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Regina v Leketo [2016] SBHC 42; HCSI-CRC 328 of 2004 (11 February 2016)

REGINA

-V-

Samson Leketo

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 328 of 2004

Hearing: 31^st August, 1^st – 3^rd September 2015
Judgment: 11^th February 2016

For the Crown: Ms. Gina Nott and Mr. B. Dalipanda.

For Defence: Mr. H. Lawry and Mr. A. Tinoni.

Palmer CJ.

The defendant is charged with one count of common assault contrary to section 244 of the Penal Code, one count of attempted murder contrary to section 215 of the Penal Code and one count of intimidation contrary to section 231 of the Penal Code.

The circumstances surrounding the allegations to those offences relate to the same incident in respect of the complainant, Soltada Roy (“PW1”) at Macedonia village sometime in October 2002.

Brief facts.

The brief facts relate to the period of lawlessness that occurred in the Weather Coast, in the southern part of Guadalcanal when the community was divided and subjected to threats and intimidation by competing warring groups including the group of militants led by Harold Keke (“Keke”) and his henchmen including this defendant, Samson Leketo.

It all started when the complainant discovered that his pig had been killed and eaten by members belonging to the Guadalcanal Liberation Front (“GLF”) group. When the complainant found out what had happened, he became very upset and shouted out loudly from his house using abusive or swearing words directed at the GLF group. There were other members of the GLF who heard him and it appears reported the matter to the defendant. The defendant amongst others had been referred to as the second in command to Keke.

The very next day, a group of men appeared outside his house and had him escorted to another house owned by Lianga Kamaha. One of the men who escorted him was his brother Nesty Mangale.

At the house, prosecution alleges he was assaulted, his hands tied behind his back and in turn to a post. It was while he was in the house it was alleged the defendant pointed the rifle^[1] (gun) he had in his hand and attempted to shoot him three times.

Prosecution alleges that but for the rifle failing to discharge he would have been killed. He was only released after compensation had been paid for him by way of a pig and $100.00 cash shortly after this.

Issues in the case.

The issues in this case arise from the same incident and were part of the same events or activity that occurred that day in relation to the complainant.

On the attempted murder charge, the issue is whether there was an intent to kill the complainant, Soltada Roy. Has Prosecution proven beyond reasonable doubt that the defendant attempted to shoot the defendant and that he had the necessary mens rea to do that? The element of intent in my view is crucial to this charge.

The defence submission on the other hand, is two-fold. They argue that the evidence adduced against the defendant had been fabricated and therefore the events described did not occur. In the alternative, they say the evidence adduced is so unreliable that the Crown had failed to prove its case beyond reasonable doubt.

Attempted murder.

Section 215(a) of the Penal Code provides:

“Any person who –

(a) attempts unlawfully to cause the death of another; or

(b) ...

is guilty of a felony, and shall be liable to imprisonment for life.”

It is not in issue, that the allegations of prosecution as to the actions of the defendant, that is, by pointing the rifle (gun) at the complainant, “cocking the rifle” and pressing (squeezing) the trigger, would undoubtedly amount to the offence of an attempt to commit murder, in the circumstances described by prosecution.

The issue for determination however, is whether it has been shown beyond reasonable doubt pursuant to the evidence that was ultimately adduced, that the defendant had the intention to kill the complainant.

I have had the opportunity to listen and carefully consider the evidence adduced and come to the following considered conclusions as to what happened that day. I do so bearing in mind the onus of proof in this case for prosecution to establish beyond reasonable doubt the allegations as set out in its case against the defendant.

I find that on the morning of that day when the complainant was taken from his residence he was escorted by a number of militants belonging to Keke’s group, to a neighbouring house belonging to Lianga Kamaha^[2]. Among those escorting him was his brother, Nesty Mangale.

He was taken to see the defendant at Lianga Kamaha’s house, who ordered his hands to be tied behind his back and to a post on the verandah of that house.

At some point in time he was assaulted on the face by the defendant. There was some discrepancy as to when the assault occurred whether it was before he was tied, or after he was tied, or after the defendant had pointed the rifle at him, but I am satisfied at some point in time he was assaulted.

I find on the evidence before me that the defendant then told him that because of what he had done, some compensation had to be paid according to the custom of the people in that community. He then asked the chiefs and leaders of the community to determine the amount of compensation to be paid.

I find he was threatened with being killed if he did not pay the compensation. The amount of compensation determined by the chiefs and elders who were present at that time was one pig and $100.00 cash; these had to be paid before he could be released.

I find on the evidence before me that the defendant pointed the rifle at the complainant and pulled the trigger three times but nothing happened. He then cocked the rifle and some cartridges fell out; he did not fire or discharge his weapon when he did this. I find on the evidence before me that all throughout the complainant was tied to the post on the verandah of Lianga’s house.

Shortly after this, his brother in law (Apollos Kesty) and brother (David Sarongo) both agreed to pay the compensation to secure his release. He was released after the payments were done some thirty minutes later.

I am satisfied so that I am sure, that the offences of intimidation and common assault have been made out and he is convicted of those offences.

As to the offence of attempted murder, after careful consideration and assessment of the submissions of learned counsels in this case, Ms. Gina Nott for the Crown and Mr. Lawry for the defence, I am not satisfied the crucial element of intent has been established to the requisite standard. It is for prosecution to prove beyond reasonable doubt that when the defendant pointed the rifle at the complainant and pulled (squeezed) the trigger, he had intent to shoot and to kill the complainant. The element of intent is a necessary requirement in the offence of attempted murder.

After carefully analysing the evidence adduced by the Crown and strenuous and persistent cross examination and testing of crown witnesses’ evidence by defence Counsel, Mr. Lawry, I am not satisfied it can be conclusively inferred that the act of pointing the rifle at the defendant and squeezing the trigger showed there was an intent to kill on the part of the defendant. While in other circumstances it may be conclusively inferred that such may be consistent with an intent to kill, the circumstances described by crown witnesses in this instance do not support such allegation.

I am not satisfied it has been established by prosecution that the rifle was loaded when the trigger was pressed. There is doubt as well whether the rifle was actually (physically) cocked before the trigger was pressed. There is no or little evidence to suggest that a bullet was already loaded into the firing chamber of his rifle^[3]. The only way for this to be done is if the weapon had been cocked and there is no evidence of this. Note the act of cocking either loads a new round into the firing chamber in the first instance, or ejects a round already loaded and re-loads a new round into the firing chamber. At no time either before, or during the time the trigger was allegedly squeezed three times, had it been established by prosecution that the weapon was cocked. We simply do not know if the weapon was loaded with a round or not at that critical time. On several occasions when asked and pressed to explain, describe or clarify what he observed, he could only say that he (the defendant) pointed the rifle at him and pressed (squeezed) the trigger.

Secondly, the expert evidence of a member of the Participating Police Force under the Regional Assistance Mission to Solomon Islands (“RAMSI”), who was also a qualified Special Weapons Operational Safety Trainer (“OST”), Mr. Christopher Cantwell states it would be impossible for the trigger of the rifle to be squeezed without being cocked and for a clicking sound to be heard. This would mean that without the rifle being cocked no clicking sound would expect to be heard when the trigger was squeezed.

In the evidence of PW1 on this issue, during examination in chief when asked, he told the court that he heard no sound when the trigger was pressed three times. Later on however, under cross examination and only when it was suggested to him that he may have heard a clicking sound, he agreed it was a small clicking sound. This is consistent with the view that there could not have been any bullet in the firing chamber of the rifle when the trigger was pressed.

The only time it would seem that the rifle was ever cocked in the true sense of the word was when he (PW1) says that he saw the defendant do something with the rifle afterwards and bullets (cartridges) fell out. It is not clear what exactly was observed, whether the magazine was pulled out and thereby causing bullets to fall off, or whether the rifle was cocked causing a bullet (live round) to be ejected. He did describe one of the bullets as brown and looking new, but it was never clarified whether only one bullet was ejected or several bullets fell out. Whatever it was, it would seem certain that that was the only time when the weapon was cocked and would have been in a position to be fired if the trigger was pressed.

I note there was suggestion that the fact that a bullet was seen to have fallen out meant that a round was already in the rifle but I am not satisfied so that I am sure that is the only plausible explanation. The complainant did use the words bullets in the plural sense and so that raises a number of other possible explanations which were not excluded or clarified. The doubt raised in any event must go in favour of the defendant.

If as claimed by prosecution, the defendant had intention to kill, (the complainant) he could have just as easily cocked or re-cocked the rifle at any time, including that time when the rifle did not discharge or fire as it was alleged three times. There is no evidence to support the allegation that he cocked his rifle before squeezing the trigger three times. He also had the opportunity immediately afterwards to shoot the complainant after it seemed he had actually cocked the rifle, but he did not. That is inconsistent with any element of intent to commit murder.

It is for prosecution ultimately to show beyond reasonable doubt that the defendant had the necessary mens rea to murder the complainant when he pointed the rifle at him and squeezed the trigger three times. I am satisfied however that prosecution has failed to discharge that onus in relation to that offence and the defendant must be acquitted of that charge.

Orders of the Court:

1. Find the defendant, Samson Leketo guilty of the offences of common assault (count 1) and intimidation (count 3) and enter convictions accordingly.
   
2. Find the defendant, Samson Leketo not guilty of the offence of attempted murder and order him to be acquitted therewith.
   

The Court.

^[1] No issue is taken as to the type of rifle he had in his hand, which was a SR 88 rifle.
^[2] Also referred to as Saranga Leana.
^[3] Note a bullet or cartridge can only be slotted into the firing chamber when the rifle has been cocked.