Regina v Maeto'o [1998] SBHC 59; HC-CRC 002 of 1998 (27 July 1998)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 2 of 1998

REGINA

-V-

SILAS MAETO’O

In the High Court of Solomon Islands
(Lungole-Awich, J)

Date of Hearing: Ending 9.7.1998
Date of Judgment: 27.7.1998

Mr R Talasasa for Crown
Mr A Nori for Accused

JUDGMENT

(LUNGOLE-AWICH, J): Accused, Silas Maeto’o of Kwaio, Malaita Island, was indicted for the offence of murder under section 193 of the Penal Code, Chapter 5 of Laws of Solomon Islands. The particulars were that on 30.11.1997 at Naha (in Honiara) the accused murdered Martin Suruau. Murder is defined in S:193 of the Penal Code, as, causing death of another person by unlawful act or omission, and, “of malice aforethought.” Section 195 defines malice aforethought; it is the state of mind of the accused, before or during the unlawful act or omission, to cause death or grievous harm to a person, or knowledge that the intended act will or probably cause death or grievous harm. It matters not if a person other than the one accused intended to kill or do grievous harm to is killed or grievously harmed.

Cause of Death

The cause of death of Martin Suruau, the deceased, was agreed fact. The case depends largely on the facts that the court will accept as to who struck the stabbed fatal wound on the right chest of the deceased, and as to the circumstances in which the fatal blow was struck. Far from the premature suggestion in the course of the trial, by learned counsel, Mr R Talasasa, for the Crown, that it was accepted that the accused was the one who stabbed Martin Suruau, the main contention of the accused was, in fact, that it was not him who stabbed Suruau. He successfully contested the admissibility of two of three statements said to have been taken from him by the police. I took it that the statements may have included some admission. Accused also presented testimony of Waghon Lalao, PW2, to the effect that someone else in the fight had a bright coloured knife. To me, the aim was to show that someone else stabbed the deceased. Accordingly the assessment of the voluminous facts presented to court is very important. The points of law appear to be straight forward.

The cause of the death of Martin Suruau is admittedly the stabbed wound that penetrated chest cavity, causing severe shock, haemorrhage and collapse of lungs. The wound was inflicted on the right chest between the 5th and 6th ribs, travelling inward and in upward, but slanting direction towards the chest bone. The first question to determine is: did Silas Maeto’o strike the blow, the stabbed wound? The prosecution’s case is that Maeto’o struck the deceased with Maeto’o’s own knife, exhibit No. JK5 that he had been carrying on him on earlier days. Maeto’o’s case is that he did not.

Inadmissible Statements

First, I have to mention here that whatever Maeto’o may have said to the police in the statements recorded from him on 5.12.1997 and 8.12.97 have been excluded from the evidence considered. I have not even read the statements. I decided to exclude the statements after a voir dire in the trial. My decision to exclude the statements was not for the reason that they were obtained as the result of beating accused and thereby forcing him to make the statements involuntarily. Accused admitted in cross-examination that the police officers told him that he did not have to say anything, but that if he did, it would be produced in court. He also admitted putting his thumb print on the statements as his sign, although he said he did not know what was happening. The statements in my view would be voluntary. Despite that view I took, I excluded the statements because I thought that they were not reliable and so I exercised the discretion to exclude them. The main feature that made the statements unreliable was that accused said he did not know what the words of caution meant. In court during the voir dire, he appeared to muddle up answers to questions about caution as the result of not quite comprehending the words of caution in cautioned statement. It also seems to me that because accused was asked questions in Pijin, but he answered in Kwaio language, and it was recorded back in Pijin and later read out in Kwaio, miscomprehension could have been occasioned, given the intellect of the accused which I assessed during the voir dire. He certainly was not muddling up questions and answers in court as a way of pretending.

The Act Causing Death

Prosecution witness Mark Tefetea PW2, and Peter Kiriau PW3, said that they saw Maeto’o stab Suruau. In addition the prosecution might have hoped that Mark Peter PW1, would tell the court that he also saw the stabbing, he did not tell the court so. On the other hand, defence witnesses, Jathaniel Lalao (referred to as the old man) DW1, Warren Waghon Lalao DW2 and Ashad Leslie Teika DW3, all told court that they did not see the stabbing. So what is the truth about the stabbing?

The testimonies of the prosecution witnesses on the point are more reliable. They spoke much more openly about the fight, stating that their group was generally drunk and that some of their group fought or answered rudely to the other group, the group of the accused. Tefetea and Kiriau did not only admit that their group fought, but they did not hesitate to admit and went on to say that their group may have fought because they were drunk. Despite detailed questioning of Mark Peter in examination in chief which he could have taken advantage of to slip in false statement that he saw the stabbing of Suruau, his relative, Mark Peter did not say so. All he said was, “Martin walked coming from the direction of the apple tree and he fell down. That was the tree that the short man (accused) came from with timber in his hand.” Later in cross-examination he said, “I was not fighting, I watched the man carrying timber and knife.” Those are important points in deciding to accept Mark Peter as a truthful witness. Another important point is that he stated freely the wrong actions of his group such as someone shouting that the music was not the old man’s business, turning the music up again, some of his group going up to the old man in his own area, two of them fighting the old man and one in his group urging that the short man (accused) be beaten. On the other hand he related not only the wrong part of the other group, for example he told court that the old man first requested that music be turned low. Mark Peter said that he did not fight and indeed none of the witnesses called, including defence witnesses, said that he fought. Tefetea and Kiriau were also prepared to state some of their parts in the fight and that there were requests for music to be turned low, the first without rudeness. They may have moderated their own personal wrongful parts in the fight, but they were prepared to state in court some of their personal wrongs and most of the wrongs of their group. Tefetea even stated freely that 4 of their own group including him, joined in the fight although he said he, was only trying to stop the old man. In my view, Tefetea is to be believed that he saw accused stab Suruau and also beat Suruau with timber. The evidence of bruise on the other side of the chest of the deceased confirms the beating. The bruise was not paid attention to in the trial, but in my view it provides the confirmation of credibility because it is a minor detail that is easily lost sight of in the presence of the larger significant stabbed wound unless one was an eye witness to the events. Kiriau’s testimony also bears the credible features that those of Tefetea bore. Kiriau was reluctant and sort of rude in the beginning, but got over that. He obviously realised that telling the truth, not confronting the opposite side, was the more important thing in court. I noticed that the witness fought back tears often, such as when he saw the picture of the deceased and when he was asked several times to demonstrate the act of stabbing and he consistently did. The witness was frank to state that the first request of the old man was polite, but someone in the witness’ group shouted, “shut up, it is not your area,” and then the old man started to talk forcefully and swear. The witness admitted that some 3 of his group went over to fight although he explains that it was because the old man had used swearing words and was coming down with his own party to fight. He maintained that he did not fight because he did not drink, and again, none of the witnesses including defence witnesses suggested that he fought. Kiriau’s testimony is credible and I believe that he saw Maeto’o stab Suruau. There are details of course which anyone in the middle of a group fight would miss to see. There was the blow on the back of the deceased which the witness said was a stabbing blow; it is acceptable error in the circumstances.

There were other confirming items of evidence in the proof that accused was the one who stabbed the deceased, namely: 1. Accused told Warren Waghon Lalao, his own witness that he, accused, stabbed the deceased, 2. As the result of what accused told the police, a search was carried out around the house of Warren Lalao where accused stayed most of his nights, and a knife was found wrapped and hidden, and 3. Doctor Andrew Korinihona, defence witness DW4, was of the opinion that a knife such as the one produced in court, exhibit No. JK5, could have caused the stabbed wound. Evidence of things discovered or pursued as the result of rejected statement of an accused is admissible - see R v Lockhart, [1785] EngR 38; 1 Leach 386 and Kuruma Son of Kaniu v R [1955] AC 197 PC, Privy Council case which came from Kenya, Africa.

I have already said that all defence witnesses told court that they did not see the stabbing. Accused of course is not required to prove that he did not strike the blow, but the availability of the evidence of the prosecution alone makes the prosecution evidence more dominant in the proof of its case. An important point was raised as to how difficult it was, for Maeto’o, facing Suruau and with his right arm raised as demonstrated, to stab Suruau on the right chest, causing a cut going upwards in the chest. “It is awkward,” the doctor said. I add that it is not impossible or improbable. Moreover, it was possible to swing and stab in the haste of a fight. We have to remind ourselves that the action was in a fight, the people, Maeto’o and Suruau, would most likely not be calm and stationary in their positions demonstrated in court. And there is of course the admission of accused to his host Warren Waghon Lalao. The presence of a knife other than exhibit No. JK5, did not introduce the possibility of it having been used. The knife was seen after police had arrived. I think that a person who had used a knife to stab would not show it around in the presence of the police unless he was making some admissions. The impression I got was that the knife was produced in a threat to avenge the death of Suruau.

Malice Aforethought

I have found as a fact that Maeto’o stabbed Suruau. It is now possible to ask the next question: in what circumstances did Maeto’o stab Suruau? That is important in deciding whether there was malice aforethought preceding or during the act of stabbing.

I have already given my detailed assessment of the three eye-witnesses for the prosecution, I now give my detailed assessment of the eye witnesses for the defence. In my view, Jathaniel Lalao and his son Warren Waghon Lalao, deliberately avoided to state several facts of the case which they knew and on occasions stated outright lies. Ashad Leslie Teika was frank, although I think, selectively; he avoided to state the parts of other people in the fight other than his own part. He admitted using vulgar language and biting someone’s finger, facts which witnesses for the prosecution had told court, yet Jathaniel and Warren were not even prepared to admit those facts. Jathaniel denied that he spoke forcefully or swore. It is unlikely in the circumstances of the rest of the evidence that he did not. He started by denying the presence of Maeto’o at their house, the place of the fight, at the time and in the fight, saying that Maeto’o was away on Friday, Saturday and Sunday including the evening, but as evidence progressed and it was convenient and Jathaniel thought safe to mention Maeto’o, he revealed that Maeto’o was there. The revelation came because the witness realised that in the end he would have to admit being taken together with Maeto’o by the police. He said he recovered consciousness, saw Maeto’o being attacked by three people, he ran to help him. It must have been a different old man who could find the energy to run, immediately after having been knocked down unconscious, and to be strong enough to rescue the accused from a fight between young men. In court Jathaniel looked a very small old man. His story of being unconscious was made up to avoid stating the parts of Maeto’o, Warren and Ashad in the fight. Warren’s testimony was also largely of the same unreliable kind. I had to rely on the discovery of the hidden knife following what Maeto’o had told the police, to confirm Warren’s statement that Maeto’o had told him that he, Maeto’o had stabbed the deceased. Most of Warren’s answers to questions whether in examination or in cross-examination were that he did not remember or simply, “may be.” Examples of his evasive answers are in this passage:

“I decided to help him (his father), may be they would kill him, may be I went where my brother-in-law was, I cannot remember. The fight was like frogs jumping everywhere. I cannot remember who exactly attacked my father or Silas or Ashad.”

Warren, like his father, Jathaniel, started by denying that Maeto’o stayed at his house. For most of the circumstances and occurrences in the fight, I prefer the testimonies of prosecution witnesses because of the assessment I have made above of the two sets of witnesses.

My assessment of the evidence as a whole is that Maeto’o attacked and stabbed Suruau in the circumstances described by the prosecution eye-witnesses, Mark Tefetea and Peter Kiriau. Maeto’o took a jumping step and stabbed Suruau. At the time, Suruau did not pose any danger of attack on Maeto’o because Suruau was visibly too drunk to fight. Maeto’o used a knife exhibit JK5; it has double sharp edge blade about 9 inches long and nearly 1 inch wide. The knife was designed as a weapon, it could be described as a dagger. There can be no doubt that accused or anyone would know that the knife was a very dangerous weapon which would cause death if used. The knife speaks for itself on sighting. Accused knew that he would cause the death of Suruau or anyone he would stab with the knife. He stabbed Suruau and caused his death, that would be, “of malice aforethought,” but for the reasons I shall give below. The judgment of Palmer J in R v Daniel Samani HC-CrC No. 4 of 1995, and the judgment of Sir John Muria CJ, on appeal confirming that of Palmer J are good guides to deciding whether malice aforethought is disclosed in the evidence. The appeal case is CA Cr Appl. No. 2 of 1996.

The evidence of the circumstances of the fight also proved beyond reasonable doubt that when Maeto’o stabbed Suruau, Maeto’o did not face imminent danger of attack from Suruau who was visibly too drunk, or from anybody in the group of Suruau. Accused had in fact disengaged from the fight by running into their house. He then got out, walked along the house and round to a tree near which he met Suruau and attacked him. It seems to me that accused, seeing that none of the men in his group was back in the house, felt duty bound to go out and assist his hosts in the continuing fight. On these facts self defence is not available in his defence because if he wanted, he could have disengaged from the fight. See for example the case of R v Garunu [1985/86] SILR 192. In the case, Ward CJ decided that the first blow on the face that fell the deceased was struck in self defence, two hard kicks to the head and neck that followed when the deceased was on the ground were not in self defence and were unlawful. See also the English case of Palmer v R [1970] UKPC 2; [1971] 2 WLR 831.

Convicted of Manslaughter

I do however, accept that those in Suruau’s group were still in the yard of the house of Waghon Lalao, the house where accused came on a visit, and that Suruau was advancing from their yard into Lalao’s. The group was still fighting, there was no evidence that the group was on the retreat. Some in the group had attacked Jathaniel, a rather old and small man, and dropped him to the ground. Accused seemed to live at the old man’s house elsewhere and the old man had brought him along on the visit to Honiara. In my view accused was entitled to act in defence of his host and the host’s home. His action in defence was to use a lethal knife. It was excessive and therefore unlawful act which resulted in the death of Suruau. May be his reaction to use a knife which he seemed to carry on him was a hasty act of a young person. Of those who testified in court and were present in or at the fight, only Mark Peter seems to be younger than accused. As the use of unlawful excessive force made accused’s act unlawful and that unlawful act caused the death of Suruau, I find him guilty of causing the death of Martin Suruau, but without malice aforethought, he is not guilty of murder, but guilty of unlawfully causing death, the offence of manslaughter. Cases in point are: R v Garunu cited above, R v John Teo’ohu HC-CrC No. 21 of 199 and the English case of R v Biggin [1920] 1 KB 213. I have also considered provocation. My view was that although the acts and utterances of the group of Suruau could amount to provocation, the use of a knife was uncalled for. The use and consequence of using the knife were unproportional to the Provocation. Provocation would fail.

I acquit Silas Maeto’o of the charge of murder under s:193 of the Penal Code, but convict him of the lesser offence of manslaughter under s: 192 of the Penal Code.

Delivered this 27th day of July 1998
At the High Court,
Honiara

Sam Lungole-Awich
Judge

SENTENCE

The events of 30.11.1997 were unfortunate. Well deserved celebration following marriage of young persons, two days earlier went on for far too long. Loud music played on from Friday evening to Sunday evening and seemed to continue. Houses at Naha 3 are very close to one another. Court visited the scene. The house of Warren Waghon Lalao, where Maeto’o, was staying was only 14 metres away from the house where merry making was, but the people in Lalao’s house were not in the celebration. Maeto’o had come on a visit to Honiara only on the Wednesday.

On the Sunday evening, not long before the fight in which Martin Suruau was stabbed and died, one of the people in Lalao’s house had called Kukum Police on telephone twice. According to the witness the officer who answered did not take the report seriously; the witness overheard the police officer joking to another that a white man had called him to go and stop noise. The officer then told the witness that the police would go to stop the noise after 9 pm. The fight and stabbing occurred about 7.30 pm. Kukum Police Station is only 400m away from the home where the fight was. No amount of blaming will bring Suruau back, but lesson can be learnt from the incident.

Accused is a young man; the prosecution guessed his age at 20 to 21 years, defence counsel said that, following his inquiring, Maeto’o could be about 17 years old. Prosecution is to take note that proper inquiry should be made during investigation when a suspect appears young or old. Age becomes important evidence in those cases. Maeto’o appears to me to be 19 to 20 years old. He is a first offender. He found himself in a rather unfortunate situation that he did not look for. The fight started when the group of the deceased rushed over into the yard of Lalao, the host of accused. The group started the fight by attacking Jathaniel Lalao the old man who Maeto’o had travelled to Honiara with. That was provocative though it fell short of legal provocation because of the use of knife by Maeto’o. There is much to be said in mitigation for Maeto’o.

On the other hand, I must not lose sight of the fact that Maeto’o used a very dangerous looking knife and the result is that life has been lost. At the time, he or those others in his group were not about to be assaulted with any weapons, the fight was mostly by hitting, wrestling and biting. Maximum penalty for the offence of manslaughter is life imprisonment. Taking into account all the circumstances of the offence and of Maeto’o I consider that a light sentence be imposed so as to give Maeto’o, a young man, opportunity to correct himself. Carrying knife about as a matter of practice is not a safe thing as Maeto’o has now discovered. Silas Maeto’o is sentenced to 4 years imprisonment. The sentence is to commence on 30.11.1997. Prison authority is advised to treat Silas Maeto’o, a first offender and a young man, as a young prisoner with a chance to improve.

EXHIBITS

The knife, exhibit No. JK5 as well as the shirt, exhibit No. JK6 are to be destroyed by the state.

Dated this 30th day of July, 1998
At the High Court,
Honiara

Sam Lungole-Awich
Judge