle which push forward the spring that attach to the hammer which then release backward. At the same time it engages. When the trigger squeezed the spring circle release and the hammer goes forward. Then it hits the firing pin, which hit the base of the ammunition and initiates fire which build up at the base of the cartridge. Pressure and heat then build within the cartridge and when it reaches certain degree it pushes out the projectiles which then travel through the barrel spinning and flies out of the barrel.

67 The witness further said that bullets must have sizes that relate to the barrel. If the bullet does not fit the barrel and if the hammer strikes at it, it would not ignite or initiate fire inside.

68 When cross examined by Mr Barry the witnessed answered and said that homemade short guns are easy to make. He has seen a number of homemade short guns. They were common in Solomon Islands before RAMSI arrived. He agreed people use basic things to make, like in some; a piece of wood is used to make the receiver where all operating parts are mounted. Apart from wood a steel pipe is used and a rubber band. He agrees that rubber band is used as part of the trigger to pull back and hit the firing pin. He also agrees that a standard nail is used as a firing pin.

69 The witness agrees when cross examined that when the rubber band which attached to a nail, and when pulled backward with a trigger mechanism, and then releases, the nail will heat the prima and that will discharge the bullet.

70 He also agrees that to guide a nail people use inside of pen which is put inside of the barrel to direct the nail to accurately hit the prima.

71. In re-examination the witness was asked whether a 1½ inches diameter pipe will accommodate a cartridge which is less than one inch diameter. In answer he said the pipe would not accommodate. Cartridge which is less than one inch diameter will go through, meaning the rim will not hold on to the barrel. It is slack.

72 From the evidence of the expert it is with no doubt that a homemade short gun with the components as ascribed above can definitely fire a life ammunition. I noted that PW1 stated that 1½ inch galvanized pipe was used. That was a pure guess. He did not actually measure it. People who manufactured homemade short guns normally use the right size of galvanized pipe to accommodate short gun cartridges. This case was a 2001 case. And the witness had confirmed that homemade short guns were common in Solomon Islands before RAMSI arrived.

73 It was the sort of gun accused Bolami was armed with on the day of incident. PW1 Laulae described the homemade short guns accused Bolami, Leinga and Tevara 2 were armed with in his evidence. He actually heard when Bolami fired the first short which did not create a loud sound. A similar sound was heard from the junction where Nieda was short. PW9 Teveko actually saw Bolami pulled the trigger. That indicated the trigger is attached to a rubber band. He did not mention the accused coking the gun. He also mentioned the noise of the gun was not too loud. That is consistent with the evidence of PW1 Laulae. PW7 Sarah Bolami also heard the first three shorts sounded loud but not the fourth one. PW2 Nokali stated when he was following the road to the junction he heard a gun short. The sound of a gun was not of 303 rifle and the shot was coming from the junction.

74 PW3 Charles Taliave is chief of Bamoi village from where all the accused come from. He was returning from the bush to the village. As he was approaching his house he saw accused Bolami and Leinga. They were standing on the road he followed. He saw Bolami was carrying a homemade short gun. The witness told accused Bolami to leave the gun at the nearest house that is, Daiwo's house. He did, and then accused Bolami and Leinga paddled to the clinic. After they left PW3 Taliave inspected the rifle and noticed that it had a smelt of smoke, indicated it was just fired. The witness said he was familiar with the smoke because he had a licence for .22 rifle.

75 With that evidence the prosecution has established beyond reasonable doubt, that the homemade equipment or device has a quality equivalent to a real short gun capable of firing a life ammunition. And indeed it was the device which the defence expert witness described as capable of discharging life bullet.

The motive

76 From evidence it is not disputed that the deceased was the real uncle
of the accused. He was the brother of the accused father. It is this intimate relationship upon which the defence argued that it would not be possible and logic for the accused to kill his uncle. As such Mr Nori argued there is no evidence to prove motive for the killing.

77 The term motive is defined in "Ross in Crime" and the author has referred to the case of Hayam v DPP ([3]).

78 In fact the case define motive in two distinctive but related meanings. In the first sense it means an emotion prompting an act. In the second sense, motive is to be equated with the ultimate end of a course of action often describe as purpose or object. For instance, the motive or his end, purpose, or object, or intention may have been to acquire an inheritance. From the two meanings the first is entirely distinct from intention or purpose. It is the emotion which gives rise to the intention.

79 There has to be evidence to prove that the accused had a motive to kill Nieda with intention, in as much as it is more probable that Nieda was killed by accused Bolami who have some motive for killing.

80 Motive is a fact directed to prove accused Bolami is guilty and the Court must be satisfied that the motive asserted has been proved beyond reasonable doubt ([4]).

81 The prosecution in this case attempt to establish that Bolami killed Nieda by shooting him with a homemade short gun at close range. It tried to show that at the time of incident, there was a continuous conflict, hostility and anger between the two families which expectantly will materialise into a climax as contemplated by the accused and his group.

82 The Counsel for accused Bolami argued that the motive developed by the prosecution lacks credibility, and the reasons it relies on for the killing was because of the deceased's attempt to defuse the heated dispute with the Nila people. The Counsel referred to two incidences which the prosecution attempted to prove which constitute the motive.

83 The first one is in the statement of PW1 Laulae. He said after identifying PW16 Thomas Tolikanga pinning a notice on the copra drier, they heard the Nila people started to sing war song, and started to blow cone shells, shooting and started to advance. The witness therefore ordered retreatment. Later the witness said he did not see them advancing. That is reasonable because there were bushes in between and other evidences indicated they did not advance.

84 As they were retreating accused Bolami forced the witness to open fire, however, the witness ordered them to continue retreat. Others urged the witness to open fire too, but he thought that it would not be safe to do so. Nieda was quiet and was not saying anything. As they walked down to a safe area accused Bolami insisted continuously to shoot. He said no one would stop him if he wanted to shoot a man. He further stated that if he did not shoot a man he would fuck his mother. That showed that Bolami was angry and in an aggressive mood.

85 The second incident refer to by Nori was narrated by PW9 George Teveko, who said that accused Bolami and Leinga were standing together not far from Nieda. He said he had clear view. After Nieda told them to tell Jacob not to shoot people but fired in the air to scare them. Bolami then said, "what is this you are saying, why you are always talking. Do you want me to shoot you?" Bolami was angry. He also said, "if you keep talking like that, do you want me to shoot you, what are you always saying." He lifted his gun and he pulled the trigger and shot him on his left chest.

86 Mr Nori argued that anger could not possibly constitute a motive to shoot the deceased in two instances he refers to. If PW1 Laulae refused to open fire as requested by accused Bolami, which therefore gave rise to anger and aggression, then why accused Bolami did not shoot PW1 Laulae instead agreed to walk to a safe place. There is no evidence that he was asking PW1 Laulae to fire at a specific person or specific direction. There is no evidence that accused Tevara2 fired at any specific object. There is no evidence that Bolami got angry at him for his behaviour. The suggestion that accused Bolami was so angry that he shot his uncle Nieda simply for saving that they should not shoot at people but fire into the air. Accused Bolami denied there was any previous argument with his uncle, nor did he had any argument with his uncle at that moment as alleged by the prosecution.

87 Mr Nori's reference to the two incidents he quotes is rather narrow. One incident was at the initial stage when Nila people were approaching. The second incident was at the moment before the gun was fired at the deceased. It would appear if the focussed is on the second incident alone which motivated accused Bolami to fire the fatal shot at his uncle, then that could be an act done in a spur of a moment. Apparently the circumstances of this case require a wider approach. And I decided to take that path.

88 Accused Nimelie in his dock statement significantly established the conflict and the motive why the Bolami family had a deep seated hatred for the Namona family. Though no express of that hatred is directly sought, but the fact cannot be denied. His explanation about every historical aspect of the conflict reflected so. Ultimately without being persuaded stated that the Namona family had attacked his family years before, including an attack on his elderly parents which had destroyed their house as well. As a result, physical injuries were sustained by his parents. That hostility and others that will be revealed in latter course confirm his involvement in this case.

89 The evidence of hostility continued when PW 9 George Teveko said that a month before Nieda died, he met accused Nimelie and his brother Vaike at Lata prison service. Both told the witness to go to Namona's group to see Maluaki to ask for $12,000-00 fine for swearing. The witness refused to go. Prior to 11th October 2001 the witness saw Namola, PW8 Morris Laula, accused Leinga, Tevara 2 were making homemade short guns in Namola's kitchen.

90 On 9th October 2001 PW1 Laulae met accused Nimelie who then authorised the witness to command a group from Bolami family to launch an assault on Namona family. Accused Nimelie then gave the witness a red plastic containing six ammunition shells and a cocking spare part for 303 rifle. He told the witness that a short gun was already at home with his brothers and precisely mentioned accused Tevara 2. Evidence has confirmed that PW9 Chief Teveko has put the 303 spare part and test fired by PW8 Pastor Leuba. And the gun was functioning.

91 On 10/10/2001 PW4 David Dagi met accused Nimelie at Lata. Accused Nimelie asked the witness why PW1 Laulae and the boys did not launch an assault on the Nila people. He had already provided enough guns and ammunitions and had given further ammunitions to PW1 Laulae.

92 What transpired in that evidence, though denied by accused Nimelie, was the architectural work done by him. It confirms his family's continuous hostility and conflict with the Namoa family which explains his involvement in this case.

93 The plan mission to attack Nila people was consented by the Chief and Pastor of Bamoi village. Their participation in fixing and test firing of the 303 rifle were self- explanatory. Accused Nimelie ensured that guns and ammunition were available. All the accused and others in Bamoi village anticipated that this final act may probably resolve the long outstanding hostility and hatred between the two families. And accused Bolami was an effective participator contemplated that a solution be reached once and for all and that would mean death.

94 When Nieda attempted to divert the plan from killing to mere threat, by shooting in the air, accused Bolami was angry. The words he used the moment before the fatal shot was fired constituted a person overwhelmed with anger and aggression. Anger is one element of motive which prompted an action. Anger as perceived from evidence had been built over the years and materialised in this instance of real physical confrontation. To relinquish a heated antagonism in such a state was an attempt to dilute and quenched something hoped for.

95 The behaviour of accused Bolami appeared differently as he confronted PW1 Laulae to open fire. He could not go beyond his advice as a leader of the mission. Not only that but he was armed with the most deadly weapon the 303. Though accused Bolami expressed his anger and aggression he could not do much but comply with the orders. He even could not protest against accused Tevara 2 for his actions. According to PW1 Laulae, accused Tevara 2's gun was never fired at all. It was accused Bolami who fired the second shot through the bushes towards Nila people. That demonstrated his anger and aggression which progressively gained momentum that motivated him to fire the shot.

96 It may be true that none of the shots were aimed at any particular person from Nila. The truth from the evidence that they had never seen any single person to aim at, but heard them singing war song, blowing cone shells, shooting and advancing. It would appear from the tone of evidence of PW2 Nokali when Nila people were approaching they began to run all over the place, indicating they were panic.

97 Accused Bolami's evidence that he was forced to go into the bush appears to be, that he was pulled by the nose. He said he just followed PW1 Laulae. Yet he had prior knowledge of the mission relayed to him by PW1 Laulae, and confirmed by PW2 Nokali. He knew that Nila people would angry and may mobilise to retaliate after the shot in the morning. Why should he return in the afternoon armed with a gun to look for pigs if he was frightened? The fact is that accused Bolami knew of the plan. He accepted to participate and took up arms freely with the motive that end result anticipated be achieved.

98 At the height of such expectation and confrontation hoping that the mission will be well accomplished, Nieda intervene unexpectedly and advise not to shoot anyone but in the air to scare them. That truly was an attempt to dilute the accumulated anger which would unexpectedly come to nothing. And that angered accused Bolami.

99 Receiving such advice in the midst of heated situation culminated an emotion which prompted action and action must be immediate. Words accused Bolami uttered in respond to the deceased showed the level of anger and aggression he was. They are words which bear no respect to the one he called as father. There is evidence to prove beyond reasonable doubt that there was in existence a motive which prompted accused Bolami to act.

Who fired the fatal shot that killed Nieda

100 The accused Bolami who was charged for murder denies in his evidence being armed with any gun at any time. He also denies being present, and at close range firing the fatal shot, with a homemade shot gun that killed Nieda.

101 The second return to the bush on the afternoon of 11th October, 2001, was motivated by two elements. According to PW1 Laulae was anticipating a mobilisation by the Nila people to retaliate following the shooting in the morning. For Nieda it was a search for his lost pig. For accused Bolami he'd rather go along with Nieda his uncle according to him. However, evidence of PW1 Laulae and PW9 Teveko had revealed accused Bolami's behaviour and words he used whilst on the mission attributed to his purpose of accompanying the group.

102 The group left Bamoi village at about 1:00pm to return to the bush. The group consisted of PW1 Laulae, PW2 Nokali, accused Bolami, Leinga, Tevara 2 and Nieda (the deceased). Earlier I found accused Bolami was armed and evidence reveal three others were also armed with guns except for PW2 Nokali who had a pair of binoculars and Nieda who had a basket and a bush knife.

103 Before they reach the first junction where the tave tree was, they sat down and ate some pawpaw. The sketch plan Exhibit C-E and Defendant Exhibit 2-4 clearly show the junction at top right hand corner coming from Bamoi village. It was there that PW9 George Teveko met them. PW2 Nokali confirmed this in his evidence that he saw PW9 Teveko whilst eating pawpaw. From there they proceeded to the junction, known in this case as tave junction. PW1 Laulae stated that they divided themselves at the junction. Accused Tevara 2 and PW2 Nokali to follow one road whilst PW1 Laulae, accused Bolami, Lienga, and Nieda to follow the other road. PW2 Nokali added that PW9 Teveko followed them. PW2 Nokali and Tevara 2 followed the path that led to Vaike's drier which mean both proceeded further, got to the second junction, and followed the right path that led to the drier. The other group took the upper junction that led passed the garden area, see all sketch exhibits. However PW1 Laulae said both roads lead to the same place.

104 PW1 Laulae's group went as far as the end of the creek. PW2 Nokali said when he and accused Tevara 2 went to Vaike's plantation they heard noises at the copra drier. The same noise was heard by PW1 Laulae's group whilst at the end of the creek. PW1 Laulae described as like someone hammering a nail on the wall. Accused Bolami looked from the bottom of a coconut tree and saw PW16 Tomas Tolikanga putting up the notice on the wall of the copra drier. PW2 Nokali's group recognized two men out of many. They were PW16 Thomas Tolikanga and PW15 Naphtali Napiapo. PW2 Nokali then attempted to find PW1 Laulae, accused Bolami, Leinga and Nieda. In his search he found PW1 Laulae by himself between the plantation and the junction. As soon as PW1 Laulae left accused Leinga showed up. After that the witness met accused Bolami. Eventually PW2 Nokali decided to go home. He also said their men started to ran around indicating they were panic.

105 At that time Nila people had already started singing war song, blew cone shell, shouted and advancing. PW1 Laulae then ordered his group to retreat. Accused Bolami and others then forced PW1 Laulae to open fire but refused because it was not safe. They continued to retreat to a safe place to protect. This was when PW9 Teveko saw them. They were returning on the same road they went.

106 Bolami insisted continuously to shoot. He said no one will stop him if he wanted to shoot a man. Nieda was with them walking in front. Accused Bolami then said if anybody tries to stop him from shooting a man he will put the barrel in his mouth, and further said, if he did not shoot a man, he would fuck his mother.

107 As PW2 Nokali was going home following the road that directly leads from the drier to the junction. Then he heard another shot which did not sound like a 303 rifle. The sound was coming from the tave junction.

108 The Nila men were approaching and close to the group from behind. Accused Tevara 2 fired a short. Bolami also fired a shot. PW1 said he saw accused Bolami's gun fired but not accused Tevara 2. Accused Bolami's gun did not make a loud noise. After that, PW1 Laulae fired an open shot. Nieda then told PW1 Laulae not to shoot at anyone until he arrived. He was going home to remind the people that fight had started. Accused Leinga was present at that time.

109 Nieda then left following the road which led to Bamoi village. At that time accused Bolami and Leinga were at the main junction securing it. Both were placed there by PW1 Laulae. PW1 Laulae and accused Tevara 2 then advanced forward toward Nila village and then PW1 Laulae fired the second shot but the shell jammed in his gun. Whilst PW1 Laulae and accused Tevara 2 struggled to get the jammed shell accused Bolami then appeared, then left. PW1 Laulae and accused Tevara 2 then advanced further then stopped for a while then they heard a shot fired by Bolami. It sounded like firing at a tree or something. PW1 Laulae and accused Tevara 2 were one hundred meters (100) away. Not long after they heard the gun shot, accused Bolami appeared, and PW1 Laulae asked him, who fired the shot. Accused Bolami in reply said Tana, Tana, Tana. Accused Tevara 2 was present. Accused Bolami then left and ran back home. After that, PW1 Laulae and accused Tevara 2 advanced as far as Nipanopu's copra drier. At the drier PW1 Laulae heard PW15 Napiapo telling Tana to escape the place and went home. Accused Tevara 2 told PW1 Laulae to fire a shot and also asked for the 303 but PW1 Laulae refused because he had only one bullet in the magazine. PW1 Laulae then told accused Tevara 2 to go home and get more ammunition whilst he waited for him. On his way home he saw Neida's body lying on the foot path. He returned and told PW1 Laulae that Nieda had been shot. PW1 Laulae then ran to accused Tevara 2. Not long after they heard someone crying.

110 Accused Bolami's version of the second trip to the bush was quite different. After having some pawpaw, himself, PW1 Laulae, Nieda and accused Leinga went first and followed the upper road – see his sketch plan Def- Exh.4. PW2 Nokali and accused Tevara 2 were still behind where they ate pawpaw (marked C) in his sketch. They proceeded as far as the plantation and went into the plantation a bit (marked 2). From there they heard sound of banging coming from the drier. PW1 Laulae then told him to check on the noises. He approached the drier and saw PW16 Thomas Tolikanga nailing a white notice onto the wall of the drier. Accused Bolami then returned and then they followed the same road they went. They returned to the first junction and then stopped. PW1 Laulae then fired a shot. The gun was fired at the spot marked (4). Then accused Bolami and PW1 Laulae proceeded on another road that led to Nila village. On arrival at the second junction PW1 Laulae fired another shot at a spot marked (5). Then they followed the road that led to the drier. Accused Bolami then ran and somewhere on the bend he met PW2 Nokali, who asked for PW1 Laulae. Accused Bolami told him he was under the tave tree at the second junction. PW2 Nokali then reported to accused Bolami that the Nila people were advancing towards him and accused Tevara 2 at the drier. Accused Bolami then ran up and PW2 Nokali ran down.

111 Before accused Bolami met accused Tevara 2 he was at a point marked (8). As he looked across a cleared area he saw Tana marked (9) running towards the first junction. He was holding something like a gun and was holding across below his right arm to his body.

112 After he saw Tana, he moved to his uncle marked (7). PW1 Laulae was already there. PW1 Laulae then fired another shot at a spot marked (10). After PW1 Laulae fired the third shot, he told them to run down the road to Nila village near the old garden area which they did.

113 At that point accused Bolami told PW1 Laulae and others that he saw Tana ran down towards the first junction. Then they heard Namona's voice saying shot them dead (in Reef veve). After that, whistle was blown and they heard a gunshot at the first junction, the position is marked (15). The distance from where they were at point marked (11) to the first junction was about 150 meters. After that the people started shouting and advancing close to where they were standing marked (7). They were shouting and swearing at them. It was sound of many people at position marked (12).

114 After the gun shot was heard people were still shouting so accused Bolami told PW1 Laulae to fire another short which damaged a tree. Then PW1 Laulae told accused Bolami to run home because there was another gun fired at the first junction. Accused Bolami then ran home. On his way he found his uncle Nieda died and was lying in a position marked (14). When he arrived at the dead body he did not see PW9 Teveko, PW1 Laulae or any girl around the area. Just the dead body lying covered with blood with his tongue and eyes popped out. From there accused Bolami then ran to the village.

115 The epitome of accused Bolami's evidence demise on a claim of alibi. That he was with accused Tevara 2 at position marked 11, on his sketch plan, when they heard a shot sounded from the main big junction. It appeared that PW1 Laulae was present at that spot as well. And it was him that told accused Bolami to run home and to check on another sound of a gun coming from the tave junction.

116 The difficulties with accused Bolami's evidence are that whilst he was at point (8) he saw Tana at point (9). And then he proceeded to point (7) where PW1 Laulae and Nieda were. At that moment of fighting PW1 Laulae had already fired two shots from the 303. One at point (4) and the other at point (5). It would take a real brave man to run into Bamoi territory right to the main junction to fire a shot. In particular when PW1 Laulae was armed with a high powered 303 gun. At point (10) PW1 Laulae fired another shot before proceeded to point (11) below. It was at point (11) that accused Bolami told the group that he saw Tana running towards the main junction. The situation was one of heated moment. Two gun shots were already fired and then Tana was sited in Bamoi territory. Why not accused Bolami informed the group at point (7) instantly and immediately after he saw Tana. Why waited until they were further down at point (11) before he reported it. Was the presence of Tana in Bamoi territory poses any threat, or was he really present at all?

117 Bolami's evidence was that he saw Tana running with something like a gun. He in fact did not see Tana shot Nieda. In fact he was not sure at all. Uncertainty evidence is bad evidence and not a credible one. I have dismissed earlier the evidence that Tana was armed with a gun whilst at Nila village preparing to go into the bush. Therefore, to raise that Tana was armed with a gun at this latter part of chronology of events is absurd and cannot be believed.

118 PW1 Laulae said that the shot he heard from the main junction sounded low as the one accused Bolami earlier fired. He thought it was accused Bolami who fired it. However accused Bolami showed up and diverted that it was Tana who fired the shot. He did not mention who Tana was shooting at and how he shot the deceased. The manner in which he answered PW1 Laulae when he was asked seemed to indicate he was indeed had seen Tana fired the fatal shot that killed Nieda. The sound was coming from the tave junction and it was at that junction that Nieda was shot. If it was true that Tana did fire the shot why would accused Bolami failed to relay the full story to PW1 Laulae and accused Tevara 2. Rather than just mention that Tana fired the shot.

119 The recognition of low sound rifle by PW1 Laulae corroborates with PW7 Sarah Bolami's evidence when she said she heard the 1st three shots which sounded loud, but not the fourth one, and the fourth one killed Nieda. This was at the junction. Coincidently PW5 Tevara 1 also mentioned to his wife when returning home that he heard four gun shots. The fourth one would have killed someone. The gun shot sounded different. PW2 Nokali also stated as he followed the road to the junction he heard a gunshot. It was coming from the tave junction. It was not sounded like 303. PW9 Teveko confirmed he saw Bolami shot Nieda. The noise of his gun was not too loud.

120 Noted from the evidence are three significant issues. Firstly, it is not disputed that Nieda was shot and died at the first junction where a tave tree was, see all sketch exhibits tendered to Court. PW1 Laulae described it as an area he fired the 1st shot before they separated, which meant two shots were fired close or within the vicinity of the tave junction. One was from the 303 which PW1 Laulae admitted he fired before they separated. Secondly whoever delivered the fatal shot must be the second shot, within close proximity of the junction. And lastly the shot was the 4th that was delivered on that day.

121 As far as sound of the gun fire was concerned, evidence from witnesses confirmed the gun shot produces low sound and different from the sound of 303 rifle which they heard loud. Definitely 303 could not have been the gun that fired the fatal shot. It left with the short gun rifle which produces multiple pellets when fired. The wound on the deceased chest confirmed by the Doctors report that it was caused by a short gun shot. PW6 Emmanuel Maepurina an expert witness in armoury and weapons agreed he saw homemade short guns before RAMSI arrived. It was common he said. He also said the home made short guns used short gun cartridges. That leaves two options whether the fatal shot was fired by accused Bolami or Tana. The problem with Tana is that there has been no evidence to proof beyond reasonable doubt that Tana was armed with a gun on the day of incident.

122 However for the sake of decision making, and justification, I will consider the issue of how far were the Nila people including Tana advanced into Bamoi territory. Did Tana advanced as far as the tave tree junction to deliver the fatal shot. If accused Bolami is telling the truth, it may be that Tana delivered the fatal short at the junction which actually he did not see, and next he reported to PW1 Laulae whilst advancing towards Nipanopu's copra drier, then by the time PW1 Laulae and accused Tevara 2 got to the air drier the distance could have been dramatically increased from 100 metres. It was at the drier which PW1 Laulae heard PW15 Naphtali Napiabo told Tana to escape the place and returned home. If Tana fired a shot at the tave junction and then immediately after, he was present at PW15 Nipanopu's drier, then Tana must be quite fast in travelling running a distance of more than 100 meters in a short span of time, given the fact that he escaped through the bushes and avoid main footpath or he be detected and killed. It is quite amazing to think of the speed. He was seen at the junction and next at copra drier. That is quite uncomprehensive and could not be possible. The fact that accused Bolami was uncertain of what actually Tana was carrying, when he was seen running toward the junction, and the fact that no explanation offered as to who Tana fired at and from which position and the fact he did not see him, could only contributed to speculations. It does not hold any truth at all.

123 PW1 Laulae said he heard PW15 Napiabo telling Tana to return to Nila village near Nipanopu's air drier. PW5 Tevara 1 said he saw two Nila people in Bamoi area. They were PW15 Naphtali Napiapo and PW16 Thomas Tolikange, but without describing and identifying the actual sport, it may be at Vaike's copra drier where the notice was posted or at Niponapu's copra drier.

124 Eight prosecution witnesses PW13-17, PW23, PW27 and PW32 stated they went to their garden as far as Vaike's plantation and copra drier. Those witnesses said whilst in their garden, near Vaike's copra drier heard gun shots so they escaped home. That included Tana.

125 It is clear from evidence, the furthest Nila people penetrated into Bamoi territory was at Nipanopu's copra drier; and none of them including Tana ever advanced to the tave junction where Nieda was shot.

126 PW1 Laulae was surprised, confused and question why Nieda was shot at a spot he had open fired before they separated which should have cleared the place; and accused Bolami and Leinga were placed in that very area to secure it.

127 However, PW5 Tevara 1 said that when the dead body was lying in the fellowship house himself and PW2 Noli were present. From there PW5 Tevara 1 could see accused Bolami and Leinga were sitting at the veranda of Vaike's house. He approached them and told them that he thought Nieda was not killed by Tana. He did not think Nila people had advanced to the spot where Nieda was shot. Both did not say anything and appeared worried.

128 PW19 George Bonnie, a Police Officer who involved in the investigation of this case, was taken into the bush and was shown the position Nieda stood and the tree which the bullet crashed. When they said Tana shot Nieda the witness thought of two things. The shooting might have happened within them or by accident, or by intention. He formed an opinion that the tree which they said the bullet crashed could have saved Nieda if Tana was standing at the position they described.

129 In the midst of all the circumstantial evidences PW9 George Teveko affirmed he saw Bolami fired the fatal short that killed Nieda. The witness was going to his garden. He met PW1 Laulae, PW2 Nokali, accused Bolami, Lienga, Tevara 2 and Nieda at Ponave's garden eating pawpaw. PW2 Nokali confirmed he saw PW9 Teveko whilst at Ponave's garden. PW2 Nokali further stated that PW9 Teveko followed PW1 Laulae's group that left after eating pawpaw. Eventually PW9 Teveko got to his garden which was close to Vaike's copra drier. Whilst in the garden the witness saw PW1 Laulae, accused Bolami, Leinga and Nieda returned to the junction from the copra drier. PW1 Laulae was trying to fix his gun. After that they went to the junction. PW9 Teveko then heard accused Tevara 2 called out from the copra drier three times but with no respond. Then he heard a gunshot. At that time the witness was standing with PW2 Nokali near his garden. After that he heard PW1 Laulae fired a shot at the tave junction. Both men separated and PW9 Teveko ran back to his garden and fell down. He then heard another shot further up. Then he started to run to the tave junction. He ran to a place but the footpath was blocked by sticks, so he was looking for the footpath. At that point he heard people talking. It was Nieda telling accused Bolami and Leinga to go to PW1 Laulae and told him not to shoot people but to frighten them with gun shots. He was not far.

130 Nieda was standing on the road that led to Bamoi village and accused Bolami and Leinga were standing together on the junction road, and were facing Nieda whilst he was talking. Nieda was not far from them. The witness could see them vividly. They were about 15-20 metres apart. Then accused Bolami said, "you continue to talk, do you want me to shoot you?" He was angry. He further said, "if you continue to talk that way I will shoot you".

131 The witness then heard a voice from further down. Someone said, "shoot him dead". He heard the voice of PW8 Leuba, coming behind Nieda and them. The witness did not see PW8 Leuba. When he heard the voice, accused Bolami pulled the trigger and fired a gun shot at Nieda on his left side. The noise of the gun was not too loud. Nieda struggle abit then fell down a distance away. The witness was scared and so ran down to the lake. When the witness got back to Bamoi village accused Bolami, Leinga and Tevara 2 had already arrived before him.

132 At the first meeting the witness heard accused Leinga said when the gun was fired he could not see properly because the smoke was in his eyes. That indicated he was standing near the shooter.

133 The incident eye witnessed by PW9 Teveko was also seen by PW7 Sarah Bolami but perhaps from a different direction. She said she was returning home from her garden to Bamoi village when she saw PW1 Laulae's group heading towards boundary of Bamoi and Nila villages. They were armed with three homemade guns and one white men gun. Upon seeing them she ran to her mother in the garden intending to take her home to the village, but she refused. Then they heard gun shots. She heard two shots just in front of them. They were very loud. Then she heard another shot the same. She got her sister, and as they were coming down she heard another shot and then they stopped. As she looked towards the direction of the sound, she saw Nieda standing with accused Leinga. Nieda was telling accused Leinga to tell the boys not to shoot Nila men, but to shoot in the air just to frighten them. Nieda further said he was going to the village and will return. Accused Leinga said nothing. They were near the junction and not too far away about 8-10 meters from her. As Nieda turned to ran to the village a gun was fired. It was the fourth shot that hit Nieda from the left. It was not as loud. She did not see who fired the shot. Nieda then cried in pain and the witness returned to her mother. No one else was there. After she met her mother then they left to Viale. It was then she saw accused Bolami running out of Daiwo's plantation carrying a homemade short gun.

134 Her evidence corroborated in some material form to that of PW9 Teveko. Her evidence can be inferred she was at a different angle. She did not see the person who fired the fatal shot and heard the voice which PW9 Teveko heard. But she saw the actual incident and heard what Nieda said, and she described it was the 4th shot that killed Nieda which sound low.

135 Then the issue of the nature of fatal wound. It is not disputed that Nieda died of multiple pellet wounds surrounding a major wound on the left chest. Mr Nori argued that according to PW7 Emmanuel Maepurina, it was most likely that the shot fired from a distance of about 25-30 meters. If it was fired from a distance between 5 to 10 meters it would have caused a large hole to the body.

136 In examination in chief PW7 Maepurina has never mentioned what Mr Nori based his argument on. When the witness was cross examined by Mr Barry he said, the further the distance away from the shooter the greater the disposal of the pellets. And closer the shooter to the victim the pellets will not spread too much. In further cross examinations the witness answer by saying the type of wound as a major wound surrounded by small wounds, is consistent with the shooter being fired 5-10 meters away. In re-examinations the witness was asked by Mr Nori, would that kind of wound or holes cause by person stood far or close (referring to major wound and multiple wounds surrounding it). The answer the witness gave was, stood far. Then Mr Nori asked, how far? The answer is 25-30 meters. The next question asked if a person stood 25-30 meters away will the pellets caused one big wound and many wounds around it? The answer is yes. Mr Nori continued to ask, if a person stood 5-10 meters will the pellets spread? The witness answered and said it will cause a big wound and pellets will spread.

137 The evidence adduce by the expert witness in regards to the issue of the nature of the fatal wound does not assist accused Bolami's case at all. In fact it corroborates the prosecution evidence. PW9 Teveko said that Bolami and Leinga stood 15-20 meters away from Nieda and that was the distance Bolami fired the fatal shot.

138 It does not end there PW30 Collin Noa and his wife PW31 Margaret Noa have interesting stories to tell. Both said in 2003 Bolami went to their house at Matapool and told them that he used to see his father in his dreams. In another occasion PW30 Collin Noa met accused Bolami at a sisi dance at Henderson and informed him that he wanted to retaliate for what had happened. And told him that Tana was the wrong person. The rightful person is still outside at liberty. He demonstrated how his uncle was killed. His uncle was shot by him with a pump action gun. At the first occasion his wife PW31 was present and heard the story in full. However accused Bolami totally denied visited the couple, or even went to Henderson area.

139 The evidence of the couples prompted cautionary approach. It is an evidence of personal confession which may be perceived as self-incriminating. As such PW30 Noa was intensively cross examined in regards to his own character, whether his evidence was credible or not. At one stage he admitted being convicted of dishonesty. At this time of writing this judgment the witness was in Rove prison serving three years imprisonment term for burglary. The sentence was imposed on 2 February 2011 and back dated to 24 November 2010. His answers also reveal he had prior convictions. His evidence prompted some doubt in the light of a kind of person he is.

140 In evidence he said he met accused Bolami in 2003. No definite month or date was mentioned. On the second occasion he said accused Bolami was using a pump action rifle to kill his uncle. The truth is that the wound implicated a short gun was used and not a pump action gun. Evidence revealed a homemade shot gun was used.

141 Accused Bolami denied having a meeting with PW30 Noa and his wife PW30 at all. At the time the alleged meeting was held, Bolami was with his cousin sister at Noro. He said he went to Noro in September 2002 and returned to Honiara in January 2003. His cousin sister DW6 Emily Motaliki confirmed in evidence that accused Bolami stayed with her for the period.

142 It is quite difficult to belief PW30 Noa and his wife PW31. It appears that there is untruthfulness in their stories.

143 In another previous incident PW8 Leuba said he heard God's voice telling him that it was Tana who was responsible for the killing of Nieda. PW9 Teveko heard another voice. It was the voice of PW8 Leuba saying, "kill him dead" and then accused Bolami fired the fatal shot. Again in regards to confession PW30 Noa and his wife PW31 said accused Bolami confessed to them. DW12 Patterson Lepara also mentioned in his evidence that PW17 Tana confessed to him in the presence of Titus and nearby was Salopuka. He said Tana wanted to give $50,000.00 for Nieda's life. Meaning Tana was responsible for Nieda's death.

144 It would apparently seem that there is retaliatory evidence throwing at each other. One reason is because of the relationship. The other perhaps for reason which was not disclosed. In any case it is best to disregard that evidence as biased and upholds no credibility in them. This case more or less touches the fabric of relationship, family against family and extends to one talk depending on which family they support. I have warned myself to be cautious judicially in assessing this type of evidence. I find evidence of confessions holds no truth. It's more or less like mad slinging.

145 And then there is the evidence of PW12 Elizabeth Daiwo. She said in June 2009 she was by herself selling cigarettes at a sisi dance at Henderson. Accused Bolami met her and told her to change her story. He was drunk that time. Again at Honiara Central Market she met accused Bolami near the bus stop and told her to change her story but she nodded her head. Her evidence is significant in regards to possession of arm after the incident. Further it implied that there is something accused Bolami was concerned about, something she could say about him which may demonstrate consciousness of guilt. The prosecution has relied on accused Bolami's action as a lie, and refer to the case of R v Strudwick and Mary (1994) 99 Cr Appeal R 326 page 33, which states the motive for the lie must have been a realisation of guilt. Accused Bolami's action in all common sense supports the prosecution case which the court may infer existence of a fact in the principal issue. I accept the witness evidence as it is.

146 Accused Bolami then called a witness who articulates on his character. There is no specific submission to canvas the relevancy of calling such evidence. However I noted the motive is to show he is less likely to commit the current offence, see R v Cohen (1990) 91 Cr App R125 Farguharson CJ, page 129. However in R v Broadhurst, Meanly and Hill (1918) 13 Cr App R 125 Darling J pages 129 -130, the court said, "what follows is evidence highly important if the case be at all doubtful, if it hangs in even scales. If you do not know which way to decide, character should have an effect, but it is otherwise in cases which are clear". Again evidence of good character only goes to the likelihood of accused having committed the offence. It cannot amount to defence, see R v Vye Wise and Stephenson 97 Cr App R134. The gist of character evidence is relevant when the case hangs on even scale otherwise it is not a defence.

147 The prosecution relies on substantial amount of circumstantial evidence which are in existence, which the court may infer existence of the principle fact. The principal fact is the evidence of PW9 Teveko which is direct evidence in this case. As a tribunal of fact I accept the evidence as presented, and to draw inference from them. It does not necessary require that circumstantial evidence as inferior to direct evidence. However to arrive at a conclusion, the inference required is obvious and compelling and are supportive of the principal fact.

148 I take cognisance of what were said in the following cases Shepherd v R (1990) 170 CLR s73 [1990] 51 Cr App R181 where his Lordship McHugh J stated at page 592-593;

" ...ordinarily circumstantial evidence case, guilt is inferred from a number of circumstances-often numerous which taken as a whole eliminate the hypothesis of innocence. The cogency of guilt is desired from the cumulative weight of circumstances, not the quality of proof of each circumstance".

149 In R v Dudley Pongi (Unrep. Criminal Case No. 40 of 1999) Muria CJ stated at pages 5-22;

"It is the duty of the Court in such a case to consider all the evidence together at the conclusion of the case, ensuring that it can only draw an inference of guilt from the totality of facts which are proved beyond reasonable doubt".

150 His Lordship in the same case refer to principles enunciated in Barca (1975) 132 CLR 82 where the Court said,

"To enable jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be the only rational inference that the circumstances would enable them to draw"

"The bare possibility of innocence should not present a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon consideration of all the facts in evidence".

"In other words, the guilt of the accused must be the only rational inference for the Court to find in the light of the evidence"

151 Those authorities analytically outline the principle and the approach in cases where prosecution case wholly relies on circumstantial evidence. In this case numerous circumstantial evidence is adduced to support the direct evidence. Although there is slight different in facts, in my view, those authorities are useful in all sense.

152 That brings as to the question of corroboration. The principle of corroboration elicits that an accused cannot be convicted if the only evidence against him is the testimony of one person; corroboration is required. Corroboration need not to be direct evidence. As long as it originates from a source which is independent of the witness whose evidence is to be corroborated. It is sufficient that the source is merely circumstantial evidence of his connection with the crime. See R v Kennaway (1917) 1KB 15; R v Baskerville (1916) 2KB 654.

153 In weighing the circumstances, and considering the totality of facts, it would in my view, be proper to consider all necessary options as reveal by the evidence. One option could be Leinga whom evidence has pointed to as being armed on the day in question. However that has been put to rest by the evidence of eye witness PW9 Teveko, and PW7 Sarah Bolami.

154 I have found there is evidence that accused Bolami was armed with a homemade shot gun before, during and after the incident. There is evidence he fired two shots from the home made short gun he was armed with on the date in question. The evidence did not place Nila people including Tana, at, or even close to the tave junction (main junction). They did advance and penetrated into Bamoi territory as far as Nipanopu's copra drier, but not further than that. That was the furthest point into Bamoi territory that Tana advanced to and was identified by evidence. Accused Bolami's evidence that he saw him running towards the main junction holding something like a gun is beyond any truth. The reasons have been explained earlier in this judgment.

155 It is not disputed that the continuous hostility between Bolami and Namona families originated years back. And still there are scores yet to settle. It is this continuous hostility, dispute and hatred that Nieda intended to neutralise on the date he died. He could not enforce optional possibilities though available. He lacks manpower to broker peace and settlement to avoid situation escalated to a new elevation. His action showed he was a man of peace; to his people and the one whom he called his son was water on hot rocks, bubbling and steaming away. It is this overwhelming anger that motivated accused Bolami to resort to action. By pulling the trigger of his gun, acknowledging the fact he had fired a shot earlier in the afternoon amount to intent to take away the life of his dear uncle. The proved motive makes it more probable that the crime was committed and thus establishes the intent to the act of killing.

156 The position he stood whether it be 5-10 or 20-25 meters away has confirmed by the expert witness that the pellets expected to spread. And that corresponds with the wounds sustained by Nieda, as one major wound surrounded by numerous small pellet wounds which cause the death of the decease.

157 I have drawn inference from the conclusion of all the circumstantial evidence which corroborates the principle fact which is the direct evidence of PW9 Teveko. And pointed to accused Bolami as the only rational inference I find in the light of the evidence. Those evidences have been proved to corroborate with the direct evidence of PW9 Teveko. Though the evidence of Colin Noa and wife has been ruled out it does not change the strength of the prosecution case. I am satisfied beyond reasonable doubt that the decision reached does not confirm to direct evidence alone, but also from drawing reasonable inference from other facts of such nature that my mind is led to by a process of reasoning. I find the evidence adduce by the prosecution has proved its case beyond reasonable doubt, and I find the accused Morris Bolami (Junior) guilty of murder. He is accordingly convicted of that offence. Because the offence carries a mandatory sentence, accused Morris Bolami (Junior) therefore sentenced to life imprisonment. Right of appeal within one month. Order accordingly.

Count 2 – Conspiracy:

158 All the accused Bolami, Nimelie, Leinga and Tevara 2 were charged for the offence of Conspiracy to defeat the course of justice, contrary to section 116 (a) of the Penal Code. It was alleged that all the accused on 12th October 2001 at Lord Howe Island, Temotu Province did conspire together to falsely implicate John Tana in the murder of Andrew Nieda.

159 Defeating the course of justice refers to the evidence given by accused Bolami, Leinga and Tevara 2 at the High Court trial of John Tana, at Lata on 25th August 2003, which to their knowledge was false.

160 The elements of the charge are:

(a) There was an agreement between the 4 accused on 12/10/2001.

(b) To falsely give evidence at Tana's murder trial.

(с) Knowing such evidence was false

(d) They did so with intention to wrongly convicted Tana of murder.

(e) Thus defeated the course of justice.

161 I agree with accused Lienga's counsel referring to Butterworth's Australia Dictionary which define conspiracy as an agreement between two or more people to carry out future unlawful act. It is simply an agreement which forms the criminal act in a conspiracy charge. It would seem the Counsel has been well versed and agreed to various forms of agreement which are part and partial of conspiracy. She refers to one form as chain conspiracy. The prosecutor refers to another form called the wheel conspiracy which existed between people who have neither seen or correspond with each other but coordinated from the centre communicating with the co-conspirators. Perhaps the most relevant form of conspiracy applicable in this case is a joint agreement between all the accused communicating with one another. Gathered from the submissions it would be quite difficult to draw a line as to whether conspiracy is an agreement within the ordinary every day meaning of the word, their arguments in that regard.

162 The proof of existence of conspiracy normally by way of direct evidence of its being put into action, and the inference being drawn from the acting in concert. I accepted as quite helpful, the submission by accused Leinga's Counsel placing emphasis as matter of inference deduced from certain criminal acts of accused, done in pursuance of an apparent criminal purpose in common. The prosecution has conceded to that as well on page 47 paragraph 4 of their submissions.

163 Again as Leinga's Counsel has submitted that element of intent is essential in the conspiracy and there must be an intention to be a party to the agreement to do an unlawful Act. That is consistent with the submissions by the prosecution at page 47 paragraph 5.

164 Whilst admonishing emphasis where no direct evidence exists, she refers to G V H case (1994) HCA 48; (1994) 181 CLRC 387, and also to New South Wales Criminal Bench Book which provide useful explanation about inferences. Not only that I have succinctly dwell much about inferences in the charge of murder above.

165 The issue of criminal intent in conspiracy is not as straight forward as in common crime. In this case there has to be evidence pointing out that conspirators agree that the course of conduct be pursued which definitely will include the consequence of the offence being committed. Apart from being a party to the agreement the accused by their conduct must pursue the criminal purpose which they knew must involve the commission as a consequence of the agreement. The question whether an accused pursue the criminal purpose of which consequence is foreseeable and contemplated is immaterial.

166 Further the accused must intend or know of the existence of circumstances necessary for the commission of the offence. If they mistakenly belief in the existence of those circumstances and in the true circumstances, the crime is impossible and not relevant to their liability. If there is no such knowledge or belief then the fact that the circumstances to exist would be irrelevant and that there would be no liability - Blackstone's Criminal Practice 1999, at page 79.

167 A significant point is whether all the accused had knowledge of the existence of the circumstances of how Nieda was shot. It only required knowledge or belief of what had actually happened. This is important to determine whether by diverting from the real truth constitutes the act of conspiracy, which all intended to defeat the course of justice.

168 The prosecution has asserted, after the killing of Nieda, Tana was blamed for the death. Ultimately it was agreed by the four accused to falsely blame Tana. Such agreement amounts to conspiracy to defeat the course of justice. All of the evidence before, on, or after 11th October 2001 allows the inference to be drawn that this exactly what was agreed on at the second meeting on 12th October when accused Nimelie arrived and attended. The Prosecution further alleges that accused Bolami, Leinga and Tevara 2 gave evidence at Tana's trial accusing Tana in pursuit of the agreement. As to accused Nimelie there is evidence that he attempted to interfere in the investigation of the case in Lata when he became aware of PW19 Bonnie's doubt of Tana's guilt.

Accused 2: Nimelie

169 The submissions imparted by accused Nimelie's Counsel was based on lack of evidence to proof an agreement to conspire. His submission that there has to be evidence to proof that accused Nimelie practically indulge in a future unlawful act, that is perjury, to defeat the course of justice is out of context of law. I will expound on this issue in latter course.

170 Additionally accused Nimelie denied in his dock statement conducting a meeting in front of Vaike's house. According to him as night was falling he went out of the house where Nieda's body was lying, and was sitting on a log lying before Vaike's house. Accused Bolami, Tevara 2 and PW8 Pastor Morris Leuba arrived. He told them three things. One that his parents requested that Nieda's body be buried in Reefs. Secondly he told them that $1,000.00 had been received to lay down their bows and arrows and they could stay calm as they were. Thirdly he told them to co-operate with Police during investigations and that he will not take part in the investigations. And then they dispersed.

171 To ascertain whether an agreement or consensus has been reached, perhaps, it is necessary to reflect back as to what were said in the first meeting at the COC Fellowship house. What transpired in that meeting, according to the evidence of PW4 Dagi, PW5 Tevara1, PW9 Teveko and PW18 Noli was that all of them were told by PW8 Pastor Leuba to blame Tana for shooting Nieda. Accused Leinga was confused and embarrassed. PW9 Teveko told the court that accused Leinga said when they fired he could not see clearly because the smoke was in his eyes. He further stated accused Bolami said he would talk in court, he appeared afraid. And further related that accused Tevara 2 said a person must say what he saw.

172 The prosecution submits that this is the genesis of conspiracy being placed in their minds by PW8 Leuba and further militated by accused Nimelie which subsequently completed on 12th October 2001.

173 And then the events of the second meeting on 12/11/2001. The meeting was called by accused Nimelie to find out what really happened to Nieda. PW4 David Dagi said it was a one sided meeting. PW1 Laulae and PW4 Dagi consistently said that accused Nimelie was angry with PW1 Laulae because he did not see what happened. He labelled the mission as failure. He told PW1 Laulae that he must have seen Tana shot Nieda and he should know. Accused Nimelie further said that PW1 Laulae was the one who saw the shooting. Eventually, accused Bolami, Leinga and Tevara 2 decided to say they saw Tana shot Nieda.

174 The atmosphere as reflected was not one of cordial and harmonious meeting. The mission was failed. One of their own men was killed; thus prompted anger. PW1 Laulae was forced to see Nieda was shot by Tana. Prosecution attempted to dilute the atmosphere by saying accused Nimelie urged PW1 Laulae though direct but generic. In fact accused Nimelie was not urging PW1 Laulae but rather forcing him. The tone of the witnesses in their evidence, implicated accused Nimelie's attitude. Other alleged conspirators were present, and by normal human standard they were affected.

175 In my view it was not a meeting to prompt coming together of the minds to agree to falsify the truth from the existence of the real fact. It was not a meeting where agreement was used in a normal sense. It was in fact a force used to procure agreement; though directed to PW1 Laulae, had affected others, particularly the accused that were present. PW1 did not mention in evidence that he knew there was an agreement by the conspirators to blame Tana.

176 In ordinary and simple agreement, where force is used to procure parties to agree on certain terms, the liberty to say what they want to say diminished. In such circumstances, who in particular accused Nimelie was making an agreement with and what sort of agreement. Is it a chain or wheels agreement so as to fall within one of the agreements under conspiracy? I have precisely stated earlier that the appropriate agreement that applies in this case is a joint agreement. Meaning all the parties met together and agreed to blame Tana for the killing of Nieda thus concluded the agreement. Their minds freely come together and agreed on one purpose that was to blame Tana. The question whether accused Nimelie pursue the criminal purpose which the consequence of the offence of perjury being committed, is immaterial. So long as an agreement intended to commit future criminal act, refine by the terms in law, required to accomplish conspiracy, then liability attached there from.

177 In another concept, quite ordinarily, we understand that conspiracy is an agreement to indulge in an unlawful act in the future. The facts of this case present a phenomenon quite different. Here prosecution is trying to prove conspiracy to falsify the truth of what had happened in the past, as to who actually was responsible for the killing of Nieda. Eventually the evidence has proved beyond reasonable doubt and the person responsible has been identified and guilty has been entered. Important is to prove conspiracy in the light of the facts of this case, and whether conspirators are liable. The question to ask is, have they had prior knowledge as to who shot Nieda so that when they met on 12/10/2001 they decided by way of agreement to divert from the real truth of what they knew, and blame Tana instead. Thus gives rise to the next offence of perjury.

178 The next question to ask is, has accused Nimelie had prior knowledge of the real truth as to who shot Nieda before the meeting on 12/10/2001. There was no evidence to suggest that. Accused Nimelie himself in his dock statement corroborated by DW9 Olu, that he was aware on 11/10/2001, before he left his wife's village and Lata to Bamoi that Tana was responsible for the killing. There was a span of time taken there from, to the time he called the meeting at Bamoi village on 12/10/2001. There is no evidence that he was informed that it was not Tana who killed Nieda but accused Bolami. Quite significant is this argument because if his intention was to divert evidence from the entire truth he had known, and in doing so attempted to procure agreement with others to align to his intention then he is liable. It is not good enough to infer from his actions during investigation as PW19 Bonnie stated. One thing ought to be noted is that a prime suspect should not be released in the middle of investigations. It should only be done after full investigation has been done and evidence has been finally assessed.

179 From the evidence outline above I find there is no evidence to prove beyond reasonable doubt that there was an agreement concluded by accused Nimelie with others on 12th October 2001 to conspire to defeat the course of justice. As such it is irrelevant to consider character evidence as the case does not hang in balance.

I therefore acquit him of the offence of conspiracy.

Accused Tevara 2:

180 Accused Tevara 2 was also charged for Conspiracy contrary to Section 116(a) of the Penal Code. The main argument on his behalf is lack of evidence to proof that he was a party to an agreement to conspire intentionally to defeat the course of justice.

181 Evidence from PW1 Laulae stated that at the time when the fatal shot was fired, himself and Tevara 2 were 100 meters away from the tave junction where Nieda was shot and killed. That indicated accused Tevara 2 did not actually see what happened. That evidence is consistence with the evidence of PW9 Teveko who saw accused Bolami and Leinga at the scene when the incident occurred. Accused Tevara 2 has never at, or within the vicinity of scene of incident. PW7 Sarah Bolami in her evidence did not see accused Tevara 2 at the crime scene, only accused Leinga.

182 Accused Tevara 2 attended the meeting on 12/10/2001 in the morning. At that meeting PW9 Teveko relates that accused Tevara 2 said a person must say what he knows. Prosecution has agreed at that stage he has not been corrupted, until accused Nimelie later arrived. Then PW18 Noli said accused Tevara 2 was told to say he saw him (Tana) and the clothes he wore referring to cut jeans and a sleeveless shirt. PW2 Noli's evidence cannot be trusted in this issue. PW1 Laulae has never attended the first meeting neither called it. However I noted the original statement of accused Bolami, Leinga, and Tevara 2 contain references to cut off jeans. What I am able to glean from evidence is that the only thing accused Tevara 2 said was related by PW9 Teveko who said that a person must say what he knows.

183 The second meeting was conducted outside of Vaike's house was also attended by accused Tevara 2. Evidence from PW4 Dagi revealed that it was a one way meeting. PW1 Laulae and PW4 Dagi said that accused Nimelie who called the meeting was angry because the mission has failed and that one of them was killed. Therefore he forced accused Tevara 2 and others to blame Tana for the shooting of Nieda. I have decided above that there was no simple agreement reached. In this case to blame Tana and deviated from the real truth thus amount to defeating the course of justice.

184 Is accused Tevara 2 a party to conspire to blame Tana from the real truth of the existence of facts that it was accused Bolami who killed Nieda. Does he have prior knowledge of the tave junction event before the second meeting? In any criminal case evidence is required and not speculation. The evidence reveals that he was not seen in the vicinity, or near the spot where Nieda was shot. As such there is no evidence to neither suggest nor conform that he has prior knowledge of the existence of fact that it was accused Bolami who killed Nieda. To establish the offence of conspiracy, in my view, there has to be in existence prior knowledge of the past event. In this case who actually fired the fatal shot? Having the conscious mind of the real truth, any act by way of agreement involving accused Tevara 2 with others to divert the entire story from the real truth amount to conspiracy. Accused Tevara 2 may be informed of the real truth even before any meeting. Would he believe what he heard was true, he may be, however, I feel it is risk to entertain speculation. What Court is pursuing is evidence to proof the charge on the standard required. What accused Tevara 2 said in the High Court at Lata, was what he was told to say by PW8 Leuba on the first meeting, and then he was forced by accused Nimelie in the second meeting to say what he had said. Prosecution has agreed that accused Tevara 2 was not corrupted as yet at the first meeting.

185 There was no agreement at all materialised at the second meeting to blame Tana. Or that accused Tevara 2 has agreed with the intention to commit the crime of perjury at latter course. There is no evidence at the second meeting he consented and agreed to blame Tana. In deed he was forced to say what he said which amounted to duress. From the first meeting he was quite firm on his stand by saying a person will say what he knows. That has changed when he gave his original statement to Police and later in Court, just because he was forced to do so by accused Nimelie.

186 I find the prosecution had failed to prove the offence of conspiracy against accused Tevara 2 and therefore I must find him not guilty of conspiracy.

Accused Bolami and Leinga:

187 I have a reason to deal with both accused together. Not because I do not want to deal with them separately, but evidence has prompted me to do so.

188 PW1 Laulae said after he fired a shot at the tave junction they separated. Accused Bolami and Leinga were placed at the junction to secure the main road to Bamoi. Whilst himself and accused Tevara 2 advanced to Nila. At 100 metre away they heard a low sounded shot from the tave junction. Immediately after that, accused Bolami appeared. And when he was asked who fired the short he replied and said Tana, Tana, Tana. The strategy to blame Tana was generated by accused Bolami initially.

189 Before accused Bolami fired the fatal shot PW9 Teveko heard the voice of PW8 Leuba saying shoot him dead. Again PW5 Tevara 1 said as they were carrying the dead body home PW8 Leuba told him that Nieda was shot by Tana. It appears that even before the dead body of Nieda got to Bamoi village, accused Bolami and PW8 Leuba had already blamed Tana for the killing. If that was a real diversion from the truth then inference can be drawn that there could have been a consensus to divert criminal responsibility.

190 Accused Bolami stated in evidence that it was accused Leinga who arrived first at Bamoi village and told the people that Nieda was killed. That is inconsistent with the evidence of DW4 Taunga who said accused Bolami and Leinga arrived at Bamoi village together and at the same time. And then there is undisputed evidence that both accused paddled to Nangu village to send radio message that eventually received by Nimelie that Nieda was shot by Tana. After returning from the clinic accused Bolami and Leinga were sitting at the verandah of Vaike's house. PW5 Tevara 1 approached them and said he did not think Neida was killed by Tana. Nila people did not proceed as far as the main tave junction. Both accused did not say anything.

191 Before any meeting could be held whereby which an agreement may have concluded, accused Bolami and Leinga and PW8 Pastor Leuba had already blame Tana for the killing of Nieda. They are the very men according to evidence should know exactly what happened to Nieda, including PW9 Teveko. In this case PW8 Pastor Leuba was not charged for perjury for some reason known to the prosecution only.

192 After Nieda was killed evidence reveal that accused Bolami and Leinga were seen together all of the time. There was sufficient period for both to discus and collaborate as to what to say. The only reasonable conclusion to draw from the evidence is that both have orchestrated to shift criminal liability by blaming Tana, knowing fully well it was not Tana.

193 At the first meeting PW4 David Dagi asked accused Leinga what he saw, and he said nothing because he ducked down for cover when he heard the shot nearby. PW8 Leuba then told him that he saw Tana shot Nieda. Accused Leinga appeared confused and embarrassed. That evidence has corroborated with the evidence of PW5 Tevara1. Accused Bolami said he would talk in Court according to PW9 Teveko and appeared afraid. When someone had done something wrong it is natural to outwardly reflect what is hidden within. Accused Leinga was confused because he knew the truth and yet he was told to say what he did not see.

194 The second meeting was rather a one sided one. It was accused Nimelie doing all the talking and forcing PW1 Laulae which affected other conspirators to blame Tana. The evidence of the meeting seemed ineffective so far as accused Bolami and Leinga are concerned. In fact the circumstance under which such meeting was conducted is not favourable to conclude that a simple agreement was reached to blame Tana for the killing of Nieda. Whether that meeting was held or not, accused Bolami and Leinga had concluded that it was Tana who shot Nieda. Police, Provincial Executive and accused Nimelie had fully aware of that before Police and accused Nimelie travelled to Bamoi village.

195 Counsel for accused Bolami has made no written submissions otherwise in regards to the offence of conspiracy. Perhaps he may have over looked, or solely concern with the charge of murder which is more serious, or he may have forgotten. Whatever may be, final submissions are important to assist the Court to judicially analyse and asses the case more constructively.

196 On behalf of accused Leinga, submissions are premised on the facts surrounding the conduct, and whether a simple agreement was conclusive at the second meeting. I have agreed there was no agreement made on the second meeting to blame Tana. It was a one sided meeting where accused Nimelie forced the conspirators to blame Tana.

197 There are no submissions by all Counsels in relation to an important issue of prior knowledge of who actually shot Nieda. So important, so that any agreement or decision made in the latter course to divert from the real truth amount to conspiracy. All submissions pivoted on the fact of whether or not an agreement was concluded at the second meeting, that all conspirators had prior knowledge of existence of facts that the commission of perjury will materialise. And that all the elements required concluding such agreement has been fulfilled. That is partial submissions. No one has ever informed this Court of the event of the killing which is the basis of an agreement to falsify the whole truth, thus defeating the course of justice.

198 However, there is evidence that accused Bolami and Leinga knew who actually shot Nieda. Both have full knowledge of what had happened, and yet had opted to divert criminal responsibility to Tana. This is where conspiracy comes in to cover up the real truth. After the shooting of Nieda evidence reveal both accused were together. They arrived in Bamoi village together, both paddled to the clinic on the main land together to inform Police and Medical. The message relay was that Tana was responsible for the killing of Nieda. The message was received by accused Nimelie, from non-other than accused Bolami and Leinga, as it was. He acknowledge in his dock statement receiving a message that implicated Tana as being the culprit. From the evidence I could safely draw inference that an agreement had been concluded right at that stage. They could have orchestrated the blame on Tana.

199 The forceful attitude by accused Nimelie at the second meeting to blame Tana may not conclusively have any effect on accused Bolami and Leinga. They have already decided what to say. In fact accused Nimelie's attitude affirms to them as to what to say. Whether they accept what accused Nimelie said or not, is irrelevant, their minds have already concluded and had been exposed, even before accused Nimelie arrived at Bamoi village. The evidence extracted above revealed so. Subsequently both implicated Tana in their statements to Police record in 2001 and again at the High Court trial on 25th August 2003, and again in their statements to Police in February 2005. The unlawful act anticipated by both accused was when they swore on oath and gave evidence at the High Court trial at Lata.

200 From the evidence and the inferences I could reasonable draw that there was indeed an agreement between accused Bolami and Leinga to conspire to defeat the course of justice. I find the prosecution has proved its case beyond reasonable doubt. And I am convinced that it is so; therefore find both accused Bolami and Leinga guilty of the charge of Conspiracy.

Count 3 – Perjury:

201 Accused Bolami, Leinga and Tevara 2 were charged for perjury contrary to section 102 (1) of the Penal Code. For the purpose of this case perjury is defined as a person sworn as witness in a judicial proceeding wilfully makes a statement material in that proceeding, which he knows to be false or does not belief to be true, Section 102 (1) Penal Code.

202 The elements of the offence are:

1 There is a judicial proceeding.
2 A person lawfully sworn as a witness.
3 Wilfully make a statement in that proceeding.
4 Which he knows to be false.
5 Did not belief to be true.

203 For a person to be convicted of perjury, as a result of a statement he made under oath in a judicial proceeding, which he knows to be false, or did not belief to be true, but which was in fact true after all.

204 In this case the charge of perjury emanates from the result of the act of conspiracy, which the conspirators have agreed by their concerted action, to implement that which they have agreed upon, to divert the truth of the matter as to who actually murdered Nieda. Thus giving concocted evidence in the Lata trial with intention to defeat the course of justice. Practically the evidence concocted was the shifting of criminal responsibility by implicating Tana as the culprit instead of accused Bolami whom this court now convict for the charge of murder.

205 The offence of perjury has a direct link with conspiracy and murder. It is in this factual situation that circumstances permit this court to consider evidence led to proof the charges of murder and conspiracy, to decide whether both accused have committed the offence of perjury.

206 To resonate the legal difference, in particular, where the phrase "defeat the course of justice" is perceived as one of the elements of conspiracy. The evidence in this case is such that it requires a fine line be drawn between the two offences. As it is, the link between the two offences makes it almost redundant for the perjury charge. However, one view suggested by accused Tevara 2's Counsel that perjury be proved first before the conspiracy charge. It may well be true, but my view is that, the charge of conspiracy is limited to the agreement by the conspirators to indulge in an unlawful future act which is perjury, by knowledge of the existence of facts of the commission of perjury which is eminently forthcoming. The question whether one or two conspirators actually indulged in the commission of a future unlawful act of perjury, is immaterial. It could be perceived that both unlawful act correlates to one another and perhaps the reason prompting accused Tevara 2's Counsel to suggest as she did. In my respective view the suggestion that perjury be proved first before conspiracy is of no effect and would be a wrong approach to do so in this case.

207 I have the privilege to read the statements of the accused under Exhibit "0", and the exhibits "L," "M" and "N". To sum it up all those statements implicated that it was Tana who short Nieda with a short gun riffle. Accused Bolami's statement under exhibit "O" is equally the same as his sworn evidence in this court. Those evidence to them are not false, but what they belief to be true. Upon those evidence together with others that Tana was eventually convicted by the Court.

208 However prosecution led evidence to prove that all the accused deliberately indicated Tana in the killing of Nieda whilst fully aware it was not true. In an attempt to proof falsity of those statements the prosecution rely on the documents tendered under Exhibit "O". In utilising section 112, which states the fact of the former trial shall be sufficiently proved by production of a certificate containing the substance and effect of the information and trial purporting to be sign by the Registrar. The prosecution argues that the section intended to allow the proof of evidence in the former trial. It is not restricted in any way. Otherwise it would be impossible to prove what was said in the former trial. The substance of the former trial is the evidence. Prosecution further argues that the circumstance of this case warrant that the court accounts for about forty prosecution witnesses who gave evidence.

209 The Counsels for accused Leinga and Tevara 2 argued that the Registrar's certification only proved the fact of the Lata High Court proceedings in which perjury was alleged. It does not prove the evidence alleged to be perjured. In other words it did not proof what were said as evidence and recorded by the court. Proof of evidence must be given by a witness who was present at the trial. The trial record tendered in this case cannot be used as a proof of anything said at that proceeding. Both Counsels further argued that there is no evidence at all to proof the charge of perjury, and refer to Fiji Penal Code and UK perjury Act with corresponding sections to that of Solomon Islands Penal Code. Both also refer to a Fiji case Ram Lagan v Regina, Court of Appeal (1966) 12 FLR 145.

210 There are three important aspects in proving what materialises in a former judicial proceeding where the charge of perjury is alleged. Firstly, if the fact of the proceeding at which the perjury is alleged to have taken place is not admitted, this may be proved by production of the record of trial pursuant to section 112 of the Penal Code. That is exactly what prosecution has done. Secondly if the allege perjured statement is not admitted the proof may be by the testimony of the persons who present at the trial. One such witness would suffice. Lastly corroboration is only required as to the falsity of any statement alleged to be false, section 109 of the Penal Code. The two last issues hold the major focus of the defence argument of which the prosecution has failed to meet the proof required by law. However it would appear that defence Counsels did not understand the difference between the last two issues, and worst still prosecution for that matter.

211 In this case there is no dispute that there was a High Court proceeding at Lata on 25th August 2003 hearing the murder trial of Tana. In such circumstance Section 112 Penal Code does not apply. It may well appear, that all three accused did not deny whole or part thereof of their statement given at the Lata trial of what they believed to be true. As such to proof by the testimony of persons present at the Lata trial, is no longer relevant in law, and in fact it is not an issue any more. We therefore left with the requirement of corroborative evidence, to proof the falsity of evidence adduced at the trial, and that is the basis of this charge which the prosecution is obliged to proof.

212 It follows then that there is need to be directed that what other evidence might be capable of providing the corroboration required - Blackstone's Criminal Practice 1991, Page 541, para.1.On the second paragraph it states corroboration may take the form of documentary evidence originate from accused himself or any confession before the trial. The fact to note is that corroboration in this case requires other evidence and not evidence confine to those attended trial at Lata court proceeding only. Therefore the court has to look beyond exhibit ''0" and beyond Lata court house to decide the case of the accused.

Accused Tevara 2

213 The legal link that exist between the two offences does not immune or bar accused Tevara 2 to be dealt with in the perjury charge, though he was acquitted on the charge of conspiracy.

214 The evidence being the hallmark of his acquittal is premised on his unawareness of the true nature of fact as to who killed Nieda. There is strong evidence from PW1 Laulae, PW7 Sarah Bolami and PW9 Teveko that he was not within the vicinity of the tave junction at the time Nieda was shot. Therefore unaware of what had happened. According to PW1 both were 100 meters away from the scene of incident.

215 He has exposed his innocent in the first meeting. In the second meeting he was forced to blame Tana though accused Nimelie who was directly talking to PW1 Laulae, but was more of a general approach. Accused Tevara 2 was present. Accused Nimelie by evidence exercised force, an element to procure consent or to subordinate accused Tevara 2 to agree that he saw Tana shot Nieda. Surely accused Tevara 2 must be affected by the anger of accused Nimelie. There was no agreement in any ordinary sense. It was a one sided meeting, one men taking. PW1 Laulae when cross examined did not know whether there was an agreement to blame Tana. Out from that meeting accused Tevara 2 with others agreed to blame Tana and subsequently led him to take oath and gave evidence at the High Court trial of Tana at Lata.

216 That forceful behaviour by accused Nimelie, a dominant figure in the community has compelling effect on accused Tevara 2. And what he said in his statement to Police and at Lata proceedings was whether he knew or belief in what he said was true. He may have, but I doubt because he was under duress. Consensus was not acquired in a normal and harmonious manner and there was no evidence to prove it did take place at the second meeting.

217 The charge of perjury in this case links directly to conspiracy. What has been agreed upon at the conspiracy stage directly led to the commission of perjury that is to defeat the course of justice, by implicating Tana as the perpetrator, instead of the real and true person, which now known to be accused Bolami.

218 I have already acquitted accused Tevara 2 on the charge of conspiracy. It would be of no sense to find otherwise. Without conspiracy there can be no perjury especially when the offences are directly link together. Not only that, but without proving the charge of murder there can be no conspiracy. As such, in the light of the circumstance of this case, there is no sinister in considering the same facts in the offences. It cannot possibly be separated. I am satisfied so as to be so sure that there is any evidence to prove the charge of perjury against accused Tevara 2.

219 I find prosecution has not proved the case against accused Tevara 2, beyond reasonable doubt, and therefore must be acquitted accordingly.

Accused Bolami and Leinga.

220 I have decided to deal with the above two accused together again in order to maintain consistency.

221 The allegation that both accused deliberately blame Tana for the killing of Nieda whilst consciously belief that was not true. To proof such statement is not true, is quite difficult, unless some evidence is coming from co-accused or from evidence of confession. However I have warned myself that such evidence may appear suspicious. Where falsity of a statement is alleged it requires corroborative evidence which must therefore directed to the issue.

222 It is now apparent that Exhibit "O" which prosecution rely on and tendered under Section 112 of Penal Code, to proof the charge of perjury, does not in any way assist the prosecution case at all. The intent to do so fall outside the requirement of the section itself. In reality it is out of context as far as the law is concern. Also out of context is the argument that witnesses attending High Court proceeding at Lata should be call to give evidence to proof the falsity of the statements. The issue in this court is falsity of the entire statement and not whether the accused disagree with or part of the statement said in the Lata proceeding which require who ever attended the court proceeding to give evidence.

223 Apart from that, the prosecution further submitted the Court has to look among the bulk of its evidence to identify what other evidence is available and capable to proof the charge. And what other evidence which might be capable of providing the corroboration needed. This in my view is the right course to take.

224 The problem is that there is very little submission in regards to this important matter. I learned after all that the subject is quite new, and this has led to limited knowledge of it. As such less has been canvassed in submissions. So I am urged to look beyond Exhibit "0" among about forty prosecution witnesses, if there is any evidence to proof and to provide corroboration.

225 It has to be noted that the offence of perjury links back to conspiracy and murder and much of the evidence were directed to proof those two offences. Perhaps the right way forward is to consider those evidence if any which may support and proof perjury.

226 In doing so, the first and foremost thing to realise that accused Bolami has been convicted of murder. In addition both accused Bolami and Leinga has been convicted of conspiracy as well. The bulk of evidence adduce to proof those charges are overwhelming. However the important thing is that by implicating and blaming Tana falsely, by conspirational act, and then by taking reasonable step to give evidence at a judicial proceeding amount to perjury.

227 The statements by both accused in exhibit "L" and "M" and under exhibit "O", and as well as sworn evidence of accused Bolami in this court, in their various forms and extent were false and were given deliberately to implicate Tana as responsible for killing of Nieda. This was consistent with the conspiracy plan orchestrated and agreed upon by both accused. Eventually this court finds both accused guilty on the conspiracy charge.

228 Those statements are inconsistence with the evidence in this case that it was accused Bolami who killed Nieda. John Tana by the evidence of eleven prosecution witnesses did not see him armed with any gun at all on 11th October 2001. Their evidence is credible and convincing than that of three prosecution witnesses, one defence witness, and evidence of accused Bolami himself. Reasons for not accepting evidence supporting the accused has been clearly stated above. Nila people including Tana had never penetrated Bamoi territory to the tave junction. They may progress but as far as Nipanopu copra drier. PW1 Laulae was surprised that Tana can penetrate into the area he had fired a shot before they separated. It should have cleared the place. Not only that but both accused were place at the junction to secure Bamoi village from Nila people penetrating through.

229 PW5 Tevara 1 said when both accused were sitting at the veranda of Vaike's house he approached them and told them that he did not think it was Tana who shot Nieda. Nila people including Tana did not penetrate Bamoi territory as far as the tave junction. Both accused did not say anything.

230 Police investigation officer PW19 Bonnie was showed the position where Tana stood and fired the fatal shot and the tree which the bullet crashed. The witness after observation formed an opinion and said the shooting might have happened within themselves or by accident or intentional. The tree which the bullet crashed, if Nieda was standing in the position shown he could have been saved by the tree.

231 That entire evidence manifest one thing that Tana could not be a possible person who killed Neida. On the other hand there is mass prosecution evidence that proof accused Bolami was armed with a homemade short gun before, during and after Nieda was killed. There is evidence that both accused were in possession and carrying about homemade short guns in Bamoi village before the incident. There is evidence that homemade short guns were manufactured in Bamoi village before the date of incident. There is direct evidence from PW9 Teveko who saw accused Bolami pulled the trigger of the gun and fired a shot that killed the deceased. Accused Leinga was right beside him at that time. There is evidence that has proved that accused Bolami has motive which prompted intention to fire the fatal gunshot at Nieda. As a result of the entire prosecution evidence this court has found accused Bolami guilty of murder. That leads on to convict both accused Bolami and Leinga for the charge of conspiracy.

232 The statements made by both accused to Police and in the High Court at Lata are material which are false and inconsistence to the facts in this case, therefore amount to perjury.

233 Mr Nori argued that the only evidence to prove perjury against accused Bolami is his personal confession to PW30 Collin Noa and his wife PW31 who were called to witness the confession which should be sufficient for the purpose. However, I have discredit the evidence of those two witnesses and ruled out their evidence as being untruthful. Despite that, the strength of prosecution evidence to proof perjury does not change.

234 What evidence more would I consider from among the bulk of the prosecution evidence to add? PW12 Elizabeth Daiwo reveals on two separate occasions, accused Bolami approached her to change her story. One in June 2009 at a sisi dance at Henderson, and the other in April 2009 at the Honiara Central market. On both occasions the witness did not respond. But what was it that accused Bolami wanted to achieve by attempting to coerce the witness to agree to his proposal. Clearly this provides evidence that accused Bolami wanted to say something, something within him that was bothering him. I can draw from that as evidence of consciousness of guilt that he tried to get her to change her evidence. This attitudinal approach seems to be quite common with accused Bolami. He could do whatever possible to serve his interest and uphold his innocence. Comparatively this can be equated with his attitude to divert the truth and replace it with falsified evidence. And this is exactly what he and Leinga had done, to blame Tana falsely, to avoid being responsible for the death of Nieda who was his uncle. At the same time diminish their effort. In any case it is something quite hard to accept, because it would a big loss and shame to the Bolami family.

235 Ultimately I find the prosecution has adduced evidence to proof its case beyond reasonable doubt that accused Bolami and Leinga had committed the offence of perjury. And I therefore find both accused guilty of perjury as charged.

Court.

^[1](1886)L.R.1QB 289 at 290.
^[2](1980) AC 402.
^[3][1974] UKHL 2; (1975) AC 55; (1974).
^[4] NSWR 42;