R v Zamagita & 6 Others [1986] SBHC 24; [1985-1986] SILR 223 (19 September 1986)

1985-1986 SILR 223

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 34 of 1986

R

v

ZAMAGITA & 6 OTHERS

High Court of Solomon Islands
(Ward C.J.)
Criminal Case No. 34 of 1986

9 - 12, 15 September 1986 at Honiara
Judgment 19 September 1986

Murder - Grievous Bodily Harm - self defence - defence of persons and property

Facts:

Two men, each drunk, armed with a club and bush knife respectively, went to a house. A. climbed the back steps and began kicking at the door. The other, B, stood guard at the bottom of the steps. The seven Accused, who had earlier agreed to stand-by in case of trouble, heard screams from women and children in the house and came to assist. B. advanced upon the accused with his bushknife until he was knocked down with a stick. At that point A forced his way into the house, ran through it and fell down the front steps whereupon he was attacked by the group of accused with sticks, stones, and iron bars, which attack only stopped when he lay down feigning death. The next day the body of B was found, the cause of death being asphyxiation, due to the blows he received during the fight.

Held:

1. The fact that aggressive statements are made during a fight, even statements to kill, is evidence only of aggression and not necessarily of true intention.

2. Although the accused stayed by the house in their concern for the safety of the Pastor and his family, the evidence was not sufficient to find that this was a planned attack from the outset with the intention to inflict grievous bodily harm by force of superior numbers.

3. The deceased died from injuries sustained in the fight and the blows delivered to him by three of the accused were made with intent to cause grievous bodily harm. Thus there was malice aforethought. Two of the accused, however, were acting in self defence as throwing stones is reasonable force to repel an attack with a bush knife. The other accused acted with reasonable force in hitting the deceased with a stick in defence of his family. He had no duty to retreat and thereby leave his family unprotected from attack.

4. Under the English Common Law applicable in Solomon Islands by s.17 of the Penal Code, a man may use force and even kill to defend himself or his property (Hussey’s case (1924) 18 CAR 160 followed), although today only in the most extreme circumstances of clear and serious danger would a court hold that a man is entitled to kill in defence of property as there are other remedies available.

5. However, there must be a reasonable necessity for the killing, or at least an honest belief based on reasonable grounds that there is such a necessity.” (Chisam v. R. (1963) 47 CAR 130 per Parker LCJ followed).

6. The accused had every reason to fear that the house and the occupants thereof were in imminent danger and therefore they had the right to prevent the attack by use of reasonable force. Throwing stones was reasonable force against the victim, a violent man who was armed and who persisted in his attack despite the barrage. Accordingly, the attack was lawful up to the time the victim fell down the steps.

7. The second attack after the victim fell down the steps was a different attack by different people not linked to the previous lawful attack by the accuseds.

Accordingly, all the accused were acquitted on both counts.

Cases considered:

Hussey’s case (1924) 18 CAR 160
Chisam v. R. (1963) 47 CAR 130
R. v. Duffy (1966) WLR 229

Francis Mwanesalua and Thomas Kama for Regina
Kenneth Brown and Andrew Radclyffe for the Accused

Ward CJ: These accused were all jointly charged on two counts-

1. That they murdered Mathew Totene on 17th June 1986 contrary to section 193 P.C.

2. That they unlawfully did grievous harm to Andrew Tabaki on the same day contrary to section 219 P.C.
At the close of the prosecution case, following a submission of no case by counsel for the defence, I found no evidence on which I could convict against A3, A4 and A5 on count 1 and against A1 on count 2 and they were acquitted on these counts. Thus I am now considering the cases of A1, A2, A6 and A7 on count 1 and A2, A3, A4, A5, A6 and A7 on count 2.

Both counts refer to the same incident which occurred not long before midnight on 17th June at Pastor Ragoso’s house at Betikama. At that time the deceased Mathew, the victim on count 2 Andrew, and a taxi driver Thomas, went to the house and tried to gain entry. Mathew and Andrew were armed with a knife and a club respectively and were attacked by a large number of people. By the end of that attack, Mathew lay dead and Andrew was very badly injured.

Whilst that last act was over very quickly, the events upon which it was built started much earlier.

Andrew Tabaki, PW6, was married to the niece of Pastor Ragoso and her mother was staying at that time in the Pastor’s house. Despite having been related to the Pastor by marriage, Andrew had only visited the house once before the 17th. That occasion was in May 1986. Andrew had taken his wife from the Pastor’s house after she had apparently sought refuge following a fight with Andrew in which she received a fractured wrist and a dislocated finger. Again on the 14th June, three days before the matter this court is considering, the wife was admitted to hospital with multiple bone deep lacerations to her scalp, laceration of her eyelid, forehead and lip, conjunctival haemorrhage in one eye, a fractured ankle and fractured finger. She had lost sufficient blood to need a transfusion.

Andrew admitted he had a fight with her but, despite the doctor’s opinion that a sharp instrument had been used, insisted he had only slapped her and pulled her hair. The cuts were caused when she struck her head on the table leg. She was able to escape to hospital when he was asleep and was admitted. Andrew did not visit her on the 15th or 16th preferring, he explained, to stay at home praying hard for her to come back.

However, on the 17th, having both consumed beer, he and the deceased went in a taxi driven by Thomas, to the hospital. He was unable to see his wife and went to Pastor Ragoso’s house believing she was there.

Whilst he denied being a violent man and of having any violent intent that night, I formed the clear and overwhelming impression that this witness was a dangerous, violent man who lied easily, if unconvincingly, in the witness box.

Pastor Ragoso was told by the police, on the 17th, that Andrew had been out earlier and clearly considered another visit to be likely. He knew of the unpleasant character and reputation of Andrew, of his previous convictions for violence and of his treatment of his wife. It is hardly surprising that, before he retired for the night, he should mention his apprehension to his family and friends including A1, A2 and A3.

Whilst Andrew admitted his movements that day in general, I cannot accept his description of those events. For the details I must look at the evidence of Thomas, the taxi driver, whom I found credible and accurate.

He told the court that he took Andrew, Mathew and Mathew’s wife to Pastor Ragoso’s house at about 8 pm and no one opened the door when Mathew and his wife knocked.

They parked right by the back ladder and I accept, at that time, they intended and offered no violence in contrast to their subsequent visit.

After returning to Mathew’s house to drop the family, Thomas drove the two men to the hospital at about 10 pm. On their arrival, Andrew entered the ward with a club in his hand and Mathew with a long bush knife. Both had been drinking and smelled of liquor.

Following their unsuccessful attempt to find Andrew’s wife at the hospital, they went to Betikama arriving at 11.01 pm and, on the direction of Andrew, the car was parked some yards from Pastor Ragoso’s house. Andrew told the other two to go with him. He was aggressive and the driver was frightened enough of him to obey. Again Andrew had the club and Mathew the knife and, as they approached the house, they spoke between themselves in Gilbertese. It would appear they were discussing what to do because they then separated; Mathew going to the front of the house and Andrew and the driver to the back. Having climbed the steps of the ladder, Andrew began to bang and kick on the back door.

Inside the house, the banging soon woke the occupants and they all got up terrified by what they heard. Included in that group of people were two small children and two women and the noise and violence was sufficient to set them all screaming in fright. After a short while, the Pastor saw that the door was splitting and the top hinge had given way. As a result he told his family to leave by the front door. He was the last to go seeing, as he left, all the louver blades in the window next to the back door smashed and the silhouette of a man starting to climb in. Luckily for the Pastor’s family, Mathew had, by this time, left his post covering the front of the house and had gone to join Andrew at the back.

It is timely, at this stage, to remind myself that the account of events so far includes no reference to any of the accused men; the actions described are all those of prosecution witnesses. That is an important reminder because of the defence raised by the accused with which I shall deal later.

The events that were taking place outside the house at this time were confused because of the darkness and the number of people who were clearly around and involved. The picture can be seen by analysis of the evidence of Pastor Ragoso, Seda Loleke, Thomas Padavisu and the various interviews of the accused in relation to their individual involvements. To a limited extent, where it fits into this general picture, I can also accept the evidence of Andrew as to the sequence of events. I do not need to explain the details of that analysis and I simply state the events as I have found them proved to the necessary standard beyond reasonable doubt.

As I have already described, the three men approached the house and Andrew and Mathew discussed what to do. Mathew, carrying a bush knife, went to cover the front of the house and Andrew, carrying a club, went with Thomas who was unarmed to the back ladder. As they mounted the ladder, they were unaware of anyone being around outside the house.

Andrew knocked and banged on the door and, as he kicked it also and the occupants began to scream, a number of people ran towards the ladder from a kitchen a few yards away. At the same time Mathew ran from the front and took a position at the foot of the back ladder. He was standing holding his knife in an aggressive manner clearly ready and willing to fight to cover Andrew as he tried to break the door.

At that stage Andrew came down to join him at the foot of the ladder. Whether or not he was trying to calm a clearly aggressive Mathew, as Thomas felt, I am satisfied the two armed men with Thomas a few steps up the ladder behind them, appeared to be shaping up to attack. At that stage, Mathew was felled by a stick held, I am sure by A1. There were a number of other people in the vicinity at that time many of whom were armed with sticks or lengths of angle iron. There was considerable discussion in the trial as to what was said by these people as they rushed to the steps and whether they were exhorting each other to kill or solely to hit the men by the ladder. I attach no great importance to the precise meaning. The fact aggressive things are stated during a fight, even a statement to kill, is evidence only of the aggression and not necessarily of the true intention.

However aggressive the surrounding people may have been, I accept that, before he was knocked down, Mathew advanced towards them with his knife. Despite their superior numbers, they all fell back suggesting, even if not less aggression, certainly a lack of resolve.

Once the older man had fallen, Andrew attempted to assist him to his feet but then stones were thrown at him and he went back up the ladder with Thomas and renewed his attack on the door. On the evidence as a whole and despite Thomas’ fear of the situation at that time, I do not accept that Andrew was simply trying to get into the house to escape the barrage of missiles. I am sure he was still pursuing his original violent intention to force his way into the house.

Having failed to break the door, he smashed the louvers and climbed in over the sill.

At about that time, a number of others, including A4 and A5, had rushed up the ladder to the front entrance, passing Pastor Ragoso as he left. Whether they knew the rest of his family had left by then, I cannot say. In the circumstances, I feel it is unlikely they saw them leave. Andrew was able with little difficulty to fight his way straight through the house and out the front door. Whilst in the house, A5 scuffled with him and received a blow to his elbow of sufficient force to fracture the olecranon process. In the scuffle, Andrew fell and rolled down the steps with one of the people in the house. I am not satisfied the evidence has proved the identity of that man.

I am satisfied that, up to that moment, Andrew was still aggressively on the attack and was relatively unharmed. However, from the time he reached the bottom of the front steps, the nature of the violence against him changed. From then onwards he was attacked by a large number of people using stones, pieces of iron and sticks. More than once he was beaten down and managed to regain his feet. Despite the fact that he was now on the retreat, his assailants continued to attack him. He was struck with an angle iron and blinded in the left eye. A stone or concrete block hit him in the face with sufficient force to shatter his jaw, knock out his teeth and fracture his cheekbone and another hit his chest hard enough, as was revealed later, to cause pneumothorax. During this attack he retreated to the back steps and up them a short way and then fought his way down again. Eventually he saved himself from further beating by lying on the ground feigning death until the police arrived and took him away. His teeth were found in the vicinity of the back steps.

There can be no doubt at all that anyone involved in the attack on Andrew after he rolled down the front steps is guilty of assaulting him and causing the serious injuries he received.

Exactly what happened to Mathew is not clear on the evidence. Once he was knocked to the ground he lay, largely ignored, at the foot of the back steps. After Andrew had entered the house, Thomas came down the steps, was assaulted in a relatively minor way and escaped. As he was leaving, he saw the deceased trying to stand and stretch himself. Whilst there is reference in the caution interview with one of the accused to Mathew being led away and being found a little way from the house, there was no evidence of that in the trial.

The following day, his body was seen by Dr Lewis, PW11, and he noted that the head and neck were swollen and bruised.

The nose was deviated and had a small laceration on the bridge. The nose and mouth were full of blood and the cause of death was asphyxia as a result of the bleeding caused, in the doctor’s opinion, by multiple blows. Exactly when the other blows occurred is not revealed on the evidence before this court.

None of the accused gave evidence or called any witnesses and, although I have used their interviews in part to decide the sequence of events I have already outlined, it is necessary to look at those admissions in relation to each accused.

The first accused, Jese, was interviewed twice. He admitted he and some others stayed by the house in case Andrew came back. At one stage, when Mathew came at him with the knife, he threw a stone that missed and he also admitted hitting the deceased once with a piece of firewood causing him to go to the ground.

The A2, Herrick, admitted throwing a dry coconut at Mathew about the time he was knocked to the ground and agreed he shone a torch on Andrew on the steps whilst he was being stoned. (For the sake of completeness, I would add that I attach no significance to his answer No.39 because of its ambiguity).

The third accused, Lulu, agreed he was there with the purpose of securing Pastor Kata’s family “who were threatened be killed by Andrew”. He also admitted throwing a stone at Andrew and Thomas at the top of the back ladder and later going to let down the tyres of the taxi to prevent their escape.

Reddley, the A4, admitted, as has been stated by Pastor Ragoso, that he went into the house as the Pastor was leaving.

The A5, Gibson, agreed he went into the house at the same time as A4 and struggled with Andrew. In that struggle he was hit on the elbow and punched Andrew knocking him down by the front door just before he rolled down the ladder.

Fred Dereni, who is the A6, admitted throwing stones at Andrew when he was at the top of the stairs. He said; “We wanted to stop them, but they stood upstairs. They were holding big bush knives and had already broken the house. So we held stones and started throwing at them.” He also said, referring to Mathew, “The other man was first knocked out, we shot him with stones.”

In the interview with A7, Fred Tuita, he was asked: “I would like to put this to you that your going up there was also purposely to trap these two Kiribasi men - was it true?” to which he replied “Yes”. Otherwise he admitted presence virtually throughout the incident but made no admission of any active participation.

The defence say that, in so far as any accused was involved, he was acting in defence of himself or the Pastor’s family and house.

The prosecution cases that this was a planned attack on both men from the outset and the intention was, with their superior numbers, to cause serious injury at the very least. As a result, even if all are not principals, the prosecution say they are clearly aiders and abettors.

As far as the prosecution suggestion of a plan goes, I accept there was discussion at the Pastor’s house about Andrew’s earlier visit and the possibility that he might return. I also accept on the evidence that Reddley went to the house having been told by Herrick about this. Whether Reddley collected A5 and A6 and A7 on the way because of this and in order to make up the numbers is not demonstrated by the evidence sufficiently to prove it as part of a criminal charge. Neither does the evidence enable me to accept that there was any organised plan as such although I am satisfied that the accused all knew of the visit and were concerned about the safety of the Pastor and his family. I am further satisfied that A1, A2, and A3 remained at the house or in the immediate vicinity of the house expressly because they felt Andrew might return.

Whether the other four accused stayed by the house is not shown on the evidence and I take it in their favour that they were not in the immediate vicinity until after the attack had started. Each of the last 4 accused says in his interview that he went to the basket ball pitch and only returned when he heard the sound of the door being knocked and the occupants screaming. Whilst that is clearly self serving and therefore not proof of those facts, in the absence of any evidence to the contrary, I note their consistency and that it accords with my separation of these four from the first three accused in this aspect.

Whilst I must clearly give each accused separate consideration in relation to each separate charge there are many matters which apply to them all. Not only must the prosecution prove the charge against each accused individually but the burden is on them to disprove reasonable defence of person or property. Although none of the accused has given evidence, I accept the defence has been raised in their interviews and in the course of the trial. The same factors are relevant to self defence in answer to the charges of murder and causing grievous harm with the exception that, as I have said, the nature and effect of the concerted attack on Andrew after he came down the front steps of the house is such that any person involved in it must be deprived of a defence of self defence. Also, in considering the involvement of any accused in the attack on Andrew before that, I must decide if his involvement there was such an integral part of the incident as a whole as to make him liable for the later violence.

Before passing to consider the other accused, I would just like to consider Fred Tuita. The case against him is simply his presence and his agreement with the suggestion made in his interview that the purpose was to trap the two Kiribasi men.

A man can be guilty of aiding and abetting an offence if he is present with the intention of helping in the commission of the offence. I am not satisfied to the necessary standard on the basis of that one answer that this accused was there with the necessary intention to assist.

He is acquitted on both counts.

In considering the first count of murder, it is clear on the evidence that Mathew died as a result of the injuries inflicted on him in the fight. The use of a weapon such as a piece of firewood with sufficient force to knock him to the ground is clearly sufficient to establish an intent by Jese to cause grievous harm. That is sufficient to prove malice aforethought. On Herrick’s own admission he was involved in the attack on Mathew at the same time and, as such, I am satisfied he is clearly also involved as a principal. Similarly Fred Deveni also admitted throwing stones at Mathew and, in view of the limited time that Mathew was standing, I am satisfied he is also a principal. However, before they can be convicted of murder, the prosecution must disprove that they were acting in self defence or defence of property and I shall move on to that later.

In count 2, the evidence clearly shows that, by the end of this incident, Andrew had been caused grievous injury by an unlawful assault. On their own admission, I am satisfied that Herrick, Lulu and Fred Deveni were each involved in a joint attack on Andrew before he entered the house. Similarly I am satisfied Reddley and Gibson were involved in the same attack on Andrew as he moved through the house from the back window to the front door.

Before they are convicted of an offence under section 219, I must consider whether they were justified on the basis of defence of person or property and also whether the incidents in which they were involved formed part of the whole attack that caused the injuries to Andrew or whether that was a second and separate incident.

Section 17 of the Penal Code provides that criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English common law. The present law in England is covered by section 3 of the Criminal Law Act 1967 which has replaced the rules of the common law. What was the exact extent of the common law prior to the 1967 act is complex and uncertain.

In general terms, the common law has always given a man the right to defend himself or his close family and property by such force as is necessary. What force is necessary is a matter of fact to be decided on a consideration of all the surrounding facts. It was stated in 1924 in Hussey’s case, 18 CAR 160 that a man may use force, may even kill, to defend himself or his property. Much more recently Parker LCJ in Chisam v. R. (1963) 47 CAR 130 cited with approval the statement of the law in Halsbury’s Laws of England “where a forcible and violent felony is attempted on the person of another, the party assaulted, or his servant, or any other person present, is entitled to repel force by force and, if necessary, to kill the aggressor. There must be a reasonable necessity for the killing, or at least an honest belief based on reasonable grounds that there is such a necessity.”

Thus, if the evidence establishes to the satisfaction of the court that the accused believed he was in imminent danger and held that belief on reasonable grounds induced by the words and conduct of the deceased, the defence of self defence is made out. The same considerations apply to defence of family and property. But it is only in the most extreme circumstances of clear and very serious danger that a court would hold, these days, that a man was entitled to kill simply to defend his property, as there are many other effective remedies available. Where however, attack places him or his family in serious and immediate danger, he may properly meet that force with the force reasonably necessary to avert the danger. The evidence shows that, when Andrew and Mathew approached Pastor Ragoso’s house that night, Jese’s wife and Herrick’ sister and parents were inside.

Lulu had no relative inside but knew, as he had been there earlier, that there were women and children in the house. The other four accused arrived to see a violent attack on the premises already in progress by armed men. From inside the house they could hear screams of terror. Their involvement was to stop such an attack. In R. v. Duffy (1966) 2 WLR 229, Edmund Davies J (as he then was) stated:-

“Quite apart from any special relationship between the person attacked and his rescuer, there is a general liberty even as between strangers to prevent a felony. That is not to say, of course, that a new-comer may lawfully join in a fight just for the sake of fighting. Such conduct is wholly different in law from that of a person who in circumstances of necessity intervenes with the sole object of restoring the peace by rescuing a person being attacked.”

I am satisfied each of these accused had every reason to fear that the occupants of that house were in imminent danger. They had a right and, indeed, a duty to try and prevent the attack and in order to do so were entitled to use reasonable force.

As far as Herrick and Fred Deveni are concerned on count 1, they were confronted by an aggressive man armed with and clearly willing to use a bush knife. To throw stones or coconuts at him was in no sense excessive or unreasonable force and they are acquitted on count 1. Jese had in his hand a stick of firewood. He said and I accept in the absence of any evidence to the contrary, that it came from the firewood in the kitchen. Was the use of such a weapon reasonable in the circumstances? It might be argued that he should have retreated but that would have left his wife and other relatives still in danger. In Hussey’s case, the need to retreat was specifically excluded from cases of defence of property because it would leave the property unprotected. Similar consideration must apply in a case such as this where his relatives would be left under attack. I feel the use of the stick for one blow even though there were other people in support throwing missiles is reasonable force against a man with a bush knife. Jese is acquitted on count 1.

Similar considerations apply to count 2. I am satisfied that all the accused knew of Andrew’s reputation as an extremely violent man. They saw him continuing his assault on the house despite a barrage of missiles. He was armed and, in the initial stages, apparently supported by two other men, one armed with a knife. Throwing stones at him as happened before he entered the house cannot be considered unreasonable force, indeed, on the evidence I have heard, it was manifestly inadequate. As far as Reddley and Gibson are concerned, it is suggested by the prosecution that they entered the house to attack Andrew from another direction. Whilst that is a possible inference, it is equally possible they went to defend the house and to try and prevent his entry. The prosecution have not disproved that and I, therefore, accept that they were acting in defence of the house and any occupants hey may have believed were still inside.

I am satisfied that the force used against Andrew up to the time he fell down the front steps was reasonable in all the circumstances.

However, by section 22 of the P.C., if they formed a joint intention to prosecute an unlawful purpose and an offence is committed which was a probable consequence, they are each deemed to have committed it.

Was the attack on Andrew after he left the house a probable consequence of an earlier unlawful purpose? There is not a shred of evidence to link any of these accused with those events save for their involvement in the preceding attack which I have found was not unlawful. The evidence showed that there were anything between 30 to 50 people around the house that night who may have been involved. The nature of the attack on Andrew after he fell down the stairs was so different that I feel it could not have been reasonably envisaged by the accused who had, up to then, been involved in a defence involving reasonable force. I do not feel this part of the events formed part of a single escalating pattern of violence. It was a new and far more serious assault of a different nature from the earlier incident, carried out by different people. As I have said before, had any of the accused been shown to be involved in that, he would be guilty of a serious offence. However, no evidence has been adduced to link any of them with those events. Whilst I may have grave suspicions from the case as a whole, that is not sufficient to convict. To do so solely on the evidence of their earlier involvement would be, if I may adopt the apt phrase used by Mr Brown, to take an evidential leap or perhaps a leap that is so far away from the evidence in the trial that I cannot make it.

Herrick, Lulu, Reddley, Gibson and Fred Deveni are acquitted on count 2.