Talu v Regina [2007] SBCA 9; CA-CRAC 10 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. 21 of 2000)
COURT FILE NUMBER:	Criminal Appeal No. 10 of 2007
DATE OF HEARING:	2 October 2007
DATE OF JUDGMENT:	16 October 2007
THE COURT:	Lord Slynn of Hadley P, McPherson JA Ward JA
PARTIES:	Talu (Appellant) -v- Regina (Respondent)
ADVOCATES: Appellant: Respondent	D. Evans H. Kausimae
KEY WORDS:
RESERVED/DISMISSED:	DISMISSED
PAGES:

JUDGMENT OF THE COURT

The appellant was convicted of murder following a trial before the learned Chief Justice.

Briefly, the facts found by the court and not challenged in this appeal are that the appellant came to the deceased’s house in Titinge village on Guadalcanal in the evening of 20 May 1999. He was wearing safety boots at the time and attacked the deceased who had been drinking. After kicking him on the buttocks, he kicked him once on the head and then, as the deceased staggered away from the house, hit him once on the head with an empty Solbrew beer bottle. After that attack, the appellant continued to act aggressively including chasing the sister of the deceased and damaging her house by kicking the timber wall.

The blow or blows to the deceased caused a fracture of the right temporal bone extending from the right temple to the occipital bone. There was a depressed fragment of the temporal bone under which was an extradural blood clot and a massive extradural haematoma. The doctor who performed the post mortem examination considered that it would have taken "quite strong force" to have shattered the bone and depressed the fragment. The injury caused the death of the victim.
In a detailed and carefully reasoned judgment, the Chief Justice principally accepted the evidence of the deceased’s wife in reaching the findings of fact set out above.

He then concluded by considering the question of malice aforethought. Having set out the terms of section 202, he continued:

"No issue had been raised by the defence on the question of intention or knowledge to cause grievous bodily harm. Neither is it in issue, the injuries could have been anything else other than grievous bodily harm. The assault described by [the deceased’s wife] and the injuries as described by [the witness who first saw the deceased after the assault] and the learned doctor who carried out the post mortem report (sic) confirm this. I am satisfied beyond reasonable doubt those assaults were delivered with intention to cause grievous bodily harm and as a direct consequence of which the deceased later died in hospital. I am satisfied the burden of proof had been discharged by prosecution and that the accused should be convicted for the offence of murder."

This appeal is on the single ground that the learned judge erred in finding that the appellant had the necessary malice aforethought to be convicted of murder.

Counsel’s principal complaint was that the judge’s finding on malice aforethought in the passage set out above is inadequate and, even though, as he states, no issue was raised on the question of intention, it was necessary to deal with it.
Clearly that is correct but we cannot agree the judge did not do so. Perhaps a more detailed account would have set it out more clearly but the judge is entitled to base his conclusions about an intention to cause grievous harm on evidence of the nature of the blow (in this case with a booted foot) and the nature and extent of the injuries. That is what he did and we see no reason to interfere.

Counsel also suggested that the evidence of the second blow with the bottle was not convincing and, if the injury had been caused by a single blow, the evidence of malice aforethought might have been different. We do not accept that suggestion and neither do we consider that a finding that there had only been one blow to the head would have assisted the appellant. The learned judge found the injury was sufficiently severe to indicate blows of substantial force. If he had found that the same injury was caused by only one blow, the inference must be that the single blow was of even greater force indicating more emphatically the intention of the appellant to cause grievous bodily harm.

The appeal is dismissed and the conviction confirmed.

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