R
v
ELLISON ORINASIKWA
High Court of Solomon Islands
Before: Muria, CJ.
Criminal Case No. 18 of 1998
Hearing: 25 January 1999
Judgment: 24 March 19pan>
R
B. Talasasa for Crown
D. Hou for Accused
(MURIA,
CJ):
The accused has been charged with the crime of murder contrary to section
193 (now section 200) of the Penal Code. He pleaded Not Guilty to the
charge and as it is the case, in all criminal trials, it is for the
prosecution to establish
his guilt beyond a reasonable doubt.
It is not in issue that the accused did, in fact, kill the deceased byed by
shooting him with arrows as well cutting him
with a bush knife. The defence
raised is that of provocation and it is for the prosecution to exclude that
defence beyond
any reasonable doubt. What is in question, therefore, is, did
the accused kill the deceased under provocation? The prosecution
contends
that the evidence does not support the defence of provocation in this case
and that it has been excluded by
the prosecution beyond a reasonable doubt.
The Issues
It is clear that the accuset the deceased with arrows, three of which
landed on d on the deceased's body. The accused
also cut the deceased on the
hand, leg, back and neck. The issues arising, therefore, are:
1  &nbssp;
< Has
the prosecutionedroved beyond a reasonablet the requisite specific
&
intent to murder the deceased, Jimmy Geniamoe?
lass=ormalle="m-left0pt; margin-top: 1;p: 1; marg margin-boin-bottom:ttom: 1">& 1">
2man">.
Is there any evidence of provocation before the Court?
3.
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Has the prosecution excluded beyond a reasonable
the defence of
&nbbsp;&
sp;
provocation in this case?
The Facts not in Dispute.
On the evidence before the Court, I find the following facts not disputed:
1.
On the night of 6 October 1997, the deceased (Jimmy Geniamoe) attacked
p;&nbbsp;&
and brutally cut one Meke to de/span
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Meke was buried on the morning of 8 October 1997 ika Ve.
3.
In the course of Meke's burial, a thning was by those
&nbbsp;& &nsp;
sp;
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present at the
burial.
4.
span lang="Eng="EN-GB" style="font-size: 12.0pt; font-family: Times New Roman">
The accused was present at the burial of Meke
who was his uncle (In
&nnbsp; c
5.
Having heard the shout. The accused went, while the burial was still in
&nnsp;&&nsp;;&nspp;&nssp;
sp;
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process,
to to his house and took his knife and bowd bow and and arrows. He went to p;
sp;
where
the shouting came from.
6.
He recognised the shouting as being made b deceJimmyan>
s Geniamoe.
7.
/span
The accused did in fact come upon the deceased, Jimmy Geniamoe, for he
met him on the road where they fought.
8.
In the course of the fight, the deceaas unssful in striking the
accused with his bush knife. The deceased turned and ran away. The
&nbs> &nbp; &nnbsp;;&nbp; &nsp; &nnbp;&
p; &bsp; &nbs
accused then shot his first arrow at the deceaThe alande
;&nbssp;&n
penetrated ihe ded's back. While still running away, the accused
&nbbsp;&nbp; &nsp;&nbs;
shot his second arrow which again landed and penetrated into the
deceased's back. Agai accused shot at the deceased with his third
;&nbssp;&nbs;&nbs;
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arrow which struck into the deceased's leg. In an attempt to climb onto a
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stone, the deceased fell, at which time, accuaughtith hd
struck him with the bush knife cutting him on the hand, then on the leg,
then &nbbsp;&
sp;
on his back and finally a vicious on one at the back of hik. Thpan>
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deceased died as a result of the injuries sustained.
Facts as Found by the Co/span>
In the main, the facts of this case are not disputethe defence. The
accu accused likewise is mainly relying on the defence
of provocation. But before
I venture to consider the defence raised, I feel it is also worth noting
some of the other
facts which may not be as conclusively undisputed as those
set out above.
The defence case is that it immy Geniamore (deceased) wed) who was heard
shouting while the accused and his relatives
were conducting the burial of
Meke It would appear that the prosecution, although offering no evidence to
show otherwise,
was suggesting that accused did not see who was actually
shouting and that he only assumed that it was Jimmy Geniamoe (deceased).
The evidence before the Court supports the defence position that it was the
deceased who shouted. The accused recognised
that it was the deceased who
shouted and that he actually met the deceased when he went after him. The
evidence from
the other prosecution witnesses also supports that. On the
evidence I find that it was the deceased, Jimmy Geniamoe who was
shouting,
while the people of Osika were grieving and burying Meke their dead
relative, the late Meke
There is also the sligscrepancy in the number of wounds sustained by
the dehe deceased on his body. The Medical Report
showed that there were two(2)
arrow (steel Rod) wounds found on the deceased's body. One was at his back
and the other
was at his right cuff muscles. The Report also mentioned our
(4) knife wounds to the body of the deceased. These were found
at the right
elbow joint, right cuff muscles, right side of the face and left foot. Two
(2) other wounds were found on
the deceased's body and which were described
by the doctor as probably axe wounds or tip of the knife wounds which were
seemingly blunt. Altogether there were eight (8) wounds mentioned by the
Doctor in his Report and from the description of
the wounds given by the
Doctor, they can only be described as vicious.
n contrast the evidence from the accused mentioned three aree arrow wounds and
four knife wounds, a total of seven (7) wounds.
There is no mention by the
accused of the wound to the right side of the deceased's face. However,
photograph "H"
in Exhibit 3 clearly shows the severe wound to the right side
of the deceased's face. The wound was confirmed by the Doctor.
ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
I
find that on the evidence the deceased rec eight (8) wounds to his
is
body. They were caused by the accused through
the use of arrows (steel rod
arrows) and knife.
Proof of the requisite intent
lass="MsoNormal" style="mar="margin-top: 1; margin-bottom: 1">
lass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
The accused admitted that he caused the death of the deceased but he has
pleaded not guilty, raising the defence of provocation.
This being so, the
prosecution must prove firstly, the necessary intent required in a charge of
murder and -secondly,
exclude the defence raised.
The specific intent to be proved in murder is that the killing musg must be done
with malice aforethought. What constitutes
malice aforethought is set out in
section 202 (formerly s.195) of the Penal Code which provides:
"202. Malice aforethoughtbe expressed or implied andd 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
ass="rmal" style="margin-left: 72.0pt; margimargin-topn-top: 1; : 1; margin-bottom: 1"> & p;&nssp;&nsp;
sp;
person, whether such person is the person acy kilr not/span
(b)
knowledge
tha act whit which caused death will probably cause the
& p; &nsp; &nsp;
death of, or grievous bodily harm to, some person whether such ass="rmal" style="margin-left: 72.0pt; margin-top: 1; : 1; margimargin-botn-bottom: 1"> p;&nssp;
person is the person actually killed or not, although
classNormayle="margin-left: 7ft: 72.0pt2.0pt; mar; margin-tgin-top: 1op: 1; margin-bottom: 1"> p;&nbbsp;&nsp; &nsp;
knowledge is accompanied by indifference wr dea
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sp;
grievous bodily harm is caor no by a thatay noan> an">
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be c.&quopan><
p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
That section clearly sets out the mens rea to be proved. There are
two states of mind must be established under the section, as was pointed out
in R -v- Jimmy Viu (1994) CRC15 of 1993 (H.C) (Judgement given on 11
February 1994) which was upheld by the Court of Appeal in Jimmy Viu -v- R
(1994) Cr. App, No. 7 of 1994 (Judgement given on 17 June 1994). This Court
stated in that case that:
ass="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
"there are two states of mind either of which, if proved, would establish
malice aforethought. The first of those
states of mind is an intention to
cause the death of or grievous bodily harm to a person. The second, is the
knowledge
that the act which causes the death will probably cause the death
of or grievous bodily harm to a person whether such person
is the person
actually killed nor not."
The accused's state of mind must be established, of course, on the evidence
before the Court and must be done so by the
prosecution beyond a reasonable
doubt. Such evidence would include what the witnesses, including, the
accused, said happened
at the time of the incident or immediately prior or
after the incident, so far as is relevant. The nature of the injuries are
also a very important factor in determining the state of mind of the accused
and the Court will also bear this in mind
in this case.
The evidence in the present case clearly shows, and accepted pted by the Court,
that prior to the killing of the deceased
on 8 October, 1997, the 'deceased
had on 6 October 1997 cut to death the late Meke who was the accused's daddy
according
to custom. There appeared to be some acceptance by both the
prosecution and defence that the deceased, Jimmy Geniamoe, also
"killed" one
Rex after he killed Meke. Whether Rex had, in fact, been killed by the
deceased or not, is in
my judgement, not to be the point. It is only
relevant to the consideration of how much weight such a news would have on
the mind of the accused in the light of the defence he now raised. Other
than that, the incident, if any, between the deceased
and Rex is of no
importance to these proceedings.
The prosecution case, in the main, is centred on the evidence of the
accused himself given both at the trial and contained
in his Record of
Interview which had been admitted as evidence with no objection from the
defence I do not think I need
to dwell at length on the Record of Interview
which is a fairly short one. It is worth, however, noting some of the
important
features of the contents of that interview. In the course of the
interview, the accused said in answer to Question 11:
"Early in the morning on Wednesday 8th Octh October 1997, I took my bow and
arrows and my bush knife and I went with
my people to go and dig a grave to
bury the body of my father Meke Dutakwe who was murdered by a mental person
known
as Jimmy Amoe, on Monday night, 6th October 1997. I accompanied
all my uncles namely John Morifaka, Aleamae Mason, Mason No. 2 Gwagae, Busui,
Sale and everyone in our family. When we reached the burial site, we started
to dig the hole When grave is ready we went
and took Meke's body in order to
bury it. When we put the body in the grave, a woman from Tangalo village who
was present
that time told us that the mental person, Amoe had cut another
person in the night, and that person Rex Selwyn is going to
die. This woman
went on to say that the mental person promised to come and kill anyone at
all in our village. The woman
who told us this story is known. as Maefale.
Upon hearing this story I got very angry and I got the idea to search for
this person and kill him. So I do not tell anything, I took my bow and
arrows with my bush knife and I took off. When I left,
the body of my father
is still not covered yet with ground. I got the idea I must follow the road
that leads to Tangalo
village and I thought I will met this man, Amoe there.
When followed the road, I saw some fresh footprints on the road so I
believed that Amoe’e must be somewhere around this area. So I began to spy
for Amoe'e. While I was still on the way,
I was surprised to see Amoe
standing up and waiting for me. I saw him holding his bush knife ready to
come and cut me.
He also looked like a devil. I saw his two eyes and I was
afraid so I wanted to hide from him under a tree but it was too late,
so
what else, I say my custom beliefs (chant) and saying 'I spoke' Father, are
you still with me? At the same time I
felt that my body is ready to fight
because the spirit is already in me. Same time I saw Amoe’e ran towards me
to cut
me. At the same time he cut me I blocked and defended myself with my
knife. When our knives met in the air, his knife slid
away but he still held
on to the knife. After that he turned around and ran away. I put my knife
down and pulled my arrow
with my bow and shot a first arrow. I saw the arrow
which hit his back, then I held my knife along with my bow on my left hand
and I ran after him. When I reached him in the mangroves I shoot him with
the second arrow which also hit his back. I
then shoot him with the third
arrow which hit behind his leg I saw him trying to run onto a stone but he
fell down and
at the same time I reached the same place as well. I did not
wait, I cut his hand with my knife, I saw him lying down on his
left side on
top of the stone, I then cut his left until it reached under his leg and I
also cut his back then I thought
I must put an end to him. So I gave a good
cut behind his neck then I pulled out some arrows from his body then I left.
I am certain that Amoe'e is not moving when I left. When I reached Osika I
shout out, I said that I killed Amoe'e to payback
the death of my father.
At the same time I saw Morifaason and Rusileta already iady in the village.
That time I held two (2) bush knives and my
bow and arrows with me. Then I
heard Morifaka told me not to stay in the village but to wait for Police to
come and take
me so I did not escape but I wait until Police came and took
me. The reason behind this is that because I loved Meke more than
my real
father from birth. Ever since I was small until today only Meke looked after
me and traditionally Meke will hand
over every power to me that is why I was
very angry when he died and the thought of relationship to kill the person
who
killed my father is in my mind. That is my story."
All that were sa his Answers to Question 11 were agreed to, except in
his evidence in Court, the accused appeared
to deny shooting the deceased
with his arrows when the deceased turned to run away. On the evidence, it
must be obvious
that the arrows landed on the back of the deceased which is
consistent with his story recorded in the Record of Interview.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
In his evidence on oath in Court, the accused basically repeated what he
told the police in his Record of Interview. In
cross-examination he said:
"Q. &nb
<
When you went to take youfe anows, you meant to go after
p; &nnsp;&&nsp;
p;
Jimmy Amoe and kill him?
A. &nnbsp;
s
Yes, because of his shouting.
Q. &nbssp;
/
pan>
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On the way did you t clear min bring back your mind?
Apan> ;
sp
No. My mind was all for me to go after Jimmy Amoe becaf wha &nnsp;&&nsp;;&nspp;&nssp;
sp;
did.
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Q. &n sp;
pa
You told the people that you kill Jimmy because he killed Meke?
p class="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
A. &nbssp;&nnbsp;
sp;
True. That's what 1 told the people afteilledy.
Q. p;
/
pan>
Was it to pay back for the death of Meke?
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A. ;
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That was not cle my mIn my, I f wouls Meke. He
& &nnsp;&&nbp;;
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cared for me. I was sad. So that's why I was cross and wanted to kill
&nnbsp;;&nspp;&nsp; &nsp;
Amoe'e.
&nbssp;&n sp;
pan>
Did you plan to kill Jimmy from the time he kiMeke?n>
A.
Yes.
pan lEN-GBle="font-size: 12.0pt; font font-fami-family: Tly: Times New Roman">
class="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
Q. ;&nbssp;
Was there enough time for you to cool down before you reached p; &nnsp;&&nsp; &nbp;
J
>
A. &nnbsp;
I
was cross. Only cross was in my mind because he killed my daddy
pan s"font: 12.0pt; font-fant-family:mily: Time Times New Roman">
n>
;&nbssp; &nsp; &nsp; p;
(Meke),
and he shouted while we were preparing to bury my daddy and
&nbssp; &nsp; &nbbp;&n
he also promised to kill anyone of us. All these too mor me < &n sp;
So I took myons ant afim.&q/span
lass=ormalle="m-top:a1; margin-rgin-bottobottom: 1"m: 1">
>
Based on the same evidence. as put before the Court, the prosecution submits
that the accused intended to kill the deceased
while the defence contends
that the accused intended to kill the deceased, but he was provoked to do
so.
lass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
There is to, on the evidence before the Court, clearly established
d
beyond a reasonable doubt that the accused intended
to kill the deceased.
Nothing could be more clearer than his own affirmation of his intention to
end the deceased's life
when he said:
"I saw him lying down onleft side on top of the stoe stone, I then cut his
leg until it reached under his leg and
I also cut his back, then I thought I
must put an end to him. So I gave a good cut behind his neck. I am certain
that
Amoe'e is not moving when I left."
The accused however raised the defence of provocatnd it is to that
whic which I now turn.
The Defencerovocation.
The accused's case is clearly pivoted o defence of provocation. Thn. The
accused clearly intended to kill the deceased
but relied on the defence that
his intention to do so arose from a sudden passion involving loss of
self-control by reason
of provocation.
In support of that proposition, Counsel for the defence relied on the cases
of Lee Chun-Chuen -v- R [1963] 1 All E.R. 73; R -v- Martindale
[1966] 1 WLR 1564; Perera -v- AG for
Ceylon
[1953] 2 WLR 238 and Parker -v-The Queen [1962 - 1963] III CLR 665. I
have considered those cases and they all appear to take the view that an
intention to kill
does not necessarily negative the defence of provocation
which may, nevertheless, arise, even where a person intends to kill
or cause
grievous bodily harm provided his intention to do so arises from sudden
passion which gives rise to loss of
self-control due to the provocation.
Such a position appears to be in conflict with Viscount Simon's dictum in
Homes -v- DPP [1964] A.C 588 where he said:
“... where the provocation inspires an actual intention to n to kill ... or to
inflict grievous bodily harm, the doctrine that
provocation may reduce
murder to manslaughter seldom applies."
However, that dictum did not receive the approval of the Court in Lee
Chun-Chuen -v- The Queen where Lord Devlin reaffirmed the law as stated
by Lord Goddard in Perera -v- AG for
Ceylon
when he said:
class="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
The learned Law Lord then gave an illustration of a case involving a person
finding his wife in the act of adultery and
kills her. In such a situation,
Lord Goddard pointed out:
"..... the law has always regarded that, although an intentional act, as
amounting only to manslaughter by reason
of the provocation received,
although no doubt the accused person intended to cause death or grievous
bodily harm”.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
Thus the view taken by the Courts in such a situation is that if there were were
some material upon which the Court acting
reasonably could find a case for
manslaughter it could not be said that it would have found murder It is for
the prosecution
to prove that the killing was not provoked.
Penal Code and Loumia v. DPP [1985 - 1986]
SILR 158.
The test of provocation is an objectne and the position in Solo Solomon
islands is that stated in Loumia -v- DPP applying the test as set out
in DPP -v- Camplin [1978] UKHL 2; (1978) 67 Cr. App. R 14; [1978] A.C. 705 which
stated:
p class="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
"The judge should state what the question is u is using the terms of the section.
He should then explain to them
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."
ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
Applying that, the Court of Appeal stated in Loumia in respect
ect
of the appellant who is an ordinary East Kwaio pagan villager:
"Now the learned Acting Chief ce did not use this formularmulation. What is
complained is that his Lordship failed
in terms to direct the assessors that
they should consider whether the provocation was enough to make a reasonable
East
Kwaio pagan villager do as the appellant did and that in determining
that question they should take into account everything
according to the
effect it would have on a reasonable East Kwalo pagan villager. Now without
in the slightest degree
questioning the guidelines suggested by Lord Diplock,
it may be noted that it is not expressed to be a formulation which must
be
adopted and on its face it is no more than a proper direction. Any other
direction to the same effect will equally
satisfy s. 198. His Lordship in
this case did indeed state what the question was, using the terms of the
section. He
did not in so many words say that the reactions of the appellant
should be assessed for the purposes of s. 198 in the light
of his being an
East Kwaio pagan villager but that fact was adverted to more than once. "
ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
The Court of Appeal undoubtedly held that the standard of self-control whichwhich
the law requires before provocation
can justify a verdict of manslaughter in
a murder case is still that of a reasonable person having regard to the
entire
factual situation including, the characteristics of the accused.
Equally the statute law also reaffirms this in section 205
of Penal Code
where the words used are "the Court shall take into account
everything…” which require the Court, in determining whether a
reasonable person in the position of the accused would lose his self-control
in the circumstances, to take into considerations, the whole factual
situation including the characteristics of the accused.
p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
It does not necessarily follow, however, when the defence of
provocation is raised the Court should consider it.
There must be some
evidence pointing to the defence which entitled the Court to consider it. It
does not shift the burden.
The prosecution still bears the burden of proving
that the killing is unprovoked. All that the defence needs to do is to point
to some evidence which could raise a reasonable doubt in the mind of the
Court: Lee Chun-Chuen -v- The Queen see also Ben Tofola – v -
Reginam Crim. App. Cas. 2 of 1993 (CA).
The question fore is whether there is material before the Court
ju justifying the Court to consider the contention raised
by the defence. I
have considered the evidence and I feel there are materials before the Court
entitling it to give consideration
to the defence of provocation raised in
this case. There is the evidence both from the prosecution and defendant on
the
killing of Meke who was the accused's daddy and to whom the accused was
personally very close. Then there was the news about
the accused's cousin
bother, Rex, also being "killed" by the deceased (Jimmy Geniamoe). The
killing of his
daddy who was so close to him must surely have bereaved him.
While the accused and his relatives were still in the process
of burying
their dead relative, the late Meke, the deceased (Jimmy Geniamore) who
brutally killed him (Meke) came to
the vicinity of place where the accused
and his people were preparing to bury the late Meke and gave threatening and
provocative shouting which, not only was provocative but an insult in
custom. Still in that emotional and bereaved state, the
accused left the
burial ceremony and went after the deceased whom he found and killed not
long after he set out. These
are factors which in my judgement are relevant
to the issue of provocation raised in this case. They are factors which,
together, are evidence of provocation operating upon the accused at the time
in this case.
Has the prosecution proved that the provocation was insufficient to cause
the accused to lose his self-control? The prosecution
case is that the
killing was an act of revenge, to pay-back the death of Meke and the
"killing" of one Rex.
The evidence supporting the prosecution contention
would appear to come from the accused's Record of Interview as well as from
his evidence in Court. I have already set them out earlier on in this
judgement. On the evidence it is clear that the
accused intended to kill the
deceased. His own words and nature of the wounds inflicted clearly
demonstrated that intention.
If there was nothing else to be considered, I
would have no hesitation in 'concluding that the killing of the deceased by
the accused was an act to avenge the death of Meke and possibly of the
"killing" of one Rex.
There was some suggestion that the killing was premeditated. I am not
satisfitisfied that it was. I accept the contention
that the intention to kill
the deceased arose out of the threatening and insulting shouts by the
deceased at the bereaving
moment when the accused and his relatives were
grieving and burying the body of the late Meke who was killed by the
deceased
(Jimmy Geniamoe) himself. There can be no doubt in my mind and in
common sense bearing in mind the custom also of the people
in East Kwaio,
and for that matter, any other places in Solomon islands, that such a
behaviour of the deceased was provocative.
I find that the provocation
arising out the events on that morning of 8 October 1997 by the deceased has
not been sufficiently
countered by the prosecution. It remains a lingering
source of doubt in the mind of the Court and like in all criminal trials,
where there is doubt, it must be resolved in favour of the accused.
There is one further important aspect of this case which wased by the
defence ince in connection with the defence of provocation
and which has not been
addressed by the prosecution at all. The failure to do so, in my judgement,
is also fatal to the
prosecution case, particularly in its duty to discharge
the onus required of them in excluding the defence raised by the accused.
This is the effect of the provocation on the accused who was only about 15
years old at the time. The effect of loss
of a loving caring daddy to a very
young boy of immature age, particularly in the circumstances of this case,
would be
a factor here also in assessing the gravity of the provocation on
the accused. This is particularly more so because of law's
compassion to and
recognition of human infirmity. So having raised the point, the prosecution
must exclude it. They have
not done so and the Court is further left with
this uncertainty.
The conclusion thre that the Court must inevitably come to is that the
prosecution, has succeeded in establishing
that the accused killed the
deceased unlawfully but has failed to exclude the defence of provocation.
The result is that
the accused must be found not guilty of murder but only
manslaughter.
accused is acquitted of murder but he is convicted of manslmanslaughter.
Verdict:
Acquitted rder
Convicted of Manslaughter.
Sir John Muria
a
CHIEF JUSTICE
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URL: http://www.paclii.org/sb/cases/SBHC/1999/28.html
