Regina v Ta'asi [1998] SBHC 82; HCSI-CRC 32 of 1997 (12 May 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 32 of 1997

REGINA

-v-

NOEL TA’ASI

HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)
CRIMINAL CASE NO.: 32 OF 1997

Hearing: 6 - 9, 14 - 16, 4-5 May 1998
Judgment: 12 May, 1998

J. Faga for the Crown
J. Gordon (Mrs) for the Accused

PALMER J.: The accused, Noel Ta’asi has been charged with the offence of murder contrary to section 193 of the Penal Code, that he with malice aforethought unlawfully killed Kennedy Unamauri Kamaung (the deceased), in Honiara on 13 October, 1997.

Prosecution alleges that the Accused had gone out to a dance that night with an intent to take revenge on those persons who had previously attacked him at a dance at Kakabona. This was the reason why he had taken a knife with him that night. Also this would explain the attack earlier made that night to Wale Sibolo and the subsequent attack on the Bougainvilleans. The stabbing of the decision accordingly was done on the belief that he was one of those persons who had previously attacked him. He thus had the necessary intent to cause the death of or grievous bodily harm to the deceased and should be convicted of murder.

The Defence on the other hand, argues that there is doubt that it was the Accused who had stabbed the deceased, and in the alternative, that this Court cannot be satisfied beyond reasonable doubt that the Accused had the necessary intent to do the unlawful act. Mrs. Gordon argues that the stabbing was a spontaneous act arising from a fight and that there was no intent on the part of the Accused to cause death or grievous bodily harm.

There are two crucial elements in the offence of murder as set out in section 193 of the Penal Code. These also form the issues before this Court. First, is proof of the unlawful act in this case; that it was the Accused who had stabbed the deceased; and secondly, that of malice aforethought. Both issues as summarised in the case for Defence are contested.

A number of facts are not in dispute. It is appropriate to set these out first.

It is not denied that the Accused had been drinking with a number of friends prior to attending the dance at the Guadalcanal Club (“G Club”). PW2 says they had some beers at his house and also at John Maetala’s house. PW3 also confirms that they had some beers at John Maetala’s house. On whether home brew was also drank, PW2 denies this. PW3 denied this in chief but under persistent cross-examination by Mrs. Gordon he conceded that home brew was also drank. PW11 was the only other witness apart from the Accused who admitted from the beginning in chief that they also drank “home brew”. This is confirmed by the Accused in his evidence that they had beer and some home brew before going to G Club. I find that home brew was also drank by the Accused and his friends before going to the G Club. It is also not in dispute that the Accused and his friends had some more beers at the Club while dancing the night away.

It is accepted and not denied by the Accused, that he had in his possession that night a kitchen knife similar to the one exhibited to this Court as the murder weapon (“Exhibit 2”). PW3 saw the knife in the back pocket of the Accused’s trousers and when the Accused took out the knife to fight with. He also saw the knife in the hands of the Accused after the fight. PW6 also saw the knife opposite the junction at YWCA when it was shown to him by the Accused. PW11 also confirms seeing the knife in the back pocket of the Accused at the dance at G Club.

It is also not in dispute that the Accused wore a white collar T-shirt and jeans that night. That he was with two other friends when he went and asked PW12, John Wesley for a smoke (cigarette). It is also not in dispute that after receiving the cigarette, the Accused punched PW12 on the face. Thereafter a scuffle broke out in which the deceased was fatally stabbed. The Doctor’s post mortem report is not in issue. The deceased died from the stab wound received on his chest.

It is not disputed that the deceased, PW12 and PW13 were together that night. Neither is the fact that the deceased, PW12 and PW13 had done anything that would have provoked, insulted or offended the Accused to warrant the assault on PW12.

The following events can be established based on the undisputed facts. That the Accused and his friends had some beers and home brew prior to attending the dance at G Club. They were picked up at the junction of the main road at White River by PW1 and dropped off at G Club. The Accused with some of his friends went into G Club and joined the dance. Others it appears went to the Heron’s Club. They had some beers whilst at the Club. When the dance closed they came out. Outside the Club, the Accused met up with PW3, PW6 and PWl1.

The dance at the Heron’s Club had not yet closed at that time. The Accused and his friends then walked towards the gate to Heron’s Club. There or somewhere near there, the Accused assaulted Wale Sibolo. They however reconciled when the Accused realised that he had assaulted his friend. At the gate the Accused and his friends were first seen by PW4, PW12 and PW13. PW4, PW12 and PW13 with the deceased, were on their way outside to catch a cab at the main road to return to Tanagai. The deceased however changed his mind and decided to go and look for a 24 hour shop where they could buy some more beers. At this point PW4 left them to cross the road on his way to Rove. Not long after this the Accused approached PW12 and asked for a smoke. The presence of the three Bougainvilleans has not been disputed. After asking for the smoke the Accused punched PW12 and a fight broke out.

What happened thereafter is in dispute and so I will now analyse the crucial evidence of the relevant witnesses concerning that fight.

PW3 gave evidence of a fight involving PW11 and the Accused with the three Bougainvilleans. He states that after the Accused had punched PWI2, PW12 responded by asking “Do you want to fight?” At that point, the Accused took out his knife from the back pocket of his trousers (jeans) and fought the Bougainvilleans. He says he was quite close, about four to five metres away when all this happened. He described the Accused as doing forward stabbing actions with the knife in his hand when he fought the Bougainvilleans. He then heard one of the Bougainvilleans asking “who used knife”.

Under cross-examination, he stated that after PW12 had been punched, he moved backwards and then said “do you want to fight?” and stood ready to fight. He also stated that he saw the Accused raise his hands and doing a stabbing motion or action, a number of times. When asked specifically whether he saw the Accused stabbing the deceased, he said no. The most this witness could describe was that he saw the Accused holding his knife in his hand and using it in a stabbing motion but could not tell whether it hit anyone or specifically the deceased. Despite strenuous cross-examination from Defence Counsel, this witness maintained his claim that the Accused held a knife in his hand and used it to attack the Bougainvilleans with. Although he could not clearly identify what type of knife it was in the hand of the Accused that night, he says he was shown the knife the next day by PW6.

In re-examination this witness stated that the closest people around them would have been standing at some distance away and did not come to the place where the fight occurred.

The next relevant witness is PW4. This was a bystander watching the dance from outside and the only direct eye witness of the events that night who was sober and his faculties not affected by alcohol. He also happened to be a friend of the deceased.

This witness stated that he saw the deceased and PW12 and 13 when they came out of Heron’s Club after the dance had finished. They asked him why he had not gone back to Aruligo and when he told them that he had no transport, they asked him to accompany them to get a taxi. He says when they came to the post outside Heron’s Club, he saw four boys standing beside this post. He states he had earlier seen the same boys at the front gate to the Club.

This witness described the condition of the deceased as “full drunk”, meaning very drunk or heavily under the influence of alcohol. On reaching the road, the deceased changed his mind and decided to go to a 24 hour shop for more beer. At this change of plan, this witness tried to get the deceased to change his mind but he persisted and so he left them to make his own way to Rove. As he was crossing the road, he heard the voice of his friend (the deceased) saying “Bro me die nao”. This witness described the distance between the four persons he had seen standing at the post and the three Bougainvilleans as very close (about 1 metre) when he left them. Under cross-examination he confirmed that they were standing apart from each other by only about a metre or so. One of those boys he described as tall and fair skinned (actual words used were “light skin”) and wearing a white coloured shirt. He also stated that he recognised that boy because he used to see him playing volleyball but did not know his name. In court this witness could identify that same person he saw as the Accused.

This witness states he saw the deceased running towards his direction clutching his chest. When he was put in the taxi he noticed blood all over his body in the taxi. He also said that he asked the deceased in the taxi and the deceased responded that it was the boy who wore a white shirt at the side of the road who had stabbed him. No challenge has been made as to the admissibility of this dying statement from the deceased, and so no attempt has been made to prove to the court the circumstances in which it was made. From the evidence of this witness however, it is clear that the deceased was obviously distressed and in extreme agony. No further communications were made or attempted thereafter. Also I take into account the evidence of PW13 that when he reached the deceased after he had been stabbed, he saw that he was crying and turning and twisting in pain. The deceased died at the hospital not long after arrival. In those circumstances I am prepared to accept the dying statements of the deceased as communicated to this witness as falling within the exception to the hearsay rule and admissible.

The next witness is Roke Kinio, PW6. This witness turned out to be hostile and therefore leave had to be granted to have him cross- examined. Under cross-examination by the Prosecutor this witness turned out to be very cooperative. He admitted that the Accused had shown him a knife opposite the junction at YWCA and told him that he had used it in a fight with some Bougainvilleans. After this the Accused put the knife back into his pocket. This witness however later snatched it from his pocket and gave the knife to Jorovo.

Another direct witness of the fight was Jorovo Ata, PW11. His evidence was that after PW12 had been punched, he held his face and then moved away. This is consistent with the evidence of PW12 that after he had been punched he ran away. PW11 however then states that the three Bougainvilleans advanced at the Accused. At this point he says he tried to intervene to stop the fight but instead one man held him and threw him sideways and tried to tie a shirt around his face. He then fought with that other man. He states the man he fought with ran away after he kicked him. He estimated the fight to have taken only about three to four minutes. From the evidence before this Court, it is most likely that the person he fought with was PW13.

The accounts given by the two Bougainvilleans who were present at the scene is not very much different. I find these two witnesses to be frank and honest about the events that they could re-collect that night.

PW12 states that after giving the “smoke” (cigarette) to the Accused (which fact is not disputed), he continued walking to the main road with the other two Bougainvilleans. The deceased was at the said time being assisted by PWl2 as he was “full drunk”. After smoking the cigarette, the Accused came to him and then punched him right in the face. PWl2 states his head felt dizzy and so he let go of the deceased and when his head cleared he ran off. He did not take part in any fight.

PW13’s evidence was that when he tried to assist after realizing that PW12 had been assaulted, he claims he was set upon by what seemed to him a lot of men. He claims stones were thrown at him including being stepped on. He says he did not see what happened to the deceased until the deceased called out to him and told him that he had been stabbed. By that time, it appears the fight was allover. He went to the assistance of the deceased together with PW4 and stopped a taxi to take him to hospital. This witness frankly admitted in court that he did not see when the deceased was stabbed but he formed the view that it was someone he had seen earlier from “Gilbert” (meaning someone from Kiribati).

In contrast, the evidence of the Defendant basically was that he could not recollect what happened after he had punched PW12. The submission sought to be put by learned Defence Counsel therefore was that the unlawful act could have been inflicted by someone else and not the Accused.

Unfortunately, the clear and virtually undisputed evidence before this court was that the unlawful act of stabbing with a knife could not have been done by anyone else other than the Accused himself. Both PW12 and PW13 thought it was someone tall and light skinned from Gilbert, someone whom they had seen earlier at the gate of Heron’s Club. It was not in dispute that the Accused was the instigator of the fight which occurred that night. That he was the one who had approached PW12 and asked him for a smoke and then punched him in the face.

PW2, PW3, PW4 and PW11 all concurred in their description of the events which occurred that night. Of all the witnesses, only PW3 gave evidence which directly implicated the Accused as the only person who could have stabbed the deceased. In cross-examination he was never shaken or confused about the fact that he saw the Accused take out his knife and used it in a stabbing motion against the Bougainvilleans. I find this evidence clear, accurate and truthful. He did not deny the fact that he did not see whether the knife hit anyone and if so who. The Accused himself, from his own words, short of admitting that he stabbed anyone with the knife, admitted that at the said time he held a knife which he had taken from his house. I accept that PW3’s evidence fell short of identifying whether the Accused’s stabbing actions did hit anyone and if so the deceased. It does not necessarily follow however that a thereby a doubt exists. There is no positive evidence to suggest that someone else apart from the Accused had a knife and used it against the Bougainvilleans that night. The only suggestion that there may have been someone else appears to have come from the evidence of PW13 that it seemed to him “plenty people” attacked him. It must be noted however, that this observation was made from the way PW13 felt he was being attacked. He gave evidence of stones being used and being stepped on. The only evidence we have of those involved directly in the attack came from PW3, that he saw the Accused fighting, with PW11 joining in the fight. PW11 did not say that he joined in the fight, rather he was set upon by one of the Bougainvilleans when he attempted to stop the fight. It should be borne in mind that these witnesses were affected in some way by alcohol and so it is possible that their evidence to a certain extent may be distorted by way of exaggerations.

There was evidence which indicated that there were many people around that night, but none of the witnesses ever stated that those other persons were involved or joined the fight in any way. The clear evidence before this court was that the fight was confined to these witnesses and the deceased. The most reliable description of this came from PW4 who stated that at the time he left the Bougainvilleans, the dance had just finished and people were coming out from the Club. He did state clearly though that none of those other people were near where the deceased was and PW12 and PW13. It was also made quite clear that the fight took only about three to four minutes at the most, before it was allover. The most reliable evidence on the duration of the fight also came from PW4, the only sober witness at the said time. He gave the time lapse from the time he left his Bougainvillean friends and the time he crossed the road when he heard the shout from the deceased to be about a minute or so. That would rule out the real possibility that any other person would have been involved in the stabbing of the deceased other than the Accused. It couldn’t have been PW2, PW3 or PW11. None of them held any knife with them at the said time. No evidence whatsoever has been led or adduced to suggest that any of these other guys was in the possession of a knife. The Accused in giving evidence did not raise any suggestion to implicate any of his friends in any way. NeitherPW12 and PW13 were also suggested or implicated to be in possession of a knife at the said time. The only logical and reasonable conclusion, and to this extent I am satisfied beyond reasonable doubt, that it was this Accused alone who was in possession of a knife and who Used a knife in the fight which ensued. The Accused did not deny that he did not or may not have stabbed the deceased. He simply stated that whilst conceding that he held a knife at the said crucial time, he could not recall if he used it during the fight. The most damning evidence came from PW3 who stated that he saw the Accused use the knife in a stabbing motion in the fight against the Bougainvilleans. It must be borne in mind also that the evidence of PW2, PW4, PW11, PW12 and PW13, and the evidence of the Accused himself are all consistent with the crucial evidence of PW3. At that crucial point of time, the Accused was the only person standing right next to the deceased who held a knife and was using it in a stabbing motion as described by PW3. I have no reason whatsoever to doubt or not to rely on that evidence.

PW12 states that after he was assaulted by the Accused, he took off. That leaves the deceased and PW13 at the scene. It should also be borne in mind that according to the evidence of PW13, he states he was some distance away from PW12 and the deceased. That meant that the closest persons to the Accused at that crucial time were PW 12 and the deceased. Also it should be noted from the unchallenged evidence adduced in Court, that the deceased was so drunk to be virtually of any real threat to anyone, in particular the Accused. There is unchallenged evidence from PW 12 that because the deceased was so drunk, he needed to be assisted along by him. If PW12 ran off not long after being punched, and PW13 was some distance away, then the only person that the Accused would be able to use his knife against at that crucial time was the “full drunk” deceased. PW 13 states that when he came to assist he was attacked by “plenty” people. At least it would seem that one of the persons who must have attacked PW13 was PW11. PW11 also did say that when he went to stop the fight he was attacked. Most likely it was PW13. PW11 did say that he kicked the person he was fighting before he ran off. That would seem to be consistent with the evidence of PW13 that he recalled being stepped on as well during the fight.

It doesn’t take much to put two and two together. The causal link is almost too certain to even raise any scintilla of doubt. The only reasonable and logical conclusion that can be reached by this court on the evidence before it is very clear. When the dying declaration is added, any slight doubts are removed. The stabbing of the deceased couldn’t have been done by anyone else. I am satisfied so that I am sure, that it was done by this Accused and him alone.

This brings me next to address the second crucial element and issue in contention; that of malice aforethought. Learned Defence Counsel submits in support of her contention that there is absence of malice aforethought on the following ground; that there was no plan to do a mischievous deed. The Accused in the company of his friends had merely gone out that night to attend a dance. Subsequently a fight arose in which the accused was spontaneously drawn into it. There was no prior plan to cause any grievous harm or death to the deceased, hence no intention.

The definition of malice aforethought according to our law is contained in section 195 of the Penal Code. It reads:

“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.”

According to our law, malice aforethought is established if either of the two elements in paragraphs (a) or (b) above are proven beyond reasonable doubt.

The first crucial issue therefore is whether there is evidence of an intention to cause death or grievous bodily harm. This was the issue addressed by learned Defence Counsel when she sought to argue that there was no plan to do mischievous deed or prior plan to cause death or grievous bodily harm. To that extent I am satisfied there is no evidence to support any intention to cause death or grievous bodily harm. The most that can be said from the words of the Accused himself was that there was an intention to assault PW12. This is supported by the fact that earlier on he had assaulted another person by the name of Wale Sibolo. No evidence has been adduced as to the reasons for that assault apart from the reason given by the Accused himself; that he thought Wale Sibolo was one of those persons who had previously attacked him at a dance held at Kakabona. The Accused also gave the same reason for the assault on PW12.

As to the suggestion by learned Counsel for Prosecution that the Accused was out for a revenge that night as demonstrated by the presence of the knife, that is more an assumption than borne out by evidence. There is no evidence to support that suggestion.

Malice aforethought however can also be proven if the Accused knew that death or grievous bodily harm was a probable result. The second issue therefore is whether the Accused knew or realised that the act of stabbing would probably cause grievous bodily harm.

The murder weapon used has been described as similar to, if not, the knife exhibited to this Court. In my view, based on the evidence of prosecution witnesses, this was indeed the murder weapon. The only hesitation and denials given arose from what it was considered the old appearance of the knife. Apart from that, the length and width of the blade, and the wooden handle are the same. There is evidence from PW6, in which he states that he had a drawing pin fastened onto the handle of the knife to identify it. This was the knife which PW6 states he had snatched from the back pocket of the Accused after the fight that night and which he later returned to the Accused’s mother. This same knife with a drawing pin still in place was later retrieved from the house of the Accused’s mother after a search warrant had been executed.

I do take cognisance of the Forensic Scientist’s report (Exhibit “C”) on the tests carried out on the blade of the knife itself, but unfortunately, this have not been conclusive. It may have been of some assistance if the Scientist who conducted the tests could have been available to give oral evidence and be subject to cross-examination. That however would not have been possible even if the request was made in view of the financial difficulties we have been experiencing. But even if this was not the knife, I am satisfied beyond reasonable doubt that a similar knife was used to stab the deceased with.

The blade of this knife has a pointed end, is fairly sharp, about 3 cm at its widest part and about 18 cm in length to the handle. The stab wound as described in the post mortem report of Dr. Manimu is consistent with the use of such a knife. The entry of the wound is described as 3 cm in length and the depth about 15 - 18 cm. The knife is clearly a dangerous weapon and when applied with force in the manner described by PW3, the Accused cannot have failed to realise that it would probably cause death or grievous bodily harm to the deceased. I find on the evidence before me that the act of stabbing was a willed act of the Accused. The Accused knew he had a knife at his back pocket. He placed it there himself when he left his house. When the fight broke out, knowing that the knife was at his back pocket, he naturally reached for it and took it out.

This Accused could recall coming out of G Club after the dance had closed and walking to Heron’s Club with his friends. He could remember assaulting Wale Sibolo because he thought he was one of the guys who had previously fought him on an earlier occasion, but then apologised when he realised that he was a friend. This couldn’t be the actions of a man so overcome by alcohol that he did not know what he was doing.

Shortly after this, he approached PW12 and asked him for a cigarette to smoke. PW12 gave him a lit cigarette in his hand. The Accused remembers these all too well. He remembers assaulting PW12 shortly after, thinking he was one of the guys who had earlier attacked him on a previous occasion. From his own words in Court, this Accused remembers holding the knife in his hand after he had assaulted PWI2, but when it came to the crucial bit, he couldn’t recall. He couldn’t recall what happened thereafter. In other words, he seeks to suggest it seems that he had a “blackout”. Stable J. however in Cooper v McKenna (1960) Queensland L. R. p. 419 said something quite pertinent on this; that a “blackout” “is one of the first refuges of a guilty conscience and a popular excuse.” Apart from the excuse that he was “drunk”, no other ground or evidence is relied on in support for his so-called inability to recall or remember what happened. Whilst I accept that there is evidence which showed clearly that the Accused had been drinking earlier on that evening and was affected to some extent by alcohol, I do not accept that he was so overpowered or overwhelmed by drink to the extent that he did not or could not be cognisant of what he did that night. The clear evidence before this court does not bear this possibility out in any way. The assault and fight occurred shortly after an earlier assault on Wale Sibolo. The evidence adduced showed quite clearly that this Accused had his wits around him when that assault occurred, because he quickly apologised when he realised that he had assaulted a wrong person. Nothing has been adduced in evidence to suggest that the will or mind of this Accused would have been so affected in such a short period of time that he would not realise what he was doing when he stabbed the deceased. I am satisfied so that I am sure that this Accused knew what he was doing when he assaulted PW12 and when he subsequently took out his knife from his back pocket and stabbed the deceased. Whatever his wish was, he cannot have failed to realise when he attacked the deceased with a knife and stabbed him that this would probably result in death or grievous bodily harm.

After the fight, and after the Accused somehow had met up with his friends again, he showed the knife that he had in his possession to PW6 and told him that it was the knife that he had used at the fight. That couldn’t be the actions of a person who had just had a “black out” and did not know what he was doing or had just done. I accept the evidence of PW6 on this particular point.

This court too does not believe the Accused when he says he did not remember what he did that night.

On the suggestion that this Accused was so drunk and so might not have known what he was doing, I need not repeat what I have said on this point. Mrs. Gordon has not sought to raise any issue on this point and rightly so because the evidence simply does not support any such suggestions.

The Accused is convicted of murder and sentenced to life imprisonment, this being the only sentence prescribed by law to be imposed. The sentence is to commence from the date he was taken into custody. Order made accordingly.

ALBERT R. PALMER
THE COURT.