Viu v Regina [1994] SBCA 6; CA-CRAC 007 of 1994 (17 June 1994)

SOLOMON ISLANDS COURT OF APPEAL
CRIMINAL JURISDICTION

Criminal Appeal No. 7 of 1994

BETWEEN:

JIMMY VIU
Appellant

AND:

REGINA
Respondent

Connolly P. Kapi J. A. McPherson LA.

Delivered the 17th day of June 1994

JUDGMENT OF THE COURT

The accused/appellant was charged in the High Court that on the 15 December 1992 at Jericho Village, Guadacanal Province, he murdered Anne Kovera contrary to section 193 of the Penal Code

The facts in this Case are not in dispute. The appellant comes from a family of five children. He has two brothers and two sisters and he is the third born in the family. The deceased, Anne Kovera, a younger sister of the appellant, was 18 years old at the time of her death. Apparently she had developed a relationship with a Stephen. Matagu prior to the circumstances that led to the charge of murder in this case (see record page 3). On the evening of 14 December 1992 the deceased was seen talking to Stephen Matagu in pursuance of their friendship some distance away from the deceased's house.

Stephen Matagu (PW 1) is related to the deceased (see record page 3). In fact he is an uncle to the deceased (see evidence of Stephen's brother on page 8 of the record). A relationship between blood relatives is regarded as morally wrong in custom (see record pages 4, 9 and 61). When the identity off Stephen Matagu who was talking to the deceased that evening became known to the appellant, he got very angry and looked for Stephen Matagu to fight with him When he, could not find him he went to his mother and they discussed custom relating to this kind of conduct. He got very angry with the deceased and went out to find her and openly made threats to fight and "kill" her over her conduct.

As a result of these threats, the deceased hid in the house of James Tuguvera (PW2) at first and later escaped into the bush to, get away from the appellant The appellant got more angry and tried to fight with anyone when he became suspicious that some people were hiding the deceased. He swore at Tuguvera and others that they should "fuck their mothers and sisters." This is a very offensive remark according to the custom of the appellant. This simply indicates the resolve of the appellant to attack the deceased at that time.

When the appellant could not locate the deceased, he went back to Paradise village. James Tuguvera went back to the single men's house where Peter Kopu (PW3) Richard Nata (PW4) and other boys were telling stories. Later, the boys heard the noise of something that fell down and they heard a cry. When they went to investigate, they found the deceased lying down in between the roots of a "taoa" tree.

The evidence is not clear as to what actually happened. One possible explanation given was that the deceased may have attempted to climb the taoa tree and she fell down. Whatever happened, the deceased was clearly injured. It was also not clear as to the nature of the injuries she received at the time. She was crying and was unable to stand or sit up. When they carried her, she was lying down on her back. She must have suffered some severe injury. However, she was alive and breathing normally.

As James Tuguvera ( PW2), Peter Kopu (PW3) and Richard Nata (PW4) carried the deceased to the house the appellant came up and attacked her. They tried to restrain him but this only made him more angry and he swore at them. In a rage he delivered four strong kicks to the body of the deceased, two to each side of the rib cage.

The cause of death according to the medical report was due to "Respiratory failure secondary to massive tension pnuemothoracis and bilateral collapse of both lungs, due to puncture from fractured ribs."

Mr. C. Tagaraniana who represented the appellant at the trial submitted that the four kicks that were delivered by the appellant could not have inflicted the fatal injuries that caused the death of the deceased and therefore in the circumstances "malice afterthought" could not be established (see record page 23). The implication of this submission was that the fatal injuries were the result of some other cause such as a fall from the taoa tree.

Doctor S. Tovusia gave evidence at the trial, and in examination in chief he stated:

"The magnitude of the force must great to cause such fracture.

The fracture was consistent with the fact that there were several blows to the area of and around the chest.

Kicks severely delivered to the deceased’s chest and sides were consistent to the injuries found."

In cross examination, the defence counsel asked the doctor whether a fall from the tree could have caused the injuries The doctor stated:

"It would be unlikely for the injuries to be caused here from a fall.

If a person falls from a height would receive at the point of impact and not other areas."

The learned Chief Justice in addressing the issue concluded in the following terms:

"In his oral evidence in court, Dr. Tovusia explained the magnitude of the force delivered causing the ribs to fracture must have been great. He further added that the fractures were consistent with the fact that there were several blows to the area of and around the chest wall. The doctor clearly found that the injuries sustained by the deceased were the result of kicks delivered to the chest and sides.

The doctor went on to state that the injuries were consistent with blows delivered laterally to the deceased's body and could not be caused by a fall from height as the defence was suggesting.

The accused agreed in his statement under caution that he kicked the deceased while she was still being carried. He further agreed that he kicked the deceased once while she was being carried and four times while she was on the ground. The kicks landed on the deceased's left and right sides, the chest and on the stomach.

The accused clearly shown in his statement that he was very angry with the deceased that night.

In a state of anger, the accused delivered the several kicks to the body of the deceased. Those kicks were severe.

Having heard the evidence from the prosecution witnesses including that of Dr. Tovusia and Having considered those evidence along with that from the accused as contained in his record of Interview, I come to the firm conclusion without any doubt whatsoever that the cause of death of the Deceased was as found by the doctor. The deceased death was a direct result of severe injuries sustained from kicks delivered by the accused with very considerable force laterally to the sides of both chest walls resulting in the puncture and collapse of both lungs".

The learned Chief Justice then dealt with the question of malice aforethought in his judgment and made reference to the local authorities on the subject and stated:

"There are two states of mind either of which if proved would establish malice aforethought. The first of those states of mind is an intention to cause the death of or grievous harm to a person. The second is the knowledge that the act which causes the death will probably cause the death of or grievous bodily harm to a person whether such Person is the Person actually killed or not.

The evidence in this case revealed that the accused was very angry, not only with his sister (deceased) but also with Stephen Matagu (PW1). He sought after PW1 and when he could not find PW1 he went after the deceased. The accused was also in possession of a knife at the time. He swore and wanted to fight other people around him.

The accused ran towards those who were carrying his sister (deceased) and delivered the first kick. When she was on the ground the accused delivered four other kicks to her body. All were done with considerable force and in very angry manner.

As a result of those kicks the deceased’s ribs had been fractured puncturing both the left and right lungs causing them to collapse. Consequently the deceased died".

His Lordship then quoted extensively from the record of interview to indicate the state of mind of the appellant (see pages 28 to 33). It is not necessary to set this out fully in the judgment as it is not the subject of appeal.

His Lordship convicted the appellant of murder and imposed the mandatory life imprisonment.

The prisoner has appealed to this court in person by filling in a pro-forma form provided at the prison. The grounds appeal were as follows:

(1) MY true story was not presented before the High Court.

(2) I was not given the chance to talk at the High Court

(3) My witnesses were not present at the High Court

(4)The stories which CID read at the High Court were not my stories.

(5) The three witnesses who witnessed against me are my enemies because I had an affair with their sister

(6) I was not aware of my sister’s death until they brought her to our village

Mr. C. Tagaraniana was briefed to argue the appeal before us, on behalf of the appellant. He did not advise the appellant on appeal nor did he take part in drafting the notice of appeal. He conceded that the first five grounds do not raise any valid ground of appeal and we would dismiss them. However he amended and substituted ground 6 with the consent of the Director of Public Prosecutions as follows:

"That the learned Chief Justice erred in placing too much weight on the medical evidence and too little weight on the evidence of PW1 PW3 and PW4."

We understand counsel for the appellant to be submitting in respect of this ground that there was evidence of a fall from the tree that resulted in a serious injury to the deceased. He further submitted that the fatal injuries cannot be attributed to the kicks delivered by the appellant In effect counsel simply repeated the submissions, he made at the trial.

The learned Chief Justice considered this issue very carefully in the passage we quoted earlier. After considering all the evidence, including the doctor's evidence in relation to the probable cause of the Injuries he concluded that the fatal injuries were inflicted by the appellant as a result of kicks delivered to the deceased's chest and sides. He further concluded from the doctor's evidence that the injuries could not have been caused by a fall from a height. This was a conclusion that was open on the evidence and we cannot find any basis for coming to a different conclusion.

Furthermore, we consider that the appellant cannot raise any form of defence from the fact that the deceased was already suffering from a serious injury before the appellant delivered the fatal kicks. He would be still liable under section 200(d) of the Penal Code which is in the following terms:

"200. A person is deemed to have caused the death of another person although his act is not the immediate or the whole cause of death in any of the following cases-

(d) if by any act or omission he hastened the death of a person suffering under any disease or injury which apart from such act or omission would have cause death."

It is clear that the deceased was suffering from some serious injury at the time the appellant delivered the fatal blows. The injuries to the chest and the sides simply hastened the death of the deceased. In the circumstances, he is deemed to have caused the death of the deceased.

The punishment for murder is mandatory life imprisonment. There can be no question of any appeal against sentence.

The formal orders of the court will be the appeal is dismissed, conviction and sentence of life imprisonment upheld.

BY THE COURT
(P.D. Connolly P.)