Aosi v Reginam [1988] SBCA 1; [1988-1989] SILR 1 (31 August 1988)

[1988-1989] SILR 1

SOLOMON ISLANDS COURT OF APPEAL

Criminal Appeal Case No. 6 of 1988

JOEL AOSI

-v-

REGINAM

Solomon Islands Court of Appeal
(Connolly P. Sir Mari Kapi and Savage JJA)

Criminal Appeal Case No. 6 of 1988

Hearing: 28 August 1988
Judgment: 31 August 1988

Application for leave to against conviction for murder - proper construction of section 195(b) of the Penal Code.

Facts:

The applicant became irritated by persistent criticism by the deceased of the behaviour of his five year old daughter. The deceased was the applicant's aunt and her criticism persisted over some hours. This caused him to lose his temper and "his anger flared and he slapped her twice with his hand across the mouth". His aunt fell on the ground and as she was lying on her side, he kicked her with his bare foot in the area of the lower rib cage and solar plexus. She regained her feet and as she was walking away he kicked her. After the last two blows she walked along clutching her side and staggering. She died at a nearby house about half an hour later. The cause of death was shock resulting from the fracture of a rib and the rupture of internal organs causing internal haemorrhage The applicant raised two points for the Court to consider -

1. Whether section 195(b) of the Penal Code provides a subjective test or an objective test

2. That there was no or insufficient evidence from which it could be properly inferred that the accused's state of mind was such as to permit an affirmative answer to the question which the learned Chief Justice posed to himself, namely, whether the accused's state of mind was such that he knew that the act would probably cause grievous bodily harm.

Held:

(1) The question "Was the accused's state of mind such that he knew the act would probably cause grievous bodily harm", does indeed direct attention to the accused's state of mind and this in turn properly reflects the language of the section 195(b) of the Penal Code.

(2) The approach taken by the learned Chief Justice was a correct approach and it fell within section 195(b) of the Penal Code. The conclusion, "whatever the wish of the accused as he kicked her with that force he cannot have failed to realise the result would probably be to cause really serious injury", was a positive conclusion as to the applicant's state of mind.

(3) The use of the words "serious injury" in the circumstances can only mean serious injury of the type referred to in the definition of grievous harm and this is rightly malice aforethought within the meaning of section 195(b) of the Penal Code.

Leave to appeal was granted but the appeal was dismissed.

Cases referred to:

R v Moloney [1984] UKHL 4; [1985] A.C. 905; [1985] 2 W.L.R. 648; (1985) 81 Cr.App.R. 93; [1985] 1 All E.R. 1025; [1985] Crim. L.R. 378; 135 New L.J. 315.
R v Nedrick [1986] EWCA Crim 2; [1986] 1 W.L.R. 1025; (1987) 83 Cr.App.R. 267; [1986] 3 All E.R. 1; [1986] Crim. L.R. 792.
R. v. Smith [1960] 2 Q.B. 423; [1960]2 W.L.R. 1145; 44 Cr.App.R. 55; [1960] 1 All E.R. 256.

A Radclyffe for the appellant
F. Mwanesalua, DPP, for the respondent

JUDGEMENT OF THE COURT: This is an application for leave to appeal against the applicant's conviction before do High Court on 27 July, 1988 of the murder of Phylistus Rao at Tadahadi Village on 29 February, 1988 An important question of law involving the proper construction of the Penal Code appeared to be raised ad in particular the proper construction of section 195(b). The Court therefore heard 5 full argument The facts are in short compass. On 29 February, 1988 the applicant became irritated by persistent criticism by the deceased of the behaviour of his five year old daughter. The deceased was a woman aged somewhere between 42 and 50 years of age. She was the applicant's aunt and she had actually brought him up. The case is therefore a sad one. Her criticism persisted over some hours, caused him to lose his temper, and to state the consequences in the language of the learned Chief Justice "his anger flared and he slapped her twice with his hand across the mouth. His aunt fell to the ground and, once she was lying on her side he kicked her with his bare foot in the area of the lower rib cage and solar plexus. She regained her feet and he slapped her again once on the mouth. As she walked away she kept up her shrill protest and the accused ran to her, kicked her on the other side at about the same level as the previous kick and slapped her again on the mouth. The last two blows were witnessed by Matthew Riani and he described the aunt walking along clutching her side just before the last blows and staggering after them. She walked to a nearby house, lay down and died about a half hour later."

The cause of death was shock resulting from the fracture of a rib and the rupture of internal organs causing internal haemorrhage.

The learned Chief Justice accepted that the applicant did not intend to cause the death of the deceased. However the mens rea which is called for in cases of murder, which is defined as being the causing of death of malice aforethought, is the subject of section 195 of the Penal Code. This provides that malice aforethought may be expressed or implied and express malice shall be deemed to be established by evidence proving either of the following states of mind preceding or co-existing with the act or omission by which death is caused and it may exist where that act is not premeditated. Now the first of those states of mind is an intention to cause the death of or grievous bodily harm to any person. That was not thought to be applicable here. The second is knowledge that the act which causes death will probably cause the death of or grievous bodily harm to some person whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused.

"Grievous harm" is defined by section 4 of the Penal Code to mean any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health or which is likely so to injure health or which extends to permanent disfigurement or to any permanent or serious injury to any external or internal organ, membrane or sense. It is beyond question that grievous harm was certainly suffered by the deceased and that her death was a consequence. It will be noted that the definition of malice aforethought refers to grievous bodily ham but then one sees that the definition of harm in section 4 means any bodily hurt and so forth. Clearly enough the definition of grievous harm is a definition of grievous bodily harm.

Now the learned Chief Justice posed the following question for him saying that:

"On that evidence the Court must answer this question. Was the accused's state of mind such that he knew the act would probably cause grievous bodily harm?"

It was the submission of Mr Radclyffe for the applicant that the Court should reach two conclusions; the first was that the learned Chief Justice applied an objective test whereas it is the accused's state of mind which must be determined. He drew our attention to the recent line of decisions in the United Kingdom, notably the case of Moloney in the House of Lords [1984] UKHL 4; [1985] A.C. 905; [1985] 2 All E.R. 1025, which emphasises that the test of mens rea is a subjective one, and the case of Nedrick which followed it[1986] EWCA Crim 2; , (1986) 1 W.L.R. 1025; [1986] 3 All E.R. 1, and the virtual overruling of Smith [1960]2 Q.B. 423, which may be described as having propounded an objective test. However the question which was posed by the learned Chief Justice does indeed direct attention, in terms, to the accused's state of mind, and this in turn, properly reflects the language of section 195(b) of the Penal Code.

The second point raised by Mr Radclyffe was that there was no, or insufficient evidence, from which it could be properly inferred that the accused's state of mind was such as to permit an affirmative answer to the question which the learned Chief Justice posed to himself, namely, that he knew that the act would probably cause grievous bodily harm. Now the learned Chief Justice's approach to the answer to this question runs as follows. His Lordship first said:-

"A kick is potentially a very powerful method of inflicting a blow. I am satisfied the accused did realise that a kick administered to the lower chest and solar plexus region of an elderly woman as she lay on the ground could cause serious injury."

Now at that point his Lordship is doing no more than posing a general proposition. The question of course is whether he realised that it was probable that it would cause serious injury and his Lordship went on:-

"The Court must then look to the evidence to decide the degree of force used. in this case the woman was walking clutching her side after the first kick which suggests a substantial degree of pain."

His Lordship continues:-

"The staggering weaving gait described by Riani after the second kick points to that kick also having added substantially to the effect."

His Lordship then referred to the doctor's evidence which showed that the cumulative effect of those kicks was sufficient to fracture a rib and rupture internal organs and he than made the following finding of fact-

"I am satisfied beyond any doubt that shows a very considerable force."

His Lordship's final conclusion and the critical one reads as follows-

"Whatever the wish of the accused as he kicked her with that force, he cannot have failed to realise the result would probably be to cause really serious injury."

Now that ultimate finding, and particularly the words "cannot have failed to realise" state, in our judgment, a positive conclusion as to the applicant's state of mind. It states, beyond reasonable doubt, the conclusion which is called for in the circumstances of this case by section 195(b). The use of the words "Serious injury" in the circumstances can only mean serious injury of the type referred to in the definition of grievous harm. His Lordship quite rightly said that that was malice aforethought within the meaning of and we see no defect in the direction which his Lordship gave to himself or in the conclusion he has reached. The argument warrants the granting of leave to appeal but the appeal must be dismissed.

The order of the court will be: Leave to appeal. Appeal dismissed.