Surilamo v Regina [2007] SBCA 11; CA-CRAC 7 of 2007 (16 October 2007)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from a judgment of the High Court of Solomon Islands (CRC No. 171 of 2002)
COURT FILE NUMBER:	Criminal Appeal No. 7 of 2007
DATE OF HEARING:	4 October 2007
DATE OF JUDGMENT:	16 October 2007
THE COURT:	Lord Slynn of Hadley P, McPherson JA Ward JA
PARTIES:	Stanley Kinda Surilamo (Appellant) -v- Regina (Respondent)
ADVOCATES:
Appellant: T. Savu Respondent: N. Mirou
KEY WORDS:
RESERVED/DISMISSED:	DISMISSED
PAGES:	1 – 7

JUDGMENT OF THE COURT

The Appellant was convicted by the Chief Justice on 28 February 2003 of the murder of Mason Gwalelea on 8th March 2002 and sentenced to life imprisonment.

In an affidavit sworn on 30th June 2007 he said that he told his lawyer that he wanted to consider an appeal and that for 4 years he had been asking the High Court and the Public Solicitor’s Office what could be done about his appeal but that nothing had happened until he communicated, on the advice of the Registrar of the Court, with the Public Solicitor’s Office. Following an application to this Court he was granted an extension of time in which to appeal and he served a notice of appeal in which he contended that the trial Judge misdirected himself on the law as to drunkenness as a defence to a criminal charge and also on the law relating to specific intent on a murder charge.

It is a short and tragic story. The evidence was that he went as the guest of his estranged wife to a fundraising dance at the Club Paradise in Honiara. He had drunk some alcohol before he got there and he had more to drink at the club. At some point in the evening he saw that his wife was dancing with someone else. There was evidence of the wife and 2 other people there that he dragged her from the dance floor. She fell and a man intervened apparently to try to control him, joined by Mason Gwalelea.

The appellant was involved in a dispute with the security guards at the club. They tried to remove him from the club and told him to go back. Instead he pulled a knife out of his sock and when the deceased tried to calm him, and as the deceased walked away, the appellant stabbed him from which wound he died. The unchallenged police evidence was that the knife was 26 centimeters long.

He admits the stabbing but says that he was so affected by alcohol that he was incapable of appreciating the effect of what he was doing. He could not form and did not have the necessary mens rea for murder, and so, in the terms of section 202 of the Penal Code, the prosecution could not prove beyond reasonable doubt that (a) he intended to cause the death of or grievous bodily harm to the deceased or (b) that he knew that the stabbing which caused the death would probably cause the death of, or grievous bodily harm, to the deceased.

The Chief Justice referred to a number of authorities which have considered the issue of mens rea on a murder charge when the defence is that the defendant was so drunk that he did not have and could not have had the necessary malice aforethought.

Section 13(20) of the Penal Code recognizes that intoxication can be a defence to a criminal charge and particularly as far as concerns the present case

"intoxication shall be taken .......... into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he should not be guilty of the offence."

This is so whether the intoxication is self induced or not. (R v Kenneth Iro Criminal Case No.16 of 1993) As it was put in R v Kamipeli [1995] 2NZLR 610 (CA):

"Drunkenness is not a defence of itself. Its true relevance by way of defence, so it seems to us is that when a jury is deciding whether an accused has the intention or recklessness required by the charge, he must regard all the evidence; including evidence of the accused’s drunken state, drawing such inferences from the evidence as appears proper in the circumstances. It is the fact of intent rather than capacity for intent, which must be the subject matter of the inquiry."

The Chief Justice reminded himself of the legislation and of the principles to which we have referred. Having directed himself correctly as to the law the Chief Justice had to assess all the evidence including the appellant’s evidence and his statements subsequent to the incident.

He found that the appellant was drunk when he arrived at the club. In evidence the appellant said that at the club he was drunk and three witnesses described him as being very drunk. But the question was whether he was so drunk that he could not, and did not, form the intention to kill, or do grievous bodily harm to, the deceased.

PW1, his estranged wife, did not suggest that she had to help him physically to move around in the club: he sat with others drinking and talking and he danced. When PW5 and the deceased tried to get him out of the club he resisted. He argued with the security guards and resented the way they tried to control him. He jumped on to the dance floor brandishing the knife.

The appellant contends that there were inconsistencies between the written statement of PW1 and the evidence of PW2 and PW5 which the judge should have taken into account. These inconsistencies are said to be that they referred to matters which PW1 did not mention in her statement. We see nothing sinister in this. In any case, she dealt with some of these matters in her evidence. The differences between her statement and the other evidence do not make her evidence inconsistent so as to be unreliable.

The judge was satisfied overall that the prosecution had established beyond reasonable doubt that although drunk the appellant did form the intention to stab, to kill or cause grievous bodily harm to the deceased. There was evidence on which he could come to that conclusion despite the drunkenness of the appellant.

The appellant contends that as there was no shorthand note of the trial he has not been able adequately to pursue his appeal.

It is clear that "the absence or insufficiency of a shorthand note of the trial is not of itself a ground upon which a prisoner can succeed upon appeal" (James Elliot [1909] 2Cr App R171) and the appellant concedes that. In this case the Judge’s notes are available. They are very detailed even if not as full as a transcript. Moreover, the judge in his judgment analyses the facts and the law in detail.

We do not consider in the circumstances that the absence of a transcript means that "he has been deprived of the opportunity of making his appeal because he has been deprived of the raw material upon which an argument based on misdirection by the learned trial judge is normally founded" (appellant’s outline submissions, p.11).

The appeal must therefore be dismissed.

Lord Slynn of Hadley P
President of the Court of Appeal

McPherson JA
Member of the Court of Appeal

Ward JA
Member of the Court of Appeal