Taika v Regina [2011] SBCA 7; Criminal Appeal 13 of 2010 (9 May 2011)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION: Appeal from Judgment of the High Court of Solomon Islands
(Faukona J)

COURT FILE NUMBER: Criminal l Appeal Case No.13 of 2010 (On Appeal from High Court Criminal Case No. 243 of 2008

DATE OF HEARING: 4 May 2011
DATE OF JUDGMENT: 9 May 2011

THE COURT: Sir Robin Auld P
McPherson, CBE, JA.
Williams, JA.

PARTIES:

TAIKA
Appellant

V

REGINA
Respondent

ADVOCATES:
Appellant: R Cavanaugh and A Kesaka for the Appellant
Respondent: R Talasasa and T Walenenea for the Respondent

KEY WORDS: Criminal Law – Murder – Self-Defence – Evident – Malice Aforethought

EX TEMPORE/RESERVED: RESERVED
ALLOWED/DISMISSED: DISMISSED
PAGES: 1 - 16

JUDGMENT OF THE COURT
TAIKA -V- REGINA

1. The appellant appeals against his conviction of murder. The sixteen grounds of appeal allege a number of errors by the learned trial judge in his reasoning and conclude with the ground that the verdict was unsafe and unsatisfactory. Counsel for the appellant abandoned the grounds numbered 13, 14 and 15. The appellant sought as an alternative to quashing the conviction and entering a verdict of acquittal the substitution of a verdict of manslaughter.
   
2. On the evening of 4 - 5 April 2008 the deceased, Joses Teioki, and his friend, Desmond Daudau, were walking towards the Kaovare night club. Upon reaching the junction with Namoruka Road, around mid-night, they met up with the appellant and his friend, Haibangau. There was disputed evidence as to what then happened, but the end result was that the deceased received a stab wound from a knife being held by the appellant. The deceased was taken to hospital but died from his injuries on 6 April.
   
3. At trial four major issues were raised by the defence and those issues were again agitated by the grounds of appeal to this Court. Those issues were broadly:
   
   • (i) there was a reasonable possibility on the evidence the stabbing was accidental;
     
   • (ii) there was a reasonable possibility on the evidence that the appellant was acting in self-defence;
     
   • (iii) the prosecution did not prove beyond reasonable doubt the requirement of malice aforethought;
     
   • (iv) there was a reasonable possibility on the evidence that the appellant acted under provocation.
     
4. The most critical issue of fact in the case was the ownership of the knife used in the stabbing.
   
5. In his record of interview with the police on 7 April, the appellant relevantly said:
   

“The boy who kicked me first, I told him that this guy was so drunk, instead he advanced to me. The moment he came closer to me, he grabbed my shirt and I suspected that he got a knife, I then grabbed his hand and we struggled with the knife. ...At this time the knife fell on the ground, I picked it, he was standing in front of me. The boys behind us provoke him to grab me, as he did it. ...This was when the accident happened. ...That I killed him with a knife. ....The moment he jumped towards me, I put the knife to him. ...I did not frighten him but the others, I was afraid of them, so I put it to them that I was the one who is holding onto the knife. ...I only make him to fright of me.....I’m not thinking of stabbing any part of his body but I can remembered that I must stabbed somewhere on his belly, I don’t know the exact part.”

6. When the police expressly put to the appellant that the knife was his, the appellant replied: “No, its not mine, it belongs to that boy, he out it from his shirt.” The appellant went on to say that after the incident he threw the knife into the river. It has not been recovered and was not in evidence.
   
7. In his statement from the dock, the appellant said:
   

“This knife that they have come and pushed at me belonged to Joses. Somehow, I took it from him when the fight happened. That is the story that I can tell and the story is true.”

8. For present purposes, it is sufficient to say that Daudau, who gave evidence for the prosecution, did not see any bodily movements which would be consistent with the appellant picking up a knife which had been dropped by the deceased. He also said he saw nothing in the deceased’s hands, either as they approached the scene or immediately before the stabbing.
   
9. The prosecution also relied on the evidence of Anisi Waqa. His evidence in chief can be summarised as follows. At about 9.30 p.m., he saw the appellant not far from the 02 bus stop. The appellant was with some other boys and they were drinking. He saw the appellant was “holding a knife under his arm.” Part of the knife was stuck in his shorts but he could see the blade shining. The witness was one to two metres away from the appellant.
   
10. Under cross-examination, Waqa admitted he did not tell the police about the knife until two weeks after the incident. It was put to him that he had been drunk, but he said he drank after seeing the appellant. He maintained under cross-examination that he saw the appellant with a knife that night. In response to a question from the judge, he said the knife was in the appellant’s trousers but “half was shining out.” He also said: “I told the police the knife shone and reflected in the light but the police wrote silver blade.” There was apparently light coming from a neighbouring house probably 25-30 metres away.
    
11. The learned trial judge clearly accepted Waqa’s evidence. At paragraph 38 of his reasons, he recounted the evidence of Waqa seeing the appellant with a knife at the 02 bus stop about 9.30 p.m. and stated that that corroborated to some extent the evidence of Daudau. He repeated that in paragraph 60. Again at paragraph 68 he summarised Waqa’s evidence stating the witness saw the appellant holding a knife, the blade of which was shining.
    
12. Ultimately the Judge accepted in paragraph 71 of his reasons that the appellant “stabbed the deceased with his own knife.”
    
13. Counsel for the appellant attacked that finding. He pointed to the time lapse (approximately 3 hours) between Waqa’s sighting of the appellant and the incident, and the fact that the point of sighting was some distance from where the incident occurred. Against that there was some inconsistency in the appellant’s evidence. In the record of interview, he spoke of picking up the deceased’s knife after it fell to the ground during a scuffle, but in his statement from the dock, he said “somehow he took the knife from the deceased.”
    
14. The finding that the appellant had the knife at all times involved a finding of credibility and the trial judge obviously believed the evidence of Daudau and Waqa, though there was evidence the former was drunk at the time and there were questions about the reliability of Waqa’s evidence. But there is nothing which would justify an appellate court setting aside the finding made.
    
15. Once that finding is made, the issues of accident, self-defence, provocation and malice aforethought have to be considered against that background.
    
16. Relevantly s.9 of the Penal Code provides that “a person is not criminally responsible ...... for an event which occurs by accident.” In question 69 of the Record of Interview, the appellant was asked what happened when the deceased approached him; he replied: “This is when the accident happened.” He was then asked what he meant by accident and he replied: “That I killed him with the knife.” The appellant cannot be taken to have been invoking s.9 by those answers. It is obvious from the second answer what he meant and such use of the term “accident” is not peculiar to Solomon Islanders. The same applies to the appellant’s use of the word “accident” in his statement from the dock. What has to be considered is the evidence relied on in support of the contention that the death was an event which occurred by accident.
    
17. Counsel for the appellant submitted that the evidence was consistent with the deceased “jumping” or pushing forward onto the knife being held by the appellant with a view to his scaring the deceased. In the Record of Interview, the appellant said the “moment he jumped towards me, I put the knife to him.” He did not expressly raise that point in his statement from the dock.
    
18. The evidence of Daudau was that the deceased approached the appellant in a “bent low” position, that is a crouched position, in order to better identity the appellant. Daudau demonstrated that to the Court and it was accepted and adopted by the judge in his reasons. The judge accepted the evidence of Daudau that the deceased was front on to the appellant as he approached and the appellant pushed him away. The deceased then took two or three steps backwards before he collapsed.
    
19. The post-mortem report established that the entry wound was to the left side of the abdomen. Internally, the wound involved the 10th left rib, transverse colon, the stomach, the liver, the central tendon of diaphragm and the right ventricle of the heart. It was about 30 cm from the point of entry to the right ventricle of the heart.
    
20. The judge made the observation that if the deceased had approached the appellant front-on and the appellant was merely holding out the knife, one would expect the wound to be more to the front.
    
21. The doctor who performed the post-mortem under cross-examination agreed with the preposition that “it is possible that the wound is consistent with a body being pushed onto the knife.” It was argued that that supported the appellant’s contention. That is not necessarily so. The appellant’s statement in the Record of Interview was not that the deceased was “pushed” onto the knife. The mere act of the deceased moving forward may well not involve the degree of force implied by the doctor in agreeing with “pushed.”
    
22. The judge gave careful consideration to the possibility of accident but rejected it. He accepted the evidence that it was the appellant who had the knife, and that the stabbing occurred when the appellant pushed the deceased away. He accepted that evidence “beyond reasonable doubt” and thereby rightly rejected the defence of accident.
    
23. The law of self-defence in the Solomon Islands is derived from Section 4(2) of the Constitution and also Section 17 of the Penal Code. The latter incorporates the principles of the common law dealing with the use of force in defence of the person into the law of Solomon Islands.
    
24. The trial judge on a number of occasions referred to the subjective element of the defence. After quoting passages relevant to honest belief in the necessity to use force in self-defence from Palmer –v- R [1970] UKPC 2; (1971) A.C. 814, R v Owino (1996) 2 Cr. App. R.128, and R v Whyte (1987) 85 Cr. App. R 283, he said:
    

“In order for the accused to defend himself and rely on self-defence, there has to be some serious force from the deceased putting the accused in immediate peril, or to defend the attack by the deceased, or some forcible violent felony attempted on the accused by the deceased, or an assault by the deceased which the accused honestly believed that the circumstances were such as required him to use the knife to defend himself by stabbing the deceased, or that the deceased strike at the accused which entitled him to get his blow in first as he saw it necessary to do so in self-defence.

25. The judge then said: “in his dock statement, there was no explanation as to how the victim applied force on him which circumstance required him to defend himself. However, he raised self-defence in his record of interview.” The first sentence is accurate but it should be noted that in his dock statement, the appellant did say the deceased and Daudau “were aggressive” when they approached him; relevantly he did not say what force was applied to himself justifying retaliation. The significant passages from the Record of Interview have been quoted above. In addition, as the judge noted when dealing with self-defence, the appellant also heard the deceased swearing.
    
26. At this point, the judge recounted Daudau’s evidence, in particular his evidence that there was no fight between the appellant and the deceased, and that there was no exchange of swearing between those two. On the evidence of Daudau, only Haibangau was swearing.
    
27. Tango was another prosecution witness who saw and heard some relevant matters from his house, some 20-30 metres away. The judge said that Daudau’s evidence was “corroborated in some material fact by Tango’s evidence, in particular that he did not hear any exchange of swearing. He only hears Haibangau swearing that night.”
    
28. After referring to the evidence of Daudau (as the deceased approached the appellant, the appellant pushed him away), the trial judge said:
    

“If the accused honestly believed that he was acting in self-defence in such circumstance, in my view, the belief was not held on reasonable ground. The deceased was just right in front of him without any form of assault or force directed at the accused. It was a mere approach. The deceased was unarmed and defenceless that moment.”

29. Again, after referring to the comparative “builds” of the deceased and the appellant, the judge said:
    

“The question is whether the belief was a honest one requiring the accused to use the knife to stab to defend himself. ...I have said earlier that fear of being attacked, or if a threat of force was expected to deter the attacker, it may be difficult to convince the Court that it was reasonable to use actual force. Indeed for sure, the accused belief was not held on reasonable ground based on the reasons I pointed out above.”

30. Counsel for the appellant submitted that the trial judge erred because those passages indicate he applied only an objective test of whether the force used was reasonable. That is clearly not so. The quoted passages show that the judge was mindful at all times of the subjective element involved. It was also submitted that the last passage quoted demonstrated the judge placed an onus on the appellant. A reading of the reasons as a whole clearly shows that was not so. One question will always be whether, given the subjective state of mind, it was reasonable for the accused to act as he did.
    
31. It was submitted that the judge also erred in not considering s. 204(b) of the Penal Code when dealing with self-defence. In fact, the judge referred to that provision when dealing with provocation and he clearly took into account a possible defence based on it.
32. The defence of self-defence was premised on the deceased being the aggressor. That was rejected by the judge, and when one includes the fact that it was the appellant who had the knife at all times, the defence of self-defence can be rejected beyond reasonable doubt.
    
33. To be murder, as distinct from manslaughter, the killing must be accompanied by “malice aforethought” as defined in s.202 of the Penal Code. That element may be established either by an intent to kill or cause grievous bodily harm, or by relying on (b), which provides:
    

“Knowledge that the act which caused death will probably cause the death of, or grievous bodily harm to, some person.....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.”

34. The judge set out that provision in his reasons and said the prosecution relied on it.
    
35. Against that background, the judge compared again the evidence of Daudau and Waqa with what the appellant had said in his Record of Interview. He referred to the appellant’s statement “I only meant to scare him” and rightly said: “Intention does not always necessary assessed on what the accused said, but what he did prior to and during the incident.” After analysing the evidence as to how the stab wound was inflicted to the left side, the judge concluded: “That action requires a thought of the mind to accomplish it.” All of that led the judge to conclude that he was satisfied beyond reasonable doubt that the prosecution had proved malice aforethought. He did not err in doing so.
    
36. As noted above, the trial judge considered provocation and in particular s.204 (b) of the Penal Code, which essentially provides that causing harm is justified if it was in response to term depressing the power of self-control. Counsel for the appellant abandoned the ground based on provocation, but it should be said that there was no error in the findings made by the judge on that issue.
    
37. Because Daudau and Waqa were said to be distant relatives of the deceased, because the former was drunk (though he said he was in control of himself), because the latter was affected to some extent by liquor, and because the evidence of each was about matters seen in poor lighting, it was submitted by counsel for the appellant that the evidence of each should have been “corroborated” before it was acted on, and further one could not be said to corroborate the other. There is no requirement in the Solomon Islands that evidence be corroborated before it can be acted on: Section 18 Evidence Act 2009.
    
38. The trial judge was mindful of all the matters referred to by counsel for the appellant. The following passage demonstrates his approach:
    

“I must say not all evidence of a witness is expected to be perfect and truthful. For Daudau, I tend to believe him. He admitted he was drunk but not in a state to be regarded as helpless. He admitted it was dark that he could not see properly, He admitted he could not see the knife and could not see how the accused stabbed the deceased, except a push. He admitted he is related to the deceased. He could have lied in Court that he saw the knife in possession of the accused. He could have lied in Court that he saw the accused stabbed the deceased. This evidence is crucial and very significant because they related directly to what actually happened. They are the core issues upon which this case pivoted. However, Daudau gave an account of what actually he saw and no invention of any new story. That shows he was really honest in his evidence. The number of statements he gave to Police is a normal process of criminal investigation in this country. His sworn evidence in Court is the evidence this Court must consider.”

39. The judge recognised that unless “the Court is satisfied beyond reasonable doubt that Daudau is both an honest and accurate witness in the account he has given, the Court cannot find the accused guilty.” He found the evidence of Tango and Waqa confirmed Daudau’s evidence in some material particulars, and accepted Daudau’s evidence beyond reasonable doubt. It has not been demonstrated that he erred in so doing.
    
40. On two occasions, firstly with respect to the use of the word “accident”, and secondly, with respect to the used of the word “jump”, the trial judge observed one had to be “mindful of how Solomon Islanders express themselves.” That was permissible in the circumstances. But later he relied on knowledge of “culture in Melanesian - Solomon Islands” to assist in rejecting some evidence. That is not permissible reasoning in the absence of evidence on the point. The issue in question was of marginal, if any, relevance to the ultimate question and in consequence, there was no appealable error.
    
41. The defence led evidence of good character but it was not expressly referred to in the reasons. That was probably because proven facts speak for themselves. However, the trial judge added to his finding that the appellant stabbed the deceased with a knife he had been carrying, the observation: “a negative reflection of a person without prior convictions.” Counsel for the appellant submitted that by saying that the judge turned the advantage of good character evidence into a disadvantage. The observation by the judge was not really material to his reasoning and it may well have been better if it were not said. But it has no impact on the overall reasoning.
    
42. Having considered the evidence at trial, the reasons of the trial judge, and the submissions on appeal, it is clear that there has been no miscarriage of justice and that the verdict is not unsafe and unsatisfactory.
    
43. Accordingly, we dismiss the appeal against conviction.
    
44. If the life sentence stood, counsel for the appellant asked that the matter be remitted to the sentencing judge so he could exercise a discretion to make a recommendation as to a release date. The position is the same as considered by this Court in Baeoro and what was said there applies to this appellant. The Parole Board should consider an application for early release made by the appellant after he has served a reasonable portion of his sentence.
    

Sir Robin Auld
President

McPherson, CBE, JA
Member

Williams JA
Member