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R v Felega [2024] SBHC 180; HCSI-CRC 12 of 2024 (14 October 2024)

HIGH COURT OF SOLOMON ISLANDS


Case name:
R v Felega


Citation:


Date of decision:
14 October 2024


Parties:
Rex v Jonathan Felega


Date of hearing:
28 & 29 August 2024 (Trial)


Court file number(s):
12 of 2024


Jurisdiction:
Criminal


Place of delivery:



Judge(s):
Keniapisia; PJ


On appeal from:


Order:
I will convict JF for the murder of PH. I impose a life imprisonment sentence, being the only mandatory punishment for murder. I will convene next to determine JF’s parole entitlement period.


Representation:
Counsel; Mr. Kelesi (DPP) and Ms. Oroi for the Crown.
Counsel; Mr. Alasia for the Defendant.


Catchwords:



Words and phrases:


Legislation cited:
Penal Code Act [cap 26]S 202 (b), S 207


Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION


Criminal Case No. 12 of 2024


REX


V


JONATHAN FELEGA


Date of Hearing: 28th & 29th August 2024 (Trial).
Date of Judgment: 14th October 2024.


Counsel; Mr. Kelesi (DPP) and Ms. Oroi for the Crown.
Counsel; Mr. Alasia for the Defendant.


Keniapisia; PJ

JUDGMENT ON A CHARGE OF MURDER

  1. On the 10/8/2023, Mr. Peter Hamusin (“PH”) left his house at Minisi Settlement (“MS”) on Moe Island, East Russell, Central Province and went to Sagelua Village (“SV”). According to his wife Ruth, PH went to SV to help prepare for a community organised activity on land matters. PH stayed the whole day there and late into the night. PH was returning to MS after 01:00 am in the early hours of 11/8/2023, when he met his fate on the bush track (road) between SV and MS.
  2. Mr. Jonathan Felega (“JF”) and his nephew Renaldo Keraho (“RK”) also stayed late the same night at SV. JF and RK were also returning to MS, around the same time. JF and RK came across PH lying on the road between SV and MS seriously injured and unconscious.
  3. Mr. JF is charged for the murder of PH. JF denied the charge. Trial proceeded from the 28/8/2024 - 29/8/2024. The two issues, I must determine are: -
  4. On the night of 10/8/2023, JF and RK left MS and went to SV on Moe Island to buy betel nut. After buying betel nut at Kasimiro’s house, JF and RK went to Isaiah Selo’s house. JF joined other men at Isiah’s house to drink beer, tell stories, play music and dance to the music (drinking party). RK went to a nearby house belonging to his grandmother Midi to wait for JF there.
  5. The other men JF joined for the drinking party at Isaiah’s house are; PH (deceased), Sam Agalo, Isaiah Selo, Bruno Sale, Francis Selo and Reginald Hamusin (brother of PH). The drinking party lasted until 12 midnight of 10/8/2023 and into the early hours of 11/8/2023. PH and his brother Reginald left Isiah’s house at around 01:00 am on 11/8/2023 and walked back to MS.
  6. Not long after, JF and RK also left Isaiah’s house and walked back to MS. JF and RK called in at John Veani’s house along the way. JF took a plate of cooked fish and cooked banana from Veani’s house and they followed PH on the road back to MS. At this point on I will focus on the evidences from JF and RK. Their evidences disclosed their encounter with PH lying unconscious and seriously injured on the road back to MS.

JF’s evidence – Record of Interview (“ROI”) (Exhibit PE10) dated 21/08/2023

  1. The ROI made in the Pijin language is tendered as PE10. At QA 36, the main allegation was put to JF. I will translate into the English language: -
  2. JF’s answer is recorded at QA54 of the ROI. I will translate into the English language: -

RK’s evidence – 3rd statement to the police dated 20/8/2023 (Exhibit D3)

  1. Defence tendered RK’s statement to the police dated 20/8/2023, made in Solomon Pijin and marked as Exhibit D3 after cross-examination. This is a crucial evidence against JF. I will reproduce D3 in English: -

Analysis of the evidences

  1. RK also gave oral evidence under oath. Substantially RK’s oral evidence in chief, is identical to Exhibit D3, in terms of how RK saw JF assaulted, dragged and threw PH over the cliff. However in cross examination, RK virtually agreed to all the propositions Mr Alasia put to him (See WIT:KERAHO R – XXN Mr Alasia, page 50 -70, of transcript). Consequently, at the end of cross examination, there were two stories from RK’s oral evidence about what happened to PH on the road from SV to MS.
  2. RK’s first story is identical to JF’s story in the ROI. That JF and RK saw PH lying on the road, with blood on his face, mouth and nose. RK’s second story is identical to Exhibit D3. That JF assaulted PH, dragged him to the cliff and threw him down over the cliff.
  3. Counsel Alasia capitalised on this discrepancy in his written submissions to attack the credibility of RK and to call for the exclusion of RK’s evidence on the ground of an unreliable witness. At the conclusion of Mr. Alasia’s cross examination, I hold the same view as Mr Alasia. However, in re-examination, Crown managed to repair the damage Mr Alasia did. Crown put to RK that he had just told the Court 2 differing stories. And so DPP put to RK which story he will want the Court to rely on. Then RK realised what he did. He quickly managed to retract and said the second story is the true story. That JF assaulted, dragged and threw PH over the cliff. I suspected that RK was confused. Hence, he basically just answered yes to all the questions defence counsel put to him in cross examination.
  4. Additionally, RK in answering all the questions from defence counsel in the affirmative, he effectively admitted to the defence’s theory that the police had threatened RK when they obtained his third statement on 20/08/2023 (Exhibit D3).
  5. I realised that RK was just a child (12 years) and was going through the intimidating court process for almost a whole day. He started in the morning after the doctor and went into the whole afternoon of 28/08/2024. He was not thinking properly before answering the questions. I observed this because he was going “Ha... or Huh... What[1]...”, with facial and body expressions of drowsiness before answering the questions. Even before counsel could finish a question or a repeated question, I noted that RK was already jumping the answer Yeah! All of RK’s answers or most of them were “Yeah” (meaning yes, to affirm all the propositions defence counsel put to him in support of defence theory).
  6. I suspected that RK was tired, lost concentration and did not quite clearly understood the court process. I had to ask RK if he understood the court process and he confirmed to me that he did not understand the court process.
  7. However, the important thing is in re-examination two different stories were put to RK. RK realized and said that the story on JF assaulting, dragging and throwing PH over the clip is the true story. RK made this clarification quite confidently with calmness and body expressions to indicate he made a mistake.
  8. Defence counsel also attacked RK’s evidence saying he gave a false story in Exhibit D3 (second story) against JF because Police Officer Denis threatened RK, his family and his granny of imprisonment. Defence again submitted that I must disregard RK’s entire evidence as not truthful because the evidence RK gave to the police on 20/08/2023 (Exhibit D3) was obtained under duress. I found this submission as an easy way to throw out this case.
  9. I say easy way, because Crown has repaired the damage that defence caused already in re-examination. And the defence is putting forward some lousy allegation against a Police Officer that needs a thorough scrutiny rather than just some mere propositions being answered under confusions or fatigue in court. Any complaints against Police Officers has a due process to address.
  10. The other credibility issue defence raised is RK gave 3 statements to the police that have major variations. The three statements were made on the 12/8/2023, 17/8/2023 and 20/8/2023. RK explained in his oral evidence under oath and in his last statement to police on the 20/8/2023 (Exhibit D3) that the first two statements he gave to the police were false. RK was afraid to tell the police the truth because his uncle JF was also present at Yandina Police station at those times of giving the 2 prior statements. RK also said his uncle JF told him not to tell the true story. RK gave the third statement (D3) after JF was remanded at Yandina police station on 20/08/2023.
  11. I have to understand that RK is a child. Yet he was subjected to a stressful criminal investigation process. I say stressful because even the autopsy was made 4 weeks after burial. And RK was also giving statement to the police against his own uncle. I can imagine, this is also stressful. He must have courage to be doing this. And so, I can understand and I am happy with the answers RK gave to clarify the inconsistent statements he made to the police in Exhibits D1 and D2. I accept the clarifications as honest and reasonable because I cannot think of a reason why RK would turn against his own uncle.
  12. Exhibits D1 and D2 essentially resemble the brief evidence contained in JF’s ROI. I am of the considered view that this strongly supports RK’s assertion that his uncle JF told him not to tell the true story (repeat paragraph 9 (i) above). By implication his uncle JF told him to tell the false story, which he did prior to 20/08/2023 in Exhibits D1 and D2. The stories in D1 and D2 are in my considered view, the extended versions of what JF told RK to tell people about what happened to PH on the road (repeat paragraph 9 (xix) above). I am satisfied RK was telling the two stories in D1 and D2 under fear according to strict instructions from his uncle JF.
  13. I must also understand that the police criminal investigation is a dynamic and progressive process. The work of the police is to go out and look for stories (evidence) to explain what happened in a particular crime of interest. And when they do that, their findings are always subject to change. But then I must also understand that the investigation and statements they take are not the evidence. The evidence is what the prosecutor produced in Court through the witnesses, despite any prior statements, the witnesses may have given to the police. The Fijian case of Vinod Prasad relevantly stated: -
  14. Prosecution’s other witnesses, whose statements were admitted by consent (PE1 – 9 and PE16 - 18) contained evidence of events prior to and after PH was murdered. The only direct eye witness is RK. Dr. Roger Maraka performed an autopsy report to ascertain the probable cause of the deceased’s mysterious death. I will focus my consideration of the evidences coming from JF (ROI), RK (direct eye witness) and Dr. Roger Maraka (specialist) who performed the autopsy on PH’s body about 4 weeks after burial. I read all the admitted statements just to have a wider understanding of the immediate circumstances only.

Essence of JF’s evidence (ROI)

  1. At night on 10/08/2023 JF and RK left MS to look for betel nut at SV. After taking betel nut at Kasimiro’s house, JF and RK went to Isiah’s house. JF, PH, Reginald and other men spend the night telling stories at Isiah’s house until 12 mid-night and into the early hours of 11/08/2023.
  2. JF and RK did not sleep at SV. They returned to MS after 01:00 am, the early hours of the 11/8/2023. JF’s evidence was very brief. JF centred his brief evidence to the time JF and RK saw PH’s body lying down on the road going up the cliff just beyond the short cut junction turning down straight to JF’s house at MS. JF did not even mention the drinking party.
  3. JF and RK saw PH lying on the road going up the cliff with blood in his face, mouth and nose and his eyes were rolling around. Then JF run down to MS to get assistance to carry PH to his house. JF called John Hamusin (deceased’s brother). John Hamusin and JF carried PH to his house.
  4. JF’s evidence would have me to believe that JF did not know what happened to PH on the road and ultimately what caused the death of PH. That JF only saw PH seriously injured lying down unconscious on the road junction at the cliff.
  5. After reading JF’s ROI, I am still wondering what happened to PH on the road, which caused him to die so quickly in the early hours of 11/08/2023? I am however cautious that JF does not have to proof anything. Prosecution bears the burden to proof everything.

RK’s oral evidence in Court and statement to police on 20/8/2023 (Exhibit D3), essentially identical

  1. Before I consider RK’s evidence in more detail, I should just quickly say that I will not contemplate RK’s 2 prior police statements in Exhibits D1 and D2. I am already satisfied with the honest and reasonable explanation RK gave to clarify the making of the 2 prior false statements (repeat paragraphs 19 and 20).
  2. RK’s oral evidence under oath and statement to the police in Exhibit D3 are essentially similar. That JF assaulted PH using his hand (closed fist) and a wooden stick (thick as a toilet paper and lengthy as a 24 inches bush knife). PH fell to the ground unconscious. JF dragged PH’s body and threw it over the edge of the cliff. Then JF and RK went around to the bottom of the cliff. JF carried PH’s seriously wounded body and left it at the bottom of a cut nut tree. Then JF ran to PH’s brothers and his wife seeking help to carry PH’s body to his house. PH eventually died from the serious wounds on the early hours of 11/8/2023 around 03:00 am or 04:00 am or 05:00am.
  3. RK’s substantive/core evidence on JF assaulting and throwing PH over the cliff remain clear and unaffected in my mind. I will summarise quickly: -
  4. Talking about the cliff, it was a treacherous high rocky cliff. The height is 840 cm or about 8.4 meters (almost the length of this court room according to a measurement I took using my tape measure). The cliff is actually a big high rock. SV and MS are located on an island in East Russell called Moe. From the photos we can see stones everywhere, even at the bottom of the high rocky cliff. We all know that Russel Islands are mostly made up of rocky islands. The cliff can be seen at Exhibit PE14 crime scene photos 1, 4 and 7 and is indeed a high rocky cliff. I can imagine that it is very scary for someone to fall from such a height.

Doctors evidence – autopsy report (PE11).

  1. Dr Maraka’s autopsy written report found two main causes leading to PH’s death; (i) probable multiple injuries to chest and mandible and (ii) blunt trauma to the chest and mandible.
  2. Other important findings from the doctor’s oral evidence elaborating further on the two main causes are: -

RK and Doctor’s evidences complement each other

  1. When I connect the doctor’s evidence to RK’s evidence as summarised in paragraphs 31, 32, 33 and 34, there is a perfect matching. JF assaulted PH, dragged him to the edge of the cliff at MS and threw him over the cliff with his body and face facing downwards unconscious. This explained logically why there were multiple fractures and injuries to the ribs and jaw (mandible). PH’s chest, face and mouth must have landed brutally on the stones (blunt trauma) at the bottom of the high rocky cliff at MS causing the fatal ribs and mandible fractures, which eventually led to PH’s death. These multiple fractures could not have been caused by JF’s assault on PH only. The evidence shows that JF assaulted PH on the mouth, chin, chest and right neck using his hand and a stick. Yet the multiple fractures were actually located on the rib (bones) and mandible. I noted above in paragraph 9 (xvii) that JF kicked PH on the left side of his rips/chest just once.
  2. PH was partying with friends on the night of 10/8/2023. PH returned to his house between the early hours of 01:00 am and 04:00 am on 11/8/2023. JF and RK saw PH lying on the road with blood on his face, mouth and nose and his eyes were rolling around (unconscious). If indeed PH fell to the ground at the body’s height, was it possible that such a fall could result in multiple fractures to 14 rip bones and the jaw (mandible)?
  3. On the evidence I will answer and say JF assaulted PH by punching and hitting him with a stick. PH fell to the ground unconscious. JF dragged PH to the edge of the cliff and threw him over the cliff with his body facing downwards. PH must have landed at the bottom of the cliff (stones) on his chest, face and mouth. PH got multiple ribs fractures on his chest. PH also got fractures to his lower jaw (mandible) and 26 teeth on his lower and upper jaw were mobile. The cliff is actually a stone, is very high and the bottom of the cliff is all stones (repeat paragraph 32 above). I am satisfied beyond reasonable doubt that JF assaulted PH, dragged him and pushed him over a high cliff causing multiple ribs and mandible fractures. All these are unlawful acts, which eventually led to PH’s demise. As I ponder on the 14 fractured ribs, it makes me go nervous because the heart, lung and esophagus are all situated below and surrounded by ribs under the chest region.

Whether or not JF had malice-aforethought to cause death or grievous bodily harm to PH?

  1. Prosecution relied on the second limb of malice-aforethought in Section 202 (b) of the Penal Code Act (Cap 26). The second limb suggests that in the absence of express intention to cause death as in premeditation or preplanning, JF can still be found guilty of causing the death of PH through implied intention/knowledge taken from all the available evidences. Court should convict JF on the charge of murder, because impliedly (from all the available evidences) JF knew or had knowledge or ought to have known that what he did to PH will probably cause his death or cause grievous bodily harm to him.
  2. In view of my findings on the evidences above, I do not have much difficulty to conclude that JF knew or had knowledge or ought to have known that assaulting and throwing PH over the deadly high rocky cliff at MS, will probably cause his death or cause grievous bodily harm to him. In reaching this conclusion, I repeat my findings on the evidence again and concisely state that: -
  3. Concerning the definition of “causing the death...” as the Crown submitted on pursuant to Section 207 of the Penal Code Act (Cap 26), I do not need to bother myself with some fancy and lengthy statutory definitions. I can simply apply my common sense, to the facts before me to determine the “cause of the death” here.
  4. I can simply ask, “What acts substantially or significantly contributed to PH’s death from the entire evidence? It is not a philosophical or scientific exercise, to determine the cause of the death. Rather it is a factual test the judge can determine applying common sense to the facts whilst appreciating that the purpose is to attribute legal responsibility in a criminal matter[3].
  5. In so doing, and in view of my conclusions on the entire evidence, sitting comfortably on the doctor’s findings, what contributed substantially or significantly to PH’s death were assault and height fall which led directly to the 2 main causes for PH’s death? JF was the one responsible for the assault and height fall, which caused the demise of PH.
  6. JF knew or had knowledge or ought to have known that assaulting and pushing PH over the deadly high rocky cliff at MS, will probably cause the death of PH or cause him grievous bodily harm. And it certainly did as the doctor concluded in his findings. On the criminal standard, I find JF guilty of the murder of PH on the second limb of malice-aforethought under Section 202 (b) of the Penal Code Act (Cap 26). I will convict JF for the murder of PH. I impose a life imprisonment sentence, being the only mandatory punishment for murder. I will convene next to determine JF’s parole entitlement period.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

[1] A quick look at the transcript from pages 50 – 70 (WIT:KERAHO R – XN MR ALASIA) will confirm this.
[2] Justice Shameen in Vinod Prasad v the State Criminal Appeal No. HAA 055 2003.
[3] Royal v The Queen [1991] HCA 27.

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