Regina v Maeni [1999] SBHC 115; HC-CRC 117 of 1999 (2 December 1999)

HOURT OF SOLOMON ISLANDS

Criminal Case No: 117 of 1999

class="Mso="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> REGINA

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v

High Court of Solomon Is
Before: Lungole-Aole-Awich, J
Criminal Case No: 117 of 1999

Hearing: 1^st December 1999
Judgment:
Se Sentence: 2^nd December 1999

DPP Mr. F. Mwanesalua for the Crown
MrWasiraro of Public Solicitoicitor's Office for Accused

JUDGMENTspan>

(LUNGOLE-AWICH, J):- Police Constable Dickson Maeni was charged with the offence of manslaughter under section 199 of the Penal Code, in Chapter 26 in the Laws of Solomon Islands. The particulars were that on 30.12.1998 at Mbungana in the Central Islands Province, Constable Maeni unlawfully killed Ishmael Panda.

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he commencement of the trail Court asked Constable Maeni toni to plead. His answer was, “I have understood, I plead guilty”. In his own words, and I take it to be upon proper professional legal advice, Maeni admitted that he killed Ishmael Panda unlawfully. It was therefore not necessary for the Court to hear the full evidence in the case so as to decide the guilt of Constable Meani, except that the Court had to hear the summary of facts that Maeni admitted to confirm his statement that he pleaded guilty to unlawful killing, manslaughter.

lass="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> The unlawfulness in the offence of manslaughter is negligence in the act act that causes death, such act involving high risk of causing death or grievous bodily harm. The offence is committed when there has been no intention to kill or intention has been negatived by factors such as provocation, excessive force in self-defence and some extent of the influence of alcohol. Intention to kill is a requirement in another homicide offence, murder. The charge preferred against Constable Maeni meant that the constable had no intention to kill Ishmael Panda, but he was negligent to the degree of criminal responsibility, when he fired the 303 rifle he had during the operation to arrest Ishmael Panda, Joseph Sangu, Harold Keke, Henry Rokomane and Victor Tadukusu, with the result that Ishmael Panda was killed by the shot. He readily admitted that in Court. That is the offence that Constable Maeni intends to plead guilty to and the offence that I have to decide the punishment for if his plea is accepted as unequivocal.

When the Court put to the accused the summary of facts presented by the prosecution and asked him to confirm whether the facts in the summary were true, Constable Maeni said that they were true except that he wanted to make three corrections. He stated the corrections in these words:

“The Provincial Police Commander Chie Chief Inspector Allen Kalomae told me to go.

I did not force ctor Waimani to give the guhe gun, he gave it to me, and he threw it to me.

It was not only Inspector Toaki and I who firo fired shots, PC Manau also fired shots with us, but his name has not been mentioned”.

The facts in the three corrections are relevant in the whol whole case, but are neutral in as far as the question of the guilt of the constable for manslaughter is concerned. With or without authorisation, Constable Meani, like those others on the search party, had a duty of care to preserve life in as far as possible while carrying out the duty to arrest the escapees. They were not to shoot at the escapees if it was possible to arrest the escapees without shooting. I must add, however, that they could shoot if it became necessary, for instance if the escapees did not surrender and continued to fire shots. Another example is that if during the exchange of fire on the seashore one of the 5 men was killed by any of the policemen being shot at while trying to arrest the men, there would be no case against the policeman, he would not be guilty of any offence although an escapee would have been killed. It would not be unlawful killing because it was necessary to shoot in self-defence. On the other hand if during that exchange of fire any of the escapees killed any of the policemen, the escapee or all of them, if there was common intent, would have committed murder.

I appreciate that in the haste and heat of gunshots it is not easy to make correct and precise decision as to when it is necessary to shoot and when not to or when to stop. It is a difficult decision at a difficult moment. The more senior and experienced police officers would have useful knowledge and guidance to offer the less senior, and should always say something about such a difficult point of law when briefing others before operations. Provincial Police Commander, Central Islands Province, stated in Court that such an incident was new in Solomon Islands and was difficult to deal with, they were under pressure. It may be necessary to hold classes during which such difficult questions of law that arise in new operation situations are discussed. Government lawyers or even private lawyers, if requested might be willing to help with explaining some of the more difficult and new questions of law.

That Constable Manau alred shots is also neutral. He fired shots from SLR riLR rifle. Inspector Toaki fired from SR 88 A rifle. Only Constable Maeni fired from 303 rifle. The bullet that killed Ishmael Panda was from Constable Maeni’s 303 rifle. The expert reports tendered show no flaws. It is not unsafe for the Court to act on the reports.

That accused did not force Sergeant Waimani to give him gun gun is another neutral fact in determining the guilt in this case. In the end the Constable admitted having requested that he could relief Sergeant Waimani. He may have been mindful of helping since Sergeant Waimani had already been through exchange of fire earlier.

I have asked Constable Maeni questions so as to have fication of some fact facts which might appear equivocal. In the end I was satisfied that the summary of facts and the exhibits and reports disclosed all the elements of the offence of manslaughter to which Constable Maeni tendered a plea of guilty. The summary, exhibits and reports are included as evidence. I consider that the plea tendered is unequivocal, I enter a plea of guilty and convict Constable Dickson Maeni on his own plea, on the charge of manslaughter under section 199 of the Penal Code.

The facts upon wh shall decide the punishment are: On 30^th December 1998 a police party of 6 went to arrest Joseph Sangu, Herald Keke, Henry Rokomane, Victor Tadakusu, and Ishmael Panda on Mbungana Island. The police party and the 5 men met when the police party was landing, and the 5 men were setting off on a ski boat. The police ordered the 5 men to give in and be arrested. A warning shot was fired in the air. The 5 men instead opened fire and shot at the police party. There was exchange of shots during which Special Constable Sisa was shot on the mouth and Keke, one of the 5, possibly on the head, he was captured. The other 4 men ran away to hide on the Island. After the exchange of fire Sergeant Manelugu of the police party took the injured to Tulagi and returned with reinforcement of 2 other policemen and Constable Meani. Five men in the police party including Maeni then set off to track down the 4 men hiding. Other police officers remained behind. Constable Maeni had asked to relieve Sergeant Waimani and had obtained a 303 rifle from the Sergeant. Constable Maeni had the 303 rifle when he went on the search party. He spotted the escapees sitting up in a tree. He retreated and reported to the search party leader, Inspector Toaki. The leader advanced and fired warning shots into the air and demanded that the escapees surrender. The deceased responded by saying that he would climb down. Constable Manau and Constable Maeni also fired shots. Constable Maeni said in Court, “because the leader shot, I also fired shots”. Unfortunately his own shots were aimed at the escapees. That was admittedly criminally negligent. He hit Panda who died. The bullet that killed Panda was from a 303 rifle and it was Constable Maeni of the three who had and fired from 303 rifle, the leader had SR88A rifle, and Constable Manau had SLR rifle.

class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> Of the three corrections of facts suggested by Constable Maeni only one one remained contested. It is relevant in determining the proper punishment. I have to make finding of fact about it. The prosecution said that Constable Maeni was on suspension and was not instructed to go to Mbungana on the operation, he went on his own. Constable Maeni on the other hand said that he asked the Police Provincial Commander who authorised him to go on the operation.

I decided to have the issue tried on evidence so thwould make a finding of fact. On the evidence, the PPC may have not given instruction to Constable Maeni to go on the operation, but where there is doubt the version of an accused is to be taken. That is the rule of proof in criminal cases. A more definite finding of fact that I make is that the PPC impliedly agreed to Constable Maeni going to Mbungana and therefore on the operation. PPC said that he authorised the constable only to go as far as to Vola to collect officers who were off-duty. But he also said that when the boat returned with the off-duty officers, Constable Maeni was on the boat. They were ready to proceed to Mbungana, and left in about 2 minutes. The PPC said that he did not ask the constable to alight from the boat. Constable Maeni who was on suspension may have been over enthusiastic at that opportunity so as to improve his image, but if his going to Mbungana was disapproved of, the PPC needed to stop him right at that time that the reinforcement police party was setting off for Mbungana.

I now decide the appropriate punishment for the kind of negl negligence committed by Constable Meani, which negligence resulted in the death of Ishmael Panda, and is admittedly an offence of manslaughter. The worst act in the offence of manslaughter may be punished with the maximum punishment of life imprisonment The Court has to decide whether the action of Constable Maeni is the worst sort or the least or whether it fails somewhere between the least and the worst and then punish according to where the act of Constable Maeni lies.

I take into account the facts of the case as agreed and modified by my finding of facts following the corrections made by Constable Maeni. In addition I take into account that he has admitted guilt, he must be treated differently from someone who would have not admitted guilt. Constable Maeni is a young man of 25 years old and has a young wife and a young child to support. He married from Guadalcanal although he is from Malaita. He went on the operation with the implied approval of the PPC and so was on duty, he did not go out to look for trouble. He was on a police party that was pursuing men who had used guns to resist arrest. Had it not been for the statement that ammunitions of the escapees had got finished, accused might have walked free. I also note that Constable Maeni had not been briefed about how to act because there was haste. On the other hand I have to bear in mind that if Constable Maeni had thought a little he would have been more careful and would have not fired directly at the tree where he had earlier observed the men. I also have to bear in mind that as the result of that negligence Ishmael Panda is dead, a serious consequence.

I have compared this case withier ones in which the High High court punished accused on pleas of guilty to manslaughter. My brother Kabui J has well summarised them in his judgment in the first case. The cases I have considered are:

R v Gabriel Wakio & Martin Manehai HC CRC19/98

Accused hit and killed a brother who was about to sttheir mother. He was was punished with 2 years imprisonment.

R v Stephen Asipara HC CRC 25/94.

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Accused killed his father after a drunken argument. He hit thet the father on the chest, the father fell and hit his head and died as the result of the head injury. The punishment was 2 years imprisonment.

R v Pituvaka HC CRC 22/96

Accused killed a friend by being careless. He roameut with a loaded gun which went off and killed his friend. He did not shoot. The Court punished him with 2 years imprisonment.

R v s Tiva HC CRC 30/78

Accused kicked the deceand she died. The punishment was 9 months imprisonmenonment.

R v Gabriel Oda HC CRC 66/99

Accused was checking his loaded gun outside a hut where they slept. ept. He unintentionally fired a shot that killed the deceased, his mate. The punishment was 18 months.

p class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> In this case, Constable Maeni was impliedly allowed to go on the operaoperation. They were pursuing escapees who had used guns shortly before. The constable’s mistake was admittedly firing directly at the escapees when there appeared to be no need. Appropriate punishment is that of 1 year imprisonment. I sentence him accordingly.

Accused has right of appeal against the sentence. If he wishes to appeal he must give notice within 30 days.

Pronounced this Friday the 3^rd dup> day of December 1999

At the High Court

Honiara

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Sam Lungole-Awich
Judge