Regina v Rakaimua [1996] SBHC 13; HC-CRC 024 of 1995 (14 March 1996)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 24 of 1995

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PAUL RAKAIMUA

Before: Muria, CJ

Hearing: 19, 20, 21 & 26 February 1996 - Judgement: 14 March 1996

Counsel: DPP for Crown; Mr. Samuel for Accused

MURIA, CJ:

The accused has been charged with the murder of Margaret Muna on 19 September 1994 at Nukufero Village, Russell Islands, Central Province. The accused has pleaded not Guilty to the charge.

The facts are, generally speaking, not in dispute. In the morning of 19 September 1994, the accused together with one Robert(PW6) and Smith went diving and returned at about 1.00pm. Upon returning home, the accused changed into his dry clothes (lava lava) and went into his house to take a nap. There was nobody in the house when he accused went in to take his nap. He was later joined by Robert who lied down near one of the doors to the house while the accused lied down near the other door to the house.

While Robert and the accused were in the house, the two girls Linnett Tufunga (PW2) and Noland Manu(PW3) went into the house and were looking at a book. In the course of doing that the two girls were laughing at the pictures of women in the book. PW2 and PW3 also confirmed in their evidence that they saw the accused's private part (penis) while he was lying down asleep and also laughed at him.

After that the two girls left to go to a nearby water-supply. The accused was then awoken by his grandmother to have some food. This he did and then returned to the house to continue his sleep. He was not able to get some sleep then as the two girls together with another (the deceased), returned from the water-supply and were laughing outside the house, near the clothes line. They were still laughing at the accused.

The accused heard the girls laughing and he felt very upset and ashamed because the two girls saw his private part and had mentioned it to another girl (deceased) and they were all laughing about it. He went outside, took a spear from the wall of the house and went to the girls. He then whipped Linnett on the palm of her hand and Noland on the back of the palm of her hand. The accused did not whip the deceased. As a result Linnett cried.

Robert who was at the house heard Linnett crying and came out. He smacked the accused on the head and tried to force the accused to go back into the house. It was at this time that the accused turned and threw the spear at Linnett who missed it. Unfortunately the deceased girl was behind Linnett and so the spear landed on her at her neck. The deceased managed to pull the spear out and ran away. She collapsed on the way outside David Tarorotai's (PW7) house and died. The accused was later arrested, interviewed and charged for the murder of the deceased.

I remind myself that the accused had pleaded Not Guilty to the charge and it is for the prosecution to prove the guilt of the accused beyond a reasonable doubt. This must be done on the evidence before the Court. If after considering the evidence, there is doubt about the guilt of the accused, the Court must give the benefit of that doubt to the accused.

Facts not in dispute

In his evidence in Court and in his Record of Interview, the accused did not deny shooting the deceased with the spear (Exh.1) and that the spear struck and penetrated the deceased's neck. There is also no dispute that the deceased died as a result of the injuries received from the sharp spear thrown by the accused.

There is also no dispute that the accused was very ashamed when he learned that the girls saw his private part (penis) while he was asleep. The accused agreed that he became upset and angry about being laughed at by the girls.

Facts as found by the Court.

The prosecution contended that the girls (PW2 & PW3) were not laughing at the accused at the time but rather they were laughing at some pictures of women in a book which they were looking at. The evidence on this aspect of the case came from Linnette (PW2), Noland (PW3), Robert (PW6) and the accused.

The evidence of Linnett and Noland at first contains denials that they were laughing at the accused. Both witnesses later agreed that they were in the same room in the house where the accused was lying down asleep and that they saw the accused's private part (penis). Eventually Linnett admitted that they were laughing at the accused because they saw his private part. Noland, although not directly admitting laughing at the accused, said in evidence that she agreed she told the police two days after the incident in 1994 that she and Linnett saw the accused's private part and that they were laughing at him.

Robert was in the same room where the accused was lying down asleep and where Linnett and Noland were looking at some pictures in a book. Robert also noticed the two girls were laughing at the accused because they saw his (accused's) penis. Robert reported this to the accused when he woke up.

The accused did not hear the two girls laughing at him while he was asleep. He, however, learned that the girls were laughing at him because they saw his penis after the girls had already left for the water-supply. It was when the girls came back from the water-supply that the accused heard of the girls saying that he was stupid for sleeping naked and exposing his private part. Then he heard them laughing. He felt ashamed and upset so he went out and confronted them.

On the evidence, I am satisfied beyond any doubt whatsoever that the two girls Linnett and Noland were at the time laughing at the accused because they had seen his penis while he was asleep. I find this as a fact established by evidence.

As I have said, there is no dispute that the deceased died as a result of the spear thrown by the accused and landed on and penetrated the neck of the deceased. That being so I shall now turn to the defences raised on behalf of the accused.

Defence of Immature Age

I consider first the defence of immature age as provided under section 14 of the Penal Code. That section provides as follows:

"14. A person under the age of eight years is not criminally responsible for any act or omission.

A person under the age of twelve years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.

A male person under the age of twelve years is presumed to be incapable of having sexual intercourse."

Under that provision only a person under eight years of age will be excused of any criminal responsibility for his act or omission. A person who is eight years but still under 12 years will also be excused from criminal responsibility unless it is proved that the person had the capacity to know that he ought not to have done what he did or made the omission at the time the act was done or omission was made. The defence says that the accused in this case is a person who was less than 12 years of age at the time of the commission of the offence and who then did not have the capacity to know that what he did would cause death. On this contention, I turn to the evidence.

The crucial evidence as to the age of the accused comes from his own mother, Stella Vakaruarua (PW1). This witness gave evidence that she was married to one Mathias and that she gave birth to the accused in October 1981 and her daughter Anne in 1982. Her husband, she said, died after 1982. Timothy Muna (PW4) gave evidence and said that he came back to Russell in 1980. He said that shortly after he and his family arrived in Yandina, he saw Stella already carrying the accused as a baby. The accused was not able to tell the Court what his age is now, although he said that in 1994 he was attending -school and that he was in Grade 2.

It is for the prosecution to show by evidence that the defence of immature age raised by the accused must be excluded. But I think I can also say without shifting the burden of proof to the defence that the accused must point to some evidence supporting the suggestion that he was of immature age at the time and which may help to raise doubt in the Court's mind. On this proposition I refer to the decision of the Court of Appeal in Ben Tofola -v- R (1993) Crim.App. Case No. 2 of 1993 where the Court, after referring to the evidential burden on the accused to support his contention that he was assaulted at the time of his interview with the police and that his Caution Statement was not obtained voluntarily, said;

"All that is required is that the accused point to some evidence which could raise a doubt in the judge's mind, whether the evidence relied upon does raise a doubt is a matter for the judge in his assessment of the evidence."

At the end of the day, the evidence as to the age of the accused in this case can only be found in the prosecution's evidence. That evidence shows that the accused was born in late 1981. If I accept the mother's evidence, which I do, then the accused must have been born in October 1981.

On the evidence before the Court, I am satisfied beyond a reasonable doubt that the accused's age was more than 12 years at the time of the commission of the offence. In his own evidence in Court the accused had also shown that not only that he had the capacity to know that it was wrong to throw a sharp spear at a human being, he did in fact know that it was wrong to do so. The prosecution have discharged the onus placed upon them of excluding the defence of immature age. That defence fails.

The defence of accident.

Mrs Samuel for the accused also relied on the defence of accident as provided for under section 9 of the Penal Code in this case. Counsel in her submission argued that the accused merely threw the spear to the hedges and unfortunately it went through the hedges and struck the deceased whom the accused did not know was there.

Section 9 of the Penal Code upon which Counsel for the accused relies provided as follows:

"9. Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.

Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.

Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act or to form an intention is immaterial so far as regards criminal responsibility. "

Thus under this section the accused is claiming that the landing of the spear on the deceased's neck which eventually resulted in her death was an event which occurs by accident. As to the act of throwing the spear toward the hedges, that was a deliberate act and with the intention to leave the spear there at the hedges. It is counsel's contention that the striking of the deceased's neck which subsequently led to her death was an event which occurred by accident and as such no criminal responsibility should attach to it.

The learned Director of Public Prosecutions strongly argued that the defence of accident should be rejected in this case He submitted that the accused deliberately aimed the spear at Linnett who missed it when it was thrown at her.

The learned Director also contended that the accused knew the spear was sharp with a metal end and that he aimed it at the place where the girls were. That argued the learned Director runs counter to the defence of accident. In support of his argument the learned Director cited the case of Vallance -v- The Queen [1961] HCA 42; (1961) 108 CLR 56.

The defence set out in the first paragraph of section 9 consists of two limbs. The first limb operates to relieve a person from criminal responsibility "for an act or omission which occurs independently of the exercise of his will" and secondly it operates to relieve a person from criminal responsibility "for an event which occurs by accident." In this connection the distinction is between the physical action apart from its consequences and the accidental outcome (event) of the willed act. Such a distinction has been discussed in Timbu-Kolian -v- The Queen [1968] HCA 66; (1968) 119 CLR 47; Kapronovski -v- The Queen [1973] HCA 35; (1973) 133 CLR 209 and The Queen -v- Van Den Bemb [1994] HCA 56; (1993-1994) 179 CLR 137 which are all decisions of the High Court of Australia on provisions which are similar to the first paragraph of section 9 of our Penal Code.

That the act of the accused of throwing the spear to the direction of hedges where the girls including the deceased were, is beyond challenge in this case. Also that the accused's act of throwing the spear was deliberate must, on the evidence, be equally beyond challenge, The question in the light of the defence raised must therefore be whether the striking of the deceased whereby she was killed was an event which occurred by accident and not whether the death of the deceased following a deliberate act of throwing the spear was an event which occurred by accident. In this regard I would respectfully prefer the remarks by Windeyer J in Timbu -v- Kolian (supra) which is a Papua New Guinea case where the accused threw a stick at his wife but it hit and killed their baby whom his wife was carrying in her arms. The accused was not aware that his wife was carrying in her arms their child as it was dark. He was convicted of manslaughter by the Supreme Court of the Territory of Papua New Guinea but on appeal to the High Court of Australia he was acquitted. In considering the defence of accident under s.23 of the PNG Criminal Code, Windeyer J said at p. 69.

"In this case the question is not whether death after a blow intentionally delivered was an event which occurred by accident. It is whether the striking of the child where by he was killed was an event which occurred by accident. In my opinion it was, because it was not intended and it occurred as the result of the accused being both ignorant of a circumstance (the presence of the child) in which he wielded the stick, and without any foresight of the consequence of his doing so. These facts remove it from the area of mens rea and bring it within the description of an accidental event."

In the case now before the Court the throwing of the spear toward the hedges at the direction of the girls was an act which I have already found to be deliberate. The question that I posed earlier must be answered in the light of the evidence before the Court. That evidence comes from Linnett, Noland, Robert and the accused.

Linnett's evidence is that she and the other two girls, Noland and the deceased, left the water-supply and came back to the house. Noland having left earlier came and was standing near a chicken fence close to the house. Linnett and the deceased came and joined her there. It was while they were there that the accused came out and whipped Linnett and Noland with the spear. The girls were only about 5 to 6 metres away from the accused and there were high hedges between the girls and the accused. The girls were standing behind the hedges. According to Linnett it was when Robert smacked the accused on the head and tried to push him into the house that the accused turned and threw the spear through the hedges at her. She said that although she was behind the flower hedges she could see the spear coming and she dodged and missed it. She said she shouted to the deceased who was standing behind her to watch out, but it was too late.

Noland's evidence is that she came from the water-supply and stood outside the house. Linnett and the deceased came and joined her. It was there that the accused came out of the house and whipped her and Linnett with the spear. The accused whipped Noland with the wooden handle of the spear. She said Robert then came and smacked the accused on the head and pushed him to go into the house. Just then the accused turned and threw the spear at Linnett who dodged and missed it. The spear instead struck the deceased on the neck. In cross-examination Noland agreed that the flower hedges were taller than her and that they were 'a bit dense.' She however said she had clear view through the hedges and that she could see the accused through the hedges throwing the spear. She identified the hedges in photograph No.1.

Robert came to the girls when he heard Linnett cried. He then smacked the accused and pushed him to the house. According to Robert, the accused was angry and was struggling and as soon as his hands were free he turned and threw the spear at Linnett who missed it. The spear struck the deceased. This witness had also said that the accused just threw the spear but did not realise his spear landed on the deceased.

The accused's evidence is that he whipped the girls (Linnett and Noland) because they were laughing at him for being naked while he was asleep. He saw the deceased was with them. After whipping the girls he was going back into the house and it was then that Robert approached him and slapped him on his head. That made him angry. He said he was so angry that he "lost his thinking" and so he just threw the spear not intending to harm anybody. He said he was facing the house and the flower hedges and the girls were behind him. After he was angered by Robert's slapping he turned and threw the spear to the hedges. He said he did not realise that the spear struck the deceased who was also behind the hedges with the other girls. He said he could not have seen the girls as he left them near the clothes line where he whipped Linnett and Noland. Where he was, when he threw the spear, was outside the door to the house with the hedges behind him. So he said he could not see where the girls were.

Faced with that evidence the Court must decide whether the prosecution has excluded the defence of accident raised by the accused. The learned Director has submitted that the accused intended to shoot Linnett with the spear which the accused knew was sharp and would cause grievous harm if it came into contact with the body of a person. As such the accused, argued the learned Director, foresaw the likely consequence of his action. Consequently, it has been submitted that the defence of accident must fail on the authority of Vallance -v- The Queen (supra). I prefer to express the test in this case as whether the accused knew or realised that his action [of throwing the spear] would probably cause death or grievous bodily harm. I say this because criminal responsibility is necessarily attached to moral blame and not simply depend on what a person did or on the results of his actions. See The Queen -v- Crabbe [1985] HCA 22; (1985) 156 CLR 464 and also - Timber Kolian -v- The Queen (supra).

In the present case, on the one hand there is the evidence of the two girls who said that the accused meant to shoot one of them (Linnett) with the spear. To a certain extent Robert's evidence supported the evidence of the two girls. In Court the accused agreed he was angry with the girls and that he threw the spear at the place where the girls were, which was only about 5 to 6 metres away. In his caution Statement the accused said.

"That time I was still holding the spear and / was also very angry and cried. Without saying anything, / shot the spear directly to the girl named Linnett but she missed it and accidentally landed on Margaret Muna's throat (neck)"

Like in Timbu-Kolian, the accused intended the blow at one person but it hit another person altogether. The difference between the two cases is that in Timbu-Kolian the accused was not aware of the presence of his child as it was dark. In the present case, the accused was aware of the presence of the deceased with the other two girls. He shot with a spear at the place where the girls were, intending it to land on Linnett. I have seen the spear and I can say without hesitation that it was a weapon which if landed on a person's body when thrown can cause really serious injuries.

I have considered the evidence in this case and the authorities referred to in this judgment and I come to the firm conclusion that the prosecution has satisfied the Court beyond a reasonable doubt that the defence of accident cannot succeed as the striking of the deceased's neck with a lethal weapon aimed at one Linnett could hardly be called an event which occurred by accident. The defence of accident must therefore fail.

Defence of Provocation

I turn next to consider the alternative defence of provocation raised by the Counsel for the accused. This defence can be found in section 198 of the Penal Code which provides as follows:

"198. Where on a charge of murder there is evidence on which the Court can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be determined by the court; and in determining that question there shall be taken into account everything both done and said according to the effect which it would have on a reasonable man."

The case for the accused is that the two girls, Linnett and Noland, after seeing his exposed penis were behaving in a provocative manner toward him. They laughed at him in the house and when they came back from the water-supply they were talking about him being naked and that they saw his penis and then they continued to laugh at him. The accused was very ashamed to learn that the girls saw his private part (penis) and that they were laughing at him when he was asleep. He was provoked to anger when the girls continued laughing at him after they returned from the water-supply. He then whipped the two girls. He was going to go back to the house when Robert slapped him on the head causing him to cry in anger. He felt that Robert was siding with the girls who caused him shame and anger. As he said, he then "lost his thinking" and threw the spear at the girls, in particular at Linnett. In the circumstances as I described and on the evidence as the Court found can it be said that there is evidence of provocation upon the accused in this case that caused him to lose his self-control and do what he did? On this question Counsel for the accused argued that the proper direction to bear in mind must be that which is laid down in DPP -v- Camplin (1978) 67 Cr.App.R.14 where it is said that the reasonable man test must be applied to a person having the power of self-control to be expected of an ordinary person taking into account his age and sex. It is necessary therefore that I set out what the Court had said in that case. Lord Diplock with whom Lord Fraser and Lord Scarman agreed said, in relation to a proper direction to the jury under section 3 of the Homicide Act 1957:

"The judge should state what the question is using the terms of the section. He should then explain to them that the reasonable man referred to in the question is a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused's characteristics as they think would effect the gravity of the provocation to him; and that the question is not merely whether such a person would in like circumstances be provoked to lose his self-control but also would react to the provocation as the accused did."

Camplin's case was applied in this jurisdiction in Loumia -v- DPP (1985-1986) SILR 158. It will be observed that section 3 of the Homicide Act 1957 (UK) is virtually reproduced in section 198 of our Penal Code with the substitution of the Court for the jury and deleting the reference to the opinion of the jury. Under section 198 of the Penal code the question is whether the provocation relied on was enough to make "a reasonable man" do as he did. The section then goes on to provide that in determining that question there shall be taken into account "everything both done and said according to the effect which it would have on a reasonable man." Clearly the requirement that the provocation be of such a nature as to be enough to make the accused lose his. self-control must involve an objective test and once that test is satisfied then it becomes necessary to consider whether the accused was in fact (subjective test) deprived of his self-control.

In Camplin the appellant, a boy of 15 years old, hit the deceased on the head with a pan and killed him. The deceased had committed buggery with the appellant. He was charged with murder. The trial judge directed the jury that as to the defence of provocation the question was whether a reasonable man of full age would in like circumstances act as the appellant did. The appellant was convicted of murder and on appeal to the Court of Appeal the conviction for murder was quashed and a verdict of manslaughter substituted, a verdict which was affirmed by the House of Lords. Before expressing what the proper direction (as quoted earlier) should be in such a case Lord Diplock pointed out that for the purpose of the law of provocation the "reasonable man" has never been confined to the adult male but rather it applies to

"an ordinary person of either sex possessed of such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today"

Addressing the fact that the appellant was only 15 years of age at the time of the commission of the offence Lord Diplock went on to add:

"That he was only 15 years of age at the time of the killing is the relevant characteristic of the accused in the instant case. It is a characteristic which may have its effects on temperament as well as physique. If the jury think that the same power of self-control is not to be expected in an ordinary, average or normal boy of 15 as in an older person, are they to treat the lesser powers of self-control possessed by an ordinary, average or normal boy of 15 as the standard of self-control with which the conduct of the accused is to be compared?

It may be conceded that in strict logic there is a transition between treating age as a characteristic that may be taken into account in assessing the gravity of the provocation addressed to the accused and treating it as a characteristic to be taken into account in determining what is the degree of self-control to be expect of the ordinary person with whom the accused's conduct is to be compared. But to require old heads upon young shoulders is inconsistent with the law's compassion to human infirmity to which Sir Michael Foster ascribed the doctrine of provocation more than two centuries ago. The distinction as to the purposes for which it is legitimate to take the age of the accused into account involves considerations of too great nicety to warrant a place in deciding a matter of opinion, which is not longer one to be decided by a judge trained in logical reasoning but by a jury drawing on their experience of how ordinary human beings behave in real life."

As recognised in that case, the Court must also take into account the age of the accused when considering the question of provocation. This must be so as the law recognises and takes compassion with "human infirmity", a situation ignored in Bedder -v- DPP (1954) 38 Cr.App.R. 133 which was disapproved in Camplin.

The learned Director argued that there can be no provocation on the facts of the present case. He further argued that the accused threw his spear at the girls in anger after being hit by Robert on the head. As to the laughing, the learned director submitted that the accused only assumed that he was being laughed at.

I have considered the evidence in this case and as I have already concluded, the girls were, on my assessment of the evidence laughing at the accused. They have clearly shown it to be the case in their evidence and it was confirmed by Robert to the accused and to this Court. The girls were heard by the accused-to have talked about him sleeping naked after they came back from the water-supply and continued to taunt him with their derisive laughing. I do not accept the contention put forward by the prosecution that the accused merely assumed that he was laughed at by the girls. Although at first be did not know that the girls were laughing at him because he was asleep but he later knew that they were laughing at him after he was advised by Robert and by the girls themselves continuing to deride him by their laughing.

I am of the firmed view that the girls' actions had brought shame and upset upon the accused. This was made worst by the added action of Robert who struck the accused's head. The evidence shows that in his state of shame, upset and anger the accused cried and threw the spear at the girls, in particular at Linnett.

The accused in this case as I have found, was more than 12 years old at the time of the commission of the offence. In fact, on the mother's evidence the accused would have been 12 years 11 months old then. Is there any evidence upon which the Court can say that there had been provocation on the accused here? In my assessment of the evidence, I come to the clear conclusion that there is.

The next question is to consider the effect of that provocation on this 12 year-old accused. On this, I rely on guidance of DPP -v- Camplin (supra) and ask myself the question whether the provocation was enough to make a reasonable person of the same age as the accused in the circumstances do as he did I must bear in mind, in addition to the accused's age, the social and cultural background of the accused as this is also a relevant characteristic of the accused to bear in mind in assessing the gravity of the provocation on him. This was clearly pointed out in Loumia -v- DPP (supra) where the Court directed the assessors on provocation to take into account the custom of East Kwaio and to consider whether the sight of dead and wounded brothers was enough to make a reasonable East Kwaio pagan villager do as the appellant did.

The prosecution witness Timothy Muna (PW4) who is the deceased's father gave evidence and said that it was a serious matter in Tikopia custom to laugh at somebody naked and something that could provoke anger. The accused is also from Tikopia and so are the girls who were laughing at him.

I come to the firm conclusion in this case that the actions of the girls were so provocative on this 12 year-old accused that it was enough to make a reasonable person in his position lose his self-control and do what he did, that is, threw the spear at the girls, in particular at Linnett who missed it and sadly and fatally struck the deceased whom the accused knew was there present with Linnett. On the evidence I find that the prosecution has failed to exclude the defence of provocation to the required standard and so that defence must succeed in this case

On the evidence there is clearly established beyond a reasonable doubt a case of unlawful killing which but for the defence of provocation successfully raised would have been murder. I must therefore find the accused Not Guilty of murder but only guilty of manslaughter.

Verdict:

Acquitted of murder.

Guilty of Manslaughter.

align="center">ter">GJB Muria
CHIEF JUSTICE