Havimana v Regina [2011] SBCA 23; CA-CRAC 018 of 2011 (25 November 2011)

IN THE SOLOMON ISLANDS COURT OF APPEAL
NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Justice Mwanesalua)
COURT FILE NUMBER:	Criminal Appeal Case No. 018 of 2011 - (On Appeal from High Court Criminal Case No. 136 of 2009).
DATE OF HEARING:	15 November 2011
DATE OF JUDGMENT:	25 November 2011
THE COURT:	Sir Robin Auld, President
	Sir John Hansen, JA.
	Justice Gordon Ward, JA
PARTIES:	HAVIMANA - Appellant
	-V-
	REGINA - Respondent
ADVOCATES:
Appellant: S	Valenitabua and M Holana
Respondent:	A Driu and H Kausimae
KEY WORDS:
EX TEMPORE/RESERVED: RESERVED	RESERVED
ALLOWED/DISMISSED:	DISMISSED
PAGES:	5

JUDGMENT OF THE COURT

[1] The appellant, a former school teacher, left Visena Community High School on 16 December 2008 to go to his home village of Gnulahahe in West Maringe on Ysabel. He had consumed alcohol during the afternoon and, on reaching his village, shared his remaining beers with some of his neighbours. At one stage he went to another house and assaulted the woman, Carolyn Gaseforu, who was living there. She was taken to her grandfather's house and it was alleged by the defence that, as she left, she uttered words which the defence suggests implied that her father, Winfield Arimana, and her grandfather, Allen Suanogo, practised sorcery. The appellant had previously heard a suggestion that Allen had killed the appellant's father by sorcery and was angered by the woman's remarks. He went to Allen's house where he saw Allen and Winfield and assaulted them both. Allen, a man in his eighties, died from the very severe injuries he received in that assault. Another woman, Annette Kidiseu, who was present in Allen's house and tried to stop the appellant's assault on Allen, was also punched by the appellant.

[2] The appellant was charged with the murder of Allen, assault occasioning actual bodily harm to Carolyn and Winfield and common assault on Annette. He was tried in the High Court and convicted on all charges. He now appeals to this Court against the conviction for murder.

[3] Initially six grounds of appeal were filed but, at the hearing, all were abandoned except the third ground:

"3. That the learned trial judge erred in law in holding that 'Derol knew that his kicks and attack would cause grievous harm to Allen'; and in holding that Derol 'knew that those kicks or one of them will probably cause the death of or grievous bodily harm to Allen'; and in holding that 'Derol knew that the manner of his assault would cause grievous harm to Allen even though he had taken alcohol; when no evidence shows or proves such 'knowledge' in the circumstances of the assault'."

[4] Murder is defined in section 200 of the Penal Code which provides:

"Any person who of malice aforethought causes the death of another person by unlawful act or omission is guilty of murder ..."

[5] Section 202 explains malice aforethought:

"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 coexisting with the act or omission by which death is caused, and it may exist where that act is unpremeditated –

1. ...
   
2. knowledge that the act which caused death will probably cause 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 harm is caused or not, or by a wish that it may not be caused."
   

[6] Grievous harm means any harm which amounts to a maim 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.

[7] Mr Valenitabua for the appellant submits that the test of the knowledge of the accused man is a subjective one and therefore can only be based on evidence from the accused man himself. He cites a passage from Ross on Crime 4th ed, 11.705 that:

"Knowledge by the accused of all relevant facts will have to be proved by the prosecution where such knowledge is an element..."

and from Giorgianni v The Queen [1985] HCA 29; [1985] 156 CLR 473,504:

"It is actual knowledge which is required and the law does not presume knowledge or impute it to an accused person where possession of knowledge is necessary for the formation of criminal intent."

[8] On the basis of those and similar statements, counsel explained in his written submissions:

"The prosecution should have proven the appellant's actual knowledge, whether implied or express from the appellant's evidence, beyond reasonable doubt before the trial court could have found the existence of malice aforethought and convicted the appellant of murder under 202(b). If the trial judge had intended to imply malice aforethought then His Lordship ought to have based his implications on the evidence given by the appellant in the trial. It is respectfully submitted that the appellant was never asked nor did he say in evidence that he knew that his kicks and attack would cause grievous bodily harm to Allen or that he knew that those kicks or one of them would probably cause the death of or grievous bodily harm to Allen or that he knew that the manner of his assault would cause grievous bodily harm to Allen. The test is subjective. His Lordship relied on the evidence [of other witnesses]. None of these pieces of evidence showed the appellant's knowledge. It appears that his Lordship referred to these pieces of evidence and used the objective test to find that Derol had the requisite knowledge. It is respectfully that this was and is where his Lordship erred in law."

[9] Whilst it is correct that the test of the appellant's knowledge is a subjective one, we do not accept that it can only be gathered from the evidence of the appellant. The court can, and should, look objectively at all the evidence, including that of the defendant and then decide whether, on the basis of that evidence, it can ascertain the defendants knowledge. In so doing it must take a subjective view of the defendant's actual knowledge including, in the present case, the effect of alcohol.

[10] To suggest this can only come from the defendant's words is not only unsupportable in logic but would produce an unacceptable situation whereby any person charged with an offence requiring a subjective fault, including all crimes requiring evidence of intent, could, by exercising his right to remain silent, invariably avoid conviction.

[11] The evidence in this case of the manner of the assault on Allen and the injuries so caused was clearly accepted by the learned judge as true and accurate. On that basis, he concluded:

"Derol knew that his kicks and attack would cause grievous harm to Allen. He knew that those kicks were unlawful or one of them will probably cause the death of or grievous bodily harm to Allen."

[12] Once the learned judge had determined that the witnesses to the assault were credible and accurate, he could not have reached any other conclusion. Those witnesses spoke of the old man being hit on the head and knocked to the ground and, while he was lying there, being stamped on and kicked on his ribs, his face and his back. When it was over, he was bleeding from his nose and mouth, groaning with pain and was breathless, weak and weeping.

[13] The post-mortem examination showed serious bruising and lacerations of the head and palpable fractures of the ninth, tenth and eleventh ribs. Internal examination showed extensive bruising to the internal chest wall. The spleen was badly damaged and had resulted in substantial internal bleeding resulting in serious loss of blood which caused his death.

[14] We see no merit whatsoever in this appeal against conviction for murder and it is dismissed.

Sir Robin Auld
President

Sir John Hansen, JA
Member

Gordon Ward, JA