Regina v Banisi [2000] SBHC 73; HCSI-CRC 37 of 1999 (25 July 2000)

CRC 037 99 HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No: 037 of 1999

REGINA

-V-

BANISI

High Court of Solomon Islands
(LUNGOLE-AWICH, J)

Criminal Case No: 037 of 1999

Trial: 8 - 18 May 2000
Judgment: 25 July 2000

J. Faga for the Crown
I Kako for the Accused

JUDGMENT

(LUNGOLE-AWICH, J): There has been death in the family, a young man, Cliff Richard Ponisi, has been struck down by his cousin Lasiman Banisi, an equally young man. The immediate social responsibility must rest with the eldest cousin; Till Kavusu aged 48 years, and a schoolteacher! He must be ashamed of his role. He led a large group of armed relatives from three nearby villages to Bopo village, Vangunu Island, Western Province, the home of Cliff Richard Ponisi, the deceased, where Lasiman Banisi who was in Kavusu’s throng struck Cliff Richard Ponisi dead. The less immediate social responsibility must rest with Linus Sisio, the eldest brother of Cliff and a cousin of Kavusu and Banisi. Linus on the morning of the same day had started off a fight with Michael Hoda, his cousin and brother of Kavusu, instead of talking over their disagreement over land and proposed saw milling business of Linus. Then in the afternoon the revenge attack occurred in which Cliff was killed.

The Charge

The Police and Director of Public Prosecutions have cried, murder; the Director has indicted Lasiman Banisi with murder under section 200 of the Penal Code, Chapter 26 in the Laws of Solomon Islands. The particulars of the offence are that Lasiman Banisi on 18.5.1998 at Bopo Village, Vangunu, in the Western Province, murdered Cliff Richard Ponisi.

The offence of murder is defined in s:200 as read with s:202 of the Penal
Code, the sections state:

“200. Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder and shall be sentenced to imprisonment for life.

201.

202. 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.”

Facts Generally

The facts of the case are largely common ground. There were only a few differences; about the reason for Kavusu’s group going to Bopo, the reason and manner in which Banisi struck the blow, the identity of the stick used and to a less extent, the nature of the injury caused and the cause of death.

The events leading to the tragedy started on the morning of 18.5.1998, when Michael Hoda of Tinge Village arrived on an outboard motor canoe at the sea shore at Bopo where Linus, his cousin, was preparing building material from “sago” trees. Linus straight away went and fetched a letter that he said Michael had written to the local authority, objecting to Linus’s business proposal to be established on land which both relatives claimed right over. Linus confronted Michael with the letter and went on to whack Michael on the cheek when Michael denied having written the letter. Linus struck a second time, fortunately Michael, after putting up gesture to stand his ground, disengaged, but before he left he said, “thank you, thank you,” signaling possible revenge to come.

Back home at Tinge Village, Michael related the assault to his brothers and Cousins. It made them very angry. Tui Kavusu, the eldest of the brothers and Cousins, gathered up to 18 young men from Tinge, Ninive and Ininu villages and set off for Bopo in the afternoon. Kavusu walked at the head of the line, he carried a machete commonly known as bush knife. Some in the throng carried knives, small axes, chain whips - “chakos” and Malaita fighting sticks. Kavusu told Court that it is their custom to carry such weapons when people go to settle dispute! On the way they met a church minister who noticed the disposition of the men, he asked them to return to their village. Kavusu insisted on going, he instructed his group to proceed.

When the group arrived at Linus’s home at Bopo Linus was sitting down at a guava tree. Kavusu confronted Linus. The rest of the group stood in Indian file behind Kavusu. Whatever the words exchanged, the words were not for peace making. During the exchange Linus gathered weapons; a chain whip and a metal rod used for lifting sea cucumber from sea-bed. He used his weapons to drive away some of the men in the group. The brothers of Linus also armed themselves with knives and chains and fought off Kavusu’s group from the home. Kavusu’s group retreated at least a few metres from the court-yard to what was described as, “a playing field”. As part of the whole event, Cliff Richard (peqona) Ponisi, the deceased, emerged from one of the houses. The Prosecution says he did not carry a weapon, but the Defence says he had a chain whip in his hand. He ran in the direction of Lasiman Basini and others. The Prosecution says Denis Piuli, his brother, was being fought there by Ivan Kavusu and Stanley Sesapa from Kavusu’s group. When Cliff got to the other people, he was struck by Lasiman on the head with a stick. Lasiman held the stick with both hands and struck. He and the prosecution witnesses said the same thing about that, but while the prosecution witnesses said that the blow was struck in a downward direction, the accused was ambiguous and finally said that the blow was struck from a sideway direction. The blow felled Cliff. He was taken to Seghe Clinic where Jenasi Chadi, the senior nurse in charge, attended to him. Cliff died in the clinic about 2.15 am. The body was transferred to Helena Goldie Hospital at Munda and post mortem examination was requested by the police. An order of a magistrate authorised the post mortem examination. Most regrettably the doctor at the hospital refused to carry out the post mortem examination. That appears to be another flouting of responsibility, this time by a professional! I hope the Police have inquired into the reason for refusing to carry out what was a professional duty. If there was no good reason, the Police should notify the relevant medical authority and medical practitioners authority. It is the sort of thing that should not be allowed to recur. The attitude could frustrate the course of justice. On the other hand there may be perfectly good reason for not carrying out the post mortem examination, if so, that reason should be given to the police.

The Prosecution’s Case

The Prosecution’s case, gathered from the evidence it led in Court, was this: Lasiman set off for Bopo in the group led by Tui Kavusu; some in the group were armed with bush knives, chain whips – “chakos”, knives, axes and fighting sticks. The leader, Tui Kavusu, carried a bush knife. Lasiman was armed with a knife. The group intended to avenge the beating of Michael Hoda, one of them, by Linus. On arrival at the deceased’s home, the leader aggressively displayed the group’s intention to fight by cutting in the air with his bush knife three times close to the face of Linus and called on the group to fight. When the fight started Cliff was in the house sleeping. He ran out unarmed and proceeded to where one of his brothers, Denis Piuli was being fought by two men in the attackers’ group. Lasiman was standing nearby waiting ready with a big and heavy “makoba” stick, now exhibit PIB3 in Court. Makoba is known to be a very tough and strong wood. As Cliff ran past Lasiman, he struck Cliff from behind with great force along the top of the head from the occipital region to the frontal region, he used both hands. Cliff fell and from there could sit or lie down only with the help of other people. The blow caused a large cut right along the top of the deceased’s head. He was taken to Seghe Clinic where, despite assistance from the nurse, he died about 2.15 am, just 10 hours after the assault.

From the evidence outlined above, the learned submissions of learned counsel Mr. Jack Faga, for the Prosecution, were to the point; they were these: Lasiman set off in Tui Kavusu’s group with the joint intention to fight with dangerous weapons. He also personally intended to fight with dangerous weapon, he carried a knife; he intended to kill or cause grievous harm with the knife. At the fight Lasiman got the strong and heavy makoba stick, exhibit PIB3, and waited ready to use it. When Cliff passed in front of Lasiman, he deliberately struck Cliff from behind on the head, a dangerous part of the body, with the makoba stick using the force of both arms; he intended to kill Cliff. Alternatively, Mr. Faga submitted, Lasiman knew that the blow with that big and very strong stick would cause death. Cliff died from the large wound on the head caused by the blow struck by Lasiman. The submission about self defence was that the occasion for self defence did not arise, Cliff did not carry weapon and merely ran past when Lasiman struck from behind. Lasiman had opportunity to retreat, dodge, avoid or ward off the blow from the deceased. Mr. Faga urged the Court to find that it has been proved that Lasiman caused the death of Cliff and that Lasiman acted, “of malice aforethought”, when he struck the blow that caused the death of Cliff, the Court should convict Lasiman Banisi of the murder of Cliff Ponisi.

The Defence

Lasiman’s explanations of the events as stated in his own testimony and in the testimonies of witnesses he called were these: He, Lasiman, was a young man who went to Bopo village in the group, merely obeying the command of Tui Kavusu, their elder brother and chief of the clan, as traditionally expected. Only a few in the group carried weapons, and carrying of weapons was in the custom or practice of Vangunu people. He did not personally carry a knife or any weapon. The intention of the group was to go to Bopo and ask for compensation as settlement for the wrong of Linus. When the fight started he and other young men were chased off from the single file at Cliff’s home by Cliff’s brothers who had big knives. He took position away beyond the road and watched. Behind him was Henry holding a stick from “sekope” tree, not exhibit PIB3. Cliff came running, he had a metal chain used as a whip. As Cliff approached Lasiman, he quickly turned to Henry and seized the stick from him. When Cliff got close, he struck at Lasiman with the chain aimed at Lasiman’s neck. Lasiman timely struck at Cliffs chain to frustrate it from reaching Lasiman; he struck from a sideway direction not directly from above Cliff’s head downwards, he did not aim to land the below on the top part of Cliff’s head. Lasiman threw away the stick he used in the grass as he ran away; the stick was of sekope tree, not so big, not so heavy, not the makoba stick in Court as exhibit.

The well reasoned submissions of learned counsel, Mr. I. Kako, a public solicitor for the accused, were these: The testimonies of the prosecution witnesses had many inconsistencies and should not be believed. Lasiman had no intention to kill, and that knowledge that the stick used could cause death could not be inferred from the evidence, the stick in Court as exhibit was not the stick used to beat Cliff. Lasiman acted in self defence when Cliff struck at Lasiman with a chain whip, a blow aimed at the neck of Lasiman. Mr. Kako, urged the Court to discard the entire report made by Jenasi Chadi, PW6, the senior nursing officer who admitted the deceased and treated him, because, he said, Mr. Chadi, was not an expert. Mr. Kako asked the Court to acquit Lasiman altogether.

Determination

The issues and Burden and Standard of Proof

The evidence, especially the testimonies of witnesses, have been extensive because many witnesses were called, but the contentious points of law were limited to cause of death, malice aforethought and self defence (increasingly being described as private defence).

Of course, this being a criminal case, the prosecution must prove, beyond reasonable doubt, all the facts that establish all the elements of the offence, murder, in this case. That must not be lost sight of simply because in this case Lasiman called witnesses. The rule that in Criminal cases the burden of proof, to the standard of beyond reasonable doubt, always rests on the Prosecution except when insanity, intoxication and other statutory exceptions are raised, has been described as the “golden rule” since the judgment of Lord Atkin, the Lord Chancellor, in the well known English case, Woolmington -v- DPP [1935] 25 Cr App 72, and we adhere to it. Lord Atkin corrected the error which had been perpetuated since Sir Michael Foster’s book, Foster’s Crown Law 1762 The Court of Appeal had dismissed the first appeal of Mr. Woolmington. Its decision upholding the erroneous direction by the trial judge on the law of proof in a criminal case was based on the error in Sir Foster’s book, which error had been repeated in well regarded learned works such as Archibald: Criminal Pleading, Evidence and Practice 29th Edition, Russell on Crimes 8th Edition 1923 and Halsbury Laws of England, Vol. 9 (the Law as at 1.5.1933). At his trial Mr. Woolmington told the Court that the gun he carried went off by accident and shot and killed his wife; he carried the gun to the house of his mother-in-law where the wife was merely to threaten suicide so that she would return to him. The trial judge summed up the law of England (which we have adopted), erroneously as:

“The killing of a human being is homicide, however he may be killed, and all homicide is presumed to be malicious} unless the contrary appears from the circumstances of alleviation, excuse or justification. In every change of murder, the fact of killing being first proved, all the circumstances of accident, necessity, or infirmity are to be satisfactorily proved all the prisoner unless they arise out of the evidence produced against him......The Crown must satisfy you that this woman Violet Woolmington died at the prisoner’s hands. They must satisfy you of that beyond reasonable doubt. If they satisfy you of that then he (the prisoner) has to show that there are circumstances to be found in the evidence which has been given from the witness-box in this case which alleviate so that it is manslaughter, or which excuse the homicide altogether from showing that it was a pure accident.” Lord Atkin stated at page 95, the correct law of proof in a criminal case to be this:

“Juries are always told that if conviction there is to be the prosecution must prove the case beyond reasonable doubt. This statement cannot mean that in order to be acquitted the prisoner must ‘satisfy’ the jury ...........throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt, subject to what I have already said as to the defence of insanity and subject also to any statutory exception.”

Other important English cases on the point are: William Davies [1913], 8 Cr. App R211, R -v- Harry Lazarus Lobell [1957] 41 App. RI00 and R -v- Anthony Hugh Johnson [1961] 46 Cr App R72. In Solomon Islands where a judge sits without a jury, it is not essential that the judge should record self direction that the burden of proof in a criminal case remains always on the prosecution and the standard is that of beyond reasonable doubt, but his judgment must show that the judge has applied that important rule of the burden and standard of proof. That was stated in the judgment of the Solomon Islands Court of Appeal in DPP -v- Haikiu [1984] SILR 155. There are several good judgments of the Court of Appeal and of the High Court of Solomon Islands on the point of law.

If I am to find the accused guilty of murder, I must be satisfied that in addition to the admitted facts, the prosecution has proved all the material facts to the required standard. The material facts will be that Lasiman unlawfully struck Cliff, death of Cliff was caused by the blow and that Lasiman intended to kill or cause grievous harm or knew that the blow would cause death or grievous harm.

I have no doubt whatsoever that Cliff died as the consequence of the blow struck by Lasiman in the fight at Bopo on 18th May 1998. That has been proved by evidence of the facts in several testimonies, not of opinion of Mr. Chadi. The injury and how it was caused were amply proved by witnesses PW1, PW3, PW4 and PW5 Mr. Chadi’s testimony was also about the fact that he saw the large head injury, and of course that Cliff died while in his nursing care. Cliff was fit and ran before he was hit on the head. The only injury inflicted on him was the large cut along the head. His death could only have been caused by the injury from the blow struck by Lasiman. The judgment of Palmer J in, R v. William Erieri High Court Case No.3 of 1993, does not support the submissions of Mr. Kako. Yes, a nurse and not a medical doctor testified in the case as in this case. It seems that Palmer J accepted the testimony of the nurse. There is no need for me to consider whether Mr. Chadi may be regarded as an expert because I have not accepted any opinion from him as evidence, I accepted only facts in his testimony and report.

Determination

Self Defence

Lasiman has admitted on oath that he struck Cliff on the head one blow and that he used both hands to strike. The only question that arises about the actus rea is whether he struck the blow in order to avoid being struck round the neck by the deceased with a chain whip. If he acted to avoid the chain whip, that would mean that the blow he struck was not unlawful, unless it was unreasonable in the circumstances. The blow would have been struck in defending himself from imminent danger. The Penal Code in s:17 adopts the principles of the English Common Law regarding defence of person or property. Although the accused has testified and called witnesses to support his case, he is under no obligation to prove the defence, it is for the prosecution to prove by its own evidence that self defence is not available to Lasiman in this case. Gould VP in the Solomon Islands case, R -v- Ome [1984] SILR 27 at page34 said of s:17:

“It is to be noted ..... that under these principles [The English Common Law Principles about self defence], the onus of proving that the accused person did not act in self defence, where the question is raised on or by the evidence, is upon the Crown.”

See also a Jamaican case, Irving -v- The Queen [1971] 2 WLR 844, a case in which the facts are similar to those in R -v- Ome. The fight and death were also the result of chasing another’s girlfriend. Accused raised self defence. He appealed that there had been no direction that manslaughter was to be considered as well when self defence has been raised to defend a charge of murder. The Privy Council rejected the ground of appeal. That appeal was heard together with the appeal in, The Queen -v- Sigimund Palmer [1971] 1 WLR 821, also a case from Jamaica. The joint judgment dealt with all the issues relevant in self defence.

The question I have to ask to determine whether self defence is available to Lasiman is whether on the evidence led there was no necessity for Lasiman to defend himself and if there was necessity, whether the blow he struck was not a reasonable action to take to defend himself.

My first finding of fact is that Lasiman did not go to Bopo with the clear intention to kill or cause grievous harm. It is more probable that he simply went following the instruction of Tui Kavusu who some witnesses respectfully referred to as, “our big boss,” or “our chief”. It is also probable that Lasiman simply joined in the consensus among the brothers and cousins to go to Bopo following the assault of one of them, Michael. It is fair to deduce that Lasiman left the decision about what was to happen at Bopo to Tui to make. I doubt the testimony of Vivian Viuru, PW1, that Lasiman carried a knife. She was the only one among all the witnesses called who noticed Lasiman carrying a knife. In the haste of the moment and given the fact that there were up to 18 men in Tui Kavusu’s throng, there was room for mistake. I think if Lasiman carried a knife, Ralph Bell Kavusu, DW3, would have told the Court; he did not hide that he, himself, carried a small axe. Ralph had longer time with Lasiman. I have taken into account that the witness sat in Court when the case commenced, despite that he impressed me as a particularly credible witness. All the witnesses were credible except Tui Kavusu.

The second finding of facts I make is that the Prosecution has not proved sufficiently that Cliff ran unarmed passing in front of Lasiman and only intending to help Piuli. There was evidence from Linus that he, Linus, gathered his weapons and went to help Piuli who was being fought by Elvis, Ivan and Stanley and that Linus successfully accomplished his intention by chasing away the three in the process. Linus did not see Cliff or him being beaten. If Cliff had rushed ahead of Linus, then Linus would have seen as Cliff was beaten or as he laid down. The evidence is that Linus only saw Cliff upon Linus returning from chasing off the attackers. The testimony of Ralph Bell is again more credible on the point. He said that Cliff came running, he had a chain whip, first Cliff faced up to and threatened to strike the witness, but on noticing that the witness had an axe, Cliff passed on to Lasiman. The witness did not see the fight against Piuli. Fortunately the witness did not use his axe, he simply ran away. I accept his version. Reasonable doubt has been cast on the version that Cliff merely ran on intending to reach the fight against Piuli. I find that there may have been imminent danger from Cliff that Lasiman was faced with; it could be the danger of being struck with a chain whip. There was necessity for self defence. Some reasonable self defence action was justified.

Assuming in favour of Lasiman that Cliff struck at Lasiman with the chain, it would not be unlawful for Lasiman to act to avoid the danger of being struck. The prosecution suggested that Lasiman could have retreated, or dodged or warded off the chain. Yes, those were possible options, but when one is faced with imminent danger, one has only moments to react, and one may not pick on the most wise reaction. Moreover, there is no duty on a person attacked to retreat, it is merely evidence among others, to show that he did not want to fight - see R -v- Zamagita and 6 Others [1985/86] SILR 223 at page 233. I think so long as Lasiman’s action is seen to be a natural reaction of someone in his community and reasonable, it should be accepted as not an unlawful action and taken in defence of himself.

The evidence about the manner Lasiman struck with the stick complicates the case. Even if I take his evidence of the stick-being about 3 inches in diameter and 1½ metres long, I still would say that the stick was too big and dangerous, and that Lasiman applied far too much force than was warranted. Testimonies of witnesses for the prosecution were to the effect that Cliff did not strike at Lasiman at all. Ralph for the defence, did not mention that Cliff struck at Lasiman, but Lasiman himself said that Cliff struck at him, although he fumbled about the sequence of events. He settled on saying that he struck about the same time as Cliff struck. All the accounts together, of the moment when the fatal blow was struck, suggest that Cliff advanced aggressively, possibly swinging the chain whip as he approached Lasiman, in the same way he had approached Ralph, but slowed down when he reached Lasiman. I have already decided that some reasonable defensive action was called for. That could include the use of stick, but not, in my view, to the extent of striking a mighty crushing blow with a big stick, using the combined strength of both arms, right on the top part of the head of Cliff. I have reached that conclusion well aware of the advice in, Palmer -v- The Queen, that a person defending himself from an assailant cannot be expected to, “weigh to a nicety the exact measure of his necessary defensive action”, and I have adequately considered the fact that Lasiman struck only the one blow, and disengaged. The blow was extremely excessive and unreasonable.

Determination

Decision

Lasiman is not guilty of murder; he is guilty of manslaughter because of the excessive defensive force he used. Case Law and ss:204 (b) of the Penal Code are authorities for my conclusion. Two relevant Solomon Islands cases are; R -v- Loumia and Others [1984] SILR 51 and R -v- Ben Tungale and Others HC Crc No. 12 of 1997 cited by Mr. Kako. Sections 204 (b) states:

“204. Where a person by an intentional and unlawful act causes the death of another person the offence committed shall not be of murder but only manslaughter if any of the following matters of extenuation are proved on his behalf, namely -

(a).....

(b) that he was justified in causing some harm to the other person, and that, in causing harm in excess of the harm which he was justified in causing, he acted from such terror of immediate death or grievous harm as in fact deprived him for the time being of the power of self-control; or

(c)......

Provocation under 5:204 (a) could also be relevant. It is sufficient in this case to apply s:204 (b) of the Penal Code.

Determination

Conviction

The verdict is not guilty of murder, but guilty of manslaughter. Lasiman Banisi is convicted of the offence of manslaughter under s: 199 as read with ss:204 (b) of the Penal Code.

Observation

As I said at the opening of this judgment, the responsibility for the events leading to the death of Cliff rests with Tui Kavusu who may have incited and led the throng to Bopo, and with Linus Siso who unnecessarily started a fight earlier with Michael. I hope Tui and Linus have been charged and tried for their actions. If that has not been done, justice, following the events of the tragic day, 18th May 1998, cannot be seen to have been done, despite the conviction of Lasiman Banisi. He was not the cause of the events of that day and he was not the leader of the group.

I have to record my thanks to both counsels for their co-ordinated effort which made it possible to complete the trial in one half the time allocated.

SENTENCE

The punishment that I impose in this case has been greatly influenced by the fact that accused did not attempt to deny that he struck the deceased on the head, nor any of his part in the events of the 18.5.1998. The punishment has also been greatly influenced by the fact that accused was lead to the confrontation at Bopo by Tui Kavusu who was in authority over the accused, and it seems no police action has been taken against Kavusu. But for these two important factors, the punishment that I would impose would be far heavier. In Solomon Islands killing a person is regarded as a grave offence. That is shown by the fact that even after the Court has punished the killer, customarily his family circle must make amend with the deceased’s family, usually by payment of appropriate compensation.

I also take into account that accused was entitled to take some defensive action. I disregard the record of conviction for criminal trespass in 1994. The offence, I am told, was about “creeping” which has been explained as merely the fact of young men sneaking at night to the home of a girl to meet her for secret consented sexual intercourse.

On the other hand I must punish adequately even in the circumstances of this case to show that life of a young man has been lost. The sentence is 3½ years (42 months) imprisonment back-dated to the date when accused was first taken into custody and remanded.

Accused has right of appeal against both conviction and sentence. He may give notice of his appeal within 30 days.

Sam Lungole-Awich
Judge

Tuesday the 25th day of July 2000