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 6^th 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

3. On 27^th March, 2020, the parties agreed to certain facts in a Memorandum of Agreed Facts (Agreed Facts). The Agreed Facts can be summarized as follows: -
   • (i) (The appellant was from Tawaimare village, Maraulapa Island, East Guadalcanal, Guadalcanal Province and was 35 years old at the time of the offence. The deceased was from Venga village, Santa Cruz Island, Temotu Province. The deceased was the wife of the deceased and she was 30 years old at the time of the offence.
   • (ii) (On 6^th May, 2017, the appellant returned home by boat at about 7pm after watching a football game, which was played at Niumaremare village. At that time, the appellant was under the influence of liquor and soon after arriving home, an argument broke out between the appellant and the deceased. During the argument the appellant assaulted the deceased resulting in the deceased sustaining serious injuries to her body. The deceased died that same night in their family home at Tawaimare village.
   • (iii) The autopsy report by Dr Roy R Maraka confirmed that the cause of death was subarachnoid hemorrhage, as a result of displaced vertebrae due to blunt trauma to the neck.

Primary judge’s decision on verdict

4. 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.
5. 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.
6. Section 202 is set out below for ease of reference: -
   • 202. Malice aforethought may be expressed or implied and express malice shall be deemed to be established by evidence proving either of the following states of mind proceeding or co-existing with the act or omission by which death is caused, and it may exist where that act is unpremeditated-
     • (a) an intention to cause the death of or grievous bodily harm to any person, whether such person is the person actually killed or not; or
     • (b) knowledge that the act which caused death will probably cause the death of, or grievous bodily harm to, some person whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused.
7. 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.
8. 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.
9. 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.
10. 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: -
    • The appellant had an argument with the deceased sometime after he got home from watching a football match. They argued because he did not like his wife asking him why he did not buy rice. During the argument the wife threw their baby on the ground which infuriated the appellant. The appellant as a result went to their kitchen and got a stick and hit the deceased with it. The appellant identified the stick to the police. The appellant also told the police that they did not recover the other stick he hit the deceased with, he told the police that the stick broke from hitting the deceased. The appellant told the police that he first hit the deceased on her left buttock, then on her shoulder blade, the third time was on her right buttock. The appellant wanted to continue hitting the deceased, but the deceased managed to grab the stick on one end. As the appellant was still holding the stick, they both struggled to remove the stick from each other’s hands. While struggling over the stick, the deceased fell on top of sharp stones. The appellant told the police that he hit the deceased six times with the stick. The deceased also excreted on herself when the appellant hit her on the right side of her stomach.
11. 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.
12. 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: -
    • “In my opinion that (sic) she died from subarachnoid hemorrhage as a result of displaced neck vertebrae (spine) due to blunt trauma to the neck. The displaced neck spine severed the blood vessels that ascended to the brain causing the hemorrhage below the arachnoid- the covering of the brain. There are two abrasions at the back of the neck, and thus it could possibly be that there were 2 hits applied to the neck with the stick or wood.
    • On internal examination, the neck spine (backbone) was displaced to the right side. The displacement happened at the level of the 1^st and 2^nd vertebrae (spine). There was subarachnoid hemorrhage at the cerebellum (small brain) – bleeding below the arachnoid, a covering of the brain. There was no hemorrhage in the brain”.
13. 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: -
    • “...What is the cause for the cruel death? One can see the cause from the doctor’s report- serious injuries all over her body (more than 24 injuries – but the more serious were the internal injuries); fatal blows to the left neck; dislocated backbone at the position of the neck tilting to the right; bleeding ascending up through the tissues up to the small brain and blood clot below/around the small brain eventually causing death. All these have the common origin to JO’s reckless assault causing serious external and internal injuries on his wife.
    • Explaining from Figures 1 and 2 (drawings of the back and front body structure of the deceased depicting injuries sustained) the doctor showed that there were two marks (abrasions/bruises) on the left side of deceased’s neck or around that region. Explaining what caused the dislocated backbone, the doctor said it was because of displacement of the backbone at the position of the left neck. Doctor says this usually happens in high energy trauma such as traffic accident, violence, sports or fall. But then the doctor narrowed it down to violence (hit with a stick). Doctor did this because the circumstances surrounding the dislocated backbone was due to violence and not sports or traffic accidents or fall. And when JO did not say his wife had an accident or was playing sports or fell from a tree or something. Jo instead said he assaulted his wife using two sticks. There is no other explanation for the cause of the death that night. The only explanation is JO beat his wife to death using 2 sticks in the disturbing mood of anger and drunkenness (violence)”.
14. 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.
15. 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 (25^th 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.
16. 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

17. The appellant raised 7 grounds of appeal, which can be summarized as follows: -
    • (1) The primary judge erred in finding the appellant guilty of murder, rather than manslaughter; and
    • (2) The primary judge erred in law and in fact in holding that the standard of proof in voir dire in appellant’s case was proof beyond reasonable doubt, thus resulting in miscarriage of justice; and
    • (3) The primary judge erred in law and in fact in that his verdict was unsatisfactory and unsafe as the verdict was not supported by evidence; and
    • (4) The primary judge erred in law and in fact in not considering that the deceased fell backwards and hit her neck on a stone, stood up and ran to a stream where she fell again and laid down in pain suggesting that the deceased died from injury caused by the backward fall rather than the alleged assault by the appellant, thus rendering the verdict unsafe and unsatisfactory; and
    • (5) The primary judge erred in law and in fact and his decision on verdict was unsafe and unsatisfactory in not considering the stick allegedly used for beating the deceased was not tendered in court so that the court could: -
      • (a) be able correctly gauge the size and weight of the stick; and
      • (b) be able to decide whether the fatal injury suffered by the deceased could be caused by the stick, if used as alleged; and
      • (c) be able to decide how much injury could be caused by the stick, if used as alleged.
    • (6) The primary judge erred in law and in fact in not considering that none of the witnesses for the prosecution saw the appellant assault the deceased with stick, thus rendering the decision on verdict unsafe and unsatisfactory; and
    • (7) The primary judge erred in law and in fact when he made inferences based on the appellant’s alleged assault on the deceased when there was no evidence to prove that the appellant had assaulted the deceased, thus rendering the decision on verdict unsafe and unsatisfactory, resulting in miscarriage of justice.

Submissions
By the appellant.

18. 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.
19. 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.
20. 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

21. 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.
22. 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.
23. 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.
24. 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.
25. 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.
26. The appeal should therefore be dismissed.

Considerations and reasons for decision

27. 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: -
    • “The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
28. 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.
29. 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.
30. 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.
31. 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.
32. 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.
33. Consequently, we find that the appellant assaulted the deceased with malice aforethought.
34. 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.
35. The appeal is therefore dismissed.

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