Tabukai v Regina [2009] SBCA 13; CA-CRAC 8 of 2008 (26 March 2009)

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NATURE OF JURISDICTION:	Appeal from a judgment of the High Court of Solomon Islands (Palmer CJ)
COURT FILE NUMBER:	Criminal Appeal No. 8 of 2008 (On Appeal from High Court Criminal Case No. 46 of 2007)
DATE OF HEARING:	19 March 2009
DATE OF JUDGMENT:	26 March 2009
THE COURT:	Goldsbrough P Williams JA Hansen JA
PARTIES:	Manasseh Tabukai Appellant -v- Regina Respondent
ADVOCATES: Appellant: Respondent:	G. Brown R. Christensen
KEY WORDS:	Murder, section 202 Penal Code. Intent.
EX-TEMPORE / RESERVED:	Reserved
ALLOWED / DISMISSED:	Dismissed
PAGES:	1 - 11

On the 11 February 2007, following trial, the appellant was convicted by the Chief Justice of murder. He was sentenced to the mandatory life term.

"On the published reasons of the learned trial judge it is clear that the learned trial judge failed to properly consider the mens rea of the offence for which the appellant was convicted and failed properly to consider the intention to cause death or grievous bodily harm."

The appellant and the deceased were married. They resided at Island Road, Ranadi, Honiara. It is common ground that on the night of 10 December 2006 the appellant assaulted the deceased. There is evidence to support this from his own admissions and the evidence of neighbours to which we will turn to in due course.

The post mortem report concluded the cause of death was an acute subdural haematoma consistent with blunt and violent injuries to the head.

At trial the Crown relied on section 202(b) of the Penal Code. That meant the sole issue before the trial judge was whether the accused knew that the act that caused death would probably cause death or grievous bodily harm to the deceased. After an extensive review of the evidence, including what was said by both the appellant and the deceased, the Chief Justice concluded beyond reasonable doubt that the accused did know his acts would probably cause death or grievous bodily harm.

For the appellant Ms. Brown submits such a finding was not available to the Chief Justice. While she accepted that the appellant caused grievous bodily harm to the deceased she submitted the necessary intent had not been proved beyond reasonable doubt. She submitted that the Chief Justice could not rely on what was said by the deceased to infer intent. She submitted this was because there was no evidence of any further assault by the appellant after the critical words the Chief Justice relied on were spoken. She submitted that the appellant’s action needed to be viewed in the context that he was in a jealous rage and was intoxicated at the relevant time and was therefore incapable of knowing that his acts would probably cause death or grievous bodily harm. She said his later surprise at the consequence of what he did was evident in what he was heard to say later in the night and in his statement. This was submitted to support an absence of intent. Finally she submitted the evidence from the neighbours and contained in the appellant’s statement fell short of establishing the requisite intent.

Ms. Christensen submitted on behalf of the Crown that there was ample evidence to support the inferences drawn by the Chief Justice. She submitted that a consideration of the doctor’s evidence showed this was a sustained violent attack where considerable force was used. She submitted the evidence of the neighbours supported this. She submitted that what the appellant was heard to say after the assault was probative of his state of mind at the time of the assault. Finally she said the question of intoxication was not raised by counsel for the appellant in his closing submissions.

We have no doubt the Chief Justice correctly enunciated the legal test relating to mens rea in the circumstances of this case.

"Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder and shall be sentenced to imprisonment for life."

"Malice aforethought may be expressed or implied and express malice shall be deemed to be established by evidence proving either of the following states of mind preceding or co-existing with the act or omission by which death is caused, and it may exist where that act is unpremeditated –

"(b) knowledge that the act which caused death will probably cause the death of, or grievous bodily harm to, some person whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused."

"grievous harm" means any harm which amounts to a main or dangerous harm, or seriously or permanently injures health or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, membrane or sense;".

As we have already noted Ms. Brown accepted the appellant inflicted grievous bodily harm.

The Chief Justice correctly set out the correct test at a number of places in his judgment. For example, at page 2 of his decision he said:-

"The crucial issue in this case is whether the defendant knew that the act of beating the deceased on the head or face with his first or banging her head against the wall would probably cause death or really serious injury."

At page 6 the Chief Justice correctly identified that the requisite knowledge can be inferred from words or actions. Ms. Brown properly conceded that in considering the appellant’s knowledge it is the cumulative effect of all of the evidence that must be considered. We are satisfied that the cumulative effect of all of the evidence properly satisfied the Chief Justice beyond reasonable doubt that the requisite knowledge was present.

Firstly, the report of Doctor Douglas Pikacha who carried out the post mortem (Exhibit 23). He stated his findings were consistent with blunt and violent injuries to the head. He expanded on this in his in evidence. In the transcript for Day 4 of the trial at page 9 he stated:-

"The fact that this subcutaneous haematoma are generalised on the skull suggest that these are not single episode but are probably violent that this head had been pushed against some blunt object or been hit with blunt object that for a period of – for an unknown period of time, this is a logger, this is not a single episode, this is sort of a continuous time – period of time in which this blunt object had – the head ...?...(recordings do not overlap)...?... force that causes this extensive haematoma around the skull.

This is – its difficult to give the exact measure of force but this is a violent force, this is a strong force that not only causes haematoma on the subcutaneous tissues but that force also causes internal injuries surrounding the brain. And the amount of bleeding under the gura on both sides suggest this is a very violent, very strong force.

That violent or strong force exerted on the deceased head, was that from a single blow or single force, what was the sequence like?

No. This force may have gone for a longer period of time, could be repeated, but the net results of this force caused the vessels between the brain and the gura to all tear causing this extensive subgural haematoma."

It is also clear from the doctor’s evidence that a subdural haematoma as acute as that suffered by the deceased would lead to death within a relatively short time frame.

The doctor’s evidence is not consistent with the deceased’s fatal injury being caused by a single blow. Rather it is consistent with the application of violent force over a sustained period of time.

Secondly, there is the evidence of the neighbours. While we accept that they did not see much of what occurred their evidence does demonstrate that the assault was a sustained one.

Their evidence was of hearing the noise of argument and assault. It was described as "sounds like someone being hit against a wall". One witness said it was hard enough to reverberate through his residence next door to the appellant’s house. They heard the deceased crying. This altercation went on over 5 minutes or so. The appellant and deceased then went to the bathroom and on to an area with a tap where they stayed for around 30 minutes. Daisy Cains gave evidence that she saw the deceased being pulled by the appellant, she fell down and was then kicked by the appellant. He then dragged her to the tap vicinity. Other evidence described how the deceased’s breathing sounded as if her mouth was full of water or blood.

This evidence supports the doctor’s evidence that there was a sustained assault and not just a single blow.

Thirdly, there is the evidence of what was said. We do not accept Ms. Brown’s submission that this evidence is irrelevant to the question of intent because it occurred after the assault. This evidence is properly probative of the accused’s state of mind on the night in question and was correctly considered by the judge.

Of particular significance is what Daisy Cains overheard when the appellant and the deceased were in the vicinity of the tap. She heard the deceased say she "would tell her people." The appellant responded with words that can be interpreted as "I can kill you" or "or I can kill you so that you die" or "I can beat you to death." The overall tenor of what was overheard was consistent with an intent to cause grievous bodily harm.

Fourthly, the judge found at page 4 that the deceased died "not long after the bashing occurred." At the very least she must have been rendered unconscious within this time frame. Ms. Brown in her submissions stressed the accused’s surprise at the consequences of his action showed he did not have the necessary intent. She said that he did not proffer assistance to the deceased because he attempted to commit suicide by swallowing panadol. But the evidence shows that the suicide attempt was much later. The evidence suggests around midnight. If the appellant was truly surprised by the consequences of his actions one would have expected him to seek assistance at once.

In any event, as the Chief Justice correctly noted at page 7:- "The fact he was indifferent to whether death or grievous bodily harm was caused is immaterial." (See Joel Aosi v R [1988] SBCA 1).

Finally, there is the appellant’s caution statement. In a number of places in that statement the term "kill" is used. We accept Ms. Brown’s submission that term means "hurt" or "harm". But in his statement at Q and A 106 he accepted that his punches were "heavy." Further as Q and A 73 and 74 the appellant accepted that he did "kill" (i.e. harm) the deceased "seriously". (Our emphasis) The only conclusion that can be drawn from this is an acceptance by the accused that he intended to cause serious harm.

We do not overlook Ms. Brown’s submission that the Chief Justice failed to consider the appellant’s intoxication and the effects of section 13 of the Penal Code. Firstly, the appellant’s counsel at trial, in written and oral submissions, did not raise the question of intoxication or the application of section 13. Secondly, we are not satisfied that there is an evidential foundation to invoke section 13(4). None of the neighbours described the appellant as intoxicated. While the appellant stated in his caution statement he was drunk he could not say how drunk. Other witnesses spoke of him appearing to have been drinking but not sufficiently intoxicated to raise concerns. One described him as not affected. In any event at page 6 the Chief Justice made it plain that he was aware of the appellant’s statement that he was drunk so he did take it into account.

We are satisfied the Chief Justice applied to correct test. We are further satisfied that considering all of the evidence cumulatively the Chief Justice was correct to infer the requisite intent beyond reasonable doubt.

Court of Appeal of Solomon Islands

Tabukai v Regina [2009] SBCA 13; CA-CRAC 8 of 2008 (26 March 2009)