Regina v Viu [1994] SBHC 1; HC-CRC 015 of 1993 (11 February 1994)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 15 of 1993

REGINA

-v-

JIMMY VIU

High Court of Solomon Islands
(Muria CJ.)

Hearing: 25th August 1993
Judgment: 11th February 1994

DPP for Prosecution
C. Tagaraniana for Accused

MURIA CJ: The accused JIMMY VIU has been charged with the murder of Anne Kovera contrary to section 193 of the Penal Code.

The accused pleaded Not Guilty and so it is for the prosecution to prove the charge against the accused beyond reasonable doubt. If the court has any doubt at the end of the case, that doubt must be resolved in favour of the accused.

The prosecution called six witnesses including the doctor who examined the body of the deceased. The accused elected to remain silent and called no witnesses.

The Court will therefore decide this case on the evidence as presented to it. I must point out, however, that the fact that the accused decided not to give evidence bears no adverse effect on him. The burden still remains on the prosecution to prove its case beyond reasonable doubt.

The facts of the case as canvassed by the evidence are basically that the deceased had been seeing a boy in the past as well as on the night of the 14/12/92. It has not been disputed and it was admitted by PW1 that it was him who met the deceased on the night of 14/12/92 just beside the deceased's house.

She had been absent from the house for sometime that night and it prompted her brothers and other boys to search for her. Among those who went to search for her that night was the accused, the brother of the deceased.

It was later that night found out that it was Stephen Matagu(PW1) who had been out with Anne Kovera (deceased). When the accused heard this, he proceeded to find PW1 that night but could not find him.

James Tuguvera (PW2) stated that when the accused could not locate PW1 he returned to Jerico Village shouting angrily. He had a bush knife with him which he threw and which almost hit Peter Kopu (PW3). It missed PW3 and the knife landed on a paw paw tree.

The accused was still very cross and demanded that his sister, the deceased, be brought out from PW2's house (where she hid for fear of the accused) so that he could kill her. Upon hearing that, the deceased ran away into the bush that night to hide from the accused.

The accused found out that the deceased was allowed to run to hide from him. He then became more angry and wanted to fight those around him. He swore at PW2 and others that they fucked their mothers and sisters because they protected the deceased. The accused then went back to his Village Paradise.

Sometime past midnight or about 01.00 hrs, a loud bang was heard and followed by crying coming from the area behind the Village in the bush. PW2, PW3 and one Leonard went to check. PW2 and PW3 found the deceased lying on her side on the ground at the bottom of a big tree. With the help of Richard Nata (PW4), PW2 and PW3 carried the deceased back to the Village.

The accused heard that the deceased was brought back to the Village, and so he came back to Jerico Village. Those who were carrying the deceased were still carrying her when the accused came charging toward them and delivered a kick to the side of the deceased. There was a struggle to stop the accused from hitting the deceased. This made the accused swore again at those who tried to stop him.

Because of the swearing the accused was therefore not restrained and so in a rage he delivered four strong kicks, two to each side of the rib cage.

The deceased fell and was rolling on the ground while the accused continue to kick her. The accused wanted to stone the deceased as well but the stone was taken away from him by PW3.

Immediately after that, the deceased experienced severe pains at her chest and her sides where the accused kicked her. She experienced difficulty in breathing. By then it was going towards day light on 15/12/92.

At about 06.00 am the deceased was carried to the Clinic. But she died not long after she arrived at the clinic.

The deceased was buried on the same day, 15/12/92. The body had to be exhumed for the doctor to carry out a post mortem examination of the body. That was done on 20/12/92.

Dr. S. Tovusia who conducted the post mortem examination gave evidence and produced his report. On internal examination of the body Dr. Tovusia's findings regarding the chest are as follows:

"CHEST.

(i) There were marked bruising and diffuse haematoma noted in the anterior and lateral chest wall muscles on both sides.

(ii) Torn 2nd, 3rd, 4th, 5th and 6th costal cartilages from their respective ribs about 2.5cm from the midline on the (L) side with torn anterior reflection of the parietal pleura on the (L) side.

(iii) Collapsed (L) lung with blood in the (L) pleural cavity posteriorly.

(iv) (R) 3rd, 4th, 5th, 6th and 7th costal cartilages also torn and avulsed posteriorly from their respective ribs at different points from the midline.

(v) Collapsed (R) ling with blood clots in the (R) pleural cavity.

(vi) The ribs fractured as mentioned in (ii) and (iv) had corresponding fractures in the posterior part of the same ribs with tears in the respective areas of the parietal pleura.

Mouth, tongue oesophagus - Normal

Pericardium, heart and blood vessels - grossly normal

Skull, brain, meninges - Not examined.

CAUSE OF DEATH

Respiratory failure secondary to massive tension pneumothoracis and bilateral collapse of both lungs, due to puncture from fractured ribs.

REMARKS

The mechanism of injury is most likely in my opinion multiple blunt trauma to the lateral sides of both chest walls causing lethal injury to the lungs and chest wall."

In his oral evidence in court, Dr. Tovusia explained that the magnitude of the force delivered causing the ribs to fracture must have been great. He further added that the fractures were consistent with the fact that there were several blows to the area of and around the chest wall. The doctor clearly found that the injuries sustained by the deceased were the result of kicks severely delivered to the deceased's chest and sides.

The doctor went on to state that the injuries were consistent with blows delivered laterally to the deceased's body and could not be caused by a fall from a height as the defence was suggesting.

I have seen and heard the prosecution witnesses giving their evidence in court and I am satisfied so that I am sure they were telling the truth.

The accused agreed in his statement under caution that he kicked the deceased while she was still being carried. He further agreed he kicked the deceased once while she was being carried and four times while she was on the ground. The kicks landed on the deceased's left and right sides, the chest and on the stomach.

The accused had clearly shown in his statement that he was very angry with the deceased that night. In a state of anger, the accused delivered the several kicks to the body of the deceased. Those kicks were severe.

Having heard the evidence from the prosecution witnesses including that of Dr. Tovusia and having considered those evidence along with that of the accused as contained in his record of interview, I come to the firm conclusion without any doubt whatsoever that the cause of death of the deceased was that as found by the doctor. The deceased's death was a direct result of severe injuries sustained from kicks delivered by the accused with very considerable force laterally to the sides of both chest walls resulting in the puncture and collapse of both lungs.

Next, it must also be proved that the accused caused the death of the deceased with 'malice aforethought' which is the mens rea required to be proved in murder cases. This malice aforethought is defined in section 195 of the Penal Code and it had been considered in a number of cases in this jurisdiction. see Joel Aosi -v- Reginam (1988/1989) SILR 1, R -v- Alick Te'e Crim. Case No. 1 of 1992 (HC) and R -v- Simon Manisina Crim. Case No. 6 of 1993 (HC).

There are two states of mind either of which if proved would established malice aforethought. The first of those states of mind is an intention to cause the death will probably cause the of or grievous bodily harm to a person. The second is the knowledge that the act which causes the death will probably cause the death of or grievous bodily harm to a person whether such person is the person actually killed or not.

The evidence in this case has revealed that the accused was very angry, not only with his sister (deceased) but also with Stephen Matagu (PW1). He sought after PW1 and when he could not find PW1, he went after the deceased. The accused was also in possession of a bush knife at the time. He swore and wanted to fight other people around him.

When the deceased heard that the accused was very angry and wanted to kill her, she ran away into the bush. It was well past midnight when the deceased was brought home.

The accused ran towards those carrying his sister (deceased) and delivered the first kick. When she was on the ground the accused delivered four other kicks to her body. All were done with considerable force and in very angry manner.

As a result of those kicks the deceased's ribs had been fractured puncturing both the left and right lungs causing them to collapse. Consequently, the deceased died.

The following extract from the accused's record of interview clearly tells of the state of mind of the accused.

"Q34 What did you do when you did not find Stephen at home?

1. I return to my village Paradise.

Q35 What did happen after you return home?

1. I returned home and talked about customs with my mother and others who were present at home. After this I was very cross with my sister Anna Kovera (deceased) and I go to Jericho Village.

Q36. What did you do at Jericho Village?

1. I go there and asked for my sister in Alice's house.

Q37. You were very cross at that time, what did you do?

1. I was very cross and want to fight.

Q38. Whom did you cross with?

1. I was very cross and wanted to fight anyone in the village.

Q39. What did you take with you?

1. I was carrying my bush knife but before I entered the village I throw away my bush knife.

Q40. You throw your knife and almost cut Peter, what are you going to say?

1. Yes its true.

Q41. When you are cross you also swear what are you going to say?

1. Yes its true.

Q42. What were the swearing words you said?

1. I swore.

Q43. What sort of swearing?

1. I said fuck your mothers and sisters, and also Stephen sisters and mothers.

Q44. You also said that if you see Anna Kovera you will cut her into pieces with my bush knife.

1. I said that I will kill her, but I did not say I will cut her with my bush knife.

Q45. After you cross, swear and want to fight to fight, what else did you do?

A. I return to Paradise village.

Q46. What did you do at Paradise village?

A. I was very angry with my mother.

...........................................

Q48. After that what did happen?

1. I was at Paradise village still very angry to what my sister Anna Kovera have done. While I was there Peter Kopu, came and call for Richard Nata and the two went up to Jericho village. After the two have left I thought of why Peter have called Nata for.

Q49. What did you do when you thought about this?

1. I go after them.

Q50. When you arrived at Jericho what did you saw?

1. I saw that they carried my sister Anna Kovera infront of Alice mother's house.

Q51. Who were the people who carried your sister?

1. James Tuguvera, Peter Kopu and Richard Nata.

Q52. When you saw this what did you do?

1. When I saw this I was very angry.

Q53. What did you do?

1. I ran towards them and kicked my sister Anna Kovera.

Q54. What part did you kick landed?

1. At her side of her leg

Q55. They were still carrying her when you kicked, wheat you going to say?

A. Yes, its true.

Q56. How many times did you kick her?

A. Two times.

Q57. How many times did you kick when she was on the ground?

A. I kicked her once on the ground.

Q58. Your first kick landed at Anna's side. What are you going to say?

A. Yes, its true.

Q59. After that you turned back and kicked Anna (deceased) on her right side. What are you going to say?

1. Yes, its true. It landed on her left side.

Q.60. You swore in custom inorder that others will not come and stop you from killing your sister. What are you going to say?

1. Yes, its true.

Q61. From the swearing you made James Tuguvera did not come and stop you. What are you going to say?

1. Yes, its true.

Q62. During that time you go a head kicking your sister. What you going to say?

1. Yes, its true.

Q63. How many times did you kick your sister?

1. I kicked her four times.

Q64. These four kicks landed at the side left and right side ribs and belly of Anna Kovera. What are you going to say?

1. Yes, its true.

Q65. What leg did you use to kick with?

1. I used my right leg.

Q67. How far is your sister when you kicked her?

1. Very close.

Q68. When you kicked and wanted to kill your sister, you also took a stone at the side of the house and wanted to shoot Anna Kovera (deceased) with it. What are you going to say?

1. Yes, its true.

Q69. How long does it take when you are cross and tried to kill your sister?

1. Very long time."
   

His answers to the questions put to him during the interview demonstrated that the accused was extremely angry and intended "to kill" his sister. The word "kill" is used in the English translation of the record of interview. The interview was conducted in Pidgin and the word used there is "killim".

It is doubtful whether the Pidgin word "killim" as used by the accused has the same meaning as to "kill" or cause the death of. In some cases it may well be that "Killim" has the same meaning as to "kill" or cause the death of. It depends on circumstances and context in which it is used. In a lot of occasions, the pidgin word "killim" may simply mean to "hurt" or to "cause harm."

When considering what the accused said in pidgin in his record of interview I am not sure that when he used the word "killim", he meant it in the sense of the English meaning of the word "kill". However, section 195 of the Penal Code also provides for other circumstances in which the mens rea in murder can be established.

While the intention to cause the death of the deceased is not as clear here, there can be no doubt whatsoever that the evidence clearly establishes that the accused intended to cause serious bodily harm to the deceased. He meant to kick the deceased severely and he did deliberately deliver several kicks to the sides and chest of the deceased with very considerable force.

Indeed also, having intended to do serious bodily harm and did so by delivering those powerful kicks to the chest and sides of the deceased, the accused must have realised that what he did would probably cause serious injury to the deceased. I am satisfied so that I am sure that the accused could not have failed to realise that.

In this case I am satisfied beyond reasonable doubt that the accused deliberately set out to cause serious bodily harm to the deceased. He fulfilled that intention by delivering five lethal kicks to the chest and sides of the deceased resulting in the death of the deceased. That is malice aforethought as defined in section 195 of the Penal Code. See Joel Aosi -v- R (supra) where the Court of Appeal considered the use of the words "serious injury". In that case the Court of Appeal stated that the use of the words "serious injury" in the circumstances can only mean serious injury of the type referred to in the definition of grievous harm within the meaning of Section 195 (b) of the Penal Code.

On the evidence before the Court I am satisfied beyond reasonable doubt that the accused has unlawfully caused the death of the deceased and he did so with malice aforethought. That is murder and he is convicted of the crime of murder.

(G.J.B. Muria)
CHIEF JUSTICE