Salafilamo v Reginam [1995] SBCA 8; CA-CRAC 10 of 1994 (12 April 1995)

IN THE SOLOMON ISLANDS COURT OF APPEAL
Criminal Jurisdiction

Criminal Appeal No. 10 of 1994

Between:

SAM SALAFILAMO
Appellant

And:

REGINAM
Respondent

Before:
Connolly P.
Savage JA
Los JA

Delivered the 12 day of April 1995

Judgment of the Court

The appellant, Sam Salafilamo, was convicted in the High Court at Honiara on the 25 November 1994 on one count of attempted murder. He was sentenced the same day to 4½ years imprisonment, the sentence to run from the date that he was taken into custody. He has appealed against conviction but not against sentence. His notice of appeal contained six grounds, five of which relate to factual matters and one to a question of law. Three of the factual matters relate to the weight given to, and reliance placed upon the evidence of certain witnesses by the trial judge; a fourth relates to a finding he made in relation to the question of intent to kill and the fifth to a submission that he failed to consider adequately a number of matters which the appellant contended bore upon the question of the intent to kill. We shall discuss these various grounds later but it is first convenient to give a general account of the circumstances surrounding the offence.

The complainant, a Mrs. Eto’o Gwaoka lived in a village in East Kwaio, Malaita. She had recently given birth to a child, which she was breast feeding, and was living in what was called “the menstrual house or hut.” This menstrual hut was a little distance from the village and was very small; not more it would appear than at most about 6 feet square. It was built with poles between which were placed bush leaves which constituted the walls. It appears that by custom in that area of Malaita no one is allowed to enter the menstrual hut or go near it, but the person supporting the newly delivered woman, in this case a young girl, a relation of the complainant, who is allowed to assist her and supply her with food and water. On the day in question she was in the menstrual hut feeding her child when the accused, according to her evidence, approached the hut and threw an iron or steel spear at her through a wall of the hut. She moved and the spear missed her. She ran out of the hut and the accused was there, holding a knife. She called for help by striking a stone or stick with a special piece of bamboo kept for the purpose of summoning aid. She then ran back into the hut and got her baby. The appellant, she said, had pulled the spear out of the ground and made his escape. He made no attempt to attack her after the spear throwing episode despite the fact that he was outside the hut with a knife when she ran out to summon aid. She was definite that she saw the appellant while actually breast feeding in the hut; it appears from her evidence that the leaves comprising the walls of the hut had withered and she could see through them.

The complainant’s evidence that it was the accused who threw the spear at her was supported by the girl who assisted her, to the extent that she said that when she heard the bamboo beating noise she ran to the menstrual hut, looked in the direction that the complainant was pointing and saw the accused. He was holding a knife and a bar. It may be added, too, that the appellant, who made a statement to the police and gave evidence at his trial, admitted that he went to the menstrual hut and that he had with him his spear and knife. However, he firmly denied at all stages that he ever threw the spear at the complainant; his explanation in his statement for going to the hut when he did was that he had been invited there by the complainant and in his evidence at the trial he also said that she had asked him to take her some tobacco. The evidence also showed quite clearly that the complainant had had a close relationship with the appellant in that on at least two previous occasions she had gone away with him and lived with him. It also appeared she had had liaisons with at least two other men.

We stated earlier that three of the grounds of appeal relate to the learned trial judge’s acceptance of the evidence given by the, crown witnesses. This included the girl who assisted the complainant, the appellant’s brother and a Police officer. We have considered the points urged in support of these three grounds but are satisfied that he cannot succeed. The learned trial judge saw and heard the witnesses and the question of their credibility and reliability was very plainly a matter for him. We see no reason for rejecting his view of those witnesses. Further, we add, much of the matter raised in support of these grounds arose from evidence relating to the custom of the people in respect of the beliefs of those who were described, and so described by themselves, as heathen, and as to compensation that was payable between themselves for injuries or wrongs under such custom. This Court would hesitate for a long time before rejecting the view of the trial judge in such fields.

The main thrust of the appeal, which was contained in the other two factual grounds, was directed to the matter of the intent of the accused at the time that he went to the menstrual hut and when he threw the spear, for we accept that the evidence establishes that he threw the spear through the wall of the hut. The spear, which was produced at the trial and which we inspected, was plainly a dangerous weapon. The act of throwing the spear through the wall of the hut might in itself indicate an intention to kill, considering the nature of the hut and the near certainty of spearing the person inside. We say near certainty, and not certainty, because the spear did not strike the complainant which was an eventuality that the learned trial judge described as miraculous or lucky; she moved her upper body forward and spear passed behind her. He also relied on his failure to attack her with the spear or the knife when she emerged from the hut, as indicating that he had no intention to kill. However, on the issue of intention to kill there was evidence from the complainant that he had threatened to kill her if she left him, and of the appellant’s brother that the appellant had threatened to kill anyone who tried to stop him marrying her, and to kill her also. There was also evidence from others as to his anger or resentment against the complainant before the attack. We are satisfied the learned trial judge was justified in the conclusions to which he came.

The last ground of the appeal was one of law and related to some hearsay evidence given by three of the witnesses. There undoubtedly was some hearsay evidence given, though some of the complained of hearsay was in fact original evidence given not to prove the truth of what another had said but to show why the witness had acted in the way he had. We think that what was in fact hearsay was not sufficiently important to have had any substantial effect upon the result of the trial and it must be remembered that where, as in Solomon Islands criminal trials are held without a jury an experienced judge can be relied on to give no weight to such evidence.

The appeal is accordingly dismissed.

By the Court
SAVAGE JA