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Oai v R [2023] SBCA 37; SICOA-CRAC 9021 of 2022 (13 October 2023)

IN THE SOLOMON ISLANDS COURT OF APPEAL


Case name:
Oai v R


Citation:



Decision date:
13 October 203


Nature of Jurisdiction
Appeal from Judgment of the High Court of Solomon Islands (Keniapisia J)


Court File Number(s):
9021 of 2022


Parties:
Joseph Oai v Reginam


Hearing date(s):
9 October 2023


Place of delivery:



Judge(s):
Hansen P
Gavara-Nanu JA
Lawry JA


Representation:
S Aupai for Appellant
A Kelesi for Respondent


Catchwords:



Words and phrases:



Legislation cited:
Penal Code Act S 200[cap 26], S 202
Evidence Act 2009 S 13 (1) (a), S 168 (2)
Court of Appeal Act S 23 (1)


Cases cited:
Havimana [2011] SBCA 23,Kekev Regina [2006] SBCA 1, DPP v Ping Lin [1972] AC 574, Ibrahim v R [1914] AC 599, R v Sartori [1961] Crim LR 397, R v Prager [1972] 56 CR App 151, Thugatia v Reginam [2013] SBCA 5,Bolanic v R [2011] SBCA 26, Natei v R [2013] SBCA 14, House v King [1936] HCA 40, Australia Coal and Shale Employees Union v The Commonwealth [1953] HCA 25; [1956] 94 C.L.R 621


ExTempore/Reserved:
Reserved


Allowed/Dismissed:
Dismissed


Pages:
1-15

Judgment of the Court

  1. The appellant was tried in the High Court on a charge that he on 6th May, 2017, murdered one Madlyn Menoni (deceased), who was his wife contrary to s. 200 of the Penal Code Act, (Cap. 26). The appellant was found guilty of the charge after a trial.
  2. The principal allegation by the prosecution was the deceased died from serious injuries to her body after being assaulted by the appellant with sticks. It was alleged she was attacked on the most vulnerable parts of her body, thus causing her serious injuries and death. The prosecution alleged the assaults were committed with malice aforethought.

Agreed facts

  1. On 27th March, 2020, the parties agreed to certain facts in a Memorandum of Agreed Facts (Agreed Facts). The Agreed Facts can be summarized as follows: -

Primary judge’s decision on verdict

  1. The primary judge noted that main allegation by the prosecution was the accused (appellant) hit the deceased twice with a stick on the back of her neck on the left side. The impact from the blows caused the neck bone to dislocate and move to the right. The blows and dislocation of the neck bone also caused brain hemorrhage and blood vessels around the neck region to be severed. The primary judge noted the prosecution claim that appellant used excessive force when assaulting the deceased and had intended to cause grievous bodily harm.
  2. The primary judge noted that prosecution premised its case on the second leg of s. 202 of the Penal Code, viz; causing the death with malice aforethought.
  3. Section 202 is set out below for ease of reference: -
  4. His Lordship said even if there was no express intention to cause death, it was open for the court to find implied intention to cause death. The primary judge said, there was evidence for the court to imply that appellant knew or ought to have known that striking the deceased with a stick twice with force on the neck would likely cause grievous bodily harm or death.
  5. The primary judge noted the claim by defence that appellant hit the deceased with a stick five or six times on her buttock. The deceased then held the stick on one end and tried to pull it off the appellant who was holding onto the other end of the stick. While struggling over the stick, the deceased fell backwards and fell on sharp stones. Thus, the defence argued that deceased died from the combined effect of five or six blows to her buttock with a stick by the appellant and falling backwards onto sharp stones. The defence also claimed the deceased could have fallen on sharp stones while running to a small pool of water near her house to cool her body, after being assault by the appellant.
  6. The trial court found two threshold issues. First, whether the appellant struck the deceased on the left side of the neck with a stick causing the neck bone to dislocate and blood vessels around the neck region to be severed thus causing brain hemorrhage and death. Second, whether the appellant had malice aforethought when assaulting the deceased with sticks and knew or ought to have known that such assaults could cause grievous bodily harm or death.
  7. The primary judge referred to the admissions by the appellant in his record of interview which he found were voluntary. Those admissions can be summarized as follows: -
  8. The primary judge found other independent evidence besides appellants own admissions in the record of interview confirmed that he used two sticks to assault the deceased, and one of the sticks broke on the deceased’s body.
  9. The report by the pathologist, Dr Maraka who performed the autopsy was admitted into evidence by consent. The trial judge found the report showed bleeding in the brain, which was caused directly by the dislocation of the neck bone joining the spinal cord. The following part of the report was relied on by the primary judge: -
  10. The primary judge said, the details of how the appellant assaulted the left side of the deceased’s neck may not have been clear, but the autopsy report and the admissions by the appellant in his record of interview, showed clearly the deceased died from the assaults by the appellant. The pertinent excerpts of the primary judge’s judgment appear as follows: -
  11. His Lordship then considered whether the appellant had malice aforethought viz; the necessary intention or the state of his mind to know or ought to have known that the types of assaults on the deceased were likely to cause death or grievous bodily harm.
  12. His Lordship accepted the prosecution’s claim that appellant attacked the deceased with malice aforethought. Thus, the prosecution satisfied the elements of murder under s. 200 of the Penal Code which his Lordship said had to be read together with s. 202, for the purposes of establishing malice aforethought against the appellant in committing the offence. His Lordship said, taking appellants admissions together with the autopsy report, the appellant was clearly guilty of murder. His Lordship followed and adopted Havimana v. Regina [2011] SBCA 23; CA-CRAC 018 of 2011 (25th November, 2011), in which the Court said the test is subjective one, when considering whether an offender had malice afore thought, so that the Court will not only look at the evidence of the offender but other evidence as well to ascertain the offender’s knowledge and the state of mind at the time of the offence.
  13. Although the appellant denied the prosecution’s main allegation that he struck the deceased directly on the left side of the neck, the primary judge said the appellant admitted striking the deceased on the shoulder blade. His Lordship said because the appellant was intoxicated with liquor, and the incident happened at night and was dark, the appellant could not be sure where exactly he struck the deceased with the stick. The argument by defence that the deceased could have died from falling backwards onto sharp stones or slipping and falling on stones while running to a pool of water was rejected because the types of injuries sustained by the deceased could not support such theory.

Grounds of appeal

  1. The appellant raised 7 grounds of appeal, which can be summarized as follows: -

Submissions
By the appellant.

  1. Mr Stanley Aupai, of counsel for the appellant submitted that primary judge erred in ruling on voir dire that he was satisfied beyond reasonable doubt that the appellant’s caution statement in his record of interview with police was voluntary and was obtained fairly by the police. It was submitted that decision was inconsistent with s. 13(1) (a) of the Evidence Act, 2009, which provides that the standard of proof in any proceeding where the court has to decide whether a piece of evidence on facts should be admitted is on the balance of probabilities. The primary judge therefore made a “gross mis-statement of the law”, and it amounted to miscarriage of justice. It was submitted that pursuant to s. 23 (1) of the Court of Appeal Act, the decision should be set aside, and the conviction quashed.
  2. It was further argued that the decision was not supported by evidence. Reliance was placed on Dr Maraka’s evidence, in which he told the primary court that it was possible that neck injury sustained by the deceased could be caused by the deceased falling backwards on the sharp stones. It was also argued that 24 bruises and lacerations found on the body of the deceased by Dr Maraka, which were in evidence could have been caused by small sharp stones, when she fell and ran to a nearby pool of water. It was argued that such possibilities raised or could have raised doubts in the primary judge’s mind whether the beatings by the appellant was the actual cause of death.
  3. It was also submitted the primary judge erred in convicting the appellant without the sticks the appellant allegedly used to assault the deceased with being tendered in court and seeing them. This amounted to an unfair trial, thus rendering the conviction unsafe and unsatisfactory.

A By the respondent

  1. Mr. Andrew Ega Kelesi of counsel for the respondent submitted the primary judge correctly found that appellant assaulted the deceased with two sticks. The primary judge was also right in inferring that because the appellant was intoxicated with liquor, and it was night and dark at the time of assaulting the deceased, the blow to the left shoulder with the stick connected with the left neck bone, but the appellant did not realize it.
  2. It was also submitted that Dr Maraka’s autopsy report specifically ruled out any possibility that deceased suffered the dislocation of the neck bone from falling backwards onto the stones. The doctor found the neck injury was due to “high energy trauma” such as a violent blow to the neck.
  3. Regarding the issue of malice aforethought, it was submitted that primary judge was right in finding that either the appellant knew or ought to have known that the types and the number of blows he delivered to the deceased’s body, especially to the neck with a stick twice, could probably cause grievous bodily harm or death.
  4. It was submitted that the criminal standard of proof applied by the primary judge in finding the appellant’s admissions in the record of interview voluntary was consistent with s. 168 (2) of the Evidence Act, 2009, which relates specifically to admissions by an accused in a record of interview. Several cases were relied upon to submit that primary judge did not err in applying the criminal standard of proof. In any case the admissions were admitted into evidence by consent, so really no issue should be raised by the appellant in this regard. See, Keke v. Regina [2006] SBCA 1; CA-CRAC 008, 009, and 11 of 2005 (25 May, 2005); DPP v. Ping Lin [1976] AC 574; Ibrahim v. R [1914] AC 599; R v. Sartori [1961] Crim LR 397; R v, Prager [1972] 56 Cr App R 151; Thugatia v. Reginam [2013] SBCA 5; Criminal Appeal Case 21, 22, 23 of 2012 (26 April, 2013). It was submitted that it was a misconception by the appellant to rely on s. 13 of the Evidence Act, because the section relates to findings of fact and whether a particular fact should be admitted into evidence or not.
  5. It was further submitted that it was a misconception by the appellant to argue that primary judge erred in law in convicting the appellant without the two sticks the appellant used to assault the deceased with being produced in court. There was evidence describing the types of sticks the appellant used to assault the deceased, thus it was safe for the primary court to find the appellant assaulted the deceased with two sticks and was guilty as charged.
  6. The appeal should therefore be dismissed.

Considerations and reasons for decision

  1. It is a well-established principle of law that an appellate court will only interfere with the decision of the primary court if the primary court applied wrong principles or considered matters it should not have considered or failed to consider matters it should have considered. See Bolanic v R [2011] SBCA 26, and Natei v. R [2013] SBCA 14. These principles were stated quite succinctly by the High Court of Australia in House v. King [1936] HCA 40; (9136) 55 C.L.R 499 at 504 505 per Dixon, Evatt and McTiernan JJ: The Court said: -
  2. Alternatively, the appellate court may still interfere with the primary court’s decision where there is no identifiable error, but the resulting judgment or order is unreasonable, or plainly unjust and such an error can be inferred. See, Australian Coal and Shale Employees Union v. The Commonwealth [1953] HCA 25; (1956) 94 C.L.R 621 per Kitto J at 627.
  3. In this case, the primary judge applied the criminal standard of proof on voir dire, to find that the admissions by the appellant in his record of interview were voluntary. We find the primary judge did not err in applying the criminal standard of proof on voir dire for two reasons. First, the governing legislation, viz; the Evidence Act, 2009, provides specially under s. 168 (2) that a trial court must be satisfied beyond reasonable doubt that admissions by an accused in a record of interview were voluntary before admitting them into evidence. Second, there are binding decisions of this Court that the trial court must be satisfied to the criminal standard of proof that an admission by an accused in his/her record of interview was voluntary to be admitted into evidence.
  4. The appellant made clear admissions in his record of interview that he assaulted the deceased with two sticks, which were round. They were described as firewood, and one witness referred to one of the sticks as “mangrove”. The appellant also admitted using two sticks to assault the deceased and the first stick broke on the deceased’s body while assaulting her.
  5. There is undisputed evidence that deceased defecated as a result of the beating by the appellant and her body and clothes were soiled with faeces. She was weak and was moaning in pain. There is also evidence from the doctor that she had twenty-four (24) bruises and abrasions all over her body. After the deceased was assaulted, she went to a pool of water to cool her body and while on her way to the pool, she fell at least a couple of times. All these clearly indicate that she was severely beaten by the appellant. The doctor also said falling on the stones could not cause the neck bone to dislocate and move to the right side. The doctor said falling on the stones, could only result in hemorrhage, not dislocation of the neck bone or spine.
  6. There was overwhelming evidence that the deceased died as a direct result of severe beating with sticks by the appellant. It was immaterial the two sticks were not produced in court, the descriptions given of the sticks by prosecution witnesses were sufficient for the primary judge to make appropriate findings and conclusions regarding their length, size and type and whether they could cause the types of injuries suffered by the deceased which led to her death.
  7. Consequently, we find that the appellant assaulted the deceased with malice aforethought.
  8. We are therefore satisfied that the appellant assaulted the deceased severely multiple times which resulted in her death. We cannot find any error in the decision of the primary judge to find the appellant guilty of murdering the deceased.
  9. The appeal is therefore dismissed.

Hansen (P)
Gavara-Nanu (JA)
Lawry (JA)


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