Regina v Konaga [1994] SBHC 40; HC-CRC 032 of 1994 (12 December 1994)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 32 of 1994

REGINA

-v-

ROCKSON KONAGA

High Court of Solomon Islands
(Palmer J.)

Hearing: 5-7 December 1994
Judgment: 12 December 1994

R.B. Talasasa for Prosecution
J. Wasiraro for Defendant

PALMER J.: The accused, Rockson Konaga has been charged with the offence of murder contrary to section 193 of the Penal Code. The particulars of the offence were that on the 28th of November, 1993, at Anonakinaki Village, West Kwaio, Malaita Province, he murdered Andrew Wanesitea.

The facts surrounding the commission of the offence are not in much dispute. It is not in dispute that on the evening of 28th of November, 1993, there was an argument between the deceased and his wife, Deborah Alifaemae, (PW 1). That argument indirectly set the scene for the killing. As a result of that argument, the deceased beat his wife so that she became unconscious. The brother of the deceased, Douglas Buia (PW 2), who was a student on holiday from King George Sixth School, was present at that time, and got angry with the deceased for beating up his wife. He remonstrated with his brother and an argument ensued. A number of persons then came to separate the brothers and to stop them from arguing. One of these included the accused, who was the uncle of the deceased, (the brother of the deceased's mother). After the brothers were separated, the deceased remained at his house. The accused by then had gone to Matthew Mamanikwala's house not far from the deceased's house. It is not in dispute that there was also an argument between the accused and his brother, Matthew Mamanikwala over what the deceased had done to his wife. It is not in dispute that as the accused left his brother's house he was still arguing with his brother. It was at that point of time that the argument between the accused and his brother somehow got tangled up with the deceased and led eventually to a fight taking place between the accused and the deceased. The evidence is not very clear as to how the argument between the accused and his brother diverted to the deceased, but what I could gather must have occurred is that, the deceased must have mistaken the words spoken by the accused to his brother as being directed at him and so got offended with them and thereby engaged the accused in an argument in turn. The scenario was then set for the tragic fight between uncle and nephew.

It is not in dispute that the deceased and the accused both swore at each other. Who swore first is not clear. Janet Notofanamani (PW 3) said that it was the accused who swore first at the deceased. What is clear is that the swearing simply aroused both parties to clash.

The only prosecution witness who was able to give an eye-witness account of what actually took place between the accused and the deceased from start to finish was PW 3. Her evidence is therefore crucial and needs to be considered very carefully.

PW 3 stated that when the accused approached the deceased, the deceased was waiting for him. She stated that the deceased was holding a piece of timber at that time. She did not see the accused holding anything at that time. When the accused reached the deceased he hit him strongly with his left hand on the chest and hit the backside of the deceased with his right hand. He then embraced the deceased with both hands and pushed him against the front door wall of the house. It was only after the accused had embraced the deceased that she saw him with a knife in his hand. It was only then too that she realised that the deceased had been stabbed. She said that her son fell down after this and as he fell, he said to her that he was dying.

The other eye-witness of what happened was Benjamin Sivadi, (PW 6), the brother of the accused. His evidence however is limited to the latter part of the incident. He said that he was alerted by the cry of his sister, PW 3. As he rushed to the scene, he saw the accused and the deceased struggling and then the deceased fell down, face downwards towards the door of his house with his feet outside. By the time he reached the scene of the incident, the deceased had already fallen down. It was then that he saw the accused raising his hand high in a stabbing motion and with the view, according to him, to stab the deceased. He then grabbed hold of his hand and with the help of Hopkins Kwailangi (PW 7), he managed to drag the accused away from the deceased.

The only other relevant evidence that is available to the court as to what actually occurred is contained in the statements under caution of the accused. In his statement, the accused stated that he was very angry when the deceased swore at him. He confirmed in his statement that the deceased held a timber when he advanced towards him. His version then differs from that of PW 3 at this point. He says that the deceased swung the timber at him at least four times. On the fourth time, it landed on him. He then knocked the deceased down and pressed him against the wall. This bit about pressing against the wall is consistent with the evidence of PW 3. The accused also stated that at that time he was holding a knife. His version about the knife wound at the back of the accused is that it was incurred during the struggle with the deceased when he jumped up and it went into his backside.

There is no explanation however in the statement of the accused as to why the knife was produced in the course of that struggle. If it was to defend himself then surely it was unnecessary at that point of time as in his own statement he stated that he had knocked the deceased down, and then pressed him against the wall. It would seem then at that point of time that he had the upper hand against the deceased and with the 'knock' would have sufficiently disarmed or weakened the deceased. It would seem unnecessary then for him to have resort to the knife at that point of the struggle.

PW 3's evidence is consistent with the statement of the accused that it was after the accused had pressed the deceased against the wall of the house that she saw the accused holding the knife. Her version however, of the other parts of the incident is different from that of the accused. She stated that when the accused approached the deceased, the deceased dropped the piece of timber that he was holding. Her version was that the deceased did not do anything or attack the accused. Instead, she says that it was the accused who was the aggressor and the attacker.

What is at least clear is that the stab wound was caused sometime between the time the deceased was embraced and pushed against the wall of the deceased's house and the time the accused was seen struggling with the deceased by PW 6, before he fell face downwards. At the time he fell down facewards, he had already been stabbed.

The cause of death according to the medical report of the doctor who carried out a post-mortem on the deceased's body was of a massive haemorrhage. The haemorrhage was found by Dr. MacBride-Stewart to have been caused in turn by a 'stab wound which penetrated the full thickness of the chest wall and lacerated the great blood vessels near the heart'. This has not been disputed.

What has also not been disputed in my view is that the cause of that stab wound was from a knife belonging to the accused and submitted to the court as 'exhibit 1'. There was ample evidence before the court produced by PW 3, PW 6, PW 7, PW 8, PW 9, PW 10, and PW 14, and in the statement under caution of the accused that 'exhibit 1' was the weapon used to inflict the stab wound on the back of the deceased.

The defence raised by the accused is that of self-defence, that the wound was inflicted in the course of the struggle with the deceased to avoid being clobbered with the timber held by the deceased, and which had been used against the accused.

The crucial element in a charge of murder is the requirement of proof of malice aforethought. Section 195 of the Penal Code in turn sets out the circumstances under which this requirement may be found to be in existence.

"Malice aforethought may be expressed or implied and express malice shall be deemed to be established by evidence proving either of the following states of mind preceding or co-existing with the act or omission by which death is caused, and it may exist where that act is unpremeditated -

(a) an intention to cause the death of or grievous bodily harm to any person, whether such person is the person actually killed or not; or

(b) knowledge that the act which caused death will probably cause the death of, or grievous bodily harm to, some person whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused."

Prosecution rely on the second part of section 195 for its proof of malice aforethought. Under part (b) of section 195, all that prosecution needs to establish for the proof of malice aforethought, is that the accused knew that the act which caused death would probably cause grievous bodily harm. This is a subjective test as established by the Court of Appeal in the case of Joel Aosi v. Reginam [1988-1989] SILR 1, at page 3.

The first question for this court to consider therefore is, what was the act that caused death? The accused would have this court believe as per his cautioned statement that the wound was inflicted by accident during the struggle between him and the deceased and for the purpose of self-defence. The question to be posed in respect of this statement is how much weight should this court attach to it? The caution statement had been submitted as Exhibit 4, by the prosecution. The accused had elected to remain silent in court. Could the court therefore rely on this statement in support of the accused's case? The contents of paragraphs (1), (2), and (3) appear to be consistent with what other prosecution witnesses had said occurred in the first part of that incident. I can therefore rely on them as expressing accurately what transpired that evening before the actual fight took place.

Paragraph (6) however, clearly contained a lie. This was about the knife which caused the stab wound. In his statement he stated:

"That small knife I honest I throw it in the bush. I did not know the place I throw the knife because it was already night."

That knife was found by Sgt. Dau (PW 14), hidden in-between the thatched walls in the room in which the accused was kept by PW 11, whilst waiting for the Police to arrive.

Could the court rely on his version as to what happened in the fight between him and the deceased as opposed to the sworn evidence of the deceased's mother, PW 3? With respect to the submission of Mr Wasiraro, the sworn statement of PW 3 carries more weight than a mere caution statement, which had not been substantiated and being subjected to cross-examination. For instance, there is no explanation provided for the deliberate lie given by this accused to Police in his caution statement about the knife. The accused equally therefore could be lying about his explanation as to the wound being caused accidentally, in the course of the struggle between them for self-defence purposes. On the other hand, I must warn myself about the evidence of PW 3, in that she is the mother of the deceased and therefore would have reason to lie to this court, as her way of getting revenge on the accused for killing her son. She made no bones about it in court. She stated very clearly in court that she was angry with the accused even though he was her brother because she says, he killed her blood. I have observed this witness giving evidence in court. She was very consistent right throughout in chief and under cross-examination. She demonstrated very clearly in court how the accused attacked her son. She stated that she only saw the knife for the first time after the accused had embraced her son and pushed him against the wall of the house. It was only then, when the son fell down and said to her that he was dying, that she saw the knife and realised that her son had been stabbed by the accused. It was then that she cried out and shouted that the accused had stabbed her son. Her evidence is consistent or corroborated by the evidence of PW 2, PW 4, PW 6, PW 7, and PW 8. The infliction of the stab wound therefore must have occurred when the accused had been embraced and pushed against the wall by the accused. If the accused did not hold a knife in his hand when he first made bodily contact with the accused, he subsequently did sometime during that struggle against the wall. If the knife was kept in the back or side pocket of the accused, then during that time he must have found the time to grab hold of his knife and place it in a position whereby the wound was inflicted. That can only be a deliberate act. But even if I am to accept the explanation of the accused, there is no logical explanation for the production of the knife at that time, especially when he had stated that he had knocked the deceased down and then pushed him against the wall. Was there an imminent danger of being hit again with the timber in the hands of the deceased? There is no evidence to this suggestion, and there is just no satisfactory explanation for the production of the knife at that crucial point of time. However, I reject that particular explanation of the accused in his statement. It must be pointed out very clearly that the evidence of PW 3 virtually has been unchallenged.

Mr. Wasiraro stated that it is more logical to conclude that an angry person in the position of the deceased would be more likely than not to use the timber than to drop it when approached by the accused, and that therefore the evidence of the mother should not be believed by the court. Unfortunately, we are not talking about probabilities here. I have the sworn evidence of an eye-witness who was standing some 2-21/2 metres away from the accused and the deceased, with sufficient lighting from the kerosene lamp hanging in the kitchen and from a bright moonlight to enable her to see clearly what was going on. This eye-witness does happen to be the mother of the deceased, but after giving due weight to that fact, and all other relevant factors, I am satisfied I can rely on her evidence as depicting correctly what did transpire that night in the fight. But even if I am to consider the question of probabilities, it is equally possible that the deceased may have purposely dropped the timber on realising that there was going to be a fight between him and his uncle, to avoid causing any serious injury, and perhaps believing or even trusting that the matter would not proceed beyond mere slaps or punches in the face. It must be remembered that there was no prior quarrel or dispute between the uncle and the nephew, that any of the witnesses could recall. It is therefore equally logical and probable that the deceased did drop the timber when approached by the accused.

The unlawful act therefore in my view could only have been inflicted with deliberate force. But even if it was to be by accident, there is insufficient evidence or explanation to justify its presence and production at that particular point of time.

The evidence of PW 6 and PW 7 both confirm indirectly in my view that the stab wound was caused more by the deliberate application of force than accidental. PW 6 stated that by the time he arrived where the accused and deceased were, he saw the accused lifting his hand high and in his view with the intention of stabbing the deceased again with the knife in his hand. He then grabbed hold of the accused's hand and with the help of PW 7, they were able to drag the accused away from the deceased. Both stated that there was a struggle to remove the accused. The knife when seen by PW 6 in the hands of the accused was held pointing upwards. A knife held in such a position is capable of being inflicted at an angle at the left hand side of the deceased, at the time he was being embraced and pushed against the wall of the house. I have considered the version in the caution statement of the accused that the wound was inflicted when the deceased jumped up. Having heard the clear evidence of PW 3, I discount that version of the accused. I am satisfied it was inflicted by the accused during that time the deceased was embraced and pushed against the wall or sometime during that time. It could not have been accidental but deliberate.

This then brings me to the next crucial question. Did the accused know that the act which caused death will probably cause grievous bodily harm to the deceased?

The knife used in the attack is approximately 23.3 centimetres or 9 inches in length from the handle to the tip of the blade. Its blade alone is 15.3 centimetres or 6 inches in length. It is filed sharp as a razor on both sides. Only one centimetre from the base of each side of the blade had not been sharpened. The tip is rounded but also filed very sharp. The handle is weighted with lead at the base and therefore gives the holder a feeling of balance and firm grip. It is clear that any person who takes hold of such a knife and applies it to the body of a human being, cannot fail to realise that such a weapon would probably cause really serious harm. In the circumstances of this case where there was a struggle and especially, as I have found, that the knife was produced against a man who had been backed up a wall and applied in the course of that struggle to his backside, I am satisfied beyond reasonable doubt that the accused could not have failed to realise that such action would probably cause grievous bodily harm to the deceased. It is immaterial that he did not intend to or mean to kill his nephew. As has been noted very clearly in the medical report produced to the court, the stab wound did cause grievous bodily harm to the deceased, severing the major blood vessels close to the heart of the deceased, and causing the massive haemorrhage which resulted in the death of the deceased. It is pertinent to note that the learned Doctor, did state that the stab wound did enter at an angle from skin to the inside of the chest wall on the left hand side, in the third space between the second and third ribs. This is consistent with the description of PW 3 as to the struggle which occurred against the wall of the deceased's house, and her description of how the deceased was embraced and pushed against the wall of the house, and possibly how the stab wound was inflicted.

The peculiar facts of this case did show that the accused was actually on his way to Namona'ako village, but was distracted and thereby changed direction and came towards the deceased. It cannot be said that his approach was defensive. He went towards the deceased with the view to fight or attack him. There was no obvious threat of physical violence around the accused at that time. He was not being attacked by the deceased or chased by the deceased, apart from the verbal abuse being thrown against one another. He had the opportunity to walk away and yet chose not to. Had he walked away, it appears that he would not have been followed and attacked by the deceased. He chose rather to fight the deceased, and attacked him right in front of his house. The accused knew that he had a knife in his possession. He could have chosen to throw the knife away or not to use it. The evidence of PW 3 showed very clearly that the accused was the aggressor from beginning to end. Despite warning myself that that witness may be exaggerating what she saw, or even lying, in the absence of contrary evidence by the Defence, and weighing all other relevant evidence, I am unable to discount her evidence as incredible and unreliable. If the knife was kept by the accused to defend himself against any possible blows from the piece of timber which the deceased was holding at the time that he approached him, its retention and use thereafter became unnecessary for such purposes of self-defence, as by the time he reached the deceased, the deceased had dropped the piece of timber he was holding, according to the evidence of PW 3. The fight thereafter was one-sided with the accused being the aggressor. As earlier found, the production of the knife and its use was clearly unjustifiable in the circumstances and unlawful. I am satisfied to the requisite standard that prosecution have established the necessary mens rea as laid down under section 195 (b) of the Penal Code, and the accused must be convicted of the offence of murder.

A.R. PALMER
JUDGE