Regina v Kwaimani [1997] SBHC 92; HCSI-CRC 3 of 1997 (4 April 1997)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 3 of 1997

REGINA

-v-

LENSLEY KWAIMANI

High Court of Solomon Islands
(Palmer J)
Criminal Case No.3 of 1997

Hearing: 24th March - 27th March, 1997
Judgment: 4th April, 1997

J. Faga for Prosecution
M Samuels for the Defendant

PALMER J.: The accused was charged with murder contrary to section 193 of the Penal Code that he did with malice aforethought caused the death of Rolex Makisi by an unlawful act.

The case for the prosecution essentially was that the accused intended to cause the death of or grievous bodily harm to the said deceased or that he knew that the act which caused death will probably cause the death of or grievous bodily harm to the deceased: see section 195(a) and (b) of the Penal Code.

The acteus reus alleged was that the accused had delivered a very powerful kick at the face of the deceased and thereby causing the deceased to fall backwards on the bench he was sitting on and seriously injure his head which resulted in his death some 16 hours later. Prosecution alleges that this was a deliberate and intentional kick aimed at causing grievous bodily harm or that grievous harm was likely to result.

The defence of the accused in essence was that he did not intend to kill the deceased or cause grievous bodily harm and that he did not realize that grievous bodily harm would likely result.

The crucial evidence of prosecution is contained in the sworn evidence of PW1 and PW2. These were the evidence of two children, 13 and 11 years old respectively, who testified as to what they saw take place that day. These two children were playing not far from where the deceased was sitting outside the Malu’u Health Centre and saw the accused approaching the deceased. Both stated how the accused left his slippers some distance from the deceased (see Exhibit No.2 at spot marked “B’’) and then walked towards the deceased and kicked him in the face. Both described the kick as delivered towards the face of the deceased on his left side. The deceased fell backwards as a result and hit the back part of his head against the cement floor. His legs remained on the bench where he had been sitting.

The evidence of these two prosecution witnesses has been corroborated to some extent by the medical report produced by the Nursing Officer who attended the deceased immediately after he had been assaulted, and also the medical report of the Doctor who saw the deceased at Kilu’ufi Hospital. The Nursing Officer (PW7) was one of the persons who arrived at the scene soon after the attack on the deceased. He confirmed the evidence of PW1 and PW2 that the deceased’s head was on the floor whilst his legs were lying across the bench.

His description of the injuries sustained were as follows:

“ There is a penetration wound or cut on the left upper lip from inside-out 4 mm in length and 2 mm (the thickness of his lip). Another laceration on his lower lip corresponding to the cut on his upper lip 3 mm in length and 2 mm in depth, both cuts were bleeding very much at the time of the impact.”

Other injuries sustained in the deceased’s mouth included a tooth which had been uprooted from its base and had to be extracted by him. Another two were loose.

PW7 also observed injuries at the back of the head of the deceased. This he described as follows:

“At the back of the head called the occiput region have a bruised punctured injury with blood on the inner tissue and was very soft over the area which is a sign of a inter-cranial fracture of the skull bone on the head”.

The evidence of the Doctor who carried out an examination on the body of the deceased confirmed the injuries referred to by the Nursing Officer. I am satisfied the medical reports on the deceased are consistent with the description of PW1 and PW2 as to how those injuries had been inflicted. The injuries on the left side of the face of the deceased are consistent with a kick being applied to that part of the body, and the injuries on the back part of the head of the deceased are also consistent with it being caused by an impact against the cement floor where the deceased was sitting.

The evidence of PW3 is also consistent with what PW1 and PW2 had described. This witness did not actually see what happened but he did hear a loud noise, and when he looked towards the direction of the noise he saw that the deceased had fallen down. He described the noise he heard as “. . like something which fell and hit the cement and sounded very loud.” This is consistent with the description of PW1 and PW2 that the deceased fell backwards after being kicked and hit the back part of his head against the cement floor.

The evidence of PW4 is also consistent with what PW1 and PW2 had described. This witness stated that she was the first person to reach the spot where the deceased was after he had fallen down. She stated that on reaching the deceased, she saw blood coming out from his mouth. She also saw that the deceased had fallen down on the cement floor in front of the Clinic.

I am satisfied I can rely on the evidence of PW1 and PW2 as to how the assault on the deceased was effected. I accept their evidence.

The next crucial matter is whether prosecution have proved malice aforethought. Malice aforethought may be expressed or implied and may exist where there is evidence proving an intention to cause the death of or knowledge that death will probably result. On this particular point, I cannot be satisfied on the evidence before me that the accused intended to cause the death of the deceased or that he knew that death would probably result.

Malice aforethought however is also established if the accused intended grievous bodily harm or knew it was a likely result I am obliged thereby to consider in detail the blow inflicted against the deceased.

The blow inflicted against the deceased was by way of a kick to his face. In Regina v. Garunu [1986] SILR 192, at page 196, Ward CJ described a kick as a very powerful way of inflicting a blow. To properly assess the effect of such a kick however, the state of the evidence must be considered for some indication as to the amount of force used and the type of kick applied.

PW1 described it as a strong kick whilst PW2 described it as “dangerous”. The medical evidence showed that the result of the kick was the injuries on the lower and upper lips and injuries to the teeth of the deceased. One tooth was completely uprooted and had to be extracted whilst another two were loose. Whilst on one hand it is clear that a certain amount of force must have been applied for such injuries to be sustained, on the other hand, I cannot feel satisfied to the required standard that the kick delivered was hard enough or of a type which would indicate an intention to cause grievous bodily harm or to indicate that he realised such a result was probable. The accused was not wearing any shoes or boots that day, merely slippers. Kicking with boots or shoes may be more serious than bare feet and it may be more readily accepted then that there was an intention to cause serious harm or that it was a likely result. Both PWI and PW2 saw the accused leave his slippers some distance away before approaching the deceased. This may have been done purposely to give the accused more balance and power when executing the kick, but I cannot be satisfied that it necessarily indicates an intention to cause grievous bodily harm or that this accused realised that grievous bodily harm will probably result. There is clear evidence from prosecution witnesses who saw the accused that day, that when he walked towards the deceased, they described him as either walking normally or slowly. There was nothing in his manner of walking or approach to suggest or show aggressiveness or anger, or that would indicate that he was about to do something bad. After delivering the kick to the face of the deceased, the accused also did not attack the deceased further. It is pertinent to note as well from the evidence of PW3 that the accused did not speak loudly to the deceased after he had kicked him. These with respect are all consistent with the actions of a man who did not have the requisite intention to cause grievous bodily harm or realised that such a result was likely.

I note also the evidence of PW 5, who stated that when the accused saw him the night before he was calm and polite when he explained his concerns about what the deceased had done.

There is also no evidence to suggest that the kick had been delivered with any particular expertise or skill to suggest an intention to cause grievous bodily harm or that a likely result was the outcome.

I note also that the deceased had suffered from some severe head injuries earlier on in his life which clearly had affected his mental capacity. It was common knowledge amongst the people in that area that he was not normal mentally. The unfortunate part of that earlier injury is that it is quite possible that this may have left his skull in a weakened state and not in a position to withstand the impact from the fall. I cannot be satisfied that the fall and impact necessarily reflect a harder than normal kick.

In those circumstances, I am not satisfied that malice aforethought had been proven by prosecution and I must acquit the accused of murder. On the other hand, I am satisfied beyond reasonable doubt, that the kick applied to the face of the deceased was unlawful. I am also satisfied beyond reasonable doubt that the deceased died from head injuries sustained as a direct result of that unlawful act. He must therefore be convicted of manslaughter.

The Court.