Ofea v R [2019] SBCA 9; SICOA-CRAC 22 of 2019 (18 October 2019)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Ofea v R
Citation:
Decision date:	18 October 2019
Nature of Jurisdiction	Appeal from Judgment of The High Court of Solomon Islands (Maina J)
Court File Number(s):	22 of 2019
Parties:	Jack Ofea v Regina
Hearing date(s):	8 October 2019
Place of delivery:
Judge(s):	Goldsbrough P Lunabek JA Gavara-Nanu JA
Representation:	Mr. B Ifuto’o for the Appellant Mr. Dalipanda for the Respondent
Catchwords:
Words and phrases:	Self-Defence
Legislation cited:	Penal Code Act, s200,s204 (b), Evidence Act, s163
Cases cited:	R v Muratovic [1967] Qd. R 15 Waidia v Regina [2015] SBCA 12 Taikan v Regina [2011] SBCA 7 Keke v R [2006] SBCA 1 SS Hontestroom (Owners) v SS Sagaporakck (Owners) [1927] AC 37 Galea v Galea [1990] NSWLR 283 Ludawane v Regina [2017] SBCA 23 R v Palmer [1970] UKPC 2; [1971] AC 814 R v Clegg [1995] UKHL 1; [1995] 1 AC 482 HL R v Mcinnes [1971] 1 WLR 1600 Keke v R [2006] SBCA 1 R v William (G) Cr App R 276 R v Oatbridge 94 App R 367
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Appeal is allowed
Pages:	1-18

JUDGMENT TO THE COURT

1. The appellant was charged with the murder of one Wilsmen Nori (deceased) on 9^th December, 2016 at Gounasu’u village, East Fataleka, Malaita Province, contrary to s. 200 of the Penal Code. The appellant was eventually tried in May, 2019, in which he pleaded not guilty. After a trial he was convicted of murder on 24 May, 2019 and was sentenced to life imprisonment which is the mandatory penalty for murder.
2. The prosecution called seven witnesses. The defence called two witnesses viz; the appellant and his wife, Emily Futuna.
3. The relevant background facts are these. On 9^th December, 2016, at about 7.30am, a Pastor by the name of Timothy Kasiu (the Pastor), his wife and three other women went to a market at Aenatalu which is near the appellant’s village. After doing their market, they were walking home when they heard the appellant and two other men, namely Eddie Dani and Silas Anisi who were following them from the direction of the market shouting and yelling at them and making threats that they would cut them with the knives they were holding. The appellant and the two men ran towards them, the Pastor tried to stop them but when they threatened him, he escaped into the nearby bushes. The appellant’s wife who was with the appellant stopped the appellant and the two men from harming the women by swearing at them in their language.
4. When the people from the Pastor’s village later heard that the appellant had threatened the Pastor at the market, the people mobilized and went to the market in search of the appellant. When they learnt that the appellant had gone home, they went to his village. The evidence indicates that a large number of men went in search of the appellant. A prosecution witness said 17 people including children went but the appellant and his wife said about 32 men went.
5. A number of the prosecution witnesses who were in the group that went searching for the appellant said, when they arrived at the appellant’s place, the appellant was already armed with a steel rod and a long bush knife. They said the appellant ran towards them, when he saw the deceased, he ran after him and speared him with a steel rod then cut him many times with a bush knife.
6. One of the men namely, Dudley Fugui tried to spear the appellant but the spear missed and struck the appellant’s trousers. This is not in dispute.
7. The appellant did not deny that he speared the deceased with a steel rod and cut him with a bush knife which caused his death, but he said he acted in self-defence because the deceased attacked him first and aimed at cutting his neck off. He said the steel rod belonged to the deceased, he wrestled it off the deceased when the deceased attacked him with it. The pertinent parts of the appellant’s evidence in-chief are as follows:
   • “At our house I asked my two boys about out (sic.) Pigs and if they have fed our two pigs but they said not yet. From there, I hold (sic.) my knife and went to feed my pigs in the fence. At that time, my wife and children in (sic.) the house.
   • I arrived at the fence and cut the coconuts and threw (sic.) in the fence for pigs to eat. After that I came back and near the house, I heard boys on the house (sic.). I ran to the house and heard some people saying “outim come man ya hem ya, bae mifala killem hem lamina belong mifela”. Lamina in our language is a killed man (men killed).
   • At that time, I was thinking of my wife. She shouted and cried.
   • When I heard that I wanted to arrive in my house to see what happened in my area. I entered my area, not fit to enter the house as every people around the house. They cut my house, pineapple and everything at the house.
   • I saw some of them hold reinforce, steel rod, knife, short stick, stones. I did not see any pikinini. I only saw big man/adult/young persons.
   • ...When they turned and saw me, they said that was (sic.) a person and throw (sic.) stones to me. I reversed or moved back and Dudley Fugui move (sic.) forward and spear me with reinforce wire. The reinforce cam (sic.) and broke the type of jean I was wearing (cut jean).
   • There is damage on the jean and caused by Dudley Fugui on 9/12/16. I was when (sic.) he speared me.
   • When Fugui did that to me I reversed and wanted to escape. I escape (sic.). I escape (sic.) to the road I came and (sic.) to the mangrove.
   • As turn (sic.) to escape, I saw deceased (W/Nori) ran first. He held a re-inforce and a knife and I ran behind him. That road is small and do (sic.) not fit two persons.
   • I ran and Nori was standing away about 4/5 meters. I saw him there so I jumped at the garden area. I jumped because I was afraid of Nori who was holding spear and kill (sic.) or else he kill me.
   • From there he ran and shout (sic.) me on the road and both of us ...? the road. He blocked me and speared (sic.) with reinforce. I missed the re-inforce and hold it. He jumped to me with the knife.
   • He wanted to cut me on the neck. I moved close to him to miss the knife. There the reinforce I held touched his body and that was reinforce belongs to Welsman Nori. He struggled and wanted to cut me with his knife he was holding.
   • At that time, I cut to shut me by knife too (sic.). He then fell down and I can see the men were force to come to me. I then cut to pull out the spear from the deceased. I pulled out the spear and ran away from him towards my house.
   • I did not see Elison Sanaga and Michael Siau.
   • That place was formally (sic.) garden and started to get bush again.
   • I did met (sic.) Dudley Fugui when I came back to the house.
   • ...When I arrived at the place I met Kau and he shot me with stones.
   • I ran and I arrived at the house and when they heard from Kau that the man had killed Nori away (sic.) or ran away and around the place”.
8. The relevant parts of the appellant’s evidence from cross-examination are as follows:
   • “Q. When you now (sic.) running after the two you swear (sic.) behind him?
   • A. Yes but I am not running after him.
   • Q. Michael Siau was...of the four?
   • A. I did not see him.
   • Q. You only ran to Nori at that...?
   • A. No
   • Q. Nori did hold the knife?
   • A. He held a knife and steel rod.
   • Q. At the time Nori did not attack you?
   • A. He attacked me.
   • Q. You did not move to road side?
   • A. I move (sic.) to road side.
   • Q. That reinforce is that one with Nori?
   • A. Yes, Nori, Reinforce
   • Q. Spear missed you?
   • A. It missed me.
9. In re-examination the appellant said - “I ran along the road as it was the road near and I can follow.”
10. The pertinent parts of the learned trial judge’s judgment on as follows:
    • “The prosecution evidence or version describe the moment or circumstances when the accused caused wounds to the deceased. This evidence is consistence (sic.) with the accused’s account when he said that he cut the deceased but did that to stop deceased (sic.) from cutting him with the knife. The deceased fell down and accused cut the deceased and then pulled out the spear from (sic.) him.
    • Further the accused’s evidence raise a disbelief or doubt on his part and in particular when he said that Fugui threw the spear to him and he reversed to escape on the road. He saw deceased running on the road and was holding a re-inforce wire and a knife and he ran behind him.
    • This evidence relate (sic.) direct (sic.) to the line-up moments or occurrence of the act by the accused to the deceased. But it is ambiguous when accused said that he wanted to escape but took the same road the deceased who was at the front was taking or route on. It is so as when escaping from a threat to human life or if you want to escape or run away from a danger to your life; you must avoid the same road or access; cannot run behind or to the person who poses the danger to your life. You must take another route otherwise you have intended to attack or do some act to the person you were behind him running towards.
    • Another ambiguity or vagueness of accused’s evidence is when he stated that he and deceased were running and they were about 4/5 meters away from each other he jumped to the garden area because he was afraid the deceased was holding a spear and might kill him with it. Accused stated in his evidence that at the instant or time he was running behind the deceased. That evidence shows accused intended to move or locate himself close to the deceased than escaping the danger of being killed or avoid the spear he allegedly said in the possession of the deceased”.
11. We find that the learned trial judge gave general description of the evidence given by the appellant. One significant aspect which was not mentioned in the judgment is that the steel rod the appellant used to spear the deceased belonged to the deceased. The appellant wrestled it off the deceased when the deceased tried to spear him with it.
12. His Lordship found that the appellant was the aggressor.
13. The learned trial judge, rejected the appellant’s defence of self-defence and convicted him of murder and sentenced him to life imprisonment.
14. It is significant to note that the learned trial judge did not comment on the evidence of the appellant’s wife, Emily Futuna. She told the Court that the men that went to their place had bows and arrows. They scattered around and destroyed their house. She was afraid and cried. At that time the appellant was not in the house because he had gone to feed their pigs. She recognized Dudley. She said Dudley, Nori (deceased) and Sanga went into their house and broke cups, plates and other things. At that time the appellant had not yet returned from feeding the pigs. When he returned, she said “everyone cornered him”. They shot him with bows and arrows and spears. She ran away with the “kids” and left the kids in the bush. She then returned to see what was happening. She saw the deceased holding a spear and a knife. There were no children. She saw Siau and Bulu arrive. She did not see the appellant kill the deceased. In cross-examination, she said when appellant returned to the house after feeding the pigs, he was only holding a knife, he did not hold a spear.
15. The appellant appeals against his conviction. There are 7 grounds of appeal which are as follows:
    1. The Court erred in refusing to allow counsel for the appellant to cross-examine prosecution witnesses in accordance with section 163 of the Evidence Act; and
    2. The Court erred in ignoring the evidence that the deceased was armed; and
    3. The Court erred in overlooking the evidence called by the defence in addition to the evidence of the appellant; and
    4. The Court erred in its application of the defence of self-defence; and
    5. The Court erred when it rejected the defence of self-defence in failing to consider the provisions of section 204 (b) of the Penal Code; and
    6. The Court erred in ignoring the physical evidence that the appellant was attacked before he responded as he did; and
    7. The judge had misdirected himself on material facts said to be agreed between the parties when those facts were not agreed.
16. Section 204 (b) of the Penal Code under which the appellant raised his principal defence of self-defence is in following terms:
    • 204. Where a person by an intentional and unlawful act causes the death of another person the offence committed shall not be of murder but only manslaughter if any of the following matters of extenuation are proved on his behalf, namely-
    • (b) that he was justified in causing some harm to the other person, and that, in causing harm in excess of the harm which he was justified in causing, he acted from such terror of immediate death or grievous bodily harm as in fact deprived him for the time being of the power of self-control; or
17. Mr Ifuto’o of counsel for the appellant argued that there is evidence that the appellant acted in self-defence because he was attacked by the deceased which placed him in such terror of immediate death or grievous harm, which caused him to attack the deceased to preserve himself. He submitted that the appellant should therefore be acquitted of murder. Alternatively, if we find that the appellant had used unnecessary or excessive force in attacking the deceased then we should acquit the appellant of murder but guilty of manslaughter.
18. Mr Ifuto’o argued that the learned trial judge failed to take into account the evidence of the appellant and his wife.
19. Mr Dalipanda of counsel for the prosecution on the other hand argued that the learned trial judge considered and took into account all the evidence before arriving at the decision to convict the appellant of murder. He argued that the judgment did not miscarry and urged us to dismiss the appeal.
20. In cases where more than one witnesses are called, as in this case, a way to decide whether the witnesses told the truth is to weigh and assess the overall evidence and see whether the witnesses’ evidence tied up, whether they made sense and whether they fit in logically with each other. The evidence for a party should be consistent and should connect with each other.
21. Having regard to these principles, we find that evidence from the prosecution do not tie up and there are inconsistencies. For example, Elison Sanga’s evidence was that the appellant singled out the deceased and ran after him. Both were running around the appellant’s area. As both chased each other the appellant was close to the deceased so he (Elison Sanga) ran behind them to see what would happen to the deceased because the appellant was so close to the deceased. He said he was running behind the deceased and was just meters away from where the appellant speared the deceased. There is no mention about the appellant and the deceased running along a bush track. Michael Siau told the Court that the appellant came out of a bush track and ran to the deceased. He (Michael Siau) ran first, the deceased ran after him. When he saw that he was safe, he stood and looked back at the deceased. He saw the appellant spear the deceased with a steel rod. There is no mention about Elison Sanga being at the scene by this witness. Elison Sanga said he was standing only meters away when the appellant speared the deceased. Then Michael Faifu told the Court that the appellant ran after Michael Siau and the deceased at the bush track. He ran behind them, he was about 6/7 meters away. He stood there, there were already people standing there. He said the appellant chased the deceased and Michael Siau, they disappeared from his sight. He was 15 to 20 meters away. The appellant returned and Dudley tried to spear him but missed. This witness does not say anything about Elison Sanga who was supposed to be at the scene (along the bush track). Then Dudley Fugui, who admitted holding a spear which he used to try and spear the appellant but missed. He also had a knife. The evidence contradicts Michael Siau who said they were unarmed. Michael Faifu also told the Court that some men had knives.
22. The evidence of the appellant and his wife on the other hand in our opinion tie up, there is logic in them and they make sense.
23. For example, the wife said when the appellant returned from feeding their pigs, he only had a knife. That is consistent with the appellant’s evidence. There is logic and it makes sense because the appellant said he had a knife to cut coconut open to feed coconut to their pigs. The appellant said as he was returning to the house, he heard his wife crying. That ties up with the evidence of his wife, she said she was afraid and started crying when the deceased and others entered their house and started destroying their things. The evidence of the appellant that the steel rod he used to spear the deceased with belonged to the deceased is consistent with the evidence of his wife that he only had a knife when he tried to escape by running along the bush track. The wife also told the Court that the deceased was holding a spear and knife before the incident. There is a ring of truth in their evidence. The appellant said he was surrounded by the men who were there and he tried to escape. The bush track was logically the only escape route for the appellant and that the deceased was the one who started fight by trying to spear with the steel rod and cut his neck to kill him. He said when he was attacked by the deceased, he tried to ran away by jumping to the side of the track, but was blocked by the deceased. He had no way to escape so he went forward and held the steel rod the deceased had, he disarmed the deceased and because the deceased wanted to cut his neck, he speared the deceased with the deceased’s own steel rod. The appellant could not escape because the track was narrow. We find this description of the situation in which the appellant found himself logical and makes sense.
24. Clearly, the learned trial judge did not believe the appellant’s evidence, but from the analysis of the evidence we have given, we find that the learned trial judge erred in his findings of material facts, and the conclusion his Lordship reached was against the evidence and the weight of the evidence.
25. The burden of proving the offence of murder against the appellant beyond reasonable doubt rested with the prosecution throughout. In discharging this burden the prosecution had to disprove the appellant’s claim that he acted in self-defence. The prosecution had to negate the elements or requirements constituting self-defence in s. 204 (b) of the Penal Code.
26. To make out the defence of self-defence in s. 204 (b), there must be evidence of prior assault or harm by the deceased on the appellant and that the assault or harm was such that it caused terror of immediate death or grievous bodily harm on the appellant, which deprived the appellant of self-control. The requisite or justifiable degree of force that should be used by the appellant to come within s. 204 (b) was described this way in R v Muratovic [1967] Qd. R 15:
    • “The person using force in self-defence is entitled to use any force which is reasonably necessary to preserve himself from death or grievous bodily harm if the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm.”
27. Thus, for the claim of self-defence by the appellant under s. 204 (b) to be sustained, the prior assault or harm by the deceased on the appellant was such that the appellant had a reason able apprehension of death or grievous bodily harm. The prior assault or harm on the appellant had to be current and actual when the appellant used force. See also Taikan v Regina [2011] SBCA 7; Criminal Appeal 13 of 2010 (9 May, 2011), in which the Court in expressing this principle 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 forcibly 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 knife to defend himself by stabbing the deceased, or that the deceased strike at the accused which entitled him to get his blow first as he saw it necessary to do so in self-defence”
28. Under s. 204 (b) if force used by the appellant was in excess of or disproportionate to any form of prior assault or harm on the appellant by the deceased, the appellant would be entitled to be acquitted of murder but guilty of manslaughter. See, Waidia v Regina [2015] SBCA 12; SICOA-CRAC 16 of 2014 (24 April, 2015). The Court in elaborating on this principle said:
    • “In assessing the reasonableness of the force used, the court should consider, inter alia two questions:
    1. Was the use of force necessary in the circumstances, i.e. was the (sic.) a need for any force at all?, and
    2. Was the force used reasonable in the circumstances?
    • Both questions are to be answered on the basis of the facts as the accused honestly believed them to be R v William (G) Cr App R 276; R v Oatbridge, 94 Cr App R 367.
    • To the extent it is a subjective test. There is however an objective element to the test. The court must then go on to ask whether, on the basis of the facts as the accused believed them to be, a reasonable person would regard the force used as reasonable or excessive”.
29. The Court went on to cite with approval a passage from the judgment of Lord Morris in Palmer v R [1970] UKPC 2; [1971] AC 814:
    • “If there has been an attack so that self-defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken”.
30. The Court of Appeal went on to say:
    • “The fact that an act was considered necessary does not mean that the resulting action was reasonable: R v Clegg [1995] UKHL 1; [1995] 1 AC 482 HL. Where it is alleged that a person acted to defend himself/herself from violence, the extent to which the action taken was necessary will, of course, be integral to the reasonableness of the force used”.
31. Whether the force by the appellant reasonable is to be determined objectively from the overall facts and circumstances. This task of course involves determination of the findings made by the trial judge as to the material facts.
32. We remind ourselves of an established principle that if we have to interfere with the decision of the learned trial judge, we must do so with caution because as the trial judge, he was in a better position than us to observe and assess the demeanour of the witnesses in the witness box and the credibility of their evidence. See, Keke v R [2006] SBCA 1. See also, SS Hontestroom (Owners) v SS Sagaporakck (Owners) [1927] AC 37 at 47 per Lord Summer and Galea v Galea [1990] NSWLR 283 at 266.
33. Having thoroughly considered all the materials before us, including the learned trial judge’s findings of fact which led him to reject the appellant’s defence of self-defence, we find with respect the learned trial judge had misdirected himself on crucial and material facts. A fundamental error is the failure to take into account and consider the evidence of the appellant’s wife, which was very crucial for the defence. The crucial aspects of her evidence related to the movements of the appellant, what happened when the deceased and other prosecution witnesses arrived at the appellant’s place, her claim that they were armed and that the deceased and other men entered their house and destroyed their household items. Furthermore, her claim that the appellant was surrounded by the men and their garden was destroyed. More significantly, she told the Court that the deceased held a spear and a knife. These were not addressed by the learned trial judge. They were overlooked.
34. Also, the claim by the appellant that he had to run along the bush track to escape, ties up with his and his wife’s evidence that he was “surrounded and blocked” by the men, and therefore logically the bush track was the only escape route for him. The appellant also said, he tried to avoid the deceased along the narrow bush track by jumping into the garden to escape from the deceased who was armed with the steel rod and a bush knife and was trying to attack him. All this evidence was also not considered and taken into account by the learned trial judge. We find that his Lordship either misdirected himself on these material facts or failed to consider them. These errors must therefore vitiate the learned trial judge’s decision to find the appellant guilty of murder.
35. We however find that the force used by the appellant on the deceased was excessive. After spearing the deceased with the steel rod and after the deceased fell to the ground, the appellant inflicted more severe wounds all over the deceased’s body with a bush knife. Such attack was excessive and unnecessary. The sustained attack was not justified because the appellant’s life was no longer under threat or in danger. In R v McInnes 55 Cr App R 551 in adopting the principles of self-defence discussed in Palmer v R (supra), the court said:
    • “It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but only do, what is reasonably necessary”.
36. This principle was adopted with approval by this Court in Waidia v. Regina (supra).
37. For the foregoing reasons, the appeal against conviction for murder is allowed. It follows that the appellant is acquitted of murder but guilty of manslaughter.
38. What then is the appropriate punishment for the appellant?
39. In deciding the punishment for the appellant, we note that he was not the aggressor, the deceased was. As we noted earlier in the judgment, he was trying to escape from the deceased who was attacking him with a steel rod and a bush knife which were both lethal weapons. The deceased was trying cut his (appellant) neck when appellant got the deceased’s steel rod and speared the deceased with it in desperation to preserve himself (appellant). The appellant was only himself against 32 men according to him and his wife. Even going by the number of men given by the prosecution witnesses which was 17, that number of men would have been still over whelming for the appellant. Given these circumstances and others we find that the mitigating considerations far outweigh the aggravating circumstances, which really are limited to the cutting of the deceased after he was speared.
40. This Court has in the recent case of Mostyn Ludawane v Regina CICOA CRAC No. 37 of 2016 (13 October, 2017), recommended sentencing guidelines for murder. Although the guidelines relate to murder it gives general guidelines for us in deciding the appropriate sentence for the appellant given the special circumstances of the case. There are 3 categories of sentences recommended, first is a normal murder, second is that which would be higher or a serious murder and the third is a very serious murder. Given the circumstances of the case, we would adopt the 12 years imprisonment as a starting point for a normal murder as recommended in Mostyn. But given the strong mitigating circumstances arising from the defence of self-defence, which has reduced the appellant’s penalty from murder to manslaughter we would determine the sentence for the appellant for manslaughter at 8 years imprisonment as the head sentence.
41. We note that the appellant was taken into pre-trial custody on 14 December, 2016. We are of the view that the pre-trial custody period should be taken into account sentence. Thus, the appellant’s sentence should commence from 14 December, 2016.
42. In conclusion we note in passing that we should also point out that in Mostyn, this Court also said that a fixed minimum non-parole period should be given by a judge when sentencing an offender to a mandatory sentence of life imprisonment. The Court said:
    • “We adopt without reservation the approach set out in Anderson and confirm that when sentencing an offender to a mandatory sentence of life imprisonment it is incumbent on the sentencing judge to fix a minimum term of imprisonment which the offender must serve prior to his or her release on license (termed in the legislation ‘parole’)”.
43. We adopt the view in concurrence as it relates to exercise of sentencing discretion.
44. The Orders of the Court are as follows:
    1. The appeal is allowed
    2. The appellant’s conviction for murder is quashed
    3. The appellant is guilty of manslaughter
    4. The appellant’s sentence for life imprisonment is set aside
    5. The appellant is sentenced to 8 years
    6. The appellant’s sentence for 8 years will commence from 14 December, 2016
    7. The Registrar to issue a fresh Warrant of Commitment for the appellant for the substituted sentence

Goldsbrough P
Lunabek JA
Member
Gavara-Nanu JA
Member