Wame v R [2022] SBCA 29; SICOA-CRAC 20 of 2021 (4 November 2022)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Wame v R
Citation:
Decision date:	4 November 2022
Nature of Jurisdiction	Appeal from Judgment of the High Court of Solomon Islands (Lawry; J)
Court File Number(s):	20 of 2021
Parties:	Jeremiah Wame v Rex
Hearing date(s):	By circulation of Papers
Place of delivery:
Judge(s):	Goldsbrough P Palmer, CJ Gavara-Nanu JA
Representation:	Alasia , B for Appellant Zoze, J W for Respondent
Catchwords:
Words and phrases:
Legislation cited:	Penal Code [cap 26], S 200, S 204, S 205, 202 (b), S 204 (a) Criminal Procedure Code [cap 7] S269, Court of Appeal Rules 1983, S30 , Court of Appeal Act [cap 6] S 23, S 24 (2), S 20(b)
Cases cited:	Bray v Ford [1895] UKLawRpAC 54; [1896] A.C 44, Tait v Beggs [1905] 2 Ir. R 525, Lionel Barber & Co. V Deutsche Bank [1919] A.C 804, R v Somae [2005] SBCA 18, Doney v R [1990], HCA 51, Mungatopi v The Queen [1991] NTCCA 9, R v Webb [1977] 16 SASR 309
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Dismissed
Pages:	1-11

JUDGMENT OF THE COURT

Introduction

1. The appellant was charged with the murder of one Larry Awasipo (deceased) on 4 May, 2019, by stabbing him with a kitchen knife at the Riverside village, Small Malaita, Malaita Province, contrary to s. 200 of the Penal Code, Chapter 26. The appellant pleaded not guilty, and on 12 July, 2021, he was found guilty of murder and sentenced to life imprisonment.

Background Facts

2. The day of the murder, 4 May, 2019, was a Saturday. Immediately before being killed, the deceased was on his way to attend a church service. It was in the morning. The first Crown witness, Yaxley Kiosanau was with the deceased at that time. The two came to a bridge where they met the appellant. The appellant had a small kitchen knife in his possession at that time. The appellant approached the deceased and told the deceased that he received a letter from the deceased’s clan regarding a customary land. In the letter the appellant was told that he and his clan did not own the land and they had been falsely led to believe by some elders from their own clan that they owned the land.
3. The deceased tried to ignore the appellant by telling him to raise the matter with the elders of the deceased’s clan. The deceased’s response appeared to have irritated the appellant and the appellant aggressively walked towards the deceased. The deceased reacted by hitting the appellant on the head with a Bible he was holding. The two then got into a scuffle during which the appellant stabbed the deceased below his left breast with his kitchen knife. The knife penetrated the deceased’s chest and severed an artery to the heart. The deceased tried to stand up but fell, telling Yaxley that the appellant had stabbed him. Upon seeing the deceased fall, the appellant left the scene and went to Maton Wambe, another Crown witness who was in his house. The appellant told Maton that he had just stabbed the deceased and he could not be sure whether the deceased would survive. The appellant told Maton that he should have listened to his (Maton) advice, he told Maton that when he stabbed the deceased, his mind was disturbed by the letter he received from the deceased’s people regarding the customary land. The appellant was about to run away, when Maton stopped him and told him to wait for the police to deal with him.
4. The crown witness Yaxley told the primary court that the appellant approached the deceased in aggressive manner before stabbing him. This is not challenged or disputed by the appellant.
5. After the prosecution closed its case, the learned primary judge considered s. 269 of the Criminal Procedure Code, Chapter 7, to decide whether the appellant had a case to answer. The learned primary judge found the appellant had a case to answer.
6. The appellant gave evidence in his own defence. He raised defence of provocation under ss. 204 and 205 of the Penal Code and denied criminal liability for the death of the deceased. The Crown alleged the appellant committed the offence with malice aforethought under s. 202 (b) of the Penal Code.
7. The learned primary judge dismissed the defence of provocation and found the appellant committed the offence with malice aforethought and found the appellant guilty of murder and sentenced him to life imprisonment.

Grounds of appeal

8. The appellant raised four grounds of appeal which are as follows: -
   1. That the learned trial judge erred when the misdirected himself on an issue of fact and convicted the appellant on evidence that is (sic.) not available to the Court.
   2. That the learned trial judge erred when he had pre-determined the guilt of the appellant in the ‘no case’ stage and denied the appellant of a fair trial.
   3. That the learned trial judge erred when he found that the appellant was not provoked when he attacked and assaulted the deceased.
   4. A miscarriage of justice has ensued and the appellant had been denied a fair trial according to law as a result of the cumulative effect of the above matters.

AND THE APPELLANT SEEKS AN ORDER (sic.):

1. Quashing his conviction and setting aside his sentence.
2. No order for retrial; and
3. Further or other order.
9. The appellant is only appealing against his conviction, and not against his sentence.

Submissions
Appellant’s submission

10. The appellant submits that he did not know that the deceased would probably die or suffer grievous bodily harm from the stab wounds. He also submits he was unconscious after the deceased hit him with the Bible.
11. The appellant submits further that he did not know that he stabbed the deceased until he saw blood on the deceased. He submits that everything happened so quickly that he did not know that the deceased would probably die or suffer grievous bodily harm from the stab wounds.
12. The appellant further submits that because he was unconscious, he was not in control of his actions.

Crown’s submission

13. The Crown submits that there is no dispute that the appellant caused the death of the deceased by stabbing the deceased with the kitchen knife. It is also submitted that when stabbing the deceased, the appellant knew that the deceased would probably die or suffer grievous bodily harm. It is submitted that this is demonstrated clearly by the appellant going straight to Maton after stabbing the deceased and telling Maton about the stabbing and telling Maton that the deceased may or may not survive. The Crown submits that this evidence has not been challenged or disputed by the appellant. Thus, it is submitted that elements for murder under s. 200 and malice aforethought under s. 202 of the Penal Code have been established by the Crown.
14. Regarding the defence of provocation raised by the appellant under ss. 204 and 205 of the Penal Code, it is submitted that actions of the deceased in hitting the appellant with a Bible were not capable of causing extreme provocation to the appellant to deprive the appellant of the power of self-control.
15. It is submitted that the appellant’s aggressive approach towards the deceased and stabbing the deceased with a knife were disproportionate to any type of force used or assault on the appellant by the deceased in hitting the appellant with the Bible. Furthermore, there is no evidence that the actions of the deceased caused threat of immediate death or grievous bodily harm to the appellant to justify the actions of the appellant in stabbing the deceased.
16. It is further submitted that a reasonable person from the appellant’s community would not react in the way the appellant did. It is therefore submitted that the appellant has failed to satisfy the requirements of ss. 204 and 205 of the Penal Code for possible defence of provocation.
17. The Crown therefore submits that the appellant has failed to show any error in the decision of the trial judge in finding the appellant guilty of murder.

Consideration and reasons for decision

18. Pursuant to s. 30 of the Court of Appeal Rules, 1983, the hearing of this appeal is by way of rehearing. Under s. 23 of the Court of Appeal Act, Chapter 6, the Court has power to make such further or other order as the court below was authorized to make.
19. Turning now to the grounds of appeal, we find ground 1 ambiguous, it lacks particulars and is insufficiently pleaded. This ground therefore fails to comply with the mandatory requirements of s. 24 (2) of the Court of Appeal Rules, which provides that a notice of appeal “shall” state briefly but “specifically” the grounds of appeal. This ground of appeal does not state specifically the “issue of fact” the trial judge had misdirected himself on and the “evidence” he considered which was not available before the court to convict the appellant. This ground also raises a question of mixed law and fact for which leave is required under s. 20 (b) of the Court of Appeal Act, but leave has not been sought.
20. It should also be noted that as a matter of law, an appellate court is not bound to allow an appeal on the ground of a misdirection either as to fact or law or a wrongful withdrawal of a matter from the jury or an improper admission or rejection of evidence unless in the opinion of the appellate court that some substantial wrong or miscarriage of justice had been thereby occasioned. See, Bray v. Ford [1895] UKLawRpAC 54; [1896] A.C 44; Tait v. Beggs [1905] 2 Ir. R. 525 and Lionel Barber & Co. v. Deutsche Bank [1919] A.C 804. This principle is consonant with s. 22 (6) of the Court of Appeal Act, which provides that on any appeal, the Court of Appeal may, notwithstanding that it may be of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has in fact occurred.
21. As we said earlier, the appellant has not specified how the trial judge misdirected himself and this Court is unable to decide whether miscarriage of justice had in fact occurred. This ground is therefore incompetent and we dismiss it.
22. As to ground 2 of the appeal, the trial judge was stating what was said in R v. Somae [2005] SBCA 18, in which the Court considered s. 269 of the Penal Code in a ‘no case’ submission. In Somae, the Court in stating the test to be applied in a ‘no case’ submission said:
    • “It is important to note that the evidence that is to be considered for the purposes of a no case submission must be capable of proof beyond reasonable doubt of the accused’s guilt. It is not enough if it is merely capable of proving the possibility of guilt. It must be capable, if accepted, of proving guilt beyond a reasonable doubt. As the High Court of Australia said in Doney v. R [1990] HCA 51; [1990] LRC (Crim.) 416 at 423”. (Our underlining).
23. In Doney v R [1990] HCA 51; [1990] 171CLR 207, the High Court of Australia said:
    • “...The test is not whether the prosecution has proved its case beyond reasonable doubt but rather whether there is evidence capable of supporting a conclusion beyond reasonable doubt that the accused is guilty”. (Our underlining)
24. His Lordship may not have stated the principle in Somae in the way it was expressed by the court, but the fact is Somae was adopted and followed by the trial judge in finding that the appellant had a case to answer. Thus, in essence, stating the principle in Somae that there was evidence capable of proving the charge beyond reasonable doubt in a trial proper and found the appellant had a case to answer and then conducted a trial after which he found the appellant guilty of the murder. We accept the argument by the Crown that the correct decision was reached regarding the ‘no case’ submission. We therefore dismiss ground 2 of the appeal.
25. Regarding ground 3 of the appeal, the trial judge found that the Crown disproved the appellant’s defence of provocation and found further that the offence was committed with malice aforethought. His Lordship had regard to ss. 204 and 205 of the Penal Code and found that the appellant was the aggressor and that it was appellant’s aggressive actions that caused the deceased to react in hitting the appellant with a Bible. The trial judge rejected the appellant’s evidence that he almost died and was unconscious when the deceased hit him with the Bible. The trial judge also found that the appellant knew that he stabbed the deceased with the kitchen knife and knew that the stabbing would probably cause death or grievous bodily harm to the deceased because soon after stabbing the deceased he went straight to Crown witness Maton and essentially confessed and admitted stabbing the deceased and expressed doubt whether the deceased would survive. His Lordship found that the appellant stabbed the deceased with malice aforethought brought on by the letter the appellant received from the deceased’s clan regarding a customary land, in which the appellant was told he did not own the land. The evidence against the appellant was overwhelming and we accept the submission by the Crown that the conviction was not unsafe.
26. In our view, there is no doubt that there was an element of anger in the actions of the appellant as he confronted the deceased about the letter he received from the deceased’s clan regarding the ownership of the customary land. The anger was actuated by the denial in that letter by the deceased’s clan that he owned the customary land. His subsequent aggressive actions towards the deceased and eventual stabbing of the deceased affirm this view. Furthermore, the lethal weapon he used to attack the deceased on the most vulnerable part of his body and the force used in stabbing the deceased and the serious internal injuries suffered by the deceased from the stabbing all point to the killing being done with malice aforethought. Then soon after stabbing the deceased, the appellant going straight to Maton and confessing the stabbing and expressing doubt whether the deceased would survive, also clearly demonstrate the appellant’s knowledge that the deceased would probably die or at least suffer grievous bodily harm from the stabbing. The appellant therefore knew that stabbing was very serious and could be fatal.
27. The appellant said he was unconscious when the deceased hit him with the Bible. But his actions after stabbing the deceased as discussed above show otherwise. In our view the claim by the appellant that he was unconscious after the stabbing was a recent invention as there is clear undisputed evidence that as soon as he realized that the deceased could not stand up after stabbing him, he went straight to Maton and told him about the stabbing and the seriousness of the stabbing which could be fatal. Then he tried to run away but stopped only when Maton told him not to run away and wait for the police to deal with him.
28. Plainly, hitting the appellant with a Bible by the deceased could not amount to extreme provocation within the meaning of s. 204 (a) of the Panel Code. The appellant was never in a terror of immediate death or grievous bodily harm which could justify him in stabbing the deceased. The actions of the deceased in hitting the appellant with the Bible when reacting to appellant’s aggressive actions were incapable of causing a reasonable person of the appellant’s community to be deprived of the power of self-control and act in the way the appellant did in stabbing the deceased with the knife. The actions of the appellant were unreasonable and disproportionate to any form of provocation offered by the deceased. See, Mungatopi v. The Queen [1991] NTCCA 9; 105 FLR 161; 57 A Crim R 341. In R v. Webb [1977] 16 SASR 309 at 314, Bray CJ, in stressing this point said:
    • “It is therefore clear that the question of proportionality is absorbed in the application of the test of the effect of the provocation upon the ordinary person. The reaction of the accused must not exceed what would have been the reaction of a reasonable man”. (Our underlining).
29. Consequently, we do not find any error in the findings of the trial judge. We therefore dismiss this ground.
30. Regarding ground 4 of the appeal, it is consequential upon our findings on grounds 1 to 3 of the appeal. Thus, these grounds of appeal having been dismissed, the consequence is no substantial miscarriage of justice has in fact occurred. The appellant was also as a result given a fair hearing. This ground is therefore also dismissed.
31. For the foregoing reasons, the appeal is dismissed.

Goldsbrough P
Palmer (CJ)
Member
Gavara-Nanu (JA)
Member