Regina v Olifei [2001] SBHC 181; HCSI-CRC 344.2009 (21 March 2011)

IN THE HIGH COURT
OF SOLOMON ISLANDS
(Mwanesalua J)

Criminal Jurisdiction

REGINA

v

FILIS OLIFEI

Date of Hearing : 14,15,16,18,21,22,24 and 25 February 2011
Date of Decision : 21 March 2011

J. Naigulevu and N. Kesaka for Crown
S. Valenitabua and M. Manaka for Accused

DECISION AFTER TRIAL

Mwanesalua PJ:

1. The accused, Filisi Olifei, has been charged with the offence of Murder contrary to section 200 of the Penal Code, that he with malice aforethought unlawfully killed Billy Toito'ona (the deceased), in Honiara on 16 May 2009. The accused 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 reasonable doubt.
   
2. The prosecution alleges that in the early hours of the morning of 16 May 2009 the accused murdered the deceased with a knife. With that knife he inflicted the fatal stab to the mid-back area that punctured the lungs and caused severe bleeding and haemopneunmothorax. The accused attacked the unarmed deceased while unprovoked with a dangerous weapon in concert with others.
   
3. The defence argues that there was no evidence that the accused delivered the fatal stab to the deceased. Further, there was no evidence that the accused had malice aforethought, that is to say, the intention to kill or cause grievous bodily harm to the deceased.
   
4. The Defence further argues that in the event that the court finds that the accused caused the death of the deceased with malice aforethought, then the accused would rely upon the defence of self-defence, and if that fails, the accused would then rely upon the defence of provocation.
   
5. The main issues in this case are:
   
   1. Whether the accused had intention to kill or cause grievous bodily harm to the deceased when he stabbed him with the knife?
      
   2. Whether the accused was acting in self-defence when he stabbed the deceased with the knife?
      
   3. Whether the accused was provoked when he stabbed the deceased with the knife?
      
6. The other issues in this case are:
   
   1. Whether the accused was a party to the purported attack on the deceased and Thomas Giosia by aiding and abetting others in causing the deceased's death?
      
   2. Whether the accused was acting pursuant to a common purpose with others with the requisite means rea of intending to kill the deceased or causing grievous bodily harm to him?
      
7. The court found in the evidence that the following facts are not in dispute:
   
   1. The accused, his father Tobasi, the deceased, Thomas Giosia and Charles Iro were neighbours at Kaibia Heights in Honiara on the night of 16 May 2009.
      
   2. The accused was in possession of a stainless steel knife about 30mm in length on the night of 16 May 2009.
      
   3. On the night of 16 May 2009, between 2am and 4am, a fight occurred between the accused and the deceased on the road in the neighbourhood at marker no 27 as shown in photographs 5 and 6 of Exhibit No. 'P1'.
      
   4. During their fight the accused tackled the deceased and they rolled down a slope and eventually ended up close to a house at marker no. 21 shown in photographs 9 and 10 of exhibit 'P2'.
      
   5. After the fight the accused went to Joel Tebby's Canteen with an injury on his right hand. He told Joel that he was involved in a fight.
      
   6. The accused inflicted a slash wound on the left leg of the deceased at the place indicated by marker 21 referred to in (4) above.
      
   7. The deceased climbed up the slope back to the road, but was assisted half way up by his wife to the side of the road where he was transported to hospital by a vehicle. And he died after admission.
      
8. Prosecution evidence
   

Charles Iro was in his house near the road at Kaibia Heights between 2 and 3 am on 16 May 2009. His evidence is that he went to the road when he heard the accused swore and challenged the deceased and Thomas Giosia saying "Come here, this knife is for you, I am not afraid of you". He took his torch and ran to the road. When he arrived he saw the accused, his father Tobasi, the deceased and Thomas arguing. The accused and his father held knives. The accused moved towards the deceased and Thomas, swinging his knife between them. The knife was about 30 centimetres in length. Then Charles heard the accused swearing at the deceased saying "have sex with your mother, come here I will kill you". The decease told the accused to leave the knife, but the accused moved forward and hit the deceased, grabbed him and they rolled down the hill. Charles said the swearing, the challenge and the swinging of the knife occurred at marker 23 as shown in photograph 3 of Exhibit 1.

Charles followed the accused and the deceased his brother to the bottom of the hill as he wanted to save him. Charles said when he came to the bottom of the hill where the accused and the deceased had landed, he stood at a distance of 1-2 metres from them. The deceased lay facing down on his stomach. Tobasi sat down close to him pushing the deceased's head down to the ground. The accused stood up at the side of the deceased, held his knife up with both hands and stabbed the deceased's back with it. Charles said that he saw these actions as the moon was shining and that he had also used his torch during that time. Charles said he ran away from that scene when Tobasi threatened to grab him. The scene of this stabbing occurred at marker No. 21 shown in photographs 9 and 10 in Exhibit P2. Charles said the deceased did not strike the accused with a piece of 4 x 2 timber. He also confirmed that he did not see anyone kicking Tobasi on the face.

Thomas Giosia's evidence is that on the night of 16 May 2009 he and the deceased went to Joel's Canteen. They bought rolls of tobacco and packets of biscuits. No other boys went with them. About 15 metres from the Canteen they sat down to eat the biscuits. Someone threw a stone at them which nearly hit his head. They looked back and saw George Lee running away. They were on their way up the road to their house after work. Then they saw the accused running up behind them as they approached an old blue bus near markers 23, 27 and 28 shown in photograph 3 of Exhibit P1. The accused called out to the deceased saying "You Billy Toi, wait there". Then he went on saying "Billy Toi you wait for me there, I am not afraid of you, wait for me". As the accused kept coming after them, the accused said "Okei, I will wait for him, see what he wants". Thomas saw through the moon light that the accused pulled out a knife and wanted to stab the deceased. The deceased told the accused "Leave the knife so that we can fight with our bare hands". Then the accused and the deceased fought. While this fight was going on, Tobasi and Arudola rushed in. Tobasi said "haugia, haugia", in the Tobaita delect, "kill them, kill them". George Lee and Stanley joined the fight. The accused Tobasi, and George Lee were armed with knives. Thomas said Tobasi cut his left ear during the fight which Tobasi denied in his evidence.

Thomas denied that Tobasi was being kicked on the face. He also denied seeing any piece of timber being used to strike the accused's head during the fight.

The evidence of Diana Bibi is that she was the wife of the deceased. She was still in their house when the accused shouted that he wanted to kill somebody. She was concerned for the safety her husband if a fight broke out. She heard the accused said to the deceased "You come here I'm holding a knife here for you". She arrived at the scene when the accused and the deceased rolled down the hill. She called for her husband but he did not answer her, but instead he walked up towards her. His whole body was covered with blood. She took off the two shirts he wore and his hat, which all had blood stains on them. When the deceased reached the road he lie down as he could no longer sit up. She saw deep wounds on his body. The deceased said that it was the accused and his father who stabbed him.

Dr. R Moraka carried out an autopsy on the body of the deceased at the Hospital. The doctor found injuries on the deceased's body. There were five abrasions, two lacerations, four slash wounds and one stab wound at the right mid-back of deceased's body. This stab wound entered the right chest cavity between the 10th and 11th right ribs. The internal wound was 68 x10 mm. There was a cut on the lower part of the 10th rib. The lower lobe of the right lung was stabbed through. The wound was 35 x 15 x 40 mm. There was 1,300 mls of blood in the right chest cavity and the right lung collapsed. The deceased died from this wound.

9. Defence evidence.
   

The accused said that after drinking at his house he and George Lee went out to buy smoke from Joel's Canteen. After they did that they walked to George Lee's stall at the market to rest and smoke. Then a group of about six boys including the deceased swore at them saying "Fuck those men who are sitting at the market" and rushed into the market. The accused said he and George knew that these men wanted to kill them so he escaped to his house but did not know where George ran to as they got separated. He said the distance from the market to his house was about 50 metres. When he got home he sat down. Then he heard the same boys, who had sworn at him and George, shouting and swearing at the road and going to their home. Their home was not down towards Joel's Canteen but further up the road. The accused said that when he heard that the group was going away from where his family's house was situated, he came to the road again. He said he came to the road to look for George. When he reached the road the swearing continued to grow bigger as they went. They said "Mother Fucker" and "hey, you people when you get drunk you talk a lot" and they continued to swear at him and others generally. He said the persons in the group were drunk. He then talked to them and they argued for a short time. He then stopped talking and the group stopped talking. He thought at the time that they had left. So he walked towards the old blue bus so that he could sit. He said that when he was about to sit down he heard the sound of legs coming down from the hill. A group of persons were running towards him. He was at the side of the old bus. There were six of them running down and, when they came and stood near him, he could clearly see them. He said that he recognised the deceased plus two others, Stephen and Salo.

The accused said as the men came running down he was frightened because he was alone. When the men reached him he told them that he did not want to fight. But they circled him and he saw the deceased moved closer to him. Then a person who stood at the back of the group shone a torch on his face. He could not see due to the brightness of the light. So he looked down and moved back. At that point in time he saw his dad arrived at the scene. He said that at that time he was not holding a knife. He had a knife with him and the knife was inside the basket. He also said that at that point, when the deceased and his group circled him, he did not draw the knife. His father had arrive and said to him "hey, you go back to the house". He said that his father came to settle the problem and told those men to settle the problem. After that he saw them kicked his dad.

The accused said that it was the deceased who kicked his dad. He was standing about two metres away when his dad was kicked. He said after his dad was kicked he moved in front of his dad. He said his dad was not holding a knife. After he moved to the front the deceased hit him with a piece of 4 x 2 timber. It was heavy. The middle of the timber landed on his head. He said from that hit he fell down but stood up again. He then grabbed and held the deceased first. At that point he did not have the knife in his hand. The knife was in the bag. He said he held the deceased's shirt and pushed him down. They rolled down the slope.

The accused said he did that because he was angry because the deceased kicked his father first and hit him with the timber again. He added, when they fell down and rolling down the hill the deceased held on to his neck while he held on to the deceased's shirt. As they stopped rolling, the deceased was on top of him pressing his neck. The accused said at that time he could not breathe properly so he held into the basket and pulled out his knife and stabbed the deceased's left leg. He said when the deceased felt that he was stabbed, the deceased stretched out his hand to the accused's hand where the knife was intending to get the knife out. The accused said as he left the knife and pushed the deceased away, he did not know anything else.

Tobasi is the second defence witness. His evidence is that he went to the scene of the fight to stop the argument between the accused who is his son and the deceased's group. While he was at the scene some body flashed a torch at him and the deceased kicked his face. He held the accused's hand and they went to hide at the side of the blue bus shown in photograph No. 3 of Exhibit P1. The accused then left him to the back of the blue bus where he was struck with a piece of timber by the deceased's side. The accused then ran to the other side of the road where the deceased grabbed him and they rolled down the hill. He followed them down but when he arrived at the place where the accused and the deceased landed, he saw that Charles has also arrived there at the same time. He saw by flashing his torch that the deceased was on top of the accused struggling. Charles kicked him and he chased him away. When he returned to the spot where the accused and the deceased were, he merely saw the accused as the deceased has returned to the road. He assisted the accused to the road. At the road, he saw the deceased with his wife but the deceased was lying down.

The Law

The accused was charged with murder under section 200 of the Penal Code (Cap 26) (the code) It reads:

"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."

Malice of aforethought is defined in section 202 of the Code as follows:

"Malice aforethought may be expressed or implied and express malice shall be deemed to be established by evidence proving either of the following statements 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;

(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 person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, by a wish that it may not be caused.

Assessment of Evidence

Was the Adam Gwaro Tobasi kicked on the face by the deceased?

It is alleged that the deceased kicked Adam Gwaro Tobasi on the face with his leg. There is no evidence about the effect of this kick. However, a kick is a potentially lethal weapon. Injuries may be caused by the foot delivering a direct swinging blow. In that situation the force delivered is greater than that of the fist, due to the larger muscular of the leg and the added weight of the foot. In this instance Tobasi has not suffered any form of injury but acted normally after the alleged kick on him. He followed the accused and the deceased to the bottom of the hill and assisted the accused to the road. The claim by Tobasi that he was kicked in this case did not appear to be true and is rejected.

Was the accused struck on the head with a piece of timber by the deceased?

The piece of timber involved here is a 4 x 2. The evidence from the accused himself indicated that it was a heavy one. The centre of the piece of timber landed on his head. The accused fell to the ground when the piece of timber landed on his head but he stood up again. The accused felt no effect at all after he was struck by heavy timber. This is not normal when one is being struck with such a heavy object. Not to mention that a 4 x 2 has edges which could cause serious injuries to the head. It would therefore seem that the accused has never been struck with the timber as the prosecution evidence indicated. The court is of the opinion that the accused has not been struck with any piece of timber as he has claimed and is rejected.

There is evidence that the accused had a knife on the night of 16 May 2009. The accused admitted this and was also seen by Pitu the same night. The accused inflicted a slash wound on the deceased at the bottom of the hill. Charles saw the accused stabbed the deceased on the back. He used both hands to lift up the knife to stab the deceased. This is the stab that caused the injuries which caused the death of the deceased. The force applied to the knife was strong as the knife cut through the lower part of the 10th right rib and went through the lower lob of the right lung. It is the decision of this court that the accused acted deliberately with the intention to cause the death of or grievous bodily harm to the deceased.

There is no evidence to establish common purpose or aiding and abetting in this case. The accused was charged as a principal offender. There is also no evidence to support either self-defence or provocation in this case. The deceased was on the ground on his stomach defenceless. He was in no danger to anyone at that moment. There is no evidence that he provoked anyone while he was lying on the ground. He was completely helpless when the accused stabbed him on his right mid-back with his knife.

The evidence before this court has proved the guilt of the accused beyond reasonable doubt of murder. He is according convicted of that offence. As such, there is only one sentence for the offence. Filis Olifei is accordingly sentenced to life imprisonment. He has a right to appeal within one month. Order accordingly.

THE COURT