Tipusua v Regina [2009] SBCA 10; CA-CRAC 18 of 2008 (26 March 2009)

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NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Mwanesalua J)
COURT FILE NUMBER:	Criminal Appeal Case No. 18 of 2008 (On Appeal from High Court Criminal Case No. 105 of 2007)
DATE OF HEARING:	17 March 2009
DATE OF JUDGMENT:	26 March 2009
THE COURT:	Palmer Vice President Williams JA Hansen JA
PARTIES:	Gibson Tahua Tipusua Appellant -v- Regina Respondent
ADVOCATES: Appellant: Respondent:	M. Waqavonovono M. Coates
KEY WORDS:
EXTEMPORE / RESERVED	Reserved
ALLOWED / DISMISSED:	Dismissed
PAGES:	1 - 10

On 17 June 2008, following trial on 15, 16, 19, 21, 22 and 26 May 2008, Mwanesalua J convicted the appellant of murder and sentenced him to life imprisonment.

We granted leave to the appellant to file an amended Notice of Appeal. That contains the following grounds:-

1. The trial judge failed to properly consider and to apply the provisions of sections 144 and 149 of the Criminal Procedure Code;

2. The learned trial judge erred when he failed to properly consider and to assess the law relating to the defence of diminished responsibility under section 203 of the Penal Code;

3. The learned trial judge erred when he failed to properly consider and assess the evidence of the expert psychiatrist.

Both the appellant and the 9 year old victim, Hans Taupongi, were residents of Niupani Village in Rennell and Bellona Province. On 29 January 2007 at midday the appellant went to the school to wash his clothes. He returned to the village had a nap at his grandparents’ house where he was staying. At dusk he observed the victim picking up cut nuts. He went and obtained a bush knife, approached the victim and inflicted grievous and fatal wounds. The victim died instantly. Initially the appellant attempted to use a copra bag to carry the body away but when this proved unsuitable he obtained a blanket from his own home and placed the body in it. He tied both ends and carried it out of the village, ultimately disposing of the body in the bush. As he walked along the truck the victim’s head fell from the blanket to the ground. He left it there but the following morning he retraced his route, picked up the head and threw that into the bush as well.

The appellant was soon apprehended and interviewed by the police. On 1 February 2007 he made a full confession to the police. In that interview he stated that he intended to kill the child. After the killing he cleaned the knife of blood by plunging it through a banana trunk and pulling it back out. It is apparent there was a long term dispute between the appellant’s family and the deceased’s family over land.

At trial the appellant accepted that he had killed the child. However, he raised three defences, encapsulated in the grounds of appeal before us. The first two related to the fitness of the accused to stand trial and his ability to understand the proceedings. The third was whether the defence of the diminished responsibility was made out.

At trial, and on appeal, the defence relied on 3 reports from a psychiatrist Dr. Paul Orataloa. The first was a report of 7 March 2007 prepared at the request of the police. The psychiatrist did not personally assess the accused but considered available documentation including the accused’s patient note from 2005. In 2005 the appellant was diagnosed with "schizophreniform illness probably schizophrenia – paranoid subtype with cormorbid marijuana abuse." The report records he had a good recovery and was discharged. The report further concludes that at the time of discharge the appellant was free of psychotic features. The psychiatrist concluded that the appellant was fit to plead.

He prepared a second report dated 28 March 2008 at the request of the Public Solicitor prior to trial. On this occasion he interviewed the appellant who self reported to him that he was heavily intoxicated at the time of the killing. The doctor concluded at page 2: –
"Mr. Tipasua revealed during the interview that he understands the charges put against him and is ready and willing to tell the court his side of the story should the court asks him to. He has also shown that he is capable of following court proceedings and understands what is meant to be guilty as opposed to not being guilty. He is therefore fit to stand trial."

However, he went on to say that the combination of intoxication and a relapse of a major psychological condition could have contributed towards impairing the appellant’s judgment capacity. He was of the opinion that the condition of the appellant could have contributed towards his involvement in the incident.

Finally there is a brief unsigned follow-up report responding to a letter of 12 May 2008 from defence counsel. It appears to have been made available to counsel on 20 May 2008. The document was not presented to the Court until 22nd May when the psychiatrist gave evidence in support. This occurred after the Crown had closed its case.

If the answer to the third ground of appeal is in the negative the other two grounds of appeal must fail. Notwithstanding that we will deal with the points of appeal in the order in which they are set out in the Amended Notice of Appeal.

The first ground is the alleged failure of the judge to consider and apply section 144 of the Criminal Procedure Code. Section 144 of the Criminal Procedure Code states where relevant:-

"(1) When in the course of a trial, or preliminary investigation the court has reason to believe that the accused is of unsound mind so that he is incapable of making his defence, it shall inquire into the fact of such unsoundness. (Our emphasis)

(2) If the court is of the opinion that the accused is of unsound mind so that he is incapable of making his defence, it shall postpone further proceedings in the case."

The difficulty confronting the appellant is the judge’s finding in paragraph 4.7 of his decision that "In this case, the Court has no reason to believe that the accused was of unsound mind, as the medical reports were withheld from the Court until the defence case."

In our view that was an inevitable finding. At trial the defendant was represented by experienced counsel. At no stage did counsel suggest to the judge that the appellant was incapable of understanding the proceedings and giving him proper instructions to conduct cross-examination of the prosecution witnesses. Indeed it is apparent from the transcript that the contrary was the case. When we put this to counsel for the appellant she conceded that this ground of appeal was untenable. Accordingly, ground one must fail.

In relation to the second ground we do not accept the judge failed to properly consider and assess of the defence of diminished responsibility. We are satisfied that the judge in his careful decision properly considered that defence.

In advancing diminished responsibility based on the psychiatrist’s updated report the appellant faced a considerable hurdle. This is because the doctor failed to address the critical issue. He failed to turn his mind to the appellant’s state of mind at the time of the killing. Essentially he concluded that because of the combination of intoxication and a failure to take prescribed medication the appellant’s condition had lapsed at the time of the killing. The problem with that expression of view is that the doctor failed to take into account the contemporary evidence that was available to him and ought to have been considered by him. This evidence was brought to our attention in Mr. Coates’ submission. The first is the fact that there was no evidence of intoxication. Indeed witnesses were questioned about how the accused was walking at relevant time and there was nothing in their answer to indicate any level of intoxication whatsoever. Secondly, the doctor failed to consider the accused behaviour or demeanour at the time, or close to the time, of the killing. Thirdly, the doctor did not consider the record of the police interview. A consideration of that interview shows the accused answered the questions in a logical and rational manner. It was not put to the officer who conducted the interview in cross-examination that the appellant had any difficulty answering the questions, that his thought processes were slow, or that when answering the questions he was distracted easily. Nor did it appear to be difficult to have a conversation with the appellant. The interview on its face and the evidence of surrounding circumstances contradicts Dr. Orataloa’s assumption that the accused had a relapsed.

Dr. Orataloa accepted in cross-examination, when the accused’s actions were put to him, that the accused showed a level of rational planning and his actions were calculated. He also accepted that there was an ability to change plans and that the accused knew what he had done was wrong and was trying to conceal a crime. This arose from the actions of the appellant in changing his plan when the copra bag was not adequate in going and obtaining a blanket from his house; taking the body away and hiding it; returning the next morning and hiding the head; and taking steps to clean the blood from the blade of the knife by plunging it through a banana tree.

The onus is on the defence to prove on the balance of probabilities that the accused was suffering from diminished responsibility at the time of the offence. Whether or not an accused person is suffering from abnormality of the mind is an objective test. In R v Byrne 1960 44 Cr App R 246 at 253 Lord Parker CJ defined "abnormality of the mind as:-

"Means a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover the minds activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgment whether an act is right or wrong, but also the ability to exercise will power to control physical acts in accordance with that rational judgment."

In that same judgment, cited to us by Mr. Coates, there is a useful passage dealing with the importance of medical evidence relating to diminished responsibility. The passage overlaps into the appellant’s third ground of appeal. A 253 Lord Parker said:-

"the jury are entitled to take into consideration all the evidence including acts or statements of the accused and his demeanour. They are not bound to accept the medical evidence, if there is other material before them in which, in their good judgment, conflicts with it and outweighs it."

We have set out above the material in this case that was available to the judge that conflicts with the findings of Dr. Orataloa. On the basis of that evidence the judge was entitled to find that the appellant was not suffering from an abnormality of the mind that substantially impaired his mental responsibility. Indeed, in our view the evidence is so strong that such a finding was inevitable. This ground also fails.

The third ground of appeal can be quickly disposed of. It is evident from a reading of the judgment that the judge did consider and assess the evidence of the psychiatrist but clearly understood that the latest report did not address the crucial issue that was required of the psychiatrist. As we have said the doctor failed to consider the critical contemporary evidence we have referred to above. It is trite law that the finder of fact is not obliged to accept expert evidence. It is a standard direction to a jury that they will give proper weight and consideration to a witness’ expertise but at the end of the day the decision is for them and that it is a trial by jury and not by expert. The same applies when the finder of fact is a judge sitting alone. The judge has carefully assessed the evidence and there was a proper evidential foundation for his finding. In this case the judge was perfectly entitled to reject the psychiatrist’s evidence. It follows that the third ground of appeal also fails.

Court of Appeal of Solomon Islands

Tipusua v Regina [2009] SBCA 10; CA-CRAC 18 of 2008 (26 March 2009)