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Regina v Sulumae - Judgment [2012] SBHC 23; HCSI-CRC 291 of 2009 (14 March 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(APANIAI, J)

Criminal Jurisdiction

REGINA

-v-

SAVERIO SULUMAE

Date of Hearing: 30th, 31st January and 1st, 2nd, 3rd,
17th February 2012
Date of Judgment: 14th March 2012

Mr. Iomea for the Crown.
Mr. Fugui and Ms Waqavonovono for the Accused.

JUDGMENT

Introduction:

1. The accused, Saverio Sulumae, is charged under section 200 of the Penal Code with the murder of Ruben Kimo ("deceased") at the Central Market in Honiara on Saturday 11th October 2008.
   
2. It is alleged that at around 4.30pm that day, the accused stabbed the deceased in the back near a tree locally known as "alite tree" which was located near the Market wharf. The deceased died from that stab wound at about 8pm that same day.
   
3. The accused had denied that he was the one who stabbed the deceased.
   

Facts not in dispute:

4. In the afternoon of Saturday 11th October 2008, the deceased, along with Habert Pitua ("Habert"), Dennis Malisau ("Dennis") and Liston Tora ("Liston") went to the Honiara Central Market ("Market") after having some beer around the Point Cruz wharf area. None of them was aware of the fate that awaited the deceased that afternoon. They arrived at the Market just before 4pm that day.
   
5. Upon arrival at the Market, an argument arose between Liston and Joycelyn Kava, a woman from the Aola area of Guadalcanal but married to a Michael Talaikwai, a man who claimed to be from West Kwara'ae in Malaita Province. This led to an assault on Liston who escaped into a Chinese shop for his safety.
   
6. The deceased saw what was happening to Liston and feared for Liston's safety. He went into the shop and assisted Liston to come out from the shop. At that stage, Joycelyn's in-laws again descended upon Liston who then ran and jumped into the sea and swam to a nearby ship. He hid himself inside the ship and later escaped back to his residence.
   
7. Immediately after Linton's escape, someone ("attacker") approached the deceased from behind and, without warning, stabbed him in the back. The attacker then escaped across the road towards the ITA Hardware and out of sight.
   
8. The deceased was taken to the National Referral Hospital immediately after the stabbing but later died from the stab wound at the about 8pm that evening.
   

Cause of death:

9. An autopsy examination was carried out on the deceased by Dr. Roy Roger Maraka on 15th October 2008. In the report (Exhibit "P10"), Dr. Maraka said that a "V" shaped stab wound measuring 54 x 15 x 66mm was found on the upper back of the deceased and that the stab wound had entered the right chest cavity between the 5th and 6th right ribs from the back as well as the upper lobe of the right lung and that the lower surface of the 5th rib and the right side of the back bone was also cut. Dr. Maraka also reported that a 1,200mls of blood with clots was found in the right chest cavity. Dr. Maraka said that, in his opinion, the deceased had died from right haemothorax (blood collection in the right chest cavity) resulting from the stab wound and that the weapon used may have been a knife. He said that the "V" shape of the wound may have been the result of the knife having been twisted upon entry into the deceased's back or the deceased may have been stabbed twice in the same area.
   
10. There is no dispute that the cause of the deceased's death was the blood collection in the deceased's right chest cavity was the result of the stab wound found on the upper back of the deceased.
    
11. It is clear that no one involved in an attack with the use of a knife causing such injuries as those described by Dr. Maraka could have intended anything less than to kill the deceased. I am satisfied beyond reasonable doubt that the attacker intended to kill the deceased.
    

The issue:

12. The only issue in this case is whether the accused was the attacker.
    
13. The accused denies he was the attacker and raised the defence of alibi.
    

The Crown evidence:

14. The Crown had called 3 persons who were eye witnesses to the stabbing. These witnesses were Allan Petero ("Petero"), Abelene Grace ("Abelene") and Roselyn Ohukeni ("Roselyn").
    
15. There were other witnesses whose statements to the police were admitted into evidence by consent. These witnesses were Raphael Chope ("Raphael")[1], Liston Tora ("Liston")[2], Dennis Malisau ("Dennis")[3], Joycelyn Kava ("Joycelyn")[4], Constable Collin Ramosala ("Collin")[5] and Constable David Siau ("David")[6]. The autopsy report by Dr. Maraka[7] was also tendered into evidence by consent.
    
16. The evidence of Petero is that he came to the Market in the afternoon of Saturday 11th October 2008 to sell green coconut. He came to the western side of the Market. As soon as he arrived, the black marketers came and bought all his coconuts. He then went and stood in front of a Chinese shop. He went there to wait for transport to return home. Further down towards the sea from the Chinese shop (about 46 meters) was a alite tree. While standing in front of the Chinese shop, he noticed people arguing with a boy near the alite tree. There were lots of people near the alite tree. A fight then broke out. He did not recognize any of the people arguing and fighting. However, he saw the attacker stab the deceased with a knife at the upper right side of the deceased's back. The knife was sharp and was about 30 to 40 centimetres long. The stabbing occurred under the alite tree. After the stabbing, the attacker ran towards the main road and across the road to the ITA Hardware building. The attacker ran passed him as he escaped from the scene. The distance between him and the attacker when the attacker came passed him was about 10 meters. When the attacker ran past, he was sitting. He saw the attacker ran all the way to the ITA Building which was across the main street. After that, he went down and assisted the deceased and took him to hospital in a taxi. He did not say how long he had the attacker under observation. He said everything happened within a short time only.
    
17. Petero described the attacker as tall, had a rat-tail hair, light skin but not very fair and was wearing a cut jean white in colour and which appeared to have been bleached. The attacker was also wearing shoes.
    
18. Abelene gave evidence that she was at the Bulk Shop at the western end of the Market at around 4pm on Saturday 11th October 2008 with her 11 year old son. It is clear from her evidence that Abelene saw the argument that was happening between Liston, Joycelyn and her in-laws. It is also clear that she saw Liston escaping into the Chinese shop and later jumping into the sea to escape from Joycelyn's in-laws. However, she said she became frightened and did not really concentrate on what was happening. She said that she did not actually see the stabbing incident but became aware of the stabbing only when the attacker came past her saying "Do you not know we are from Malaita?" She said she saw that the attacker had a knife and saw him pulling up his shirt and put the knife under his shirt at the front left hand side of his trousers. She said the attacker walked past her and her son towards the Chinese shops and after that she did not see where the attacker went.
    
19. As to the identity of the attacker, Abelene described him as having the same look as that of a boy from her village. Because of his features, she said she could not forget what the attacker looked like. She said he was light skin, slim and had his hair cut. That was all she could say about the identity of the attacker.
    
20. Roselyn was a teacher from Small Malaita but married to a person from Veghothati village in the CDC area of Guadalcanal Province. She said that she was at the Market sometime between 4pm to 5pm on Saturday 11th October 2008. She was at the western end of the Market at a place where they usually sell potatoes. There was a alite tree nearby. She saw people running around trying to find a person in a Chinese shop. The people came out of the shop and chased the man in the Market. Suddenly the people came rushing towards them shooting and wanting to fight. She wanted to run away but her two young children were with her so she just stood there watching. Then she saw the attacker lifting a knife and stabbing the back of the deceased with the knife. The knife was about 30 to 40 centimetres long. After stabbing the man, the attacker pushed the knife into the front part of his shirt and escaped. She did not see where the attacker went after that. There were a lot of people around at that time so she could not see properly. She said those were the only things she saw. She was frightened and did not want to continue looking as that was the first time she had ever seen someone being stabbed. She did not concentrate on what else happened. The stabbing incident happened about 12 meters from where she was. She admitted that things happened so fast.
    
21. In regards to the identity of the attacker, Roslyn described him as not fat, thin, fair skin but not dark either. She said that the attacker did not keep his hair clean, that the hair was not combed and not kept neat. She said the hair was not very short. She said that the length of time from the stabbing to the time when the attacker escaped out of her sight was about 15 minutes.
    
22. The evidence by Raphael, Liston, Dennis, Joycelyn, Collin and David were not of much assistance in as far as identification of the attacker is concerned.
    
23. Raphael's evidence is simply that he was at the Market and saw the deceased making his way out of the crowd and coming towards him. He saw the attacker come up behind the deceased and landed a 12 inch kitchen knife at the back of the deceased. He shouted to the deceased that someone was behind him with a knife but that the deceased appeared not to have heard him. He did not know who the attacker was as he did not take a good look at the attacker. As soon as he saw the stabbing, he concentrated more on the deceased and went and assisted to transport the deceased to hospital.
    
24. As for Liston, his evidence was that at the time of the incident he was more concerned with saving himself and was not aware of what was happening to the deceased. He said that it was only on the next day (Sunday 12th October 2008) that he was informed of the stabbing of the deceased and his death later in the evening.
    
25. As for Dennis, he said he was present at the scene of the incident on Saturday 11th October 2008 and saw the stabbing incident but he could not recognize the attacker. He saw the attacker and described him as having a "built body" and taller than himself and that he was wearing a green cut shirt and a short cut jean but he was not able recognize his face. He saw the attacker holding a knife and that he became frightened when he saw the knife. On seeing the knife, he ran away and boarded a bus and returned to Titinge. He only learned of the deceased's death the next day.
    
26. Joycelyn's evidence added nothing useful in so far as the question of the identity of the attacker is concerned. In her evidence, she talked about the assault on Liston and the involvement of the deceased in his attempt to save Liston but said that at the time of the actual stabbing of the deceased she had already left and did not know what happened.
    
27. David was a member of the police team which was tasked to locate the attacker whom he called "John Save". The team consisted of Sergeant Rafita, Detective constable Michael Manuala, Detective constable Collin Ramosala and himself. The team went to Bokona Heights ("Bokona") on 16th October 2008 where they believed the accused's house was. Their belief was based on information obtained from police informants.
    
28. When the team arrived at the accused's house, they found that the accused was not there. They then took the accused's uncle Primo Tagini and the accused's mother to the CID office at the Honiara Central Police for questioning as to the whereabouts of the accused. After the meeting, the team went back to Bokona with Tagini and the accused's mother and had a further meeting with the Bokona community. Tagini and Patti Bakaliki, who was the accused's cousin brother, were asked to assist to bring the accused to the police team. They did and, at about 4pm that day, the accused arrived at his house and asked the team if he could speak to his mother first. After speaking to his mother, the accused was formally arrested and taken into custody.
    
29. Collin was also a member of the police team which was tasked to locate the attacker. Collin said that the team was tipped off that the person who stabbed the deceased at the Market was the accused and that he lived at Bokona. The team went to Bokona on 16th October 2008 and held a meeting with the accused's relatives to assist them point out the accused's house. After the meeting, a person named Patti Erick ("Erick") pointed out the accused's house to the team. The team then went to the house and found the accused in there. He was informed that he was wanted in relation to a stabbing incident at the Market on 11th October 2008. After talking with his mother, the accused was formally arrested and taken into custody where an interview was conducted with him the next day (17/10/2008).
    

Photo board identification:

30. The Crown had also called evidence in regards to photo board identifications conducted by constable Walter Titiulu ("Walter") with Petero, Abelene and Roslyn on the 17th, 20th and 21st December 2008 respectively.
    
31. Walter said that the photo board identification held with Petero was conducted at Foxwood, North Guadalcanal, on the 17th December 2008. Petero, however, said that photo board identification was held at Rove Police Headquarters in the evening of the 11th October 2008. I am satisfied Petero was confused and that the photo board identification with Petero was held at Foxwood on the 17th December 2008. It would not be possible for the accused's photo, which was pasted onto the photo board, to have been taken on the same day of the incident.
    
32. In his evidence, Petero said that the photos shown to him were coloured photos. He said that on being shown the photos, he was asked whether he recognized the men in the photos and to identify from the photos the boy who did the stabbing at the Market. However, his answers to those questions seemed to go from being certain to that of being uncertain[8]. In the end, however, he did manage to point out photo No. 8 as the photo of the man who stabbed the deceased at the Market. There is no dispute that photo No. 8 is a photo of the accused.
    
33. The photo board identification conducted with Abelene was held at the Rove Police Headquarters on the 20th December 2008. Abelene was taken from her village at Kekena in Guadalcanal Province to Rove Police Headquarters where photos were shown to her. She said the photos were arranged in a circle and there was one photo ("middle photo") in the middle of all those photos. She drew a sketch (exhibit "D1") to indicate the manner in which the photos were arranged. I note from Walter's evidence that the photo board which he said he had shown to Abelene (Exhibit "P2") did not match with exhibit "D1".
    
34. Abelene, however, said that when she saw the photos, she pointed to photo No. 5, which was the middle photo, as that of the person she saw stabbing the deceased at the Market. There is no dispute that photo No. 5 was that of the accused.
    
35. The photo board identification conducted with Roslyn was held at her village at Veghothati village, Guadalcanal, on the 21st December 2008. Roslyn said that she tried to look at the photos but could not recognise the photos because she had observed the attacker for only a very short time and the photos were new and bright and therefore she could not really say which of the photos was that of the attacker. She admitted that she did not even properly recognize the attacker. She also admitted that the police had asked her to focus on photo No. 9 and that she pointed to photo No. 9 only because the police had directed her attention to that photo, otherwise she would not have been able to identify which of the photos was the photo of the attacker. There is no dispute that photo No. 9 is that of the accused.
    

Legal principles relating to identification:

36. The guilt or otherwise of the accused in this case depends entirely on eye witness identification evidence. I must therefore remind myself of the warning issued in R v Forbes[9], where the court said:
    

"In many criminal investigations and trials there is little or no doubt that a crime has been committed and the issue (both at the investigatory and trial stages) is who committed it. ... In many cases of this class, however, it is the evidence of eye witnesses who saw (or claim to have seen) the criminal incident, or the events leading up to or following it, which is relied on to connect the suspect or defendant with the commission of the offence. Such eye witness, relying on what they have seen, identify the suspect or defendant as the person responsible for the criminal conduct in question. ... It has been recognized for many years that eyewitness identification evidence, even when wholly honest, may lead to the conviction of the innocent."

37. I also remind myself of the guidelines issued in R v Turnbull[10] were the Court said:
    

"First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition, he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken.

Second, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing of traffic or press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? (If in any case, whether it is being dealt with summarily or by indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused with particulars of the description the police were first given. In all cases, if the accused asks to be given particulars of such descriptions, the prosecution should supply them. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence.

.....

When, in the judgment of the trial judge, the quality of the identifying evidence is poor, as for instance, when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The judge should withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification."

38. I must, therefore, closely examine the circumstances in which the identification by the witnesses in this case came to be made. I must also ask myself how long did the witnesses have the attacker under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing of traffic or press of people? Had the witnesses ever seen the attacker before? How often? If only occasionally, had they any special reason for remembering the attacker? What was the length of time that had elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?
    

Analysis of the Crown evidence:

39. It is clear that Petero, Abelene and Roslyn had never known or met the accused before the incident. They had no idea who he was. They have never seen him before. They could not therefore say categorically that the accused was the attacker.
    
40. Hence, the question whether the attacker was the accused depended very much on the descriptions of the attacker as provided by these three witnesses, their identification evidence and any other supporting evidence which, when considered together with their evidence, would prove beyond reasonable doubt that the attacker was the accused.
    

Petero's evidence:

41. Petero did not say how long they had had the attacker under observation. Petero said he saw the attacker stab the deceased with a knife at the upper right side of the deceased's back and that after the stabbing, the attacker ran towards the main road and across the road to the ITA Hardware building. He described the attacker as tall, had a rat-tail hair, light skin but not very fair and was wearing a cut jean white in colour and which appeared to have been bleached. He said the attacker was also wearing shoes. He said everything happened in a very short time and that as soon as he saw the stabbing, he became more concerned for the deceased and concentrated more on him and did not observe the attacker properly.
    
42. Petero was taken through a photo board identification on the 17th December 2008 at Foxwood where he was shown a photo board marked "SS1" (exhibit "P1"). During the photo board identification process, Petero said[11] that when he was shown the photo board, he was asked "Can you – do you recognize this man?" Later, he said they asked him again "Can you recognize these men?" His answer was "I told them, because the men that were inside but because – but I wasn't able to recognize them properly because they asked me to describe the boy."[12] It was then suggested that he look at the photos again. After that, he was then asked again what he did. His answer was "Yes, I pointed out a picture because when that man ran past me at that time, and so I described him."[13] When he was asked why he pointed to that picture, his answer was "The picture was picked because it was that man that showed it saying 'what about that one, not that one? He showed it to me so I said 'Oh, he almost looks like that boy, kind of looks like that boy." Again he was later asked what the police asked him to do. His answer was "They asked me saying "Do you recognize this man?"[14] and in reply to that question, he said "The photos they had them all lined up so I didn't really know which one was which."[15] When asked again what he meant by 'which one was which', his answer was "Because they told me when the photos were in a line, they said 'is it this one?' Later when asked again whether he recognized any of the photos of the men shown to him by the police, his answer was "Yes, I could recognised some of the photos"[16]. He was then asked the same question again and his answer was "Yes, I suspect."[17]
    
43. In my view, two things have become clear from Petero's evidence. The first is that Petero had had difficulty trying to recognize the photos when he was shown the photo board. The second is that it is clear Walter had gone to extra length in impressing upon Petero which photo he should concentrate on. I am satisfied that Petero identified photo No. 8 only because that photo was impressed upon him by Walter.
    
44. At this juncture, I thought it appropriate to say that in any identification process, whether it be an identification parade or photo board identification or any other type of identification for that matter, the witness's mind must be free from all forms of pressure when being required to identify a particular person or photograph. In the case of photo board identification, section 85(2) of the Evidence Act 2009 (the "Act") makes it clear that the police officer must ask the witness to carefully view the photo board and to ask the witness whether he or she recognizes anyone whose photo is on the photo board. The Act also requires that the officer must ask the witness in a way that does not suggest the identity of the persons whose photos are on the photo board. The Act further lays down the process to be followed where the witness says that he or she recognizes a person in a photograph. Although the Act is silent on what is to be done where a witness says that he or she is unable to recognize the faces, or any of the faces, on a photo board, common sense dictates that the identification process should be stopped and the witness should not be further pressured into identifying the photos or any particular photo on the photo board as that of the accused. It seems that this was not done in Petero's case.
    

Abelene's evidence:

45. Abelene did not also say how long she had had the attacker under observation. She said she saw the arguments going on between Liston and Joycelin's in-laws, but did not see the moment the deceased was stabbed. She became aware of the stabbing only when she saw someone coming up in her direction making a remark which indicated that he was from Malaita while at the same time pushing a knife under his shirt. She took that person to be the attacker. The only description which she could make of that person was that he was light skin, slim and had his hair cut. She said she was able to remember the person's face because he looked like a boy from her village. Clearly, the only evidence that Abelene had in common with Petero in regards to the description of the attacker was that the attacker was light skin. Abelene said nothing about the attacker being tall, had a rat-tail hair, wearing a cut jean white in colour or bleached or that the attacker was wearing shoes.
    
46. Abelene was also taken through a photo board identification process where a photo board was shown to her. Abelene said that she was taken to Rove Police Headquarters in December 2008 where the photo board was placed before her and she was then asked to "look through the pictures and see where is the picture of that man". She then pointed to photo No. 5. She said she could remember the face because the attacker went past her that day and his face could not fade from her memory because the attacker looked like a boy from her village. She said the pictures on the photo board were in a circle and there was one photo in the middle. She was asked to draw a sketch of what the photo board looked like. She drew a sketch (exhibit "D1") showing one photo in the centre surrounded by 6 other photos. Unfortunately, the sketch did not match the photo board (exhibit "P2") which Walter claimed to have shown to Abelene. This makes me uncertain as to the accuracy of Abelene's evidence. I prefer Walter's evidence to that of Abelene in regards to the photo board shown to Abelene. I hold that exhibit "P2" was the photo board shown to Abelene. Obviously, Abelene was having difficulties with her memory. While she said she could remember well the face of the attacker whom she saw on 11th October 2008, it is strange she could not remember well the layout of the photo board she was shown later on 20th December 2008.
    

Roslyn's evidence:

47. As for Roslyn, she said she saw the stabbing incident. She said she saw the attacker lifting a knife and stabbing the back of the deceased with the knife. After stabbing the man, the attacker pushed the knife into the front part of his shirt and escaped. She did not see where the attacker went. There were a lot of people around at that time so she could not see properly. She was frightened and did not want to continue looking as that was the first time she ever saw someone being stabbed. She did not concentrate on what else happened. The stabbing incident happened about 12 meters from where she was. She admitted that things happened so fast. She described the attacker as not fat, thin, fair skin but not dark either, that the attacker did not keep his hair clean, that the hair was not combed and not kept neat, that the hair was not very short.
    
48. The only description which Roslyn had in common with Petero and Abelene was that the attacker was light skin. Furthermore, the only description which Roslyn had in common with Abelene was that the attacker was slim. She did not confirm Petero's description that the attacker was tall, had a rat-tail hair, wearing a cut jean white in colour or bleached or that the attacker was wearing shoes nor did she confirm Abelene's description that the attacker had his hair cut.
    
49. As to the photo board identification process held with Roslyn, I can only describe the process as most unsatisfactory and a breach of section 85(2) of the Act. Roslyn said the photos were new and bright and because she had observed the incident for only a short time she could not really say which of the photos was that of the attacker. She said that she did not even properly recognise the attacker. Despite that, she did in the end identify photo No. 9 as that of the attacker. However, she admitted that she indicated photo No. 9 only because the police had directed her attention to that photo, otherwise she would not have been able to identify which of the photos was the photo of the attacker. I reject Roslyn's identification evidence.
    
50. I must also say that the conduct of the police in relation to the photo board identification process held with Roslyn had cast doubts on the propriety of the whole of the photo board identification process in this case, including those conducted with Petero and Abelene. I attach no weight to those identification evidence.
    

The accused's evidence:

51. In his defence, the accused had raised the issue of alibi. The accused's evidence was that he had been drinking the whole of Friday night until early morning of Saturday 11th October 2008 and had spent the whole of Saturday resting and sleeping in his house at Bokona; that the only time he left his house on Saturday was around 3.30pm when he went to Billy Ringisui's house to have some rice; that after having his meal, he came back to his house and continued sleeping; that he woke up at about 10pm; that the place was quiet so he went back to sleep and woke up early morning Sunday (12th October 2008); that on that Sunday morning, he saw police officers going past his house; that nothing happened until Monday morning when he saw police officers around his area again at about 6.30am as he was getting ready to go to work; that when he saw the police, he left and went up the hill because Billy Ringisui had told him the previous day (Sunday) that the police were looking for him because he was cooking kwaso; that on Tuesday, one of his relatives, Eric Bakaliki, came and told him that the police were not looking for him in regards to kwaso; he said that the reason he was hiding from the police was because he thought they were looking for him because of the kwaso; that when he knew that the police were not looking for him in relation to kwaso, he came down himself to his house and surrendered himself to the police; that he surrendered himself on Thursday (16th October 2008); it was then that the police told him that they are arresting him in relation to the incident at the Market.
    
52. Two witnesses also gave evidence on behalf of the accused. They were Billy Ringisui ("Billy") and Andrew Wasi ("Wasi").
    
53. Billy's evidence is that he is married to the accused's cousin sister; that on Saturday 11th October 2008, his mother-in-law came and told him that his wife had given birth to a boy; that on hearing that, he cooked rice and taiyo to take to his wife at the Central Hospital; that as soon as the food was cooked, he called the accused to come and have some food; that the accused came to his house and had some rice and then went back to his house again and back to sleep; that Wasi was present at that time; that that was around 3.30pm; that Wasi came because he and Wasi had arranged the previous day (Friday) to go together to watch a soccer game between Koloale and an overseas team at Lawson Tama; that after the accused went back to his house, he and Wasi took a bus to Ausmart and then another bus to the Central Hospital where he went to see his wife and Wasi went to see the soccer game; that he slept at the hospital and returned to Bokona the next morning (Sunday 12th October 2008).
    
54. Wasi' evidence was that he lives at Bokona; that at about 3pm on Saturday 11th October 2008, he went to Billy's house so that he and Billy could go to watch a soccer game at Lawson Tama between Koloale and Hana; that he and Billy had arranged the day before to go and watch the game together; that while he was at Billy's house, the accused came and had some rice and then went back to his house again; that after the accused had left, he and Billy took a bus and came to Ausmart; that was about 3.30pm; that he and Billy then took another bus and got down at the Central Hospital bus stop where he got down and went to Lawson Tama while Billy went to see his wife at the hospital.
    
55. During closing submissions, I asked counsel for the accused whether notice of the alibi defence had been given to the prosecution. She replied that no notice was given. She further added that there was no law in Solomon Islands which required notice of alibi to be given to the prosecution. That there is no such law, I do not dispute. However, I think it is good practice that notice of alibi is given to the other party in order to give that other party the opportunity to check the alibi. Otherwise any alibi which is set up at the last minute without warning will "always be open to the gravest suspicion"[18].
    
56. In this case, I have doubts about the truth of the evidence given by the accused and his witnesses. Their demeanour does not impress me. Furthermore, the accused, in his evidence, said that he is now 26 years old and that his first child is 12 years old. I take this to mean that he got married when he was only 14 years old or younger. This is highly unlikely in a modern Solomon Island society.
    
57. Also, Billy said that he remembered very well what happened on that day, that is 11th October 2008, because his child was born on that day and that a soccer game was on that day between Koloale and an overseas team. He did not name the overseas team. He said he and Wasi had made arrangements the previous day to watch the game that Saturday, unfortunately for him however, his child was born on that day and so he went to the hospital instead and did not watch the game. As for Wasi, he said that the game was between Koloale and Hana, a local team. If they had indeed discussed on the previous day to watch the game and the game did involve an overseas team, I find it strange that Wasi should say that the game was between Koloale and Hana, a local team, and for Billy to say that the game was between Koloale and an overseas team. I have doubts about the truthfulness of Billy and Wasi's evidence.
    

Conclusion:

58. In so far as the evidence of Petero, Abelene and Roslyn are concerned, I have rejected their photo board identification evidence. All that I am left with is their evidence relating to the identity of the attacker as they saw him at the Market on the 11th October 2008. The question is whether that evidence is sufficient to prove beyond reasonable doubt that the accused was the attacker and, if not, whether there is any other evidence before the court, which is capable of corroborating the evidence of Petero, Abelene and Roslyn in regards to the identity of the attacker, upon which the court could be satisfied beyond reasonable doubt that the attacker was the accused?
    
59. Counsel for the Crown has submitted that the accused and his witnesses have lied in their evidence and that those lies are a corroboration of the evidence of Petero, Abelene and Roslyn identifying the attacker as the accused.
    
60. The test as to whether a lie amounts to corroboration is that the lie must be deliberate, it must relate to a material issue, the motive for the lie must have been the realization of his guilt and the fear of the truth, and, the statement must be clearly shown to be a lie[19]. These are matters for the Crown to prove beyond reasonable doubt. In the present case, I have found that the accused and his two witnesses were not truthful witnesses. The question, however, is whether the reason for their lies is because of the realization of the accused's guilt and the fear of the truth.
    
61. The Crown has not satisfied me that the lies were based on any of those two grounds. I therefore reject the submission that the lies by the accused and his two witnesses amount to corroboration of the evidence by Petero, Abelene and Roslyn.
    

Verdict:

62. This means that there is no other evidence before the court, which is capable of corroborating the evidence of Petero, Abelene and Roslyn in regards to the identity of the attacker, upon which the court could be satisfied beyond reasonable doubt that the attacker was the accused.
    

63. The quality of the evidence by Petero, Abelene and Roslyn in regards to the identification of the attacker at the Market leaves me with a lot of doubts that the attacker was the accused. I do not think I can safely convict the accused on their evidence.

64. I therefore find the accused not guilty of murder and he is accordingly acquitted.

THE COURT

^[1] Statement marked as exhibit “PW4”.
^[2] Statement marked as exhibit “PW5”.
^[3] Statement marked as exhibit “PW6”.
^[4] Statement marked as exhibit “PW7”.
^[5] Statement marked as exhibit “PW8”.
^[6] Statement marked as exhibit “PW9”.
^[7] Exhibit “PW10”.
^[8] See Day 3 transcript, pages 22 – 30
^[9] [2000] UKHL 66; [2001] 1 AC 473, p. 478.
^[10] [1976] 3 WLR 445
^[11] Day 3 transcript, Page 27.
^[12] Ibid, p. 27
^[13] Day 3 transcript, p. 27.
^[14] Ibid, p. 29.
^[15] Ibid, p. 30.
^[16] Ibid, p. 31.
^[17] Ibid, p. 31.
^[18] Per Lord Goddard, C.J., in R v Flynn (1957) 42 Cr. App. Rep. 15 at p. 16.
^[19] Lucas (1981) 73 Cr. App. R 159; Youssef Rahmoun (1986) 82 Cr. App. R 217.