Popoe v Regina [2015] SBCA 20; SICOA-CRAC 42 of 2014 (9 October 2015)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Palmer CJ.)
COURT FILE NUMBER:	Criminal Appeal Case No. 42 of 2014 (On Appeal from High Court Criminal Case No. 77 of 2010)
DATE OF HEARING:	28 September 2015
DATE OF JUDGMENT:	09 October 2015
THE COURT:	Goldsbrough P Ward JA Lunabek JA
PARTIES:	JOHN POPOE - V – REGINA
ADVOCATES: Appellant: Respondent:	MR LAWRY MS JOEL
KEY WORDS:	MANSLAUGHTER - CAUSE OF DEATH - SITTING ON SHOULDER WITH FORCE - CAUSING SPLEEN RUPTURE – INTERNAL INJURY - MASSIVE LOSS OF BLOOD – RESULTING IN DEATH.
EX TEMPORE/RESERVED:	RESERVED
ALLOWED/DISMISSED	CONVICTION DISMISSED - SENTENCE SET ASIDE RESENTENCED.
PAGES	1- 20

JUDGMENT OF THE COURT

Introduction

1. On 22nd September 2009, the Appellant was charged with one count of murder, contrary to Section 200 of the Penal Code Act [Cap 66] (“the Act”). On 9th March 2010, the charge was reduced to manslaughter, contrary to section 199 (1) of the Act. The Appellant pleaded not guilty to the charge and the trial proceeded from 9th September 2014 to 12th September 2014 before the Chief Justice.
   
2. The Learned Chief Justice delivered his judgment on the verdict of the Appellant and convicted him of manslaughter on 14th October 2014. On 6th November 2014, he sentenced him to 10 years imprisonment.
   

Background – Procedural

3. On 18th November 2014, the defence counsel filed a notice of appeal and application for leave to appeal out of time against the conviction and sentence. The application for leave to appeal out of time was supported by an affidavit deposed by Ms Melana Blundell.
   
4. On 25th February 2014, the application for leave to appeal out of time was determined by Faukona J. He refused the application for leave to appeal.
   
5. On 12th March 2015, following that refusal, Mr John Resly filed a notice of renewal of application for extension of time to file notice of appeal.
   
6. On 24th April 2015, this court granted leave to appeal out of time against conviction and the sentence.
   
7. On 10th September 2015, the Chief Justice determined an application filed by the Appellant’s counsel dated 10th August 2015 “to receive” further evidence”. The Chief Justice issued the following orders granting the application to receive evidence:
   

(1) Granting the Application to receive the affidavit of John Resly Brook dated 4th April 2015; and

(2) Granting the Respondent 7 days to file any affidavit in reply.

(3) Directing the Appellant and the Respondent to identify for the Court the passage from the Record of interview for requisite translation, within 14 days.

8. Before this Court, Counsel for the Respondent was apparently not aware or informed of the determination of the application and orders of the Chief Justice of 10th September 2015. She has even filed the Respondent’s submissions to oppose the application to receive evidence with the understanding the application will be determined by this Court. A copy of his Lordship’s orders of 10th September 2015 was given to her. She took issues with orders 1 and 2 of his Lordship’s orders.
   
9. We seek comfort under section 19 of the Court of Appeal Act [Cap 157] which provides:
   

“The powers of the Court under this part of the Act –

May be exercised by any judge of the Court in the same manner as they may be exercised by the Court and subject to the same provisions but, if the judge refused an application to exercise any such power or if any party is aggrieved by the exercise of such power, the Appellant or party aggrieved shall be entitled to have the matter determined by the Court as duly constituted for the hearing and determining of appeals under this Act.”

10. We consider that the Respondent is an aggrieved party and must be heard on the said application. We hear submissions from both counsel and we refuse the application to receive evidence. The material evidence sought to be received are not new material information. They are also matters that can be disposed of by way of submissions as opposed to facts.

.
Background - Facts

11. The prosecution’s case was that in the night of Saturday, 19th September 2009, the Appellant unlawfully killed his wife, the deceased by sitting on her left shoulder which caused severe internal injuries to her body which resulted to her death a few hours later on or about 2:00 am on Sunday, 20th September 2009.
    
12. The prosecution relied on the evidence of a number of witnesses in particular that of PW1, PW2,PW3, the record of interview of the Appellant, the evidence of Dr. Jagilly who conducted the post mortem examination of the deceased’s body and Dr. Maraka, a pathologist.
    
13. On 19th September 2009, at about 6:00pm in the evening, the deceased had brought some food to help with a couple of visitors that PW1 was entertaining at her house earlier that evening. The deceased was seen by PW1 at that time. She was fit and well, laughing and happy. There was no evidence that she was sick or suffering from pain.
    
14. The record of interview of the Appellant dated 22nd September 2009 revealed the following:
    
    • (i) At or about 9:00 pm on 19th September 2009, the Appellant and the deceased were at their house. The Appellant said they were arguing but they were not disputing to each other. The Appellant said he did not touch her with his hands but he sat on her shoulder. He sat on top of her right shoulder and he was using the left part of his buttock (ass). This was after 9:00pm he said.
      
    • (ii) Before he sat on her shoulder, he went to the shop to purchase a roll tobacco. He did not bring with him money to pay. He asked and the shop keeper gave him the roll of tobacco and he will pay for it the next day. After he returned to his house, he shined his torch light to the kitchen and saw his wife was sitting in the kitchen on the side of the fire.
      
    • (iii) He ran toward her and sat on her shoulder and uttered words to his wife.
      
    • (iv) The Appellant said from the kitchen, he went to the house to look for the small knife to cut his tobacco. He said when he took the small knife to cut his tobacco; he was shocked to hear that his wife shouted and ran outside towards the house of their neighbour. He heard his wife saying “mi die nao” (I am dying). He said the deceased called the name of the woman on the side of their house. From the veranda of their house, he saw his wife fall down, so he ran to her. At the same time too, the woman, his wife called her name earlier, came. He said his wife said: “head belong hem karange nao” (she fainted). He and the woman carried his wife and put her at the veranda of their house.
      
15. The woman who assisted the Appellant to carry his wife to the veranda of their house was PW1. The deceased ran to PW1’s house and called her at about 10.00pm in the night. She came outside to see the deceased. The deceased told her she was dying. She held the deceased as she was going to fall down. She assisted the Defendant to carry the deceased to the veranda of their house before they took the deceased to the clinic that night.
    
16. PW2 was asked to treat the deceased with custom medicine before the deceased was taken to the clinic that night. PW2 described the physical condition of the deceased at that time as being quite serious. He noticed that the deceased was very sick, in pain and her body was hot. He observed on arrival that she was already lying down; crying out in pain and her body was hot. He heard the deceased saying that she was going to die.
    
17. The deceased was eventually taken to the clinic. At the clinic, she was attended to by a nurse, PW3 at around 12.30am on Sunday, 20th September 2009 as recorded in her notes. PW3 recorded that the condition of the deceased was severe or extremely serious. PW3 noted that the deceased was brought into the clinic on a stretcher with the following complaints: “dizziness, hallucinations, nausea, general body-ache, weakness, numbness of whole body, bowel inconsistence, lay helpless in a stretcher. Bowel incontinence. Semi-conscious at times and response well at times. No physical injuries seen”.
    

18. PW3 checked the deceased’s vital observation signs, which included blood pressure, pulse and temperature, these were unreadable or too low. Her condition by then had deteriorated drastically and she was basically dying. PW3 discounted any suggestion of an overdose of medicine for the symptoms were inconsistent with someone having taken an overdose of medicine. There was no improvement of the deceased’s condition and she died at 2.00am o’clock on Sunday, 20th September 2009”.

Judgment Appealed

19. The Chief Justice identified the two essential elements of the offence of manslaughter in section 199 (1) of the Penal Code, the prosecution has to prove beyond reasonable doubt before the Appellant could be convicted of the charge; his Lordship called them issues which are:

(a) Whether the act of sitting on the shoulder of the deceased was an unlawful act?

(b) Whether the act caused the death of the deceased?

20. The Chief Justice considered the evidence before him after the trial and set out matters not in dispute:

(i) When the deceased arrived at the house of PW1, it was late in the night. PW1 estimated the time to be around 10.00pm. The deceased came to PW1’s house shortly after the Appellant had sat on her shoulder. This is consistent with the account of the Appellant (Record of Interview P6).

(ii) The deceased told PW1 she was dying. The Appellant confirmed hearing the deceased saying the same thing to PW1.

(iii) When the deceased arrived at the house of PW1, her physical condition was no longer normal, it had suddenly changed for worse. Her physical condition and general wellbeing was described as serious and severe shortly after the Appellant sat on her shoulder. By the time she arrived at PW1’s house, she was in obvious distress. PW1 told the Court the deceased complained of chest pains and was breathless and struggling to breathe when she saw her at her house. This was consistent with the evidence of other prosecution witnesses (PW2 and PW3).

First Issue

21. In respect to the first issue, the prosecution case is that the act of sitting on her left shoulder was unlawful and amounted to an assault. The defence, on the other hand, while conceding that the Appellant sat on the shoulder of the deceased, deny that it was with force and unlawful. The Chief Justice found evidence of assault as follows:

(1) Evidence imputed to the Appellant. PW2 gave evidence of a conversation he had with the Appellant outside the clinic. PW2 stated the Appellant told him he had an argument with the deceased about cucumber seeds that night and on his return from the village after buying cigarettes, he said he was angry with the deceased and sat on her left shoulder. PW2’s statement to the police pointed out that the Appellant mentioned to him about an argument that he had with the deceased. PW2 also demonstrated to the police how the Appellant had described and demonstrated what happened. PW2 was also recorded as describing how he had imagined the force that was used to sit on the Appellant? The Chief Justice accepted and relied on PW2’s evidence as a truthful and honest witness.

(2) The statement of the Appellant positively supports the prosecution assertion of an assault. The Appellant admitted to being angry or “cross” with the deceased that night of 19th September 2009. “Hem come insaed long room me twofala laydown long hem ia, mi stand up and go out, me talk alsem long hem, mi like (sic) lay daon waitem man me cross long hem ia. So me go out, mi go long kitchen, so hem go inside long nara room”. [She came inside the room we laid down in, I stood up and got out, I told her I like (sic) to lay down with the person I am cross with. So I got out, I went to the kitchen, she went into another room]. His Lordship found that the Appellant’s actions in getting up to go away from the deceased when she came into the room, is reflective of his state of mind prior to the assault.

(3) The Appellant’s action that when he returned from the shop and saw her sitting in the kitchen beside the fire, he says he ran towards her and sat on her shoulder. His Lordship found that the Appellant’s actions were consistent with that of an angry man, of an assault or deliberate act being intended and committed. The Appellant admitted using these words when he sat on her shoulder:

“you think say wea nao bae you go. No matter you go home belong you, bae you come back yet long here ia”. [Where do you think you will go? Even if you go back to your home, you will return back here].

(4) His Lordship found these words suggested that what the Appellant did was anything else other than intentional or deliberate and amounted to an assault. His Lordship found the Appellant’s actions of walking off after the sitting on her shoulder to be reckless and careless, devoid of any form of feeling or concern as to what his actions might have caused on the deceased. His Lordship found that the Appellant expressed shock on hearing her shouting and running to her neighbour’s house only after the event. His Lordship found that the actions of the deceased to run or walk to her neighbour some 15 – 20 meters away for help, while the Appellant was with her at the house is consistent with the prosecution’s assertions that the deceased had been assaulted and she bypassed or avoided the Appellant because she knew he had hurt her by his actions.

(5) PW1’s evidence is that the deceased told her that she was dying. The evidence of PW1 was also that the deceased told her that she was dying because she had been assaulted by her husband. The defence objected to the admissibility of what the deceased told her. Despite objection, his Lordship found that PW1’s statement should be admitted as a dying declaration and it was within the exception set out in Section 123 of the Evidence Act 2009. Despite, a prior inconsistent statement having been made to the police on or about 20 September 2009, his Lordship accepted PW1’s explanation of being concerned of her safety at the time, of being frightened the Appellant might so something to her as the issue was still fresh and also that others might say she was talking too much. His Lordship accepted and relied on her evidence. He observed that even in the event, the evidence of PW1 should be excluded, he was still satisfied these were sufficient evidence before him of an assault.

Second Issue

22. As to the second issue on the cause of death, the evidence and findings are from Dr. Jagilly and Dr. Maraka.

23. Dr. Rooney Jagilly is a surgeon at the National Referral Hospital. He carried out a post-mortem examination of the deceased body on the afternoon of 21st September 2009, which is more than 24 hours after she had died; she had died at about 2.00 am on the morning of 20th September 2009. Dr. Jagilly noted that in his external examination of the body of the deceased, apart from a three centimetres ulcer on the right leg, he noted there were no obvious bruises, lacerations and fractures. He noted as well that the abdomen was moderately distended or swollen.

24. Dr Jagilly’s internal examination of the body of the deceased revealed that the abdomen was filled with blood and estimated it at 4-5 litres. His examination of the major organs revealed a crucial finding that the spleen had distinctive lacerations on both sides. He concluded that the deceased died of hypovolemic shock (Haemorrhage) from a splenic injury. This finding on the cause of death has not been challenged.

25. The issue in the High Court is what was the cause of this splenic injury? Was the splenic injury caused by the assault, that is, the act of sitting on the left shoulder of the deceased by the Appellant?

26. The Chief Justice accepted the medical opinion of Dr. Jagilly and Dr. Maraka that the circumstances described of sitting on the left shoulder of the deceased was the probable or likely cause of the splenic injury apart from other explanation. Both Learned Doctors accepted that such action was capable of causing such injury. Dr. Jagilly in particular, who conducted the post mortem examination stated in Court and virtually ruled out any suggestions that the injury may have been caused by any infection or as a result of lifting any heavy load or even of malaria for he pointed out that the lacerations on the spleen were quite severe which would have caused heavy bleeding to take place. This conclusion, the Chief Justice noted, is consistent with the facts as to what occurred after the assault had taken place. The Chief Justice found that Dr. Maraka was more reserved in expressing any conclusive opinion on the cause of death but he said that was because he was not the Doctor who conducted the post mortem examination and could only comment generally on questions and scenarios that have been put to him to comment on. He found Dr. Maraka’s general observations do not raise any doubt in his mind as to what the cause of the death was in this case.

His Lordship in his judgment rejected various alternative suggestions or theories advanced by the Appellant’s Counsel as possible causes of the deceased’s spleen injury.

27. The Chief Justice, having heard and considered the evidence adduced and considered the totality of circumstances and the events surrounding the deceased’s death that night, was more than satisfied the prosecution have proven to the requisite standard that the deceased died as a result of the unlawful act of the Appellant by sitting on her shoulder, which caused her spleen to be ruptured or lacerated which resulted in her death.

28. The Chief Justice convicted the Appellant of the offence of manslaughter, contrary to Section 199 (1) of the Penal Code on 14th October 2014 and sentenced the Appellant to 10 years imprisonment on 6th November 2014.

This Appeal - Discussion

29. The Appellant now appeals against both conviction and sentence on the following grounds:

1. The trial judge wrongly admitted in evidence words attributed to the deceased some hours before her death without affording the defence the opportunity to pursue a voir dire on such evidence; and
   
2. There was no proof to the required standard that the Appellant assaulted the deceased; and
   

100. There was no proof to the required standard of what had caused the deceased spleen to rupture.
     

4. The ground of appeal against the sentence imposed is that it is manifestly excessive in the circumstances.
   

30. We deal with each ground of appeal against conviction in turn.

Ground 1: That the trial judge wrongfully admitted in evidence words attributed to the deceased some hours before her death without affording the Appellant the opportunity to pursue a voir dire on such evidence.

31. The first ground concerns essentially an aspect of the evidence of PW1 to the effect that she says the deceased said words to her to the effect that the Appellant assaulted her that is why she was dying.

32. The Appellant challenges this evidence on three bases. First, the Appellant, at trial, requested the trial judge to hold a voir dire to challenge its admissibility. Second, the Appellant sought to persuade the primary judge not to place reliance on a statement made by PW1 five years after the event which totally contradicts PW1’s earlier contemporaneous statement in which she stated that the deceased did not tell her anything. Third, the Appellant argues that the evidence of PW1 of dying declaration does not fall within Section 123 of the Evidence Act.

(i) Whether or not evidence of PW1 falls under Section 123 of the Evidence Act?

33. The Appellant argues that the evidence of PW1 does not fall under Section 123 of the Evidence Act because it does not satisfy two conditions specified in R-v- Golighthy (1997) WAR401.

34. We consider there is no error in admitting the evidence of PW1 pursuant to Section 123 of the Evidence Act 2009. PW1’s evidence in regards to the dying declaration by the deceased falls under Section 123 of the Evidence Act. This section provides:

“The hearsay rule does not apply to evidence of a representation made by a person that was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind”.

35. The Chief Justice referred to Ross on Crime and relied on the case of R-v- Golightly which outlined the five conditions that a dying declaration must meet. He went on to discuss the conditions required and applied them to what the deceased told PW1. We agree with his analysis and application of the five conditions set out in R –v- Golightly in the present case.

36. We accept that this case is strikingly different from the reported cases where dying declaration has been admitted and the immediate cause of the injury is clear, for example where a person has been shot or stabbed.

37. In this case, as found and accepted by the Chief Justice, PW1 described in detail how the deceased appeared and felt when she arrived at her house. The witness told the Court that the deceased ran to her (PW1) and called for help. She cried out in pain and said she was dying. She felt severe chest pain and shortness of breath. She cried all through as they carried her to her home and the hospital. She repeated that she was going to die until she finally died. She felt the impact of the assault within her. What she told PW1 was dictated by how she felt. What she said clearly confirmed that she was under a settled hopeless expectation of death.

(ii) Whether PW1’s Second Statement is reliable or unreliable?

38. The Appellant argues that the Court should place no confidence in the reliability of a statement made by a witness five years after the event which totally contradicts the witness’s earlier contemporaneous statement in which she stated that the deceased did not tell her anything.

39. PW1 explained to Court why she did not tell the police what the deceased told her. She said she was concerned about her safety at that time; she was frightened the deceased might do something to her because the issue was still fresh and the Appellant was still around. She also said that other people in the village may say she was talking too much. His Lordship accepted her explanation and evidence. His Lordship outlined in his judgment (at paragraph 33 to 37) why he accepted her evidence to be reliable. He found her to be honest, clear and confident in her appearance. She was consistent and her explanations were reasonable and truthful. There is nothing to suggest that she had a reason or motive to lie to the Court about what she said the deceased told her. She was found to be an independent, sincere and neutral witness. His Lordship also found that there is no suggestion of bribery or corruption in this case whereby her evidence should be excluded or even any form of mistake as to what she may have heard from the deceased.

40. Even though she told the story 5 years later, she had reasonable explanations for the delay and demonstrated truthfulness in Court so that the Court found her to be reliable and truthful. We consider there is no error of law committed in admitting her statement.

(iii) Whether or not the judge erred in refusing to conduct a voir dire with regards to PWI’s evidence of the dying declaration of the deceased?

41. Before the trial judge, the appellant applied to have a voir dire to challenge the admissibility of the evidence of PW1 but the trial judge intervened and said he would not conduct a voir dire but the appellant can make submissions on the admissibility of the evidence at the end of the trial.

42. The Appellant contends that his Lordship erred because he did not conduct a voir dire, in arguments during the trial as the Appellant’s contention was that the evidence is not admissible.

43. The Chief Justice formed the view that he did not need to conduct a voir dire to determine whether the evidence to be produced by PW1 was admissible. He took the view that it was practically better for him to receive the evidence of PW1 and then decide whether or not it was admissible and whether it was true. He made this point to the Appellant’s counsel. He directed them to address him in submissions on the admissibility of PW1’s evidence at the close of the case.

44. We consider there is no error in the process of refusing to conduct a voir dire. We are of the view that the Appellant was not in any way prejudiced by the decision of the trial judge not to hold a voir dire.

45. We are informed that the Appellant used the opportunity to make submissions on the issue of the admissibility of PW1’s evidence at the end of the prosecution case and also at the end of the trial.

46. The Appellant had the opportunity to cross examine the witness (PW1) at length to show that PW1 was lying. The Appellant had opportunity to call any witness and the Appellant himself to testify although the Appellant exercised his right to remain silent.

47. The Chief Justice stated (in Paragraph 39 of his Judgment) “but even in the event her evidence should be excluded, he is still satisfied that there is sufficient evidence before him of an assault.” We are of the view that on the evidence before his Lordship there was sufficient material evidence upon which he could base his satisfaction on the required criminal standard of proof that an unlawful act has been committed by the Appellant in the circumstances of this case.

48. The first ground of Appellant cannot be sustained. It is dismissed.

Ground 2: That there was no proof to the required standard that the Appellant assaulted the deceased.

49. The Chief Justice discussed and outlined all the evidence that goes to show how the Appellant’s action amounted to an assault (at Paragraphs 9 to 21 of the Judgment):

(i) The Appellant had an argument with his wife regarding cucumber seeds and he was angry when he ran towards her and sat on her shoulder. The Appellant in his own admission in his record of interview admitted he was angry with the deceased before he sat on her left shoulder.

(ii) When he returned from the shop, he saw her sitting in the kitchen beside the fire; he ran towards her and sat on her shoulder. His Lordship said:

“...I found this irregular, unnatural and abnormal. The only logical explanation is that his actions were consistent with that of an angry man, of an assault or deliberate act being intended and committed, than anything else...”

(iii) After sitting on her left shoulder he uttered words and then walked off to cut his tobacco. His Lordship said: “He found his actions to be anything but neckless and careless, devoid of any form of feeling or concern as to what his actions may or might have caused on the deceased.”

(iv) The deceased did not call out to him for help after he sat on her shoulder. His Lordship said: “The most natural and logical thing to do would be for the deceased to call him for help because he was nearby and in the house. Instead she ran to her neighbour some 15-20 metres away. This is because she was assaulted by the accused her husband.”

(v) When the deceased got to PW1, she told her that she was dying. The impact of assault on the victim was almost immediate or instantaneous.

(vi) In her evidence, PW1 told the court that the deceased said words to the effect that she was dying because she had been assaulted by her husband.

50. We are of the view that there is overwhelming evidence to show that the Appellant’s action is an assault. It does not matter what the Appellant used to assault her, he did not use any of the common assault implements, his hands or a weapon, and he used his buttock. That had the same effect as anything else he could have used. It caused personal violence to the deceased. If any part of the body is used to harm another person that will amount to an assault.

51. The Appellant argued and submitted that there was no evidence to show that the Appellant sat on the deceased’s shoulder with force. The only evidence was from the Appellant himself who said he did not use his full weight.

52. In this case, the Chief Justice took into account other evidence that shows that the only reasonable explanation was that force was applied.

53. The force applied and the impact on his victim can be inferred from the manner in which the Appellant approached her – he ran angrily towards her and sat on her shoulder. The Chief Justice stated in paragraph 19 of his judgment:

“Normally the quantum or amount of force used or applied can be deduced from the effect or impact on the victim. In this case, according to the evidence, the effect was almost immediate or instantaneous. It is only logical therefore to conclude that these had to be sufficient force applied for the impact to be left almost immediately. Her condition rapidly deteriorated therefore and this was nothing that could be done to arrest the condition for the injury caused was fatal. By the time the Deceased was taken to the clinic at about 12.30am on Sunday 20th September 2009, her vital signs were critical. If the assault had occurred around 10.00pm, this would have been only a couple of house later?

54. On the evidence, the proximity in time between the admitted sitting of the shoulder at some time after 9.00pm and the deceased being unwell and in pain at 10.00pm came from the Appellant himself in the record of interview dated 22nd September 2009 (at pages 5-6).

55. He did not touch her with his hands but he sat on her shoulder. He sat on top of her right shoulder and he was using the left part of his buttock (ass). This was after 9.00pm.

56. After he returned from the store with his tobacco roll, he pointed his torch light to the kitchen. He saw his wife sitting on the side of the fire. He ran towards her and sat on her shoulder and uttered words. He then went into the house looking for the small knife to cut his tobacco. When he took the small knife in the house, he was shocked to hear that his wife shouted and ran to go outside towards the house of their neighbour. He heard his wife saying “Mi die nao” (I am dying). His wife called the name of the woman on the side of their house. From the veranda of his house, he saw his wife fell down, so he ran to her. At the same time the woman his wife had called her, arrived also. He and the woman carried his wife to the veranda of their house.

57. The immediate effect of his sitting on her left shoulder, the resultant effect a few hours later, the surrounding circumstances and evidence show that sufficient force was applied.

58. We agree with the Chief Justice that the Appellant’s action was an assault and that sufficient force was applied in his unlawful action. The evidence is proved on the criminal standard of beyond reasonable doubt.

59. The second ground of appeal is accordingly dismissed.

Ground 3: That the learned trial judge erred in finding that the Crown had proved beyond reasonable doubt that the Appellant’s actions caused the death of the deceased.

60. The Appellant’s Counsel argued that the Crown did not prove beyond reasonable doubt that sitting on the deceased’s left shoulder must have caused the spleen rupture. They argued that even if the cause was probable, it was not enough. They asserted that the medical evidence falls short of the standard of proof beyond reasonable doubt and demonstrates reasonable doubt.

61. In the court below, the Chief Justice found and concluded that the Crown proved beyond reasonable doubt that the Appellant’s actions caused the deceased’s death. His Lordship based his findings and conclusion on material evidence before him.

62. The record of interview of the Appellant dated 22nd September 2009 revealed the proximity in time between the admitted sitting of the shoulder at some time after 9:00pm and the deceased being unwell and in pain at 10:00pm. The detailed admission of the Appellant of what he did to the deceased and how and in what circumstances, established the direct causal link between the unlawful act (sitting on the shoulder), the immediate consequential pain and suffering felt by the deceased which is more likely than not rationally connecting with lacerations or rupture of the spleen (causing injuries) which resulted in the death of the deceased. She was then taken to the clinic at 12.30 am o’clock on Sunday 2009 and she died at 2.00 am o’clock in the morning on Sunday 20th September 2009.

63. On 19 September 2009, the deceased was well and normal. The Chief Justice pointed out that: “There was no physical sign or any form of distress or pain from the deceased. No evidence has been led to suggest that she was feeling unwell, sick or in pain that day.”

64. Immediately after sitting on her shoulder she was in extreme pain. She felt severe chest paid and shortness of breath. Instead of seeking help from her husband she ran to her neighbour.

65. His Lordship, in paragraph 19 of his judgment, said:

“No other evidence has been led to suggest or provide any reasonable explanation to account for the sudden deterioration in the condition of the deceased that night. While submissions have been made that the deceased was a hard working woman and had been involved in heavy work in the garden earlier that day and being involved in lifting heavy items, the connection or casual nexus simply does not exist or is too remote. No evidence has been led to suggest that she was feeling unwell, sick or in pain when she returned from the garden. To the contrary, earlier in the evening when she was seen by PW1 at her house, she was normal and well. I find nothing in such suggestions to raise any reasonable explanation and raise any reasonable doubt in my my mind that her injury could have been as a result of having worked in the garden earlier that day”.

65. PW1 told the Court that the deceased said to her “both of you are alright because your husband did not assault you. For me, my husband assaulted me and that is why I am dying”.

66. His Lordship relied on the medical evidence of Dr. Jagilly and Dr. Maraka. Dr. Jagilly and found that the cause of death was splenic injury. Other causes of splenic injury were put to him in cross examination. Although he agreed that there were other causes of splenic injury, he maintained that none of those other causes was responsible for the splenic injury suffered by the deceased. He ruled out other assertions made by the Appellant’s defence.

67. Dr. Jagilly and Dr. Maraka’s opinion that sitting on the left shoulder of the deceased was the probable or likely cause of splenic injury.

68. The evidence is that the Appellant sat on the deceased’s left shoulder because he was angry with her. This is coupled with the fact that he ran towards her and sat on her shoulder. It is rational for his Lordship to infer that the Appellant did it with force which in turn caused the splenic injury. His Lordship said in paragraphs 44, 45 and 46:

“The Defence has sought to suggest that the cause of the splenic injury could have been something else other than the assault. It seems that their case is that it could have been as result of heavy work and lifting earlier in the day while working in the garden, or it could have been due to a fall or infection on her foot. On the suggestion that the injury could have been caused by work done earlier in the garden, the clear evidence before me is that there was no physical sign of any form of distress or pain which would indicate that the deceased had injured herself seriously earlier that day while working in the garden. I have covered this point earlier in this judgment and so do not need to repeat that this suggestion must be ruled out as pure speculation because in the evening, and this would be well after having worked in the garden, she was well and normal. The Defendant in his statement did not point or raise anything that would suggest that she was labouring under any intense pain or sickness earlier that evening”.

69. Further His Lordship accepted the opinion of Dr Jagilly and Dr. Maraka that the circumstances described of sitting on the left shoulder of the deceased was the probable or likely cause of the splenic injury apart from any other explanation. Both doctors accepted that such action was capable of causing such injury.

70. The Chief Justice in his judgment rejected various alternative theories advanced by the Appellant’s Counsel as possible causes of splenic injury causing the death of his wife including overdose, malaria, infection, cough, hard labour in the garden.

71. His Lordship said:

“I find as unarguable and conclusive, that shortly after the deceased reached PW1’s house, which is about 15-20 metres away, she was complaining of severe pain in her chest, was faint and weak and had to be supported by PW1. It would seem that by the time PW1 came out to her she collapsed into her hands. Her condition thereon went from bad to worse.

It was so bad she had to be carried to her house by PW1 and the Defendant and was already in extreme pain. By the time she was taken to the clinic, her condition was critical. All these happened within a very short span of time, the defining moment being the act of assault by the Defendant. It has not been disputed that all these symptoms took place from the moment she was assaulted by the Defendant. I am satisfied the defining act was the assault committed by the Defendant on the Deceased”.

72. His Lordship has rightly analysed the evidence on which he found as a matter of fact the sitting on her shoulder was the assault that caused her spleen to rupture. That is the only reasonable conclusion one can come to as all other suggestions were ruled out.

73. The Chief Justice had considered the evidence, the totality of circumstances and events surrounding the Deceased’s death that night, is more than satisfied prosecution have proven to the requisite standard that the deceased died as a result of the unlawful act of the Appellant by sitting on her left shoulder, which caused her spleen to be ruptured or lacerated and subsequently caused her death.

74. We are not persuaded that there was any error in that conclusion which was plainly supported by the evidence that His Lordship accepted.

75. This last ground of appeal is dismissed. The submissions of the Appellant are accordingly dismissed as being without merit. We, accordingly, uphold the Appellant’s conviction.

Appeal against sentence

76. We turn finally to consider the Appellant’s appeal against the sentence imposed on the ground that it is “manifestly excessive”.

77. In this case, the learned Chief Justice imposed a sentence of 10 years imprisonment. The Appellant was convicted on the basis that he had sat on the shoulder of the deceased causing a rupture to her spleen resulting in her death.

78. In his sentencing remarks, His Lordship found that the offence borders on a charge of murder. The Appellant’s Counsel submitted that the learned sentencing judge was incorrect to make such a finding. We accept this submission as it is difficult on evidence to see how the intention could come close to malice aforethought as defined in the Penal Code.

79. We note the remarks made by the Chief Justice to the Community regarding domestic violence causing death. We agree with his Lordship that domestic violence is a serious issue for the Community in the Solomon Islands. However, it is our respectful view that the Court must approach the sentence of the Appellant based on the particular circumstances of his offending. Counsel provided the Court with useful case authorities on the sentencing starting point on these types of cases. These authorities recognise that there is no tariff as such; however when a weapon was used in the offending, a sentence of imprisonment of 6 years or more have been imposed as a starting point.

80. The starting point taken by the sentencing judge is 15 years imprisonment. The end sentence imposed is 10 years imprisonment. In this case, there was no weapon used in the offending. However, it must be emphasised that a life has been taken away. This type of offending is a serious offence and warrants custodial sentence. The question then is for how long? The Appellant’s Counsel submitted the 10 years sentence imposed is manifestly excessive comparing with the current trend of sentences imposed for like offences but with more serious aggravating circumstances. It is our respectful view that the sentence of 10 years imprisonment is excessive taking the circumstance of the present case.

81. We consider that 7 years imprisonment will be an appropriate starting point. We note that the Appellant is a first time offender; has previous good records; we note there is mention of some period of delay. We give credit for those as mitigating factors. We sentence the Appellant to an end sentence of 6 years imprisonment.

82. The Court makes the following orders:

1. Appeal against conviction dismissed.

2. Appeal against sentence allowed.

3. Term of 10 years imprisonment set aside, and term of 6 years imprisonment substituted.

4. Sentence confirmed.

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Justice Goldsbrough
President of the Court of Appeal

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Justice Ward J A
Member of the Court of Appeal

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Justice Lunabek JA
Member of the Court of Appeal