R v Garunu [1986] SBHC 12; [1985-1986] SILR 192 (22 August 1986)

1985-1986 SILR 192

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 23 of 1986

R

v

GARUNU

High Court of Solomon Islands
(Ward C.J.)
Criminal Case No. 23 of 1986

18 and 19 August 1986 at Honiara
Judgment 22 August 1986

Murder - malice aforethought - intent to kill or cause grievous bodily harm - manslaughter - self defence - reasonably necessary force.

Facts:

The accused was attacked by the deceased who was drunk, aggressive and bigger and stronger than the accused. The accused at first tried to move away but as the deceased was chasing him he turned and punched the deceased in the face causing him to fall down and strike the back of his head on the ground. As the deceased tried to lift his head the accused kicked him twice in the head. The post mortem revealed that death was caused either by brain damage caused by the blow to the back of the head or by asphyxia caused by the subsequent kicks jolting the already concussed brain.

Held:

1. The accused caused the death of the deceased but without malice aforethought as there was no intent to kill or cause grievous bodily harm and death or grievous bodily harm were not likely results from a punch in the face or kicks delivered with the amount of force that the accused used.

Accordingly, the accused was acquitted of murder.

2. A man may defend himself to the extent that is reasonably necessary and it is recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. (Palmer v. R. [1970] UKPC 2; (1971) 2 WLR 831 as approved by the Court of Appeal in R. v. Ome (1980/81) SILR.27 followed).

3. After knocking the deceased to the ground the accused had a chance to escape but instead of doing so became the aggressor by kicking the deceased after the peril had passed. Accordingly, the kicks were not reasonable and necessary self defence.

Accordingly, the accused was convicted of manslaughter and was sentenced to three years imprisonment.

Cases considered:

Palmer v. R. [1970] UKPC 2; (1971) 2 WLR 831
R. v. Ome (1980/81) SILR 27

Francis Mwanesalua for Regina
Andrew Radclyffe for the Accused

Ward CJ: The accused is charged with murder of Maclean Sore on the 30th March 1986.

The prosecution witnesses described this as part of an incident at Kukum after the cinema had emptied. The accused, his girl friend, Jenter (PW2), another man Robert, and his girl friend, Lizzian (PW1) had been to the movie together and, afterwards, went to Robert’s house next to and behind Billy Hili’s store.

The accused then went to buy some ice cream and, by the time he returned, the deceased and a friend had arrived in a car and were parked outside the gate to the house.

The prosecution witnesses described the deceased as acting in a drunken manner and calling to Lizzian.

He previously had some sort of relationship with her but she told the court that, by the night of 30th March, it had finished because she discovered he was married. That would seem to be true because, when he arrived, he called for the return of his belongings. Lizzian refused to come out, said she had nothing of his and, if he wanted to see her, he should come to her house in the day time.

The accused was from the same island as Lizzian and found himself in the position of a go-between or messenger for this exchange between the deceased and the girl.

After a short while the deceased got out of the car and a fight started with the accused. Clearly the deceased was angry with the accused and swore at him.

Exactly how the fight started or who struck the first blow is not really important save for the issue of self-defence to which I will return later. The prosecution witnesses agree the fight ended when the accused punched the deceased in the face and he fell to the ground. It is the events at that time which form the basis of the charge.

The prosecution called three eye witnesses to the events that evening. PW1, Lizzian, did not go out to the fight after seeing the argument start and so cannot assist.

PW2, Jenter, saw them start to fight and then returned to the house. When she next came out, the fight had moved to the other side of the road. She saw the accused punch the deceased with a clenched fist in the face and the deceased fall over backwards landing so that his head hit the ground first. She saw the accused do nothing further but she went into the house again as soon as the deceased was knocked to the ground.

PW3, Nathaniel, was a totally independent witness, and I found his testimony was very clear and carefully delivered.

He arrived in a motor vehicle and had to stop because of the crowd which had gathered to watch the fight. He turned off the vehicle’s lights but still had a clear view because of the security lights from the shops.

On his arrival, he saw the deceased hitting the accused and then chasing him. During this chase, the accused turned and hit the deceased in the face causing him to fall to the ground backwards. The witness considered that the deceased’s head hit the ground first. I am satisfied that was the same blow that Jenter saw before returning to the house for the second time.

As the deceased then tried to lift his head, the accused kicked him on the head and, a few seconds later, did it again. After the second kick the deceased lay still and PW3 left the scene. Both kicks were ‘normal’ forward kicks with the toe.

There was no direct evidence of whether the accused died then or subsequently but, the next day, a post mortem examination showed:

1. A laceration of the lower lip and one upper incisor knocked out.

2. A large soft tissue swelling on the left side of the face and neck.

3. A laceration about 2” long on the back of the head.

There was no other external injury and no internal examination was carried out.

In evidence the doctor, PW5, stated that, in his opinion, the cause of death was brain damage but later amplified that to say that, if the victim had been knocked unconscious by the blow to the back of the head and then was kicked with sufficient force to cause the swelling to the face, that jolting of the already concussed brain could have caused the victim to stop breathing and thus die from asphyxia.

After the fight, the accused left the scene and was seen and interviewed by the police the following day at 4.20 pm.

There is no dispute about the interview and it generally accords with the evidence the accused gave to the court on oath. In his evidence, he explained how the deceased sent him into the house with messages for Lizzian a number of times and, when he finally refused to go again, the deceased came out from the car and tried to enter the gate.

The accused blocked his way, was abused by him and, in the end, told the deceased he would call the police. It was at that time the deceased became really angry and punched the accused all over the body. The accused moved away and was pursued. At one stage he was knocked to the ground and the blow cut the bridge of his nose. As he was getting up the deceased kicked him and, when the kick was blocked, fell over himself.

Again the accused moved away and again the deceased grabbed him only to be pulled past so the deceased fell down again somewhere on his head. As he tried to get up, the accused kicked his thigh so he again fell. He did this twice because he felt the deceased was coming to attack him further. The accused suggested these were the kicks seen by PW3 and denied they were to the head.

Subsequently, the deceased stood up and fell back onto his head, attempted to get up once more but fell onto the side of his face and did not move again.

The accused accepted that he may have hit the deceased in the face but insisted he never used a clenched fist and was using only avoiding movements. The two kicks were also simply to prevent the deceased from attacking further. The accused was later found to have a cut to his nose and a fracture of a metacarpal in the right hand. He told the police the latter was inflicted when he fell on it but told the court it was caused by a kick from the deceased.

I found the evidence of PW3, Nathaniel, was credible and carefully delivered and I accept his account of the later part of the fight. I do not accept the accused’s account. I feel he has tailored his account to fit the deceased’s injuries. I accept in the accused’s favour that the deceased was the aggressor and that he may have fallen a number of times but I am satisfied beyond doubt that he finally fell as a result of a punch to the face by the accused and, whilst on the ground, was kicked twice to the head by the accused. Nathaniel’s description of the blow to the face was supported by Jenter. Both witnesses were clearly truthful and accurate and I accept their evidence.

It is on the prosecution to prove all the elements of the offence beyond any reasonable doubt and, to succeed on a charge of murder, they must prove that the acts of the accused caused the death of the deceased with malice aforethought as defined in section 195 of the Penal Code.

The defence have also urged that this accused acted in self defence and it is on the prosecution to disprove that defence.

The first question that must be considered is how the accused died. I am satisfied beyond any reasonable doubt that he died from the blows to his head received during the fight. Whether he died from brain injury caused by the blow to the back of his head as he fell or from asphyxia resulting from a subsequent blow or blows to the face could not be resolved by the doctor. In essence, he said that the accused died from the blows but precisely how depended on the order in which they were inflicted.

However the evidence in the case has supplied the sequence of events about which the doctor could only speculate. I have accepted as accurate and true the evidence of PW3 and, on that and the evidence of the doctor, I am satisfied beyond any reasonable doubt that the punch in the face caused the deceased to fall and strike the back of his head causing the 2” cut. The kicks then caused the swelling of the face and neck. I am equally satisfied all these blows contributed to, and cumulatively caused, the death.

The second question is whether the prosecution have proved malice aforethought. As I have already said, I do not accept the accused’s account that he only used avoiding ‘blows’ and am sure he gave a hard intentional punch to the face.

There was evidence called by the prosecution that the accused had been a student of karate and that part of the normal range of blows were kicks with the toe. However, it was clear on the evidence that the accused was neither a regular nor a dedicated student of martial arts achieving little progress or specialised knowledge. I accept on the evidence that he administered the two kicks without any special skill or expectation of greater effect than a person untrained in martial arts.

I do not accept the accused by any of his actions had an intention to kill nor felt death was a probable result. However, malice aforethought is also established if the accused intended really serious harm or knew it was a likely result.

I cannot accept that anyone would expect grievous harm to result from a single punch to the face but kicks are different. A kick is a very powerful way of inflicting a blow. The deceased was already on the ground and they were to a particularly vulnerable part of the body.

Any reasonable man must realise the potential of such kicks but, in order to assess the true effect, I must look at the evidence for some indication of the amount of force used. The only direct description came from PW3. He described the first kick as “quite forceful because it forced the deceased backward so he couldn’t get up.”

The medical evidence shows that the result of the kicks was a soft tissue swelling of the side of the neck and face. Although the doctor stated it indicated “a very powerful force,” there was no evidence of bony injury. The reason death followed was because of the unfortunate combination with the earlier jolting of the brain rather than extreme force of the kick itself.

In those circumstances, I cannot feel satisfied to the required standard that the blows were hard enough to indicate an intention to cause grievous harm or to indicate such a result was probable.

In those circumstances I must acquit of murder.

I have already found that the deceased died as a result of the act of the accused. If that act was unlawful the accused can be convicted of manslaughter.

The accused has said he was acting in self defence and, if he was, the act would not be unlawful. The law supports the right of a man who is attacked to defend himself but only to the extent of what is reasonably necessary.

I accept that, in this case, the deceased was the aggressor and the accused was trying to avoid the conflict. The deceased was clearly persisting in attacking him and some form of defence was reasonable. In an oft-quoted passage from Palmer v. R, [1970] UKPC 2; (1971) 2 WLR 831, it was said:-

“If there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action.”

That has been adopted with approval here by the Court of Appeal in R. v. Ome (1980-1) SILR 27 and is clearly good law and sound sense.

What was the situation in this case? The accused was trying to escape the unwelcome attentions of a drunken aggressive man - apparently bigger and stronger than he. Unsuccessful in that, he turned and punched his assailant in the face knocking him to the ground. No court would feel that was unreasonable force and the blow knocked his opponent to the ground and gave the accused a chance to escape. Nearby was a friend’s house but he explained he did not go there because he did not want to risk the deceased following him in. He could not, he said, leave altogether because he was scared of the deceased’s wantoks attacking him. Yet throughout this fight there was no sign of intervention by anyone else.

Instead of taking his chance to leave, the accused administered two kicks to the head of the man on the ground.

I cannot accept that was reasonable self defence. On the contrary, the accused was then taking the fight to the deceased and was aggressively pursuing his advantage. The immediate peril had passed and I do not accept the accused believed this was necessary to defend himself.

I am satisfied beyond reasonable doubt that the accused did not act in reasonable and necessary self defence and I reject such a defence.

The evidence clearly proves that the accused’s unlawful act caused the death of the victim and I am so satisfied beyond doubt.

He is convicted of manslaughter.

SENTENCE

It is always a serious matter to take the life of another man and I have no doubt part of the penalty you suffer will be the realisation that you have done so.

In sentencing you I take into account in your favour the fact that you were really drawn into someone else’s dispute and tried, initially, to calm the situation. Thereafter, the deceased was the aggressor and you were clearly for some time trying to disengage from the fight. However, in those few dreadful last seconds you had the advantage over your aggressor and changed the nature of the incident. Anyone who kicks another man, especially when he is on the ground must realise it is a dangerous act and the court must take a serious view of such conduct. I also note your previous character and the effect this must have on your job and future work prospects. Bearing all these matters in mind, I feel the proper sentence is one of 3 years imprisonment. Sentence to take effect from date he entered custody on 30.3.86.