Regina v Erieri [1994] SBHC 73; HCSI-CRC 3 of 1993 (11 February 1994)

IN TH HIGH COURT OF SOLOMON ISLANDS

Criminal Case No.3 of 1993

REGINA

-v-

WILLIAM ERIERI

(Palmer J.)

Hearing: 7th February 1994
Judgment: 11th February 1994

F. Mwanesalua for Prosecution
J. Remobatu for the Defendant

PALMER J: The accused, William Erieri has been charged with the murder of Ellen Erieri, his wife. The offence was alleged to have occurred on or between the 26th and 27th of September 1992, at Fau Village, Malaita Province.

A number of witnesses have been called by the prosecution. However, none of them were eyewitnesses of the unlawful act that caused the death of Ellen EriEri.

The only medical report produced in court was the external examination carried out by the nurse aid, Thompson Roboliu, based at Folotana Village. The examination was carried out on the same date the victim was killed, at about 0800 hours.

The evidence given by the nurse-aid cannot be correctly described as expert evidence. However, the observations made by him from the external examination carried out are quite useful in putting together the most likely cause of death. He stated that the front neck muscles had been severely dammed, with heavy bruising. The wind pipe too in his opinion had been broken. He stated that when he pressed his finger against the windpipe, he noticed that his finger went right through. He also noticed scratch marks on the knees and legs of the deceased. At the time of examination, the body of the deceased was still soft, i.e. rigor mortis had not yet set in. In his opinion therefore, he thought that the deceased may have died earlier on that morning around 4.00 am 9r so.

When asked what in his opinion may have caused the damage to the deceased’s neck, he stated that it was consistent with the application of something hard and with tremendous force. He also added that the force applied must have been made repeatedly and not once.

Apart from the evidence of the nurse-aid, there is no other direct evidence as to the unlawful act applied which resulted in the death of the deceased, other than the cautioned statement of the accused and his own evidence under oath in court.

A cautioned statement was obtained from the accused on the 16th of October 1992. The admissibility of that statement has not been challenged. However, the accused had elected to give evidence under oath, and the evidence given under oath differs on the crucial issue as to the element of malice aforethought.

One of the key questions before this court is whether, I can rely on the cautioned statement as revealing the truth of what actually occurred.

In ‘Archbold Criminal Pleading Evidence & Practice’, Forty-third Edition, Vol.1, paragraph 15 - 56, the learned author stated:

"The only question for the jury is the probative value and effect of the evidence."

Further down, he stated: "The jury should take into consideration all the circumstances in which a confession was made including allegations of force; if it thinks they may be true, in assessing the probative value of a confession."

In Phipson on Evidence; Tenth Edition, page 328, paragraph 792, the learned author state that:
"Voluntary confessions are admissible in evidence because ‘what a person having knowledge about the matter in issue says of it is itself relevant to the issue as evidence against him.’ Such confessions may reasonably be taken to be true against the defendant himself."

At page 329, the learned author continued: "An unambiguous confession is in general sufficient to warrant a conviction without corroboration." The case referred to in support of this proposition is the case of R-v-Sykes, 8 Cr. App. R. 233. At page 236, Ridley J. stated:

"It would have been unsatisfactory to convict on the evidence had it not been assisted by the confession, and probably it would have been unsatisfactory if the conviction rested on the confessions only, without the circumstances which make it probable that the confessions were true."

Further down the same page, the learned Judge stated:

"The main point, however, is one independent of all these details, the question how far the jury could rely on these confessions. I think the Commissioner put it correctly; he said: "A man may be convicted on his own confession alone; there is no law against it. The law is that if a man makes a free and voluntary confession which is direct and positive, and is properly proved, a jury may, if they think fit, convict him of any crime upon it. But seldom, if ever, the necessity arises, because confessions can always be tested and examined, first by the police, and then by you and us in court, and the first question you ask when you are examining the confession of a man is, is there anything outside it to show it was true? Is it corroborated? Are the statements made in it of fact so far as we can test them true? Was the prisoner a man who had the opportunity of committing the murder? is his confession possible? Is it consistent with other facts which have been ascertained and which have been, as in this case, proved before us?"

I am satisfied that the above statements of Ridley J. are also relevant and applicable to the facts surrounding the cautioned statement of this accused, and as to the question of what weight this court should attach to that statement.

The reason why it is important to weigh the cautioned statement of the accused carefully is because in his evidence under oath he has changed the version of what actually took place on the crucial parts which could result in a conviction for murder, if accepted as true by this court. It is important to consider therefore whether there is anything outside of the cautioned statement which could show that it was true, or that it is corroborated.

Both saw the accused as he sought to implement the plan he alleged was told to him by his mother, to tie a rope around the neck of the deceased and tie the other end of it to a tree, so that it will appear that the deceased had hanged herself. The probative value of their evidence must necessarily be confined to that scene under the cocoa trees. The evidence of both witnesses however differ in their specific details.

Selwyn Buaeda stated that when he woke up from sleep, he heard the deceased's child crying excessively and so he woke up his son and the two of them went towards the accused's house. He said that as they approached the house, he saw towards a cocoa tree, the accused holding a small rope and trying to tie one end of it to a cocoa branch and the other end around the neck of the deceased. He said that the accused held the deceased with one hand whilst with the other hand he was trying to tie the rope to the tree. The deceased however was too heavy for the accused and so he couldn't lift her up. The accused then was disturbed by them so he ran to his house.

Roger Buaeda's version is slightly different. He said that he woke up at about 5.00 am in the morning. He also heard the accused's child crying a lot and so he went to see his father and the two of them went towards the accused's house. There is no mention that he was woken up by his dad.

He stated that the accused was holding the rope at both ends and had put it around the neck of the deceased and tried to lift her body up so that he could tie the ends to the branch of the cocoa tree. It was then that he was disturbed and ran away to his mother who was standing at the other end of the house.

Roger’s version is slightly more consistent with the cautioned statement of the accused. The accused’s statement is that he did try to tie the rope around the neck of the deceased and lift her to tie the other end to the tree but she was too heavy and so he let go of her and threw the rope at her side. He then shouted for his mummy and told her that Ellen had died. He then looked towards the road and saw Roger and Selwyn coming towards him.

Both witnesses confirmed seeing the rope at the deceased's body. This part of the story of the accused to some extent is corroborated by the direct evidence of Roger and Selwyn.

In his statement under oath before this court, the accused stated that after killing the deceased under the cocoa trees, he went to his house and then was told by his mother to get a rope and put it on her body so that people will think that she hanged herself. It was when he had returned to the body with the rope that he was seen by the two witnesses.

The point to note about both these explanations is that they are capable of being corroborated by the evidence of Selwyn and Roger and therefore equally credible.

Another area where the above two witnesses evidence differs is at the part where the accused had gone to Martin's house to get the deceased back earlier on that evening. Selwyn Buaeda's evidence is that the accused came at that time with a bush knife and shouted for the deceased to go back with him or else he would cut her neck. Roger's evidence in contrast was that the accused came peacefully and got his wife back that evening. The accused's version under oath is that he did not go personally to Martin's house. He sent his mother, who brought back the deceased. He met the deceased instead on the road. And it was at this point that the deceased swore in custom against the accused.

In the statement of the accused he said that he threatened to cut the neck of the deceased after the deceased had swore at him, but this was on the road and not at Martin's house. There is therefore a slight difference in the version of events between the three of them. The version of the accused in this matter is different from Roger and Selwyn's evidence.

In the evidence of Roger and Selwyn Buaeda, they both stated that there was a clear track which was consistent with something heavy being dragged on the ground leading from the front of the accused's house to the cocoa tree where the body was discovered. They both described in detail that they saw the tracks starting from about two feet from the front of the accused's house and going towards the cocoa trees. Also along the track were human faeces. Roger Buaeda stated that there were three spots of faeces spread along the track. Selwyn Buaeda states that there were faeces all the way along the track.

The inference, if any to be drawn from this is that the deceased had been dragged from the house of the accused. It therefore may be assumed that the deceased was killed somewhere in the house or around the house of the accused before being dragged to the cocoa trees.

In the cautioned statement of the accused, he states that the deceased was sitting behind Fred's house when he went and hit her with the stick. An album of photographs has been submitted to the court by the prosecution as an exhibit, without objection from the defence. Photograph marked "B" shows where the deceased was alleged killed by the accused. This is no where near the house of the accused. The picture taken also shows that it is under a tree where, there is quite a few grass growing. The photograph was taken on the day of the killing. In the cautioned statement of the accused, he says that after killing the deceased, he then dragged her body to the cocoa trees.

The point about the dragging of the deceased as contained in the cautioned statement of the accused could be corroborated by the evidence of Roger, Selwyn and the nurse-aid, from their observations of the cuts and scratches on the knees and the legs of the deceased, consistent with dragging. The observations of Roger and Selwyn however do not correspond with the description of the accused as to where the killing actually took place. Was she killed under the tree near Fred's house, or was she killed in the accused's house and then dragged to the cocoa trees.

In the evidence under oath of the accused he stated that he killed the deceased under the cocoa trees and it was when he had gone back to the body to put a rope around the neck of the deceased that he was seen.

If the deceased had been killed at the spot first described in the cautioned statement of the accused then most likely there would have been track marks leading from that spot to the cocoa trees. There is no evidence to corroborate this description of the accused, as contained in his cautioned statement. The track marks from the house to the cocoa trees add a further puzzle to this killing. Was the deceased killed in the house of the accused and then dragged to the cocoa trees as indicated by the track marks? If that is so then the part in the cautioned statement about where the deceased was killed and then dragged to the cocoa trees does not reveal the correct picture. Both witnesses saw signs of human faeces along the track marks. So it is possible that these belonged to the deceased and were left by her as she was dragged to the cocoa trees. No explanation has been provided by the accused to account for the track marks. In his evidence under oath, the accused stated that the deceased was killed at the spot where he was seen by the two witnesses, Roger and Selwyn. There are therefore three possible spots that the deceased was killed. First, under the tree, near Fred's house. Second, possibly in the accused's own house, and thirdly, under the cocoa trees.

There is no reasonable doubt in my mind that the deceased died from the injury to her neck. Can I be satisfied however, that she was killed as described by the accused in his cautioned statement? The evidence of the nurse-aid is that it would take a great deal of force to damage the neck muscles and break the wind pipe, and that it was his opinion that a great deal of force was applied to the neck of the deceased; not one, but several times. There is no expert medical opinion provided for the benefit of the court, and so I must treat this piece of evidence with caution.

The observations of the nurse-aid and his opinion do corroborate to a certain extent the cautioned statement of the accused that, he hit the deceased with his full strength and then held the stick against her neck until she stopped struggling. It is possible that that did happen and that those were the unlawful acts which caused the death of the deceased.

In his evidence under oath, however, the accused stated that he hit the neck of the deceased by accident, and that he meant to whip her backside instead. It is equally possible that this version is what actually happened. The accused demonstrated in court how he delivered his blow. From the angle of the court, it was more of a sideways blow than a downward blow. In his evidence under oath the accused stated that the deceased turned towards him when he delivered the blow and so it struck her neck. The exact details of how this blow was delivered as compared to the positioning of the deceased and the accused was not explored in detail to the point where I am not satisfied that that blow could not have been possible. It is therefore a possibility that she was struck on the neck from that blow.

It is common knowledge that the neck area is a very vulnerable and weak area, and it seems that even if what may, or can be described as reasonable force is applied with a hard object, such as a stick, (depending on what sort of stick it is, whether a soft stick, or hard wood) it is bound to cause some sort of injury.

The force described by the accused in whipping the backside of the deceased maybe reasonable and may not cause any serious injury if struck on the backside, however when compared with the same force applied to the neck of the deceased, such a force in my view is capable of doing the same damage which resulted in the death of the deceased, from a broken wind-pipe. I note that the description of the force applied in the cautioned statement is more consistent with the opinion expressed by the nurse-aid. However, I am unable to accept his opinion in its entirety, for the reason that he was not giving expert evidence, and I cannot be sure that his opinion is the generally accepted medical view. It is possible that he may be making a guess as to what possibly happened without necessarily stating an opinion. For all purposes it would be unsafe for this court to accept his statement of opinion as correct and acceptable and to be relied on. This is not to downgrade in anyway the assistance, his piece of evidence has provided to this court in putting the bits and pieces together, as to her most likely cause of death.

There is a further element introduced into this court in the trial which must be taken into account. This is the element of a custom swearing done against the accused earlier on in the evening of that night. On one hand, that custom swearing must be weighed in the light of the possible effect it had on the accused. In the customary context of most societies in Solomon Islands, such swearings are done to provoke people to take action on certain things; whether it be to fight or to kill someone, or to do something to the person or property of someone else. Sometimes perhaps it is done to hurt someone, especially when that swearing relates to something dear, precious or what one may consider as ‘tambu’ (in this case, it related to his tribal totem, a bow and arrow).

I do take note of the fact that the custom swearing done must be considered in the context of what transpired that evening. I accept that earlier on that evening, there had been a row over some swamp taro (called Kakake), which involved the deceased, the accused and the mother of the accused. From that row over what may have been a simple matter, it escalated into a heated argument, which resulted in compensation being demanded from the deceased to pay to her husband, for digging up their own swamp taro. It seems obvious to me that the instigator of the row or quarrel was not so much the accused as his mother.

In his statement under caution, the accused stated that he was very cross about the custom swearing made against him, and that clearly in my view affected him when he went to talk to his wife and to whip her, but instead it seems he whipped her on the neck. In his cautioned statement he said that he meant to whip her head, but because she lifted her head, it landed instead on her neck.

Mr Mwanesalua's submission on this point is that the custom swearing was done earlier on that evening, and that it was therefore not as significant as it should have been when time had lapsed before the actual killing took place.

This point was not pursued vigorously by Mr Remobatu because his client had changed his version under oath to say that he was not as cross as he should have been earlier on that evening and that he only applied reasonable force to the body of the deceased. It is noted that earlier on under examination in chief this accused stated that he was very cross and so whipped his wife with it. Later on, he changed that to say that he was not so cross when he whipped his wife that night.

When he was asked by his Counsel why he had written self-incriminating words in his cautioned statement, he stated that he had not been treated well when in custody and that the police had tried to get a statement from him on several occasions prior to the 16/10/92, and had punched him. The Officer who he alleged had hit him was George Rifasia. Mr Rifasia had not been called by the prosecution, as the admissibility of the cautioned statement had not been challenged. Therefore it was not possible to cross-examine Mr Rifasia about the allegations of the accused. Mr Madeo however was called to introduce the cautioned statement as an exhibit, and he denied using any threats or force, or making any promises to the accused when the statement was obtained.

I have sought to highlight some of the discrepancies in the caution statement as compared to the evidence produced by police witnesses, for the purpose of showing why it would not be safe for this court to rely completely on the cautioned statement as revealing the truth of what did take place.

The probable cause of death is not in much dispute. The bruises on the front neck area and the broken wind-pipe is also not in much dispute. What is in dispute is the question of malice aforethought, that there was an intention to cause the death of or grievous bodily harm to the deceased, whether she was actually killed or not.

As I have pointed out, the only direct evidence of what possibly transpired is contained in the cautioned statement of the accused, and what he said in evidence under oath. If I accept that what he had said in his cautioned statement was not only correct but reveals the truth, then his actions clearly showed malice aforethought. However, for the reasons I have outlined in my judgement I cannot say that I am satisfied beyond reasonable doubt that what he had described is correct in its entirety and reveals the truth of what happened. The truth may lie somewhere between the version as contained in his cautioned statement and what he said in court under oath.

I am satisfied however beyond reasonable doubt on his own words, as admitted in court under oath, that it was him who applied the unlawful act which resulted in the death of his wife. She died at his hands.

I am not satisfied on the other hand to the required standard that that killing was with malice aforethought. Accordingly he is acquitted of murder, but must be convicted of manslaughter.

Sentence to 10 years imprisonment w.e.f. 12/10/92.

(A.R. Palmer)
JUDGE