Regina v Talu [2000] SBHC 95; HCSI-CRC 021 of 2000 (9 June 2000)

CRC 021 2000, HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No.021 of 2000

REGINA

V

MICHAEL TALU

High Court of Solomon Islands
(Palmer J)

Criminal Case No.021 of 2000

Hearing: 26th -28th April, 1st, 2nd May, 31st May 2000
Judgment: 9th June 2000

Director of Public Prosecutions (Francis Mwanesalua) for the Crown.
Public Solicitor (Patrick Lavery) for the Defendant.

PALMER J.: INTRODUCTION. Solomon Islands is at a cross-road. It has to address the deteriorating state of the Rule of Law and its processes, and the administration of justice in the country now, before it slides out of control. It is a sad chapter in the history of the administration of justice in this country, that today, the Accused, Michael Talu, duly prosecuted under the laws of this sovereign democratic nation, before this Honourable Court, could not be present to receive his judgment, because of the lack of an effective Prison Service and Police Force to guarantee his safety and security before this Court. He has therefore out of necessity, requested that his judgment be read out in open court in the presence of his Counsel, but in his absence. I have with hesitation obliged.

Already because of the deteriorating law and order problem in town, in the past weeks, the learned Director of Public Prosecutions could not appear in Court to present his closing submissions. He has had to flee town for his own safety. This is a very sad, but serious and unfortunate state of affairs, which must be arrested forthwith. It is my prayer and hope, that law and order, peace and security will be restored soon, so that the due administration of justice in this country will continue to be done in an environment free from, fear, prejudice and intimidation.

The accused, Michael Talu (hereinafter referred to as “the Accused”) has been charged with the offence of murder contrary to section 200 of the Penal Code, that on or about 20th May 1999, at Titinge Village, Guadalcanal Province, he murdered Dickson Mare (hereinafter referred to as the “Deceased”). Prosecution alleges that on the night of 20th May 1999, the Accused assaulted the Deceased at his house by kicking him on the head with his safety boots, then hitting him on the head with an SB beer bottle. As a result of the injuries sustained, the Deceased died at the Central Hospital a couple of hours later.

The Accused on the other hand denies those assaults. Instead it is sought to be submitted the injuries sustained by the Deceased might have been incurred by falling headlong and hitting his head on some hard object, like a stone, stick, or log, when he fled from the scene in fright.

FACTS NOT IN DISPUTE.

A number of facts are not in dispute. This included a letter (hereinafter referred to as the “Compensation Letter”) which had been seen and circulated on or about the same day, among residents of Titinge Village. It concerned compensation demands claimed to have been made by people from Malaita Province. A copy of this letter came into the hands of Wilfred Matevaka (“PW2”) who in turn showed it to the Accused. PW2 later gave his copy to Eddie Kennie, (“PWl”), another resident of Titinge Village. PW1 in turn informed Mr. Wilfred Akao, Officer in Charge of police operations in and around Honiara City, about that letter.

It is also not in dispute that during his lunch break that day (20th May 1999), PW2 had some beers with a friend (Jerry) from Reef Islands, at a popular drinking spot known as “Mosquito Bar”. This is a drinking spot located in some bushes behind Parliament Rest House. They shared fifteen bottles of SB beer amongst themselves; five each. PW2 returned to work at Rove Police Headquarters after this, whilst the Deceased returned home, to Titinge. PW2 works at the Police Headquarters as a plumber. After work, at 4.30 p.m., PW2 went to the Police Club with his friend Jerry and bought four more beers. They drank these at the Police Club before returning to Titinge; between seven and half past eight in the evening. They brought with them a bottle of hot stuff, described as a “Captain Morgan” and several coca cola drinks for mixing. PW2 had intended to share this drink with the Deceased; his son in law; married to his daughter, Brenda Matevaka – “PW3”. On their way home, they met on the road and all returned to the Deceased and PW3’s house (hereinafter referred to as “the Deceased’s house”).

A number of visits were made to the Deceased’s house by certain persons during this period of time, which are not in dispute. One of these was the visit by Kinai Teika (“DW2”), a man from Rennell and Bellona. The purpose of his visit was not in dispute. He had gone to make enquiries about the Compensation Letter PW2 had. It was obvious he was making enquiries on behalf of the Accused. He left after he had been told it had been given to PW1. Not long after this, DW2 returned again, but this time with the Accused. This was the second visit which is not disputed. Same enquiries were made for the Compensation Letter, this time by the Accused. The Accused was also told the letter had been given to PW1. Accused appeared upset by this response and swore at PW2. Words used in pidgin were: “Matevaka you eatim cunt blong Mummy blong you”. The Accused then left but returned alone sometime later, to the Deceased’s house. Reason given (which I have no reason to doubt) was to apologise for the swearing he had done to PW2. This final and crucial visit is not in dispute. What transpired however on the arrival of the Accused is in dispute.

An earlier visit by the Accused to the house of PW2, at around 7.30 p.m. is not in dispute. Edward Matevaka (“PW5”) was present at the house at that time. Purpose of that visit was also for enquiries about the Compensation Letter. After being told PW2 (father of PW5) was not in to answer his queries, Accused left.

FACTS IN DISPUTE.

There was a visit to the Deceased’s house, earlier on in the evening, at around 7 o’clock, which the Accused disputes. PW3 states the Accused arrived at her house and demanded beer from her and the Deceased. She described his appearance at that time as very persistent. It seemed to her Accused was under the impression she and the Deceased were hiding beers from him. After convincing him they had no beers with them, he left, but told them he would return to make enquiries with her dad, PW2, about the Compensation Letter. He warned them he would slap PW2 if he did not receive any satisfactory response. This visit is denied by the Accused. He says he would still have been walking back to his residence, at the time PW3 says he called in to her house and asked for beer. He also denied asking for any beer. The only time he claimed appearing at the Deceased’s house for the first time was when he went with Kinai to make enquiries about the Compensation Letter from PW2.

I have had opportunity to listen and observe carefully both witnesses when giving evidence. I fail to see how and why PW3 would lie or fabricate about evidence about this visit. It has little relevance to the subsequent events in which PW3 claims the Deceased was assaulted. I am not satisfied her evidence had been sufficiently discredited in evidence or that I have been convinced not to accept her evidence as true and correct. I accept her evidence about this visit and reject the evidence of the Accused. As to the possible timing of the visit, I accept she may be mistaken. More likely it may have been sometime later around 7.30 p.m. or thereabouts. This discrepancy however in my respectful view is not substantial. What is important is that I am satisfied there was an earlier visit made by this Accused to the house of PW3 and the Deceased. That was the first visit made by this Accused that evening.

THE THIRD AND FINAL VISIT TO THE DECEASED'S HOUSE.

The third and final visit to the Deceased’s house by the Accused is the crucial visit. The visit itself is not in dispute, neither is the direction of approach. Both PW2 and PW3, and the Accused, agree he came from the direction of the tank (see photos “B”, “C” and “D”). What is disputed are the events which transpired thereafter. It is at this visit the crucial allegations of assault were made by PW3 and PW2.

THE SITTING POSITIONS AT THE DECEASED’S HOUSE.

The sitting positions of the Deceased and PW2 at the veranda of the Deceased’s house is crucial to the Prosecution case. PW2 described his sitting position as opposite that of the Deceased and PW3, facing them, with the hurricane lamp and tape recorder between them. He did not say however, that the Deceased might have been facing him as well, as sought to have been suggested by learned Counsel in his closing submissions. It is quite possible what was meant by PW2 was that he was facing the Deceased who was sitting and facing in the direction described by PW3. Unfortunately, PW2 was never asked in Court to indicate where their various sitting positions were at the veranda of the house. All that learned Counsel for the Accused sought to deduce from his evidence, was that, because PW2 had said in his evidence that he was sitting opposite the Deceased, facing him, that it should be concluded the Deceased was facing him at the same time, in a westerly direction. Learned Counsel sought to contrast this, with the evidence of PW3, that the Deceased was sitting facing outwards (which according to the sketch plan, would be towards a northerly direction), and thereby contradicting her evidence. Unfortunately, perhaps without realizing this, learned Counsel was actually agreeing with the sitting positions described by PW3 and contradicting his own client’s evidence as to the sitting positions of the Deceased and PW2. The Accused had indicated in Photograph “C” where the various sitting positions of the Deceased and PW2 were. The Deceased was identified by him as sitting at spot marked “D” and facing outwards (that would be in an easterly direction) and PW2 at spot marked “M”. Now if the Deceased was facing westwards (that is supposedly towards PW2) as he sought to suggest was the position described by PW2, then that would mean the Deceased was not only facing towards the wall of the house, but completely opposite to what his client had said.

PW3’s evidence places the sitting positions of the Deceased and PW2 at the spots marked “A” and “B” respectively, in Photograph “C”. She identified her sitting position as at “C”. This is consistent with PW2’s evidence. Of greater significance is the crucial evidence of DW2. He described the sitting positions of the Deceased and PW2 as at “D” and “M” respectively, in Photograph “D”. This is entirely consistent with what PW3 says in her evidence but contradictory to what the Accused says in his evidence. Learned Counsel for the Accused describes DW2 as perhaps the only independent witness in this case. Although I do not fully agree with this submission, in this particular instance, I am prepared to accept DW2’s evidence as truthful, honest and correct. What is of significance also is that during cross-examination of the Accused on their various sitting positions, he actually concurred in his answers to the positions described to him by the learned Director of Public Prosecutions. It was only during re-examination when he was asked to mark the various sitting positions, that his version turned out to be different. I am not satisfied any suggestions that PW3 might have fabricated her evidence so as to line up with her other evidence of a kick, has been substantiated by Defence. I reject the evidence of the Accused as to the sitting positions of the Deceased and PW2 that night.

THE SWEARING WORDS - WHAT AND BY WHOM.

Prosecution’s case is that it was the Deceased who swore, to the effect that the Accused should eat the shit of all the dogs at Titinge. PW2 and PW3 gave evidence in support of this. Both described the context in which those words were used. They described how at the second visit, the Accused had sworn at PW2 before leaving. After he left, the Deceased asked PW2 how he felt about the swearing. PW2 told him to forgive the Accused. Deceased then swore at the Accused.

The Accused’s version is different. He says it was PW2 who swore and the words used in pidgin were: “What nao Michael hem try for argue about this falla letter, hem kaikaim shit blong Mummy blong hem”.

The swearing words used and by whom are completely different in the versions adduced by Prosecution and the Defence. Both cannot be correct. The question is who is telling the truth. The Defence submission is that the swearing could not have been made by the Deceased because the Accused at no time was angry with him. The Accused denied in cross-examination that any argument arose at any time between him and the Deceased. He denied also when it was put to him that the Deceased assisted PW2 when he argued with the Accused. This however has been contradicted by his witness, DW2. It will be recalled DW2 made two visits to the Deceased’s house; once alone and once with the Accused. On both occasions this witness confirmed that the Deceased assisted PW2 in his arguments. Again in this particular circumstance, I accept the evidence of DW2 as truthful and to be relied on and reject the evidence of the Accused that the Deceased did not say anything or assist his father in law in the argument with the Accused. In my respectful view, the version of DW2 is more consistent with the evidence of PW2 and PW3 that it was the Deceased who swore. He was just as agitated by the persistent queries of the Accused about the Compensation Letter. I do not accept the evidence of the Accused that it was PW2 who swore. But for argument’s sake, assuming for one moment that it was PW2 who had sworn and not the Deceased, and assuming for one moment, that what the Accused said was correct, that the Deceased was not involved in any way in their arguments, why would he ran off like a frightened animal and straight down that steep slope, and as a result fatally injuring himself. He would have no reason whatsoever to fear the Accused, knowing full well that it was PW2 who had sworn and had every reason to fear from the Accused; that it was PW2 who the Accused had been arguing with and was angry with. No satisfactory explanation whatsoever has been provided for this peculiar and irrational behaviour of the Deceased.

THE FOOTWEAR OF THE ACCUSED.

Prosecution alleges the Accused wore safety boots that night and especially at the crucial time the kick was directed at the head of the Deceased. This the Accused disputes. Prosecution produced three witnesses in support of this; PW2, PW3, PW4 and PW5. Accused on the other hand relied on his own evidence and that of his witness, DW2. The Accused says he had already taken off his shoes when he had his bath at the SIWA water supply pipe on his way home after work. At the times he went to the house of the Deceased therefore he was not wearing any footwear. This was supported by DW2. Their evidence however differs as to the type of clothing he had on that night. The Accused says he was wearing only a towel over his body as a kind of lavalava with nothing on his feet. DW2 however says he was wearing a pair of long trousers and no shirt. His evidence is more consistent with that of PW2; who states he wore a pair of jeans with his safety boots. This was supported by PW 4. PW3 says the Accused wore his working clothes uniform from the Ports Authority that night with his safety boots on. This was supported by the evidence of PW5. At least the evidence of PW2, PW4 and DW2 were consistent with PW3 and PW5 as to what he wore on the lower half of his body. That adds up to five witnesses in total against the Accused regarding this piece of evidence. Whilst there may have been some discrepancy as to whether the Accused wore any shirt that night, I find this to be of minor significance. As to the question of footwear, I have the solid evidence of four prosecution witnesses against the evidence of the Accused and DW2. PW3, PW4 and PW5 in particular, were unshaken in their evidence on this. They were very sure and confident of themselves and I have no reason whatsoever to doubt their evidence. I have listened to and observed carefully, the evidence of all these witnesses and come to the conclusion that the Deceased was wearing safety boots that night. I do not believe the Accused and his witness in this particular instance, that he was not wearing any shoes on his feet that night. I reject their evidence and accept the evidence of PW2, PW3, PW4 and PW5.

WHAT TRANSPIRED ON THE ARRIVAL OF THE ACCUSED.

The direction of approach of the Accused is not in dispute. All witnesses and the Accused agree he came around the tank at the corner of the house. Prosecution witnesses say he came and kicked the tape recorder. PW3 says the tape recorder then hit the hurricane lamp and caused the lamp to go out. PW2 says he kicked both the tape and the lamp. Accused says he kicked the hurricane lamp causing the light to go out before grabbing hold of the tape recorder and smashing it on the ground. Whatever the discrepancies described here may have been are in my respectful view minor. All are basically agreed there was at least a kick on the tape recorder or the hurricane lamp and as a result the light from the lamp went off. It is also not in dispute the Accused obviously was angered by the swearing he heard and acted aggressively. What transpired thereafter differs. Prosecution alleges the Accused thereafter assaulted the Deceased. The Accused denies this. Even though he was angered by the swearing and became aggressive thereafter, he did not do anything further. What Defence has sought to do in this case is to try and discredit the evidence of Prosecution witnesses to the point hoping, that a reasonable doubt would arise in the mind of the Court. It has then sought to suggest to this Court how the fatal injury on the head of the Deceased may have been incurred.

THE EVIDENCE OF PW3.

Prosecution’s case on the other hand, stands on the direct eye witness evidence of PW3 and PW2, bolstered by the evidences of PW1, PW4, PW5 and PW7. It is not even based on circumstantial evidence. To that extent, it must be looked at critically by this Court, as compared to a mere denial by this Accused and a suggestion at what might have happened.

Prosecution’s case is that basically there was a critical kick which landed on the head of the Deceased that night by the Accused. They allege there was a further assault on the head of the Deceased shortly after with a beer bottle. This was the last assault seen on the Deceased before he was found later, lying unconscious further down the slope. These crucial assaults were witnessed by PW3 and PW2. PW3’s evidence in particular is crucial. Of the two, she was sober, whereas PW2 was already under the influence of liquor at that time. PW3 described a total of four assaults on the Deceased; twice on the buttocks; the first one whilst he was still sitting down, the second one after he stood up. The third and crucial blow was the kick on his head after he had stood up. The final assault occurred some distance from the house after the Deceased had staggered down the slope and was again hit on the head by the Accused with an empty SB beer bottle at position marked “D” by PW3 at Photograph “G”.

PW3 was sitting at the ladder of her house, very close to the scene of attack; only a couple of metres away. A site visit had been taken by the Court and it was quite clear the distance from the ladder where PW3 was sitting was very close to where the alleged assault took place. All witnesses agreed there was sufficient moonlight out that night such that even when the hurricane lamp had been put out, they were able to see clearly what was going on. PW3 described how after the Deceased had been kicked on the head, he staggered out from the veranda followed closely by the Accused. It had been suggested quite forcefully to this witness that the Deceased was seen staggering away, not because he had been kicked on the head by the Accused but because he was drunk anyway. This witness however was adamant and could not be shaken, the Deceased staggered down the slope because he had been kicked by the Accused. It was also suggested to this witness, under cross-examination, that actually she did not see anything because she also ran off in fright when the Accused arrived and kicked the hurricane lamp. She also denied this emphatically. It was also suggested it would be quite difficult for the Accused to stand on the ground and kick the Deceased on the head. She however was unshaken in her evidence that the Accused stood on the veranda and delivered the kick at the head of the Deceased. It was also sought to be put to this witness that the Accused was not holding any empty SB bottle at the said time and that she had merely added this part to make things look bad for the Accused. She remained firm and could not be shaken in her evidence that the Accused was holding a bottle when he arrived and used it to assault the Deceased with.

THE EVIDENCE OF OTHER PROSECUTION WITNESSES.

Is there evidence of other Prosecution witnesses to support the evidence of PW3? Apart from PW3, the only other witness who claimed to have directly witnessed the assaults on the Deceased was PW2. There were discrepancies in the evidence of this witness, some of which have already been highlighted in this judgment and ruled upon as minor. This witness also mentioned the crucial kick on the head of the Deceased, though he could only recall a kick prior to this to the backside of the Deceased. He also described the Deceased staggering away from them after the kick, like a wounded chicken, that had had its head cut off. This witness also saw the Accused following the Deceased and raising his right hand in the air in a striking manner, but did not see what took place after and what if any was in the hand of the Accused. Under cross-examination, it was put to this witness if he had made any prior inconsistent statement to the Police about the crucial events that night and to provide any explanations. No satisfactory explanation however could be provided by this witness other than to say that what he had said in Court was the truth. The effect of this merely goes to credibility (see R v. O’Neill (1950) 34 Cr. App. R 108; R v. Birch (1924) 93 LJ.K.B. 385; Northern Australian Territory Co. v. Goldsborough, Mort & CO. [1893] UKLawRpCh 39; [1893J 2 Ch. 381, 386.). Apart from this prior written inconsistent statement, this witness remained firm in cross-examination as to what he saw regarding the kick on the head of the Deceased.

There were other witnesses who gave evidence of the immediate events after the alleged assaults. One of these was Lovelyn Chambo, PW4. She is the brother of the Deceased. She described how she heard PW3 crying that night and so ran out to ask her whether the Deceased had assaulted her. She had thought it seems, that the Deceased (husband of PW3) had assaulted her. PW3 however responded saying that the Accused had killed the Deceased. On hearing this, she immediately ran towards the Deceased’s house and shouted out to the Accused that he had killed her brother. The Accused responded by shouting back that he had indeed killed her brother and challenged her if she was cross about it. This he did three times. He then chased her and PW3. She states she had to run for safety into the house of a family from Isabel Province who also lived in that area. She states she could hear the Accused shouting and kicking the timber walling of her house. When she returned to her house in the morning, she saw that a timber walling had been kicked out of place. Defence has sought to discredit her evidence by submitting that it would have been impossible to hear anything from the house of the family from Isabel if what she says is true, that her house is about one and half kilometres away.

During the site visit however, it became clear that it would have been more than possible for her to have heard everything from that house as that house was located opposite the ridge on which her house was located. Taking into account the fact it was at night time and the isolation of that place, any sounds that night it seems to me would have been quite clear any way. I reject this submission.

This witness could not be shaken in cross-examination as to what she heard, saw and did. Her evidence not only is consistent with the evidence of PW3 but also supports her evidence that an assault was committed by the Accused on the Deceased. The first thing PW3 said to her when she asked her was that the Accused had “killed” her husband. That is consistent with the evidence of PW3 that an assault had been committed by the Accused on the Deceased. Secondly, she gave crucial evidence, of an admission by the Accused that he had killed her brother. Again that is entirely consistent with PW3’s evidence that the Accused assaulted the Deceased. If the Accused had not assaulted the Deceased, even if she had shouted out to him that he had assaulted her brother, why would he respond along those lines? I have listened carefully to her evidence and observe her demeanour in the witness box and find no motive or reason as to why she should come to this Court and lie about what she had heard. I find no reason whatsoever to doubt her evidence as correct and true.

There has been some suggestion made with the intention to throw doubt on the accuracy of her evidence that the other prosecution witnesses did not see her or notice her being chased by the Accused. This witness did say however, that not only did she not go to the house, she stood at a distance from the house (at the road), but that at that time, the Deceased had not been brought to the house as yet. This would seem to place the timing of events slightly just before the arrival of others at the house.

Another witness who arrived at the scene immediately after the assault as well was Eddie Kennie PW1. This witness was alerted to what had happened at the Deceased’s house by the cry for help made by PW3. What he heard is directly relevant to PW3’s evidence. His evidence is consistent with what PW4 and PW5 say they hear. He states he heard her saying that her daddy had been killed. PW5 also states that when she arrived at their house she told him that the Accused had killed her husband and her daddy. That is entirely consistent with the evidence of PW3, that an assault had been committed on the Deceased. It had been sought to be suggested to this witness that the use of the word “daddy” in the context of this case by PW3 must be taken as a reference to her father, PW2. This witness however did explain that in Solomon Islands context it was also a term used to describe her husband. This witness remained firm in cross-examination that he understood the use of the word by PW3 as referring to the Deceased. But even if it might have been a possible reference to PW2, it is still consistent with her evidence that an assault had been committed on the Deceased. If no assault had been committed on the Deceased, why would she tell PWl that their “daddy” had been killed? It is not in dispute, PW2 was never assaulted or attacked in any way by the Accused.

If what the Defence had sought to suggest to this Court is the truth, that the Accused did not assault anyone at all, why would she run out and tell at least three different people, PW1, PW4 and PW5, that the Deceased and PW2 had been “killed”? If what the Defence says is the truth, that the Accused had no argument whatsoever with the Deceased, and that it was PW2, whom the Accused was angry with, why would the Deceased run away from the scene like a frightened animal, as sought to be suggested by the Defence. If PW2 was the one whom the Accused was angry with, I would have expected him to be the one to run off in fright, because if anyone is to be attacked, it would be him, not the Deceased. Further, I would have expected PW3, being a woman, to be the one to have run off in fright! The Defence submission is simply so unrealistic to have any ring of truth in it.

PWl states on arrival at the scene, he observed that the Accused was still aggressive. PW5 states on arrival, he saw the Accused was still arguing with PW2. This is consistent with the evidence of PW3 that the Accused had been cross and assaulted the Deceased. This observation is also entirely consistent with the evidence of PW4, as to the demeanour and behaviour of the Accused towards her. She described his behaviour that night as being very aggressive and violent. She described hearing the Accused shouting and kicking the timber walling at her house whilst she was still hiding at the house of the family from Isabel Province. If what the Defence sought to suggest to this Court is the truth, that the Accused did not assault the Deceased in anyway, why would PW3 concoct a deadly tale against this Accused which if accepted by this Court would place this Accused in prison for life for murder? There has been no evidence of any suggestion whatsoever, that would have given rise, to any evil and malicious motivation or intention on the part of PW3 to fabricate evidence and to tell a blatant lie to this Court simply to get a conviction. No person in his or her right mind would have the audacity in my respectful view in the shoes of PW3, to come to this Court and say something completely false about any assaults on the Deceased. Why would she lie to this Court about the Accused having assaulted the Deceased, if what Defence sought to suggest is the truth. It wasn’t even the case that she was trying to cover up for her father, PW2, that there may have been any suggestions that he was to be implicated for the death of the Deceased! The Accused does not even in any way seek to implicate PW2. So why should PW3 sought to implicate an innocent man for a tragic accident! In my respectful view, the evidence submitted by PW3 can only be because it contained the truth as to what actually happened that night. That the fatal injuries on the head of the Deceased were caused by this Accused and not by any stretch of imagination that it was a tragic accident.

Prosecution also adduced evidence from PW1 and PW5 that the whereabouts of the Deceased was shown to them by the Accused. The implication sought to be drawn from this was that the whereabouts of the Deceased would only be known because the Accused was with him. Both stated the Accused walked down and showed them where the Deceased could be found by pointing to that direction with a torch given to him by PW1. The Accused denies being given a torch, though conceding he pointed in the general direction the Deceased went.

Again I find the evidence of PW1 and PW5 (which I accept), to be consistent with the evidence of PW3, that the Accused would in any event, know, in which particular direction the Deceased went, as he was the last person seen with the Deceased by PW1 and PW5.

THE MEDICAL REPORT.

The post-mortem report carried out on the Deceased by Dr. Douglas Pikacha, Chief Consultant Surgeon at the Central Hospital described the cause of death as an “acute right extradural haematoma resulting from trauma”. The injury was located “just above and lateral to the right eye, measuring about 10 mm X 60 mm”. It was described as a “split laceration on the center of the abrasion measuring 40 mm X 10 mm just above the right eyelashes over the temporal bone”. The learned Doctor described the injury incurred as consistent with the use of a blunt object. This included a safety boot. Under cross-examination, it was sought to be suggested whether it was possible that the injury could have also been caused by falling headlong onto some rock or stick or logs. The learned Doctor hesitatingly answered that this was possible. As to the possible amount of force that would be needed to cause such injury, he explained it would require quite a strong force to be able to shatter the skull bone and causing the depression from which the Deceased subsequently died from. I am satisfied the Doctor’s evidence is consistent with the evidence of PW3 and bolsters her evidence of an assault with a safety boot or an empty beer bottle.

Learned Counsel for the Defence sought to cast doubt on the evidence of PW3 that there was no other sign of a second injury on the head of the Deceased consistent with the assault of an empty SB beer bottle. Whilst that might be so, it does not in my respectful minimise the clear evidence of PW3 that there were two assaults on the head of the Deceased. It is possible the assault with a beer bottle could have occurred on the same spot where the kick had landed. As to the suggestion by the Accused that the Deceased might have fallen on a stone or rock, stick or log and incurred such injury on his head, the Accused has simply not provided any evidentiary support. I find his suggestion so remote as to be of any probative value. There is no evidentiary backing as to his suggestion. The Doctor who carried out the post-mortem did not find any debris or pieces of any dirt in the wound itself which might suggest something to that effect. No evidence whatsoever was introduced as to which stone, rock or log he might have fallen on to. The investigating officers did not see any signs of blood on any particular rock or log which might have supported such suggestion. With respect, I find the submission of Defence not only untenable, but more a product of imagination than anything else. I do not believe the Accused when he said he did not do anything to the Deceased.

The only pool of blood seen close to the spot where the Deceased was found by PW5 and others was on dry ground and not on any stick, log, rock or stone. PW6, who took photographs and observed the scene, expressed the view that this was the first spot where the Deceased must have fallen down before crawling further to the spot where he was later found. I find this simple piece of evidence, though appearing insignificant, to be consistent with the evidence of PW3, that the Deceased was assaulted further up the slope and as he ran down to escape from the Accused, fell down at that spot where he lost a lot of blood.
There was some unexplained streaks of blood also seen under the veranda where the Deceased sat but nothing conclusive can be drawn from that. Mr. Lavery suggested this could have come about when the Deceased was brought up to the house and washed. There was no suggestion this blood might have resulted from the kick, though that was a possibility.

CONCLUSION.

After warning myself not only about the burden of proof which lies with Prosecution, but also the fact that most of the Prosecution witnesses are closely related to the Deceased, I have not been satisfied in any way, that a reasonable doubt exists in my mind, that I should not accept the direct eye witness account of Prosecution witnesses as to what happened that fateful night. PW3 was the only witness who was sober and present throughout the crucial events that occurred that night. I have listened carefully to her evidence and observed her demeanour in the witness box. She could not be shaken during cross-examination as to the crucial assaults and other crucial evidence, including the footwear of the Accused. She was a direct eye witness of those assaults. I find her to be an honest and frank witness and her evidence on crucial matters consistent throughout. Her evidence has not been discredited to any significant degree under cross-examination. Her evidence has been independently verified in certain crucial parts by the Accused’s own witness, DW2. Not only that, but her evidence as to the events which occurred immediately after the assault, I find to be consistent with what other prosecution witnesses have said in evidence. I have already adverted to these in this judgment and do not need to repeat them.

At the same time, I have listened carefully to the evidence of this Accused and observed his demeanour in the witness box. Unfortunately, I have not been satisfied with his evidence to the point that a reasonable doubt exists in my mind that he did not have anything to do with the injuries on the head of the Deceased. The evidence adduced by Prosecution has been overwhelming. Not only has it been clear and unambiguous, but consistent throughout. I am satisfied beyond reasonable doubt the Accused was directly responsible for the injuries on the head of the Deceased and as a result of which the Deceased subsequently died.

THE LAW.

Section 200 of the Penal Code defines the offence of murder as:

“Any person who of malice aforethought causes the death of another person by an unlawful act or omission......”

Section 202 in turn defines malice aforethought as:

“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.

No issue had been raised by Defence on the question of intention or knowledge to cause grievous bodily harm. Neither is it in issue, the injuries could have been anything else other than grievous bodily harm. The assault described by PW3 and the injuries sustained as described by PW5 and the learned Doctor who carried out the post-mortem report confirm this. I am satisfied beyond reasonable doubt those assaults were delivered with intention to cause grievous bodily harm and as a direct consequence of which the Deceased later died in Hospital. I am satisfied the burden of proof had been discharged by Prosecution and that the Accused should be convicted for the offence of murder. This Court finds the Accused, Michael Talu, GUILTY and accordingly CONVICTED, of the murder of Dickson Mare, on 20th May 1999, at Titinge Village, Guadalcanal Province.

ALBERT R. PALMER
THE COURT.

SENTENCE:

There is only one sentence for murder under our law, life imprisonment. Accused accordingly is sentenced to life imprisonment with effect from today.

ALBERT R .PALMER
THE COURT.