Samani v Reginam [1996] SBCA 4; CA-CRAC 4 of 1995 (23 February 1996)

THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION	Appeal from order of The High Court of Solomon Islands (Palmer J)
COURT FILE NO:	Criminal Appeal No.4 of 1995.
DATE OF HEARING:	24th January 1996
DATE OF JUDGMENT:	23rd February 1996
THE COURT:	MURIA CJ. KAPI JA WILLIAMS JA
PARTIES:	DANIEL SAMANI v. REGINAM
ADVOCATES:
Appellant	M. B. SAMUEL
Respondent	F. Mwanesalua, DPP
KEYWORDS:	CRIMINAL LAW - Murder - Death from enlarged spleen ruptured - Murder or manslaughter - Considerable force used - grevious bodily harm - prior knowledge of deceased’s enlarged spleen - Whether verdict of murder justified. CRIMINAL LAW & PROCEDURE - Witness remaining silent in Court -Trial judge to evaluate reasons for remaining silent.
EX TEMPORE/RESERVED:	RESERVED
ALLOWED /DiSMISSED:	DISMISSED
PAGES:	9

CRIMINAL LAW - Murder - death resulted from blow to abdomen - Enlarged spleen not only raptured but completely severed into two halves - Considerable magnitude of force use - Whether accused could not have failed to realise that grievous bodily harm would probably be caused whether prior knowledge of the deceased’s enlarged spleen relevant - Whether verdict of murder justified. Held: (Muria CJ, Kapi & Williams JJA concurring)

1) The force used was of such considerable magnitude that it caused the enlarged spleen not only to rupture but to split into two halves and as such the accused could not have failed to realise that such a force would probably cause grievous bodily harm. A verdict of murder was justified in the present case. Joel Aosi -v- R (1988/89) SILR 1 applied.

2) Cases where death occurred from raptured spleen caused by a comparatively minor blow delivered without any intention to kill or cause grievous bodily harm may justify a verdict of Manslaughter. Joseph Maino -v- The State of (1977) PNGLR 404 considered.

CRIMINAL LAW & PROCEDURE - Witness remaining silent in court - Trial judge to evaluate reasons for remaining silent. Whether error in trial judge’s assessment: Held: No error on the part of the trial judge.

Judgment delivered 23rd February 1996

MURIA CJ: The appellant was tried and convicted of the murder of Susan Dau at Alisisiau Village, Malaita Province, on 6 September 1994. The evidence was that the appellant had delivered two powerful blows, a clenched-fist punch and a kick, to the left abdomen of the deceased causing her spleen to rapture and internal bleeding which subsequently caused her death. The medical report was that on examination of the deceased’s body, four (4) litres of blood was found in the abdominal cavity; the spleen was found to be torn in half with the two halves completely separated from each other and that the cause of death was severe haemorrhage resulting from severe injury to the spleen.

Before considering the arguments put by Counsel in this case, I set out briefly the facts of this case. In the morning of the day in question, the deceased and Rosemary Sousou (PW5) went to the garden and returned home later in the day. Rosemary returned home first and was preparing some food for her family in the kitchen which she shared with her mum and dad (deceased and appellant). The deceased came home later in the afternoon. On arrival she entered the kitchen. The appellant was sitting in the kitchen and so was Rosemary Sousou.

What happened next was that the appellant who was obviously not in a good mood told the deceased that she should come home quickly and prepare food. After saying that the appellant got hold of a bamboo and whipped the deceased with it on her backside. The bamboo broke on her backside. A heated argument then ensued between them which argument the appellant extended to other matters including lack of tobacco for smoking and betel nut to chew. The appellant also swore at the deceased during the argument. In the course of that heated argument the appellant stood up and punched the deceased with his right hand clenched fist. That punch landed on the left side of the deceased’s stomach. As a result of that punch the deceased fell down from the bed where she was sitting. While the deceased was on the ground, the appellant then delivered a kick using his right leg to the body of the deceased. That kick landed on the same part of the deceased’s stomach. It was then that the deceased called out, “O mi die nao” (Oh I am now dying).

When he heard the call by the deceased, Robert Dickson Samani(PW1) ran to the kitchen and there saw his mother (deceased) lying down, his sister Rosemary Sousou and the appellant who was holding a knife in his hand. The evidence shows that the appellant threatened to stab the deceased with the knife on the deceased but Robert after some struggle with the appellant and with the help of Rosemary Sousou removed the knife from the appellant.

The appellant obviously in a rage, threatened to kill other members of the family and as a result they all ran away and hid. The deceased also managed to run away although how far she went I do not know. One thing that is certain is that having escaped from where the appellant and Robert were struggling, the next place she was found was beside Robert’s kitchen.

It is clear from the evidence of prosecution witness, Chris Fuana (PW2) that the appellant had caught up with the deceased toward the evening on that day. Chris who was looking for his mother (deceased) found her and the appellant beside Robert’s kitchen. The deceased was lying down while the appellant was standing beside the deceased holding an axe. The deceased was not breathing nor moving by then. Others came to see what happened and it was then that the appellant ran away.

I shall now turn to consider submissions by counsel. I am mindful and greatly appreciate the fact that Counsel who appears for the appellant in this appeal had only been instructed at the last minute.

The appellant filed his letter of Appeal (Notice of Appeal) in person. He raised nine grounds in his Notice of Appeal. At the commencement of the hearing of this appeal counsel for the appellant informed the Court that she would not be pursuing all the nine grounds but only on three of them. Those three grounds which Counsel now relied on are (I) that there was no evidence of pre-medicated murder; (ii) that the witnesses testified through fear and as such their evidence were contradictory and (iii) that the Court interpreters were relatives of the deceased which caused fear and tension, finally resulting in the main crown witness refusing to talk.

The second and third grounds can be conveniently disposed of briefly. I have reviewed the record of evidence and the trial judge’s decision in this case. I am unable to find any material on the record to support the contentions now raised by Counsel. As to suggestion that the witnesses testified through fear and that as a result the witnesses evidence were contradictory, I certainly do not find any material on the record justifying such a suggestion. Also the contention that the Court interpreters were relatives of the deceased and as such that caused tension and fear in the witnesses, do not have any support from the record. I simply do not find any substance in those grounds.

The first point raised by Mrs. Samuel on behalf of the appellant however raises a serious question. Counsel argued that the appellant could not have foreseen that the deceased had an enlarged spleen and as such he could not be convicted of murder but rather only of manslaughter. Counsel referred to a Papua New Guinea case of Joseph Maino -v- The State [1977] PNGLR 404 in support of her argument. That case turns on provision of section 305(b) of the Papua New Guinea Criminal Code which section draws the distinction between a dangerous act and an unlawful purpose. In that case it was held under that provision that an assault on the deceased did not constitute both the unlawful purpose and the dangerous act. There must be both an initial unlawful purpose and some further unlawful act before section 305 (b) can be invoked. That case with respect does not help the appellant. It is a case decided under a provision of the Papua New Guinea Criminal Code and which differs from our Penal Code. It was also suggested by Counsel that this was a domestic row which resulted in the death of the deceased and that her death was unfortunate due to the fact that the deceased had an unusually enlarged spleen which the appellant did not know about.

There is no doubt that the deceased had an unusually enlarged spleen. There is also no doubt that the appellant delivered two severe blows to the upper left quadrant of the deceased’s abdomen. There is also no doubt on the evidence that the blows delivered by the appellant raptured the deceased’s spleen completely severing it into two halves. The force used by the appellant in this case was found by the trial judge to be of a considerable magnitude. On the evidence before his Lordship I see no reason to disagree with that finding.

There may well be cases where death may occur from a raptured spleen which is caused by a comparatively minor blow delivered without any intention to kill or cause grievous bodily harm. Such a death may occur because of the grossly enlarged spleen. In such a case the appropriate verdict would be one of manslaughter.

The appellant in the present case delivered two severe blows to the abdomen of the deceased with such a magnitude of force that the deceased’s spleen was not only raptured but splitted into two halves. The conclusion reached by the learned trial judge that the force used by the appellant when delivering the two blows to the deceased was such that he could not have failed to realise that it would probably cause grievous bodily harm was entirely correct and that conclusion justifies a verdict of murder. See Joel Aosi; -v- R (1988/89) SILR 1.

In my opinion the appellant was properly convicted and this appeal must be dismissed.

KAPI JA: I have read the draft judgments prepared by the Chief Justice and Williams JA and I agree with their Lordships’ reasons and conclusion and I have nothing further to add.

WILLIAMS JA: I have had the advantage of reading the reasons prepared by the Chief Justice and agree with them, and with the order he proposes. However there are some brief observations which I wish to add.

One of the grounds that counsel for the appellant relied upon was that the “witnesses testified through fear”. That ground has some significance so far as the witness Rosemary Sousou, a daughter of the deceased and the appellant, is concerned. According to the evidence she was a principal eye witness of all that happened. The notes of her evidence indicate that at the outset she was composed and able to give reasonably lengthy coherent answers. When she was dealing with the blows which, on her account, caused her mother’s death she began crying; there is note of that made by the learned trial judge at the time. But she seems to have been able to continue giving coherent evidence albeit in tears until the end of her examination in chief. She was then cross-examined by counsel for the appellant and again her answers appear to be rational and responsive. There was no difficulty with the witness during cross-examination. After short re-examination the learned trial judge indicated that the court wanted to ask some questions in clarification of what had happened at the material time. The witness gave responsive answers to questions and then the learned trial judge made the following note in the record:

“This witness could not answer any further questions from the court for clarification purposes as to demonstrating how her dad had hit her mum with the bamboo stick and how she saw her mother react, and how the knife scratched her dad’s backside. After a while it was decided to adjourn for five minutes”

The record notes that counsel for the appellant had no objection to that adjournment. Permission was given to the Director of Public Prosecutions to speak to the witness with a view to composing her. At the end of that short adjournment the learned trial judge made the following note:

“Unfortunately, no further progress could be made. It is noted that this witness appeared to under a lot of stress whilst giving evidence. She was weeping a lot whilst giving evidence. It was therefore decided to adjourn further to the following day to see it any further progress would be made.”

The witness was unable to resume her evidence the following day apparently because she was suffering from illness. The matter was adjourned for a week by which time the witness had sufficiently recovered to attend court. Upon her taking the witness stand she was asked by the court to demonstrate how the appellant hit the deceased with the bamboo. The record notes” “Witness unable to answer. Remained quiet”. After a period of time the learned trial judge indicated that the court would get nowhere with the witness and stated that he did not intend to take any further action against her and proposed to discharge her. There was no objection that course from counsel.

In the course of his reasons the learned trial judge recounted those matters and in consequence observed that Rosemary Sousou’s “evidence therefore needs to be treated very cautiously”. His Honour found corroboration of much of Rosemary Sousou’s testimony in the evidence of other witnesses. Because of that he was able to make necessary findings of fact beyond reasonable doubt based to a significant extent on her evidence.

The view of the learned trial judge was not that Rosemary Sousou was affected by fear. Rather he said it was obvious that she was torn between her love for her father, despite what he had done to her mother, and her sorrow at the loss of her mother.

It is always a matter of concern when a critical prosecution witness, for whatever reason, remains silent and does not answer pertinent questions addressed by the court. It is, however, not an entirely unknown circumstance when one is dealing with criminal conduct in the family environment. The learned trial judge was in the best position to evaluate the reasons for the witness remaining silent and not answering questions addressed to her. He adopted a careful approach to her evidence and in the circumstances I cannot discern any error on his part. The problems created by the witness’s attitude were fully canvassed by counsel in their addresses to the learned trial judge. He faced up to the problem and concluded that in all the circumstances he was able to rely on her evidence as to the events leading up to the death of the deceased.

In his record of interview with investigating police, which he did not challenge in the course of his statement from the dock, the appellant admitted striking the deceased one blow in the abdomen with his hand. But he claimed in the statement from the dock that the injury to her spleen was caused when she fell on a sharp rock whilst running from the house. The observation can be made that there was no mention of such an incident in the course of the appellant’s statement to the police, nor was any such suggestion put to any of the prosecution witnesses in cross-examination. Evidence put the place where the deceased was found on the ground at little more than 40 feet from the room in which the events described by prosecution witnesses occurred.

All the evidence, particularly the medical evidence, suggests that the blows struck by the appellant (the punch and the kick) were delivered with considerable force and in the circumstances were likely to cause grievous bodily harm. Therefore the question whether or not the appellant knew of the condition of the deceased’s spleen prior to delivering those blows is of no relevance.

I agree that the appeal should be dismissed.