R v Sapa [2022] SBCA 21; SICOA-CRAC 4 of 2022 (4 November 2022)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	R v Sapa
Citation:
Decision date:	4 November 2022
Nature of Jurisdiction	Appeal from The High Court of Solomon Islands (Palmer, CJ)
Court File Number(s):	04 of 2022
Parties:	Rex v Bruno Sapa
Hearing date(s):	By Circulation of Papers
Place of delivery:
Judge(s):	Goldsbrough, P Gavara-Nanu, JA Faukona; JA
Representation:	Suifa’asia, M for Appellant Holara, M for Respondent
Catchwords:	Acquittal
Words and phrases:
Legislation cited:	Solomon Islands Constitution S 4 (2) Penal Code S 17
Cases cited:	Palmer v R [1971] A-C 814 , Zecevic v DPP [1987] HCA 26, R v Conlon [1993] 69 A Crim R 92, R v Hawes [1994] 35 NSWLR 294, Beck v The Queen [1986] AC 130, R v Clegg [1995] AII ER 33, Ofea v R [2019] SBCA 9,
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Dismissed
Pages:	1-12

JUDGMENT OF THE COURT

Introduction.

1. This appeal was filed by the Director of Public Prosecutions by way of notice of appeal filed on 28^th March 2022. The parties to the appeal filed written submissions and agreed that the matter be heard without a hearing but on the papers alone.
2. The Respondent, Bruno Sapa, appeared in the Court below (the ‘High Court’) charged with the murder of Charles Kaipua, contrary to section 200 of the Penal Code.
3. The Respondent pleaded not guilty therefore a trial was conducted. After trial the judgment was delivered on 8^th March 2022, when the trial judge returned a verdict of acquittal.
4. It was against that verdict which the Director of Public Prosecutions appealed raising two grounds of appeal.
5. Ground 1: The trial judge erred in law in finding that the Respondent acted in self-defence.
6. Ground 2: The trial judge erred in law when he failed to consider provocation as the leading defence in all of the circumstances.

Background facts of the case.

7. On the 2^nd April 2019 the deceased and his friends were drinking alcohol in a particular location, at Pauta village, Bellona Island, Rennell Bellona Province. It was a national election period.
8. After attending campaign talk PW4 went to sleep. He was woken up by the sound of those drinking and eventually joined them.
9. PW1 complained of the argument between the deceased and PW4 about candidates they supported. The deceased then slapped her. She cried and ran to the Respondent’s house and sat under the steps of the house and cried. PW4 then left to his house.
10. The deceased then went to the Respondent’s house. He was armed with a bush knife. He swung the knife and cut at the post. In doing so, somehow slightly cut PW1’s ear and caused her to cry more.
11. From his house PW4 could hear banging coming from the Respondent’s house so he attended to investigate. He saw the deceased armed with the knife and banging at the walling under the house of the Respondent.
12. PW4 approached the deceased and warned him to stop. The deceased challenged PW4 and threatened him with the knife. He swung his knife and cut one of the posts. He even cut PW4’s hand.
13. From the noise of altercation, swearing and aggression the Respondent came down from upstairs of his house and stood at the bottom of the step and watched PW4 and the deceased. He had his spear in his right hand and his bush knife in the left.
14. At some stage PW1 managed to calm the deceased therefore took the opportunity to get away and left the Respondent’s area.
15. The deceased and the Respondent exchanged words and the deceased swore at the Respondent in language. The Respondent then approached the deceased with his knife and spear. At about 1½ meters apart the deceased lifted his hand with the knife in a motion to strike when the Respondent threw his spear at the deceased’s chest. The deceased fell to the ground.
16. The Respondent then went over to the deceased and cut his shoulder and repeatedly cut his neck. Then he went back to his house got another knife, returned and decapitated the deceased’s head and carried and placed it on his father’s grave in front of the yard.
17. In the trial court, the Respondent relied on the defence of self-defence and or in the alternative, that there was provocation as a result of what transpired and swearing uttered by the deceased.

Principle of Common law of self-defence and statute.

18. The law that governs self-defence in this jurisdiction is set out in S. 4 (2) of the Constitution. Subsection (2) reads;
    • A person shall not be regarded as having been deprived of his life in contravention of this if he dies as the result of the use of force, to such extent and in such circumstances as permitted by law, of such force as is reasonably justifiable –
    • (a).for the defence of any person from violence or for the defence of property.
19. Section 17 of the Penal Code operates by making express reference to criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English common law.
20. This provision paves the way for the application and adaptation of the principle set out in Palmer v R^[1] which is commonly refer to in this jurisdiction.
    • Lord Morris states; -
      • “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 only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. It may in some cases be only sensible and clearly possible to take some avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation.”
21. His Lordship further exemplified other instances of particular conditions necessary that may require an act which may constitute a defensive action. He stated;
    • “If an attack is serious so that it puts someone in immediate peril then immediate defensive action may be necessary. If the moment of crosses for someone in immediate danger, he may have to avert the danger by some instant reaction. If the attack is and no sort of peril remains, then the employment of force may be by way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may be no longer any link with any necessity of defence.”
22. From the appellant’s submissions the test for self-defence applied in the case of Bolea v Reginam citing Zecevic v DPP^[2], following Palmer is “.whether the accused believed upon reasonable grounds that it was necessary to self defence to what he did. If they had that belief and there were reasonable grounds for it then he is entitled to an acquittal.
23. Of course, when considering self-defence the court must consider evidence related to the personal character of the accused which might affect his appreciation or decision of the gravity of the threat which he faced and as to reasonableness of his response to the thread. See R v Conlon ^[3] and R v Hawes^[4].
24. As the appellant would like to prefer submits, that at common law the correct test is partly objective and subjective. The case of Queen v Secretary of State for Justice, set out the tests as;

The Common law relating to self-defence required consideration of two elements. The first was a subjective element, namely whether the defendant genuinely believed that it was necessary to use force to defend himself; the second was an element which is partly objective (whether the nature and degree of force used was reasonable in the circumstances and partly subjective (on the basis that what can reasonable had to be tested against the circumstances as the defendant genuinely, even if mistakenly, believed them to be.

Ground 1; The trial judge erred in law in finding that the Respondent acted in self-defence.

25. In respect of the first limb the Appellant concurs with the trial Judge’s approach, but not on the second limb part one and two.
26. Part one is whether the nature and degree of force used was reasonable in the circumstances. The Appellant submits that the degree of force used by the Respondent is not reasonable unless he believed that it was necessary to use the degree of force.
27. The reason for that contention, as the Appellant commensurate to narrate, that the Respondent pre-armed with a knife and a spear, approached the deceased and stood 1.5 metres apart. He was described as ‘alert’ and ‘ready’. The deceased then raised his hand with his knife and about to strike when immediately the Respondent threw his spear at the deceased and fell to the ground. After that he moved and cut the deceased several times and beheading him subsequently.
28. The argument is that the moment the deceased fell to the ground the Respondent was in no imminent danger.

The case of pre-emptive strike.

29. As the evidence and circumstances clearly reflected this case premise on pre-emptive strike. Not so much on the principle of force to encounter an incoming force. On this particular principle the trial judge has dealt with profoundly from paragraphs 91-98.
30. His Lordship the trial judge cited Ross on Crime which the learned author states self- defence applies to pre-emptive strike to prevent what the person believes to be imminent attack. The author points out the common law position that belief does not have to be reasonable, other courts have held to be reasonable because statutory interpretation
31. In the case of Beck v The Queen^[5] Lord Griffiths made a statement, “Furthermore a man about to be attacked does not have to wait for his assailants to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike”.
32. Further discussions by the trial judge in terms of genuine belief and reasonable grounds from paragraph 93 to 98 are significant which we concur with his conclusion that the perceived threat caused the respondent to have reasonable apprehension of an imminent attack which elicits response from him. In killing the decease, the Respondent has a genuine belief that his life was being threatened that is the reasonable basis for it. After referring to the case of Zecevic v DPP^[6] the trial judge based on evidence was in doubt therefore acquit the Respondent.
33. On the issue of throwing of the spear whether intentional or self defence; we concur with the trial judge’s conclusion that the factual circumstances were consistent with the pre-emptive strike done to defend himself as he reasonably believed was about to be attacked. In perceiving imminent threat, he threw the spear fatally killed the deceased. We agree also his action of throwing of the spear was in response to a reasonable apprehension of death or serious bodily harm as he perceived. Hence not excessive as the trial judge discussed in the next sub heading in his judgment.

Second part of the second limb.

34. The manner in which the appellant applied the test in the second context is rather mixing up. Again, reference is made to the alertness and readiness by the Respondent. In any event the issue had been dealt with by the trial judge in paragraphs 99 to 109 of his judgment.
35. However, in addition, it ought to be acknowledged, the culture of the Respondent as a Polynesian, such swearing is of bad, more than intimidation and degradation for the dead must be respected with due diligence that now rest at peace and ought not to be tampered with.
36. It was at that moment the Respondent approached the deceased. From a distance of 1.5 metres the deceased raised his hand with the knife. The reaction by the Respondent in throwing his spear, as found by the trial judge was justified in a moment to preserve his own life.
37. After beheading the deceased, he placed the head on his father’s grave. An act of great significant of sacrifice to the dead because the decease did something gravely wrong (sworn) at his father against culture and customs of the Respondent.
38. A state of a mind of a person cannot be calculated but can be by looking at the facts and evidence before, during and after the incident. In the other words looking at the totality of evidence.
39. In addition to the facts and evidence alluded to by the Appellant, and as paraphrased in this judgment on Para 7-17; we observe there is evidence that the deceased was a young man with attitudinal problem in the society. His behaviour collectively was unusual and unacceptable to common standard of the society.
40. We also observe the Respondent never at one moment provoked the deceased or even challenged him. He did not even invite him to his area of the house. But he told him to go away.
41. The alert and readiness is part of contemplation that the deceased would definitely do something as he was already in the mood. In any event the Respondent had been overwhelmed by the dirty swearing which contributed to his actions after the deceased fell to the ground.
42. Appellant made reference to the case of R v Clegg^[7], to illustrate the defendant used excessive force that render his defence of self-defence fail and effectively convicted of murder.
43. The essence of this principle of excessive use of force and unreasonable homicide, as applied, is that the fourth shot that was fired actually killed and that cannot be excusable under self-defence.
44. In this case, it was the wound inflicted by the spear found by the doctor. According to his evidence caused the fatal death of the deceased. It was the act of spearing which the Respondent successfully defended in an act of self-defence which the trial judge fully accepted according to the evidence before him.
45. In the case of Ofea v R^[8], this Court found the trial judge failed to consider the evidence from the Appellant and his wife which were crucial for defence. Ultimately found the force used by the appellant was excessive by inflicting several wounds after deceased was speared and fell which was not justified. The appellant was acquitted of murder but guilty of manslaughter.
46. In this case the Respondent was not convicted at all at first instance. It ought to be noted when defence of self-defence is wholly accepted it warrants acquittal from homicide charge, unless the defence of self-defence is partly accepted, which is crucial.
47. In this case the Respondent never at any moment provoked the deceased. In Ofea’s case, the accused and others did threaten to cut the Pastor with their knives earlier before men from Pastor’s village including the deceased went to the Appellant’s village where the commotion commenced.
48. Conclusively, we do not think the trial judge erred in applying the test of self-defence. He did in fact ask questions necessary to reveal answers related to the principle of self-defence. He indeed considers all relevant evidence available before him, including the memorandum of agreed facts.
49. At paragraph 17 the trial judge clearly stated it has not been proven beyond reasonable double that the defendant was armed with intention to cause death or grievous bodily harm. At paragraph 19 of the record of judgment shows the defendant was armed to protect himself from the aggressor, drunken, abusive and violent person. There is no evidence he threatened the deceased with the spear.
50. From those extracts it would be unimpressive to conclude the trial judge erred in applying the law to self defence and we find there is no distortion of evidence. We therefore decided we should not intervene but uphold the conclusion reached by the trial judge.

Ground 2: Issue of provocation.

51. In the submissions filed by the Appellant which headed the trial judge erred in law when he failed to consider provocation as leading defence in all the circumstances.
52. In the Court below the defence raised provocation as an alternative defence. And the trail judge had affirmed that had it not been the case, it would have been necessary to consider the alternative defence of provocation. In other words, should the defence succeeded in self-defence it would be unnecessary to consider the alternative defence of provocation. The defence had acquired what it sought; nevertheless, the trial judge did venture into and deal with the defence of provocation from pages 118-123 of his judgment.
53. In paragraph 119 the trial judge further stated if the throwing of the spear at the deceased was not reasonable in the circumstances and the Respondent could not have belief it was not reasonable and justified, then consideration of provocation and subsequent actions by the Respondent would have risen. In such killing unless it is established that there has been provocation thereby reducing it to manslaughter.
54. Given that statement the Court was aware of the reduced charge of manslaughter upon consideration that the Respondent’s action was excessive which led to the decapitation. Eventually, as the defence of self-defence was successful leading to an acquittal, then provocation cannot be an alternative verdict.
55. The trial judge also found that the swearing words, more than once, were grievous and offensive in the custom of the Respondent. Considering all the undisputed facts and evidence molded in one event, it was not shown that the Respondent was armed with intention to cause death or grievous harm to the deceased. Likewise, not shown beyond reasonable doubt that the force applied was excessive.
56. Eventually we find and agree with the trial judge’s conclusion that every occurrence shown by evidence would indeed provoke any reasonable person in the shoes of the Respondent to employ self-control and behave in the manner he did.
57. In conclusion we find the trial judge had dealt with the issue of provocation succinctly.
58. Therefore, upon all the reasons narrated herein, we finally find ourselves unable to interfere with the final conclusion the trial judge made. We therefore dismiss the appeal accordingly.

Goldsbrough (P)
Gavara-Nanu, (JA)
Member
Faukona, (JA)
Member

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^[1] [1971] A-C 814.
^[2] [1987] HCA 26.
^[3] [1993] 69 A Crim R92.
^[4] [1994] 35 NSWLR 294.
^[5] [1986] AC 130; (1987) 3 All ER 425.
^[6] (Vic) [1987] HCA 26; [1987] 162 CLR 645; 71 ARL 641; 25 Crum R 163 Wilson, Dawson, and Toohey J.

^[7] [1995] AII ER33.
^[8] [2019] SBCA 9.