R v Loumia [1984] SBHC 15; [1984] SILR 51 (30 December 1984)

[1984] SILR 51

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No.7 of 1984

R

v

LOUMIA & OTHERS

High Court of Solomon Islands
(Sir John White ACJ)
Criminal Case No.7 of 1984

21-23, 26-30 December 1984 giving full reasons for direction to assessors given on that date.

Murder - reduction to manslaughter under S. 197(c) of the Penal Code (belief in legal duty to kill etc) - duty asserted under custom amounting to law by cl. 3 (1) of Schedule 3 of the Constitution - whether customary law not to apply) (by cl. 3(2)) as inconsistent with S. 4 of the Constitution (protection of right to life).

Facts

The accused Loumia and others were charged on three counts of murder and tried before a judge sitting with assessors. The killings took place in the course of a fight between the accused’s people (the Kwaio) and another group (the Agie). During this fight, Loumia (a pagan) saw one of his people shot and wounded with an arrow and another killed by the Agie men. Amongst other defences put forward on his behalf, it was maintained that he was under a customary duty to kill or attempt to kill those responsible. By cl. 3(1) of Schedule 3 of the Constitution, this amounted to a legal duty. Believing in this duty in good faith and on reasonable grounds, Loumia claimed that by S. 197 (c) of the Penal Code, he would be guilty of manslaughter only, and not murder.

Held:

The assessors were not to consider the defence of belief in legal duty. Where a customary law provided for the killing of a person in circumstances other than those set out in S. 4 of the Constitution (judicial execution, defence of person or property, arrest or prevention of escape, suppression of riot etc., prevention of crime or lawful act of war), then it was inconsistent with the Constitution and with the Penal Code. So by cl. 3(2) of Schedule 3 and by S. 2 of the Constitution, no such duty existed in law.

(Loumia was unanimously convicted of murder by the assessors and judge, and sentenced to imprisonment for life. On 8 January 1985 he appealed against conviction to the Court of Appeal (CRA 1/85, still pending).

Cases considered:

R -v- Sade Iro (CRC 3/79, unrep)
Gerea & Others -v- R (CRA 1/84, to be reported sub. nom, Gerea & Others -v- DPP [1984] SILR 161).

Francis Mwanesalua, Director of Public Prosecutions, in person.
Kenneth Brown, Public Solicitor, and John Muria for the accused.

Sir John White ACJ: During my summing-up in this case I dealt with Mr Brown’s submission that the accused Loumia was entitled to invoke S. 197(c) of the Penal Code. I quote the relevant passage of my summing-up:

“Now, I want to come back to that, because I deal next with the other defences which Mr Brown raised. The second point raised by him was that he acted in the belief and in good faith and on reasonable grounds that he was under a legal duty to cause the death or to do the act which he did (legal duty means required by law) and it was argued that the legal duty was a customary law to kill in the circumstances. The custom evidence relied on was that having seen one brother wounded and another killed, he was under a custom duty to kill or attempt to kill the persons who had killed his brothers even if it meant himself being killed. It was pointed out that the accused was pagan and that he did as a pagan Kwaio was required to act in accordance with his custom in doing what he did. You heard the matter argued yesterday. I pointed out to you at the time what was being done was an argument as to law and it would be necessary for me to rule upon that and my direction to you is that that is not the law. I will state my reasons quite briefly, but I may find it necessary to state them in more detail. That has nothing to do with you, but to put the matter on record. But in the meantime, it is proper, I think, to state briefly how I rule on the question of the application of the law to what Mr Brown has submitted under this head. The Schedule to the Constitution, Schedule 3 to the Constitution, paragraph 3, says:

“Subject to this paragraph customary law shall have effect as part of the law of Solomon Islands.”

Immediately following that is the next sub-paragraph which provides:

“That any customary law which is inconsistent with the Constitution or any Act of Parliament shall not apply.”

The Constitution itself is very clear. It refers to the fundamental rights and freedoms of the individual in Section 3 and refers there specifically to the right to life; and in the 4th section of the Constitution it says:

“No person shall be deprived of his life intentionally” except in circumstances there set out which do not include a customary law but specific situations well known to the law.”

I rule that in a case where someone is killed in Solomon Islands the statutory provisions of the Penal Code apply and I direct you that any customary law which purports to entitle a person to kill another person on grounds of custom is inconsistent with the Penal Code and the Constitution and accordingly does not have effect as a part of the law of Solomon Islands. This is a ruling as to law which must be accepted in this Court, subject only to being challenged in the Court of Appeal.”

In the course of his submissions during the trial Mr Brown referred to R v. Sade Iro S.I. Reports Criminal Case No.3 of 1979, a decision of Davis C.J., sitting as a judge alone. In that case the verdict was “Not guilty of murder but guilty of manslaughter”, on the ground that the accused’s honest belief that he was under a legal duty (under customary law) to attack the deceased was “an extenuating circumstance as specified in S. 197 of the Penal Code reducing what would otherwise be murder to manslaughter.” Mr Brown went on to say that he was unable to support the decision in that case because in fact there was no evidence of the customary law before the Court. The reasons and conclusion, however, were properly raised by Mr Brown.

In the present case evidence was called to establish that there was a duty “in custom” on the accused Loumia “to kill the persons who had killed his brothers even if it meant himself being killed”. Assuming that to be so according to the relevant “customary law” in the particular area of Malaita my conclusion, as stated above, was that such “customary law” was inconsistent with the Constitution and with the Penal Code of Solomon Islands. Accordingly, I declined to accept the view expressed by the learned Chief Justice in R. v. Sade Iro (supra). I refer again to Mr Brown’s concession that the decision in that case could not be supported on the facts, and to my observation that the question I have had to decide in this case was not the subject of any submissions by Counsel in R. v. Sade Iro. It should be added that it appears from the judgment that Counsel for the accused in that case had not relied on S. 197(c),

It is obviously of great importance that the law should be understood. It should also be understood that any person who is a party to any action based on “customary law” which is inconsistent with the Constitution and contrary to the law of the Solomon Islands may be guilty if such action is in breach of the Penal Code. Under S. 21 of the Penal Code a person is deemed to have taken part in committing an offence and to be guilty of the offence in the following cases:

(a) every person who actually does the act or makes the omission which constitutes the offence;

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c) every person who aids or abets another person in committing the offence;

(d) any person who counsels or procures any other person to commit the offences.

The decision in this case is that the customary law relied on has been held to be “inconsistent” with the Solomon Islands Constitution. As was recently stated in the Court of Appeal in GEREA and Others v. Reginam (delivered 11 December 1984):

“By S. 2 of the Constitution it is provided that the Constitution is the supreme law of Solomon Islands and if any other law is inconsistent with it, that other law shall, to the extent of the inconsistency, be void.”