Waneburi v Regina [2007] SBCA 1; CA-CRAC 016 of 2006 (27 February 2007)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from a judgment of the High Court of Solomon Islands.
COURT FILE NUMBER:	Criminal Appeal No. 16 of 2006
DATE OF HEARING:	Tuesday 17th October 2006
DATE OF JUDGMENT:	Tuesday 27th February 2007
THE COURT:	Lord Slynn of Hadley P,
	McPherson JA
	Morris JA.
PARTIES:	WILLIAM WANEBURI (APPELLANT)
	-V-
	REGINA (RESPONDENT)
ADVOCATES:
Appellant:	Mr Stephen Lawrence
Respondent:	Mr Peter Little
KEY WORDS:
EX TEMPORE/RESERVED:
ALLOWED/DISMISSED:	Dismissed.
PAGES:	1-6

JUDGMENT OF THE COURT

The appellant was convicted by the learned Chief Justice on 18 November 2004 of murdering Leslie Aukona at the Central Market, Honiara on 7 September 2001. He appeals against the conviction.

The prosecution case was that he went to the market with a yellow handled knife, the blade of which was some 8 to 10 inches long. Without any provocation but with force he stabbed the victim in the chest. The reason for doing this was that a dispute existed between the appellant and his family on the one hand and the victim and his family on the other. In all the circumstances, the stabbing was intentional. He intended to kill or he knew that the stabbing would or probably would cause the death of, or grievous bodily harm to, the victim.

The appellant’s case was that he approached the victim to discuss their dispute, but the victim attacked him angrily, kicked him, which caused injury to his face and tried to punch him with his fist. He stumbled but took out his knife and stabbed the victim in self defence. He then fled the scene in a taxi.

There were two witnesses to the attack (MK and NR) women who were selling their vegetables from a stall not far from that of the deceased. Both said that when the appellant met the deceased he said in pijin "you nao ia" in effect "you are the one I have been looking for". He then stabbed the victim and ran off. There was no fight or provocation by the victim. They both said that the defendant took the knife from his trouser pocket and not from a basket which he carried, as the appellant contended or, as, N T said from a bag.

Both women said that there were not too many people around at the market so that they could see clearly enough. The Chief Justice said "I find no reason whatsoever to doubt their sincerity and thereby credibility in Court and the accuracy of their observations. Indeed N R when challenged as to how she could remember said "It was first time in history I see this sort of thing so that is why I remembered it".

There was really not an issue that the appellant had a knife but evidence was given, including that of the taxi driver that in the taxi the appellant showed the knife to, or put it to the neck, of the driver; the appellant denied that he threatened the taxi driver with a knife.

The taxi driver says that the appellant showed him the knife and said that he had killed a man and was in trouble, that the victim must have died. N T also said that he admitted that he had killed a man at the market. The defendant denied saying any of this but the trial judge rejected his evidence and accepted the evidence of the prosecution witnesses.

The Judge rejected the contention that the stabbing was in self defence since he wholly rejected the appellant’s account of what happened.

The Judge analysed carefully the claim that the appellant had killed the deceased with malice aforethought. His sole conclusion was that there was a grievance between the appellant and the deceased. The appellant stabbed the deceased because he was offended; he had a grievance between him and his brother, for stealing their pigs and chickens and for swearing at their father. Nothing else could explain his extreme behaviour act at that time. There were some evidence of malice aforethought as were his words "you now ia". The force of the blow which was inflicted, his running away in the taxi and throwing the knife in the Lunga River, his admissions to the taxi driver all pointed to his guilty mind in the view of the Chief Justice.

Even if the appellant had not been shown to have intended death and grievous bodily harm it was obvious that he must have known that putting an 8 – 10 inches blade with considerable force into the chest of the victim "the Defendant cannot fail to realize that it would probably caused the death of, or grievous bodily harm to, the deceased.

The judge concluded –

"Taking everything into account and bearing in mind throughout where the burden of proof lies, I am satisfied Prosecution had discharged the onus required of them to prove that this defendant had the necessary specific intent or malice aforethought when he inflicted the fatal wound on the Deceased that morning. Accordingly I find him guilty as charged and convict him of the offence of murder."

The appellant contends that the learned trial judge erred in holding that the issue of self-defence became irrelevant if the factual version given by the appellant was rejected. The argument in essence is that even when the Judge rejected the appellant’s evidence he must still consider whether the Prosecution had proved that self-defence was not established. This argument in the opinion of the Court must be rejected. To be able to show that the act of killing was done in the course of defending himself there has to be shown that there was some threat or action to defend himself against. Prosecution witnesses whose evidence the Judge accepted were clear that there was no threat from the deceased, no fight or provocation. The appellant arrived, stabbed the victim and ran off in a taxi. The appellant’s evidence that the victim attacked him angrily kicked him, and tried to punch him was rejected. There is then no room for the self-defence argument. The learned Judge was right not to consider it as relevant.

In no way did the Judge reverse the burden of proof on this issue. Once he accepted on the prosecution evidence that there was no threat or hostile action by the victim there was no scope for "the careful elimination of all reasonable possibilities opened on the evidence".

Then the appellant argues that the Judge erred in finding that the credibility of the witness had not be tarnished in any way by the late stage at which she came forward. She did not speak to the Prosecution nor was a statement taken from her until 2004. The Judge saw and heard the witness and was not satisfied that her evidence was "tarnished in anyway by the delay". He also rejected the suggestion that her evidence was coloured by police assistance. There is no real evidence to undermine his conclusion and no way in which this Court, not having seen the witness, can interfere with the learned Judge’s assessment. His statement that "No motive, reason or explanation has been established or put forward why her evidence should not be relied on now" is not a transfer of the burden of proof: It is no more than confirmation that he was entitled to accept, as he had accepted, the credibility of her evidence.

No less his comment that "no reasonable or satisfactory explanation has been put forward as to why she would come to Court to lie about the events of 7 September 2001 other than to simply relate what happened on that fateful day regarding the deceased" is not an error of direction. The comment of the Judge is no more than a confirmation of his acceptance of her evidence and the way she came to give it (see the Court’s judgment in Raha v Regina [2006] SBCA 13 25 October 2006).

Moreover, the Judge is entitled to say that the absence of any evidence (except the defendant’s allegations) of injury to his face was not put to the other witnesses is consistent with the evidence that there had been no fight.

The Prosecution had to provide malice aforethought. This they did for the reasons given by the Judge. In addition the Judge is entitled to accept the view that the quarrel between the two families or the 2 men was a strong indication of the state of mind of the accused. The Judge is entitled further to have regard to what the appellant had drunk and to consider whether as a result he had or had not been capable of forming the requisite intent to kill or cause any grievous bodily harm because of drink. "There is no suggestion that he did not know what he was doing" because of alcohol. This is consistent with section 13(4) of the Penal Code which requires that the Court consider the issue of intoxication in determining whether the requisite intent, specific or basic, has been proved.

As to the final ground the Court did not accept that the fact that he found that the appellant had "perjured himself throughout whilst giving evidence on oath" in particular as to his lies about the fight before he stabbed the victim and as to what happened in the taxi are irrelevant matters which the Judge should have left out of account.

Mr Lawrence has argued many points on behalf of his client but we do not accept that either individually or cumulatively they result in the verdict being unsafe or unsatisfactory or that the judgment is vitiated by error of law.

The appeal is accordingly dismissed.

Lord Slynn of Hadley P
McPherson JA
Morris JA