R v Akaua [1980] SBHC 4; [1980-1981] SILR 7 (10 April 1980)

[1980-1981] SILR 7

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 6 of 1980

R.

v

AKAUA

High Court of Solomon Islands
(Davis C J)
Criminal Case No.6 of 1980

10th April 1980

Criminal law - Murder - mens rea circumstantial evidence inference - burden of proof - self-defence - provocation automatism - presumption of intent, - Penal Code, ss 195, 197, 198.

Facts:

The deceased had been drinking and had been behaving in an anti-social manner. The accused heard the deceased banging on the walls of a neighbours hut and heard the deceased call out the accused’s name. The accused left his hut carrying a knife with which he had been cutting up his tobacco and without his spectacles. The accused was in his early sixties and gave evidence that he has poor eyesight and without his spectacles can only see large objects. Outside his hut the accused was struck on the head by the deceased. The accused said that he did not know how he stabbed the deceased but admitted that he must have done so.

Held: that even without medical evidence, the evidence of the blow to the accused’s head struck by the deceased, together with the accused’s own evidence as to his state of mind after receiving that blow, is sufficient foundation for the defence of automatism in the circumstances of the case;

2. that the accused did cause the injury to the deceased that caused his death;

3. that there is no direct evidence as to how, the accused caused the injury from which the deceased died, there is no evidence that the injury was caused by a voluntary as opposed to an involuntary act of the accused:

4. that the accused is acquitted and discharged.

Cases referred to:

Bratty -v- AG for Northern Ireland (1962) 46 Cr App. R.
Woolmington -v- DPP [1935] UKHL 1; (1935) 25 Cr App R 72; (1938) AC 452
R. -v- Tolson [1889] UKLawRpKQB 85; (1889) 23 QBD 168
Kennedy -v- HM Advocate (1944) S.C. (J) 171
Hill -v- Baxter (1958) 42 Cr. App. R. 59
R. -v- Cottle (1958) NZLR 1025
R. -v-Ganthien (1943) 29 Cr App R 113
R. -v- Lobell (1957) 41 Cr. App. R. 100
Cooper -v- McKenna (1960) QLR 419
Mancini -v- DPP (1942) AC 1

For the Crown: F. Kabui
For the Accused: P. O’Regan

Reported by: Roger J Kochowiec

Barrister & Solicitor

Davis CJ: The accused, MARERA AKUA, is charged with the murder of Teiniku Katiewa at Harapa Village, Short-land Islands, on the 20th December 1979.

The events leading up to the death of the deceased as they appear from the evidence in this case were as follows.

On the evening of the 20th December the deceased, who was drunk, behaved in a disorderly manner first by kicking over the toddy containers of Nawere Nawaia (PW2) and breaking one of them while Nawere was in a palm tree collecting toddy. On his actions being questioned by Nuka (PW6) the accused’s son, the deceased struck Nuka and then ran off and came back with a two-edged knife with which he threatened Nuka who fled. The knife was removed from the deceased, and Nawere (PW2) and another man carried the deceased home and tied him up in his house to prevent his creating any further disturbance. However, the deceased managed to get free. He was seen after dark by the accused’s daughter hurrying towards the accused’s house armed with a heavy mangrove stick of the sort used for dehusking coconuts, and shortly afterwards she heard the noise of banging and shouting coming from the direction of the accused’s house. The accused has said this was at about 9p.m. At that time he was sitting in his house with his family and Nawere Nawaia (PW2). They were just talking and the accused, while so engaged, was cutting up his tobacco with a kitchen knife, which has been produced in evidence as Exhibit 2. The accused said that he was told that the deceased had escaped and Nawere says he heard children shouting that the deceased had come armed with .a bush knife. The accused had heard of the events involving the deceased of earlier that evening and he says he was told that the deceased had threatened to kill him. He said he suspected that the deceased would try to come to the accused’s house to create a disturbance because on several previous occasions during the post year he had done so. On each such occasion the deceased had been drunk; he had abused the accused and had on occasion threatened the accused with a knife.

The accused said that he had previously ignored the deceased when this had happened and that on each occasion the deceased had been taken away by other people before he had done any damage. The accused said he had no idea why the deceased had suddenly taken to behaving like this when he was drunk. He denied that the deceased had wanted to marry a widowed daughter of the accused and that the accused had refused to give his consent to this. While confirming the deceased’s antagonistic behaviour towards the accused, none of the other witnesses were able to assign any reason for it. When the accused and Nawere heard the noise of banging on the wall of the neighbouring house in which the accused’s grandchildren were sleeping and heard the name of the accused being called out, they immediately realised that it was the deceased who had come to cause trouble with the accused, and both went outside.

There is evidence that it was a dark night. The accused went out carrying the knife with which he had been cutting up his tobacco, but he was not wearing his spectacles. The accused, who is in his early sixties, has said in court that he has very poor eyesight and that without his spectacles he can only see large objects. On coming out of his house the accused walked round the house one way, Nawere went the other way. The accused’s son, Nuka, also came out of the house when the deceased started banging on the walls. The accused said that he came out of his house to prevent the deceased from damaging his house with his banging and to see that the women and children in the house came to no harm. He said he felt nervous as to what the deceased might do, but that he came out with no intention of fighting the deceased but try to prevent him causing any harm. By the light of a lamp in one of the houses the accused saw what he took to be the deceased’s legs. The deceased called the accused’s name and the accused replied. Almost immediately afterwards, before he could say or do anything, the accused received a heavy blow on the head causing a wound on the left side of his forehead just below the hairline which started bleeding. The accused said that he had no idea what he was struck with. He said that when he was hit he saw stars and fell down. He said he remembered raising his left hand with the knife in it. He indicated how he was holding the knife at the time with the blade protruding between his thumb and fore finger. But he said that he had no idea whether the knife was even pointing at the deceased, and he said he could not say whether the knife had come in contact with anything. The accused said that he then saw the deceased’s shape moving towards him and then going away again. Shortly after that he said he heard Nawere saying that the deceased was dead.

The accused said that while this was happening he saw no one else present apart from the shadowy figure of the deceased. Nawere (PW2) has said, however, that he was about a yard away when the deceased struck the accused. He said it was too dark to see what the deceased struck the accused with, but that it was a long narrow object like a stick or a bush knife. He saw that the blow drew blood on the accused’s forehead. He saw the accused fall forward onto his hands and then get up. He saw the deceased come forward as if to hit the accused again but without doing so fall back and fall onto the ground. He went up to the deceased, found that he was bleeding from a wound on the left side of his chest and then found that the deceased was dead. Nawere says that although he was standing only two pages from the deceased and the accused when all this happened, he never saw the accused strike or aim any blow at the deceased. He says that he saw no one else there apart from the accused and the deceased. He was adamant that he did not see how the deceased acquired the wound in his chest.

Nawere called out to the deceased’s relative that the deceased was dead, and it was only then, according to their evidence, that the accused and Nawere say anyone else came to the scene.

Nawere says that he then went up to the accused who was standing near the deceased holding his knife (Exhibit 2). Nawere said to the accused "Did you bring the knife?" and the accused said "Yes". Nawere took the knife from him and notice fresh blood on it. He said that it was then that he formed the opinion that the accused had killed the deceased with the knife. The accused said that when he got back to his house he found he had blood on his hands.

The following day, the 21st December, the Police and a doctor came to Harapa. The accused was arrested and Nawere handed over the knife (Exhibit 2) to the Police. Dr Gude carried out a post mortem examination of the deceased in which he found that, apart from two very minor injuries on the left ear and the left side of the neck, the deceased had suffered a flesh wound to his back on the right side level with the seventh rib. This was about 1 centimetre wide and extended under the skin ‘but without entering the rib’ cage for about 5 centimetres. He also found that the deceased had suffered a much more serious wound on the left side of the chest. This wound extended for about 15 centimetres cutting through the 4th rib and piercing the right ventricle of the heart. Dr Gude found that it was this wound that had caused the death of the deceased.

On the 23rd December 1979 the accused made a statement under caution in which described what had happened in terms similar to those given in his evidence. He said that he did not know how he had stabbed the deceased but he realised that he must have done so because he had had a knife in his hand when he was struck on the head by the deceased and that immediately thereafter the deceased was found to be dead from what appeared to be a knife wound in the chest. He said he did not mean to kill the deceased and added "but since I was fell down struggle with my head round therefore I did not know how I held the knife." He concluded by saying "it is true that I killed Teinuku but because I was defending myself for being killed by this man therefore I done this serious trouble." He said the same on being formally charged with murder on the 7th February 1980.

Apart from the accused’s admission that it was he who killed the deceased, the evidence that he did so is entirely circumstantial. No one saw the accused cause a wound or wounds to the deceased in any way consistent with the wounds the deceased suffered. No one saw the accused hit the deceased at all. The accused himself says he has no knowledge of having struck the deceased with his knife or anything else. The only direct evidence against the accused is that immediately after the encounter between the deceased and the accused the deceased was found dead with a wound in the left chest, which Dr Gude subsequently found was the cause of his death, and the accused was found holding a knife with fresh blood on it. The obvious inference made by everyone, including the accused in his caution statement and in evidence, is that the accused caused the death of Teinuku Katiewa by stabbing him with the knife he was holding in his hand at the time he met the deceased.

Both Nawere and the accused have said that they saw no one else present besides themselves and the deceased though it appears from the evidence of Nuka, the accused’s, son (PW6) that he must have been somewhere quite near as no doubt were others of the accused’s family who had been disturbed by the deceased’s arrival and aggressive behaviour. There is, however, no evidence that anyone else besides the accused caused the wound which caused the deceased’s death. Dr Gude said that death would have followed within about a minute of the infliction of that wound.

While it is quite possible that the flesh wound found on the deceased’s back was caused earlier in the day in the preceding events involving the deceased, the chest wound could only have been caused at the time that he and the accused met and the deceased struck the accused.

To the question is, there, any direct evidence that the accused inflicted the wound to the chest of the deceased, the answer must be No. The wound to the deceased’s chest, according to Dr Gude, was quite clearly a forceful stab wound extending about 15 cm into the deceased’s chest in downward direction of about 30°, which pierced the heart. There is no evidence that the accused made any gesture towards the deceased that could have caused such a wound. The only evidence as to the knife at the time the accused and the deceased met is that of the accused himself who says that when he was struck on the head by the deceased he held up his left hand with the knife in it pointing upwards. It is inconceivable in my view that this action would have caused the deceased’s injury, even if, as Mr O’ Regan suggests, the deceased were bending almost double over the accused of which there is absolutely no evidence.

The only answer is therefore that suggested by counsel for the Crown that the accused must have stabbed the deceased violently, in the normal way, but without this having been seen by Nawere (PW2), although he was standing next to the accused, and, according to the accused, without the accused’s own knowledge.

Mr Kabui, for the prosecution, has suggested that the accused is lying when he says that he does not know how or even whether he stabbed the deceased. It is to be observed, however, that the accused said virtually the same in his caution statement taken two days after the deceased’s death as he has in evidence, and having seen and heard the accused give evidence in court, I am by no means convinced that he is not telling the truth when he says that, having been struck on the head by the deceased, he really has no idea what happened next until he saw the deceased apparently coming towards him and then fall backwards.

There is in, my mind no doubt that the blow to the, accused’s head struck by the deceased was a heavy blow. There is evidence that it bled profusely and that it later received a substantial dressing, though it did not requiring, stitches. Nevertheless, in the absence of any medical evidence on the matter, it appears to me to be a blow that could have caused temporary concussion.

Throughout the burden remains on the prosecution to satisfy the court beyond reasonable doubt that the accused caused the death of the deceased "with malice aforethought" as defined in section 195 of the Penal Code.

As a first defence, the accused and his counsel have put forward that of self-defence. But as Mr Kabui has said, there really is no evidence of this at all. Nawere (PW2), the only eye-witness, says nothing about the accused defending himself and the accused in evidence says certainly that he went out to try to protect his family and property, but he says that before he knew what had happened he was struck a violent blow on the head by the deceased. He gave no evidence as to defending himself because he says that after receiving the blow on the head he does not remember doing anything at all to the deceased.

Similarly in so far as concerns the defences of provocation and causing more harm than justified referred to in sections 197 and 198 of the Penal Code, put forward by counsel for the defence, the accused has given no evidence whatever that he was provoked by the accused or that he did in fact wound the deceased. He does not say that he stabbed the deceased having lost his temper at the deceased’s challenging and aggressive behaviour towards him or as a result of the blow struck by the deceased. His evidence is not that he lost control of himself as a result of provocation, but that he was knocked silly by the deceased’s blow and has no exact knowledge of what, if anything, happened immediately after that. Nor does he say that when he met the deceased he lost control of himself through terror of immediate death or grievous harm at the hands of the deceased. All he says is that as soon as he met the deceased the deceased struck him on the head and that he cannot say exactly what happened next.

Although all these defences have been put forward by defence counsel, I cannot see that it is open to me to give any of them serious consideration in the absence of any evidential support to any of them from the accused himself or any other witness.

But counsel for the defence also suggested to the court in his closing address that this was a case in which the defence of automatism applied, being one in which the accused had stabbed the deceased involuntarily while in a state of concussion from the blow to the head he had received from the deceased. As I say, the first mention of this defence was made in counsel’s closing address. The Court had the benefit of no medical evidence that the accused could, unknown to himself after receiving a blow to the head of the sort described in evidence, have stabbed the deceased in the manner in which Dr Gude described the deceased’s chest injury to have been caused. The only evidence is that of the accused himself and that of Nawere that the accused received a severe blow to the head at the time that the deceased must have received the injury that caused his death.

Is this evidence enough on which to base the defence of automatism?

In the case of Bratty v. Attorney-General for Northern Ireland [1941] CthArbRp 449; (1962) 46 CAR 1 (H.L.), Lord Denning said this (p. 16): -

"My Lords, in the case of Woolmington v. The Director of Public Prosecutions [1935] UKHL 1; (1935) 25 Cr. App. R. 72 at p. 96; (1935) A.C. 452 at p. 482 Viscount Sankey L.C. said that "when dealing with a murder case the Crown must prove (a) death as the result of a voluntary act of the accused and (b) malice of the accused." The requirement that it should be a voluntary act is essential, not only in a murder case, but also in every criminal case. No act is punishable if it is done involuntarily: and an involuntary act in this context - some people nowadays prefer to speak of it as "automatism"- means an act which is done by the muscles without any control by the mind such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing such as an act done whilst suffering from concussion or whilst sleep-walking. The point was well put by Stephen J. in 1889: "Can anyone doubt that a man, who, though he might be perfectly sane, committed what would otherwise be a crime in a state of somnambulism, would be entitled to be acquitted? And why is this? Simply because he would not know what he was doing," see Tolson [1889] UKLawRpKQB 85; (1889) 23 Q.B.D. 168, 187."

And later (p. 20)

"My Lords, I think that the difficulty is to be resolved by remembering that, whilst the ultimate burden rests on the Crown of proving every element essential in the crime, nevertheless in order to prove that the act was a voluntary act, the Crown is entitled to rely on the presumption that every man has sufficient mental capacity to be responsible for his crimes: and that if the defence wish to displace that presumption, they must give some evidence from which the contrary may reasonably be inferred. Thus a drunken man is presumed to have the capacity to form the specific intent necessary to constitute the crime, unless evidence is given from which is can reasonably be inferred that he was incapable of forming it, see the valuable judgment of the Court of Session in (Kennedy v. H.M. Advocate, supra) 1944 S.C. (J) 171 at p. 177 which was delivered by Lord Normand. So also it seems to me that a man’s act is presumed to be a voluntary act unless there is evidence from which it can reasonably be inferred that it was involuntary. To use the words of Devlin J., the defence of automatism "ought not to be considered at all until the defence has produced at least prima facie evidence," see Hill v. Baxter (1958) 42 Cr. App. R. at p. 59; (1958) 1 QB at p. 285; and the words of North J. in New Zealand: "unless a proper foundation is laid, "see Cottle (1958) NZLR at p. 1025. The necessity of laying this proper foundation is on the defence: and if it is not so laid, the defence of automatism need not be left to the jury, any more then the defence of drunkenness (Kennedy v. H.M Advocate, supra), provocation (Gauthier (1943) Cr. App. R. 113) or self-defence (Lobell (1957) 41 Cr. App. R. 100; (1957) 1 QB 541) need be.

What then is a proper foundation? The presumption of mental capacity of which I have spoken is a provisional presumption only. It does not put the legal burden on the defence in the same way as the presumption of sanity does. It leaves the legal burden on the prosecution, but nevertheless, until it is displaced, it enables the prosecution to discharge the ultimate burden of proving that the act was voluntary. Not because the presumption is evidence itself, but because it takes the place of evidence. In order to displace the presumption of mental capacity, the defence must give sufficient evidence from which it may reasonably be inferred that the act was involuntary. The evidence of the man himself will rarely be sufficient unless it is supported by medical evidence which points to the cause of the mental incapacity. It is not sufficient for a man to say "I had a blackout": for "blackout," as Stable J. said in Cooper v. McKenna (1960) Queensland L.R. at p. 419, "is one of the first refuges of a guilty conscience and a popular excuse." The words of Devlin J. in Hill v. Baxter (1958) 42 Cr. App. R. at p. 59; (1958) 1 QB at p. 285 should be remembered: "I do not doubt there are genuine cases of automatism and the like, but I do not see how the layman can safely attempt without the help of some medical or scientific evidence to distinguish the genuine from the fraudulent." When the only cause that is assigned for an involuntary act is drunkenness, then it is only necessary to leave drunkenness to the jury, with the consequential directions, and not to leave automatism at all. When the only cause that is assigned for it is a disease of the mind, then it is only necessary to leave insanity to the jury, and not automatism. When the cause assigned is concussion or sleep-walking, there should be some evidence from which it can reasonably be inferred before it should be left to the jury. If it is said to be due to concussion, there should be evidence of a severe blow shortly beforehand. If it is said to be sleep-walking, there should be some credible support for it. His mere assertion that he was asleep will not suffice.

Once a proper foundation is thus laid for automatism, the matter becomes at large and must be left to the jury. As the case proceeds, the evidence may weigh first to one side and then to the other: and so the burden may appear to shift to and fro. But at the end of the day the legal burden comes into play and requires that the jury should be satisfied beyond reasonable doubt that the act was a voluntary act.

I refer also to the obiter dictum of the Lord Chancellor in the same case at p. 14: -

"Where the defence succeeds in surmounting the initial hurdle (see Mancini, supra), and satisfies the judge that there is evidence fit for the jury to consider, the question remains whether the proper direction is - (a) that the jury will acquit if, and only if, they are satisfied on the balance of probabilities that the accused acted in a state of automatism; or (b) that they should acquit -if they are left in reasonable doubt on this point. In favour of the former direction it might be argued that, since a defence of automatism is (as Lord Goddard said in Hill v. Baxter (supra) very near a defence of insanity, it would be anomalous if there were any distinction between the onus in the one case and in the other. If this argument were to prevail, it would follow that the defence would fail unless they established on a balance of probabilities that the prisoner’s act was unconscious and involuntary in the same way as, under the M’Naghten Rules, they must establish on a balance of probabilities that the necessary requirements are satisfied.

Nevertheless, one must not lose sight of the overriding principle, laid down by this House in Woolmington’s case (supra), that it is for the prosecution to prove every element of the offence charged. One of these elements is the accused’s state of mind; normally the presumption of mental capacity is sufficient to prove that he acted consciously and voluntarily and the prosecution need go no further. But, if, after considering evidence properly left to them by the judge, the jury are left in real doubt whether or not the accused acted in a state of automatism, it seems to me that on principle they should acquit because the necessary mens rea - if indeed the actus reus - has not been proved beyond reasonable doubt."

I sit in this case as both judge and jury, as judge of both law and fact. It is therefore for me to decide (1) as a matter of law, whether the evidence in this case discloses a sufficient foundation for the defence of automatism and (2) as a matter of fact, whether I am satisfied beyond reasonable doubt (a) that the accused did cause the wound from which the deceased died and (b) that he was not in a state of automatism when he did so.

As regards (1), I have come to the conclusion that, even without medical evidence, the evidence of the blow to the accused’s head struck by the deceased, together with the accused’s own evidence as to his state of mind after receiving that blow, is sufficient foundation for the defence of automatism put forward in this case.

As regards 2(a) I have come, to the conclusion that I am satisfied beyond reasonable doubt that the accused did cause the injury to the deceased that caused his death. I should add here that I am not satisfied beyond reasonable doubt that the accused caused any of the other injuries found by Dr. Gude on the deceased’s body.

As regards 2(b), there is no direct evidence before me as to how the accused caused the injury to the deceased’s chest from which the deceased died. There is no evidence that this was caused by a voluntary as opposed to an involuntary act of the accused. In my view the prosecution have not been able to discharge the burden upon it that the accused when he struck. The deceased was acting voluntarily and with knowledge that what he was doing would probably cause the death of, or grievous bodily harm to, the deceased. Accordingly I find that I am not satisfied beyond reasonable doubt that the accused killed the deceased with malice aforethought. I am not satisfied beyond reasonable doubt that when he struck the deceased the accused was not in a state of automatism in that he struck the deceased, without any knowledge as to what he was doing, involuntarily, acting as an automaton as a result of the blow to the head he had received from the deceased. If he had no knowledge of what he was doing at the time he struck the deceased he cannot be found guilty of murder and he is entitled to be acquitted.

Accordingly I acquit the accused and he is discharged.