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High Court of Solomon Islands |
HIGH COURT OF SOLOMON ISLANDS
Criminal Case Number 12 of 2003
REGINA
V.
ABUOFA FATAGA, DAVID KIUSI AND PAUL NIUDENGA
HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)
Date of Hearing: 19/05/03-23/05/03, 26/05, 27/05, 2/06 – 5/06/03, 10/06/03
Date of Judgement: 18th June 2003
Mr. F. Mwanesalua (Director of Public Prosecutions) for the Crown
Mrs. Samuels for the first and third Defendants
Mr. I Kako (Jnr) for the second Defendant
PALMER J.: 1. Introduction: The three accused, Francis Abuofa Fataga (“D1”), David Kiusi (“D2”) and Paul Niudenga (“D3”) have been charged with various offences under our laws. D1 has been charged for the offences of murder, attempted murder and being in possession of firearms without a firearm licence contrary to sections 200 and 215(a) of the Penal Code Act (“Penal Code”) and section 5(2)(a) of the Firearms and Ammunition Act (Cap. 80) respectively. Those offences relate to the fatal shooting of Iro Angisui (“the Deceased”) and injuring of Jasper Galu Angisui (“Galu”) with an assault rifle (SR 88 buttless rifle) on 26th September 2002 at Iridofe Village, Fo’ondo, Malaita Province. The firearm offence relates to the illegal possession and use of the SR 88 buttless rifle on the same occasion.
D2 has been charged with one count of murder, one count of illegal possession of firearms and one count of going armed in public contrary to section 83 of the Penal Code. Those offences all relate to the same incident, which occurred at Iridofe Village on the same date.
D3 is charged with one count of common assault contrary to section 244 of the Penal Code. The offence arises from the same incident on the same date.
2. What the prosecution must prove beyond a reasonable doubt.
“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.”
For a successful prosecution to be conducted for murder, the following elements must be established to the required standard:
(i) proof of malice aforethought; and
(ii) proof that death was caused by an unlawful act or omission.
“Malice aforethought” is defined in section 202 of the Penal Code 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 coexisting 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.”
In the definition of murder in our law “malice aforethought” can be proven in two ways:
(a) that D1 had the necessary intention to cause the death of, or knew that the act of shooting the Deceased on the legs will probably cause the death of the Deceased; or
(b) that D1 had the necessary intention to cause grievous bodily harm to the Deceased, or knew that the act of shooting the Deceased on the legs will probably cause grievous bodily harm to the Deceased.
Satisfactory proof of either of those elements will establish the element of “malice aforethought”.
215(a) of the Penal Code:
“Any person who –
(a) attempts unlawfully to cause the death of another; or
(b) .........
is guilty of a felony, and shall be liable to imprisonment for life.”
The word “attempt” is defined in section 378 of the Penal Code as:
“When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.
It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfilment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.
It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.”
The crucial element to be proven to the required standard on “attempted murder” is the intention to kill (see Whybrow[1]); that on 26th September 2002 D1 intended to kill Galu.
“5(1)- Subject to the provisions of this Act, no person shall purchase, acquire or have in his possession any firearm or ammunition without holding a firearm licence in force at the time.
(2) If any person –
(a) purchases, acquires or has in his possession any firearm or ammunition without holding a firearm licence in force at the time, or otherwise than as authorized by such a licence, or in the case of ammunition, in quantities in excess of those so authorized; or
(b) fails to comply with any condition subject to which a firearm licence is held by him, he shall, subject to the provisions of this Act, be guilty of any offence and liable –
- if the offence was committed in a prohibited area to a fine of five thousand dollars to imprisonment for ten years, or both such fine and such imprisonment;
- if the offence was committed elsewhere, to a fine of three thousand dollars or to imprisonment for five years or to both such fine and such imprisonment.”
The crucial element required for proof is whether D1 and D2 are in possession of firearm licences for the type of firearms held and used in their possession on 26th September 2002.
“Any person who goes armed in public without lawful occasion in such a manner as to cause fear to any person shall be guilty of a misdemeanour, and his arms may be forfeited.”
The elements required to be proven by prosecution are: (i) that the accused goes armed in public, (ii) without lawful occasion, and (iii) that it causes fear to any person.
“Any person who unlawfully assaults another is guilty of a misdemeanour, and, if the assault is not committed in circumstances for which a greater punishment is provided in this Code, shall be liable to imprisonment for one year.”
An assault is defined as any act by which an accused person intentionally or recklessly, causes the victim to apprehend immediate and unlawful personal violence (see definition in Fagan v. Met. Police Comr.[2]). The crucial elements to be proven are: (i) there must be an intention to cause harm to the victim, and (ii) that there was an apprehension of immediate personal violence.
3. The evidence
(a) Murder: (i) For Prosecution: Both D1 and D2 have been charged with the murder of the Deceased. The case for the prosecution as adduced by its witnesses is that there was a fight on the afternoon of 26th September 2002, which involved D1 and D2 on one side and the Deceased and Galu on the other side. No one else was involved in the fight and no weapons were used. During the fight D1 and D2 were able to escape and ran off to their houses. They each got a rifle and returned to the scene of the fight. The first shot was discharged by D1 outside his house; his second shot was aimed at the Deceased but missed. The third shot hit both of his legs and caused him to fall down. He later died from those wounds. The fourth shot was aimed at Galu and hit him on his leg. He however managed to survive that bullet wound.
The prosecution case is that the use of the rifle by D1 was intentional and unwarranted in the circumstances. The rifle used was a lethal weapon. Any use of such weapon therefore most likely would have resulted in the killing of the Deceased. When D1 ran off to his house he told the Deceased and Galu to wait whilst he ran to get his rifle. They deny the two accused were pursued to their houses and that there was any threat of immediate harm or danger to themselves, their families or their properties. They deny the use of any stones, knives, sticks or timber or that the two accused had been set upon by many others from Iridofe village other than the Deceased and Galu. They also deny the use of any swearing words, which could have unnecessarily provoked the use of the rifle by D1.
Prosecution claims that D2’s presence at the scene aggravated the situation and fear felt by the villagers around the scene and prevented immediate assistance from being provided for the two injured brothers. D2 also had in his possession an SR 88 rifle and was also strutting around menacingly at the scene of the fight. His possession of the rifle at the scene also instilled much fear in the villagers at that time. It was also intentional; he had told the two brothers to wait whilst he ran for his rifle. Prosecution say that D1 and D2 stayed around the scene for about thirty minutes before moving off and that this delay was a contributing factor to the death of the Deceased. By the time any assistance was rendered some thirty minutes later, it was already too late. The Deceased had already lost a lot of blood by that time which resulted in the collapse of his blood veins thus rendering it impossible to insert any “IV Drip” into his body as a life saving measure to try and replace the vital fluids lost from his body. Any medical assistance that could be offered therefore at that time was very restricted. He later died from his wounds. Prosecution says that D2 hastened the death of the Deceased through his actions, which prevented any immediate assistance from being rendered (see section 207(d) of the Penal Code).
(ii) For the Defence: D1 ran for his rifle after he and D2 had been set upon by the villagers of Iridofe Village including the Deceased and Galu. They were separated by the villagers and attacked. D1 was attacked by the Deceased and Galu and others with knives, sticks/timbers and stones. D2 as well was set upon by another group of persons and attacked with sticks/timber, stones and knives. They were in great fear and in immediate danger of being killed by the attacking mob before they were able to make good their escape back to their village/settlement. They were being pursued and heard their attackers shouting to follow them to their settlement and kill them with their families, and to burn their village. In great fear, they raced for their rifles, which they had in their possession. D1 discharged three shots to disperse the crowd and his attackers but that did not work. They remained adamant with intent to attack them. At around the same time, one old lady from the village swore in custom to stop him from attacking the Deceased and Galu but as he turned to walk off, he heard the Deceased swore at him to do something with his mother and sister if he did not shoot him. On hearing this, he turned and shot the Deceased. He then also shot Galu on the legs before walking off back to their village shortly thereafter. He says they did not stay around after the shooting but left immediately after. D1 pleads self-defence and provocation in his defence.
D2 on the other hand says that he was separated by his attackers and punched and kicked. He identified two of his attackers as Iro Malefo and Babane. They also attacked him with sticks and stones. As a result of that attack he sustained a fracture on his left arm and an injury on his left eye. By then he was no longer able to fight with his attackers and so had to make good his escape from them. He says he ran for his rifle to protect himself, his family and their property from being harmed and destroyed by their attackers. He also heard his attackers shouting to kill him and his family and to burn down their village. He says that he did not know what was happening with D1 during that time as they had been separated during the fight by their attackers. He had initially thought D1 might have been killed. He got his rifle and started walking towards D1’s house when he heard shots being fired. He says he heard a total of five shots being fired. By the time he came out onto the road, he saw two people, the Deceased and Galu already lying on the road and many people at the side of the road. He also noticed D3 with D1 at that time. He then told them to go back as they had already caused trouble. He did not stay long at the scene as well, at the most five to ten minutes. He took them back to his petrol shed, left them there and returned to his house.
D2 also pleads self-defence and provocation in his defence.
(b) Attempted Murder. (i) Evidence for prosecution: Prosecution alleges that the use of the rifle by D1 and the shooting of Galu was intentional. The weapon used on Galu was a lethal weapon and therefore any use of it must be accompanied with an intention to kill. The fact Galu did not die is immaterial (see section 378 of the Penal Code).
(ii) For the Defence: D1 says that he shot Galu as he was still armed with a knife and continued to pose a real threat to his life, that of his family and their properties. He also claims Galu had provoked him by threatening to cut off his tongue.
(c) Illegal Possession of Firearms. (i) Evidence for the prosecution: Both D1 and D2 had in their possession an illegal firearm (SR 88 rifle) each at the scene of the crime on 26th September 2002. There is no evidence to suggest that they had a firearm licence for those firearms.
(ii) For the Defence: D2 says the rifle he used that day did not belong to him. It belonged to another man who had left it with him in the morning on his way to Auki. He says there was a road check conducted at Fiu Village that day by the Police. The rifle was collected by the owner later that evening when he returned from Auki.
(d) Going Armed in Public. (i) For the Prosecution: This charge relates to the actions of D2 when he arrived at the scene with a SR 88 rifle in his possession and walking around in a threatening manner.
(ii) For the Defence: The Defence on the other hand denies any use of the rifle by D2 in a threatening manner or to prevent anyone from assisting the Deceased and Galu. The sole purpose was obviously to prevent any likelihood of further attacks on himself and his family and for the defence of their property.
(e) Common Assault. (i) For the Prosecution: At least two prosecution witnesses, Mathew Basitau (“PW2”) and William Maeuta (“PW3”) eye witnessed the attack by D3 on the Deceased with a piece of timber. Victor Barnabus Babane (“PW1”) did say that he saw D3 holding a timber when he came in. Thompson Roboliu (“PW9”) gave evidence of his observations of the Deceased when he examined him at Fo’ondo Clinic. He said that he saw blood in the mouth of the Deceased and bruising on his left side of his face (blackness) around his eye.
(ii) For the Defence: The Defence on the other hand say that D3 was sick with malaria at that time, that he was not aware of what was going on and only came out after hearing gun shots and for the purpose of taking D1 and D2 back. D3 elected to remain silent and not give evidence or make a statement.
4. (i) Finding of facts not in dispute
I have listened carefully to the evidence of the prosecution witnesses and the evidence of D1 and his witness and D2 and make the following finding of facts as not being in dispute. First, that on that day 26th September 2002, there had been a total of three fights which involved members of two groups; the accused’s group on one side and the Deceased’s group on the other. That earlier that day two skirmishes had taken place, the first one between D1 and Galu and the second one between D1 and PW1. That the underlying cause of the strife or conflict between the two groups of people or families related to a land dispute over the area which the accused’s families had settled on. The Deceased’s group, which involved Barnabus Babane’s family, disputed the right of the accused’s families to settle over the land where they had built their village. The evidence adduced and which I accept showed that there had been earlier incidents between the two groups of people. No satisfactory settlement of their grievances was ever done. The most recent confrontation between members of those two groups occurred on the night of 12th September 2002. The accuseds’ group alleged that Fred Tatalu and Galu had stoned their petrol shed that night. They also alleged that those two boys had sworn at them. Attempts had been made to settle that incident but with little success.
What happened on 26th September 2002 was a continuation of the events of 12th September 2002. I accept there was a small skirmish between D1 and Galu behind a hilux earlier that afternoon. Nothing further happened when Galu ran off after being confronted by D1. Shortly thereafter, D1 confronted PW1 about the incident of the 12th September and attacked him. He was joined by a group of boys. D1 and his boys were separated only at the intervention of a man by the name of George Ramota’a. PW1 was injured on his face in that fight.
Towards the late afternoon, D1 returned to Iridofe Village in an attempt to settle the matter between him and PW1. D2 also came with him. Unfortunately the reconciliation did not take place as the Deceased and Galu joined in at that point of time and an argument ensued between them. Bad blood that was already present between them simply boiled over into a fight. Sometime during that fight, D1 and D2 left the scene of the fight and ran off back to their houses. They each returned armed with an SR 88 rifle each; D1 had a buttless rifle whilst D2 had one, which had a butt to it. Several shots were discharged by D1; one hit the Deceased on both of his legs, another shot hit Galu on one of his legs. D2 did come onto the scene but did not discharge his firearm. D3 also came onto the scene sometime during that fight.
The Deceased died as a result of the injuries sustained from the gunshot wound to his legs (see Exhibit 4 - Doctors report on cause of death).
4(ii) Findings of facts in dispute
(a) There is dispute as to how the fatal fight was commenced that afternoon. D1 says he was told to go by the Chiefs of Iridofe village to settle the earlier fight between him and PW1. He says he was told to go by Jonice Kwaimani (“DW2”). Jonice Kwaimani gave evidence in court under oath. This young lad said that he was told by PW3 and another chief to tell D1 to go over to them and have the problem settled. PW3 however denied sending that young boy to call D1. He said that D1 came on his own accord to have the matter settled. It is possible PW3 may have forgotten or lied about this, equally DW2 may have lied about being told to call D1, whatever the true version was, I accept that when D1 came to Iridofe Village he came with the intention of settling the attack he had made on PW1. This is confirmed in evidence by PW1 and PW3.
(b) There is dispute on the question whether only the two brothers (the Deceased and Galu) were involved in the fight with D1 and D2. The Prosecution say that no one else was involved in the attack on D1 and D2. In his evidence before this court, PW1 described the fight as primarily between D1 and the Deceased with minimal involvement from Galu. D2 joined in the fight a little later to attack the Deceased.
PW3 on the other hand described the fight as between D1 and the Deceased and Galu and D2. Under cross-examination however he conceded that when the fight commenced he moved away and did not concentrate on the fight. He conceded that it was possible others may have joined in the fight and that he may have not seen this. He denied however seeing anyone else being involved in the fight.
Galu also gave evidence of the fight but his evidence was sketchy, at times evasive and vague. I note this was because he was directly involved in the fight. He denied the involvement of others in the fight.
The defence evidence on the other hand was that D1 was attacked by the Deceased, Galu and others whilst D2 was attacked by PW1, Iro Malefo and others.
After carefully considering the evidence of the witnesses who described the scene of the fight, I make the following finding of facts. That D1 and D2 were set upon by at least the Deceased and Galu. There is evidence of involvement of others, D1 and D2 says that they had been attacked by more than ten people from the village, that they were separated and attacked separately by those groups of people from Iridofe village. Unfortunately, I am unable to make such finding on the evidence before me. The most I can find is that D1 was attacked by the Deceased and Galu, possibly there were others, but I am unable to make such finding.
With regards to D2 I accept the evidence of the Defence that he was attacked separately. I accept his evidence on this that others attacked him other than the Deceased and Galu. D2 identified Iro Malefo, Barnabus Babane and Denli as some of his attackers and that it was Iro Malefo who had broken his arm with a piece of stick. I accept, the medical report of Dr. Ba’erodo as being consistent with his evidence of being hit with a stick. There is also evidence from PW3 that when D2 arrived on the scene with his rifle, he was looking for Iro Malefo to shoot him. This is consistent with the evidence of D2 that he had been attacked by Iro Malefo. PW3 also gave evidence which implicated the involvement of others though he denied seeing others joining the fight. His evidence however must be placed in balance as he did concede that he had moved away when the fight commenced and at a certain point of time was concerned for the safety of his family as well. He conceded that he may not have seen others being involved in the fight. This witness also confirmed in evidence that there were quite a few people around and that some of them were angry about the assault on PW1 earlier on that day. These are more consistent with the evidence of the Defence that there were others who might have joined in but not to the extent advanced by D1 and D2 in their evidence.
(c) There is dispute that weapons were used in the attack against D1 and D2. All prosecution witnesses denied seeing the use of any weapons. D1 alleges that the Deceased and Galu had attacked him with knives and sticks. He placed a lot of reliance on a wound on his finger, which he claims was caused by a knife. The doctor who treated him says that the wound may have been caused by a sharp instrument, but apart from that there is no direct evidence to support any such finding. All the key prosecution witnesses denied seeing any knife being used at the scene of the crime during the attack on D1.
Even after the Deceased and Galu had been shot, there was no evidence of any weapon being found at their side. I am therefore unable to make such finding. It is possible someone may have thrown a stone at D1 and that it had hit him on his leg, but I make no conclusive finding on that.
The evidence pertaining to D2 on the other hand is slightly different in that I accept that he was attacked at one stage with a stick by Iro Malefo and that this caused the fracture on his hand. Apart from that I am unable to make any other findings regarding allegations that he too may have been attacked with stones and knives.
(d) Sometime during the fight these two accused made their escape from their attackers. They said that they were being pursued by their attackers right up to their houses. Unfortunately I do not accept this version. I accept the evidence PW2 instead that when he ran towards the scene of the fight he saw D1 running past him and shouting back to the others to wait for him whilst he got his rifle. PW2, PW1 and PW3 all denied seeing anyone in hot pursuit against these two accused. PW5 denied pursuing those two accused when they made their escape. There is no evidence of a mob of angry villagers in hot pursuit against them. The evidence of D2 himself confirms this. In his own words, he said that when he got his rifle, he walked towards D1’s residence in the direction of his petrol shed before coming out onto the road again. If there was anyone in hot pursuit of him to his house, he would have been required to stand and defend himself, his family and property at that point of time. If not at least he would have been able to confront his pursuers there and then. He did not have to come back the same way he went, which further supports the prosecution case that no one pursued them to their houses.
The same can be said of D1. When he ran back to his house, there is allegation that he was being pursued. Unfortunately the evidence does not support this. The point of confrontation with his attackers did not change. It remained at the same place where the scene of the fight was. If his attackers had followed him there would have been an immediate threat of harm at his house or around his settlement. That was not the case. The Deceased and Galu remained at the scene. In fact they were told to run away by PW3 as he knew that the accuseds were running for their guns and would return to shoot them. I do not accept the defence claim that there was immediate threat to his family or house at that point of time, but even if there was by the time he had fired his first warning shot there is clear evidence that most of the villagers standing around the scene ran for their lives to take cover.
(e) There is some dispute regarding the presence of a woman called Lubangangale who the Defence claims swore in custom to prevent the parties from attacking each other. Some of the prosecution witnesses, PW2 and PW3 could not recall seeing this woman at the scene. There were others however (PW1 and PW9) who did recall seeing her at the scene. I do not find any inconsistency in this in that it is impossible for anyone person to take cognizance of everything happening at the same time. PW9’s evidence is quite clear in that he did see this woman trying to stop D1 from shooting the Deceased and according to his observations her actions actually caused the first attempt to shoot the Deceased to miss. PW9 however could not recall hearing Lubangangale making any swearing words in custom. I accept that Lubangangale may have said something in custom, which is not unusual in such situations, in an attempt to stop the fight.
(f) The Defence claims that when Lubangangale swore in custom, D1 turned to walk away but then he heard the Deceased swearing at him to shoot him, as a consequence of which he turned and shot him. All prosecution witnesses denied hearing any swearing words coming from the Deceased. PW2 and PW3 in particular were in very close proximity to D1 so that if there was any swearing to that effect they would have heard it. PW9 who I find to be a very reliable, honest and frank witness denied hearing any swearing from the Deceased. His observations regarding the actions of D1 was that he did not observe any attempt on his part to walk away or turn back. To the contrary D1’s actions were consistent with that of a person who was bent on shooting the Deceased with the rifle he had.
(g) There was some dispute as to the number of shots fired. The prosecution say that a total of four shots were fired; one outside his house, one at the Deceased but missed, the third one hit his legs and the fourth shot hit Galu’s leg. The defence say that a total of five shots were fired; three were warning shots and the third and fourth were aimed at the Deceased and Galu’s legs respectively. On this particular issue, I accept the evidence of prosecution’s witnesses as more reliable and accurate. All key prosecution witnesses confirmed that the second shot fired was not a warning shot but a shot aimed at the Deceased. PW1, PW2, PW3 and PW9 all agreed that the second shot discharged was aimed at the Deceased. I have no reason whatsoever to doubt their evidence on this. It was in broad daylight and they were all within close proximity of D1 when he fired his second shot. They were direct eyewitnesses to that shot, the third and fourth shots as well. Any suggestions therefore that there was more than one warning shot fired must be rejected.
This finding is directly related to my earlier finding that D1 was not pursued to his house by his attackers. The impression sought to be given by the Defence was that there was a mob of angry villagers who were armed with sticks, stones and knives that had been in pursuit of D1 and that he had to discharge a number of warning shots to disperse them. Unfortunately I am unable to accept this evidence. The prosecution evidence is quite clear that at the sound of the first warning shot it was sufficient to send those standing around the scene of the crime into hiding apart from the two brothers and others who were trying to intervene during such tense moments.
(h) Dispute over length of time the Deceased and Galu were left unattended before assistance was forthcoming. The prosecution case is that after the shooting, D1 and D2 stayed around the scene for a quite a lengthy period of time (thirty minutes) before moving away from the scene. The defence say that it wasn’t too long before the two accused left. Having considered the evidence of prosecution witnesses carefully, I find the evidence given by PW9 to be the most reliable of all. I have pointed out that I find him to be a reliable and frank witness. His evidence was given in all sincerity, simplicity and honesty. I find the evidence given by PW1, PW2 and PW3 to be exaggerated. I find there was delay but not to that extent of time. According to the observations of PW9 and the estimated timing of his movements around that time the delay most likely was around ten to fifteen minutes. From the time he left the scene of the crime immediately after the Deceased and Galu had been shot, to the time it took to run to his clinic to warn his patient of what had happened, then to his house to warn his family and back to the scene of the crime, was estimated at fifteen to twenty minutes. When he arrived at his house and warned his family to remain indoors, he observed D1 was already at the front of his house with his rifle. He says that D1 and him are neighbours. He then ran back to the scene of crime. On his arrival he observed that the Deceased and Galu had been carried to the side of the road with a vehicle parked close to them. It is my respectful view that the delay at the most must be less than fifteen minutes, around ten minutes.
(i) There was some dispute about how D2 was holding his rifle when he came in. PW1 said that when he came in to the scene of the crime he was pointing the rifle around at the villagers. PW2, PW3 and PW9 however gave a different version. They said that D2 had his rifle against his shoulder pointing upwards. D2 also said the same thing in his evidence. I find that D2 had his rifle pointing upwards throughout the time he came into the scene of the crime with his rifle.
(j) Did D3 assault the Deceased with a piece of timber after he had been shot by D1? PW1 saw D3 on that particular time running in with a piece of timber. Under cross-examination he remained firm and unshaken. PW2 and PW3 all saw D3 come in with a piece of timber and hitting the Deceased with it after he had been shot and was on the ground. PW2 saw D3 hitting the Deceased three times on the face. PW3 also saw D3 hitting the Deceased three times but only once on his face and twice at his backside.
The Defence sought to place a lot of emphasis on PW9’s evidence that he did not see D3 coming in with any piece of timber at that particular time. Unfortunately I fail to find any inconsistency on this. It is most likely that when this assault happened, PW9 was already making his way back to his clinic. PW9 however did confirm in his evidence that when he examined the Deceased he observed blood in the mouth and nose of the Deceased that his eye was black and slightly swollen, consistent with the evidence of PW2 and PW3 that the Deceased had been struck on the face with a piece of timber. Mrs. Samuels for the third Defendant sought to discredit this evidence of this particular witness by pointing out that he had failed to include this in his final report. PW9 however explained that he had included it in his original report but that when the final report was prepared it was omitted. He remained firm and sure of his observations and denied vehemently any suggestions that he only made up those observations from what he had been told by others. I believe this witness and accept his evidence as accurate and true.
5. The law
Murder: There are two crucial elements in a charge of murder. The first is the element of “malice aforethought” and the second that it is accompanied with an unlawful act. “Malice aforethought” may be established in two ways: (a) where there is 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. The second element for proof is whether the act of shooting the Deceased with the rifle was an unlawful act
Submission of the parties: The defence had sought to submit that the shooting of the Deceased by D1 on that day was done in self-defence. That D1 had been set upon by a group of villagers numbering more than ten or so persons, that he was attacked with knives, sticks and stones and as a result he was in great fear for his life. In that situation when he made his escape, his one thought at that time was self-preservation and the preservation of his family and friends. As a result of this one sided attack against him he feared for his life and that of his family and friends and felt obliged to use the assault rifle he had as the only way to disarm, disperse and quell any immediate threats of harm against him and his family.
The prosecution case on the other hand has been that the shooting was intentional and unwarranted in the circumstances prevailing at that time; that there was no immediate danger or threat to life, limb or property.
Defence of self-defence: Section 17 of the Penal Code sets out as follows:
“Subject to any express provisions in this code or any other law in operation in Solomon Islands, criminal responsibility for the use of force in defence of person or property shall be determined according to the principles of English Common Law.”
The right of self-defence has been entrenched in our Constitution at section 4 as follows:
“(1) No person shall be deprived of his life intentionally save in the execution of the sentence of a court in respect of a criminal offence under the law of Solomon Islands of which he has been convicted.
(2) A person shall not be regarded as having been deprived of his life in contravention of this section if he dies as the result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably justifiable –
(a) for the defence of any person from violence or for the defence of property;
..........”
The purpose of a person attacked when he acts in self-defence is not the enforcement of the law but his own self preservation – Devlin v. Armstrong[3]. The burden of proof when self-defence is raised lies with the prosecution to disprove it. The case authorities make clear that the degree of force permissible in self-defence is that which is reasonably necessary in order to defend oneself, any other person or one’s property. It is permissible to use force, not merely to counter an attack, but to ward off an attack honestly and reasonably believed to be imminent.[4]
In the case of Jimmy Kwai v. Reginam[5] the Court of Appeal adopted the correct statement of the law as to how reasonable force is to be applied, from the passage from the Criminal Law Revision Committee’s 14th Report (Cmnd 7844) (1980) as follows:
“The common law defence of self-defence should be replaced by a statutory defence providing that a person may use such force as is reasonable in the circumstances as he believes them to be in the defence of himself or any other person.”
The Court also cited Lord Morris of Borth –y-Gest delivering the opinion of the Privy Council in Palmer v. The Queen [1970] UKPC 2; [1971] A.C. 814, 832; [1970] UKPC 2; [1971] 2 W.L.R. 831, 844A:
“If there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of this necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken. A jury will be told that the defence of self-defence, where the evidence makes its raising possible, will only fail if the prosecution show beyond reasonable doubt that what the accused did was not by way of self-defence.”
See also R. v. Zamagita and 6 Others[6] where his Lordship (Ward CJ) said:
“What force is necessary is a matter of fact to be decided on a consideration of all the surrounding facts.”
His Lordship also cited with approval Parker LCJ in Chisam v. R[7]:
“where a forcible and violent felony is attempted on the person of another, the party assaulted, or his servant, or any other person present, is entitled to repel force by force and, if necessary, to kill the aggressor. There must be a reasonable necessity for the killing, or at least an honest belief based on reasonable grounds that there is such a necessity.”
6. Application of the law to the facts
I accept there was a fight at Iridofe village on 26th September 2002 at around 5.00 – 5.30 p.m. I have found that D1 was attacked by the Deceased and Galu. No weapons were used. That during the fight D1 managed to escape and ran off to his village. When he made his escape however, he made it abundantly clear that he was going to get his rifle. PW1, PW2 and PW3 all confirmed this in their evidence. He was not pursued to his house. There was noise and shouting going on at that time, but I am unable to find that there was any immediate threat to his family or property at that point of time. By the time he had gotten his rifle and fired a warning shot, it was obvious that most of the villagers around the place had dispersed and taken cover apart from the Deceased and Galu and other responsible people who were trying to assist in calming the situation and stopping the fight. These included persons like Lubangangale, PW2 and PW3 who were trying to stop D1 and take him back to his village. Lubangangale even used swearing words in an attempt to stop D1 from using the rifle but was unsuccessful. PW1, PW2 and PW3 all gave clear evidence that when D1 came back to the main road and approached the brothers it was obvious to them that he came with intent and purpose to do something. Despite attempts to stop D1, he shot the Deceased. His first shot missed the Deceased, but not the second shot.
In R. v. Zamagita (ibid) at page 232 second paragraph, Ward CJ states:
“Thus, if the evidence establishes to the satisfaction of the court that the accused believed he was in imminent danger and held that belief on reasonable grounds induced by the words and conduct of the deceased, the defence of self defence is made out.”
At the point of time D1 was able to escape from the fight and make his way safely back to his house he was no longer in imminent danger. More so by the time he had access to the rifle and had discharged the first shot. The evidence from the prosecution witnesses was that it was well known in their area that D1 and D2 had access to rifles which they had obtained during the ethnic tension. There is no evidence that he had been pursued back to his house, in particular there has been no evidence or suggestion whatsoever that D1 was pursued all the way to his house by the Deceased and Galu. At the sound of the warning shot discharged outside his house, most villagers had dispersed. Any threats of imminent danger or harm to D1 at that point of time in my respectful view had been dispelled. D1 was no longer in a defensive mode but in an attacking and aggressive mode. The rifle in his hand obviously gave him an upper hand. It would have been sufficient in the circumstances if after retreating to his home and firing the warning shot he had remained there. His actions in moving back onto the road and confronting the Deceased and Galu with the rifle was excessive and unwarranted in the circumstances. There is clear evidence before me, which showed that there were other responsible people who sought to intervene between D1 and the Deceased and Galu. According to the evidence of PW9 Lubangangale disturbed the first shot aimed at the Deceased. PW2 and PW3 gave clear evidence of struggling with D1 to take him back to his place. That is evidence, which shows that the concern of those persons at that point of time was not so much for the safety of D1 but for the Deceased and Galu. It is also clear evidence that dispels any suggestion that D1 may have still entertained any fear for his life, his family or his property or that he is in imminent danger of being attacked and that if he did not shoot the Deceased and Galu that he would be killed.
The facts in this case are clearly distinguishable to the facts in Jimmy Kwai v. Reginam (supra) where it was accepted by the trial judge in that case that the deceased was sitting on top of the accused and was squeezing his neck and choking him to the extent that if he had not stabbed him with his knife he would have been killed. The Court of Appeal accepted the argument of the accused/appellant that in such situation where he had been attacked so that defence was reasonably necessary “it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of this necessary defensive action.” The Court of Appeal held that the prosecution had failed to discharge the onus that the force used was not reasonable in the circumstances.
In this case however, I am satisfied so that I am sure that the force applied was not reasonable in the circumstances and cannot amount to self-defence. I reject the defence of self-defence raised by D1.
Defence of Provocation
Section 204 of the Penal Code deals with this defence.
“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) that he was deprived of the power of self-control by such extreme provocation given by the person killed as is mentioned in the next succeeding section; or
..........”
Section 205 defines how the defence of provocation may be raised:
“Where on a charge of murder there is evidence on which the court can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be determined by the court; and in determining that question there shall be taken into account everything both done and said according to the effect which it would have on a reasonable man.”
In Philips v. R[8] Lord Diplock described the test for provocation as follows:
“The test of provocation in the Law of Homicide is two fold. The first, which has always been a question of fact for the jury, assuming that there is evidence upon which they can so find, is: was the defendant provoked into loosing self-control?
The second, which is not fact but of opinion, would a reasonable man have reacted to the same provocation in the same way as the defendant did?”
See also the position as applied in Solomon Islands by the Court of Appeal in Loumea v. DPP[9] applying the test as set out in DPP v. Camplin[10]:
“The judge should state what the question 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 loose his self-control but also would react to the provocation as the accused did.”
The provocation relied on by the Defence is based on their claim that the Deceased had sworn at D1 words to the effect that if he did not shoot him that he is deemed to have done something to his sister and mother. The implication or suggestion is obvious. Unfortunately I have already ruled on this and held that there was no such swearing made at that time. I do not believe the account of D1 that such a swearing from the Deceased ever took place and that this was an invention by D1 to try and justify or minimize his unlawful act in shooting the Deceased and thereby subsequently killing him.
The other words alleged to have provoked D1 were words to the intent that Galu was to cut off the tongue of D1. First, there is no evidence to this effect apart from his allegation. There is no evidence to the effect that those words were used by the Deceased when D1 arrived with his rifle. But even if it was spoken earlier on during the fight, I am not satisfied that such words would provoke a reasonable man from Malaita Province to such an extent that he would shoot an unarmed man. The words are quite common words often used during arguments to stir up and arouse parties to a fight but I am unable accept that such words would justify a person loosing his self-control and to shoot the Deceased who at that time was unarmed. The defence of provocation relied on therefore must also be rejected.
Intention to cause grievous bodily harm
There is evidence, which showed that when D1 ran back to his house he was heard telling the Deceased and Galu to wait whilst he ran for his gun. When he returned he discharged the first shot outside his house or near his house. He refused to listen to others who were trying to tell him to go back and those who went even to the extent of trying physically to prevent him from using the rifle he had. The evidence adduced by prosecution witnesses and which I had accepted was that he was intent on using the rifle to shoot the Deceased and Galu. Even when his first shot was successfully avoided by the Deceased with the help it seems from Lubangangale, that did not deter D1 from firing his second shot at the legs of the Deceased. I am satisfied the element of intent to cause grievous bodily harm had been made out.
But even if D1 could escape the elements of the firsts limb, he has to contend with the second limb; that malice aforethought is also proven if he knew that the act of shooting the Deceased on his legs will probably cause grievous bodily harm to the Deceased. The SR 88 rifle he had is a lethal weapon. It was built for killing, to be used in times of war. The effective killing range for such weapons can go to a distance of some 100 metres or so; some can go to a distance of some 300 metres. At a close range, such weapons are deadly. It is important to appreciate that when such weapons were constructed they done so in such a way that even if a person was wounded on his legs or arms, the bullet fired should cause as much damage as is possible. The distance from which that weapon was fired was about 7.7 to 10 metres, which is very close and therefore deadly. Galu was very fortunate to escape out of it alive. He could easily have been killed as well.
It is not in dispute that the Deceased died from hypovolaemic shock as a result of profuse bleeding from the wounds on his legs sustained from the gunshot. The use of the rifle in shooting the Deceased on his legs was clearly unlawful.
I am satisfied to the required standard that D1 unlawfully caused the death of the Deceased with malice aforethought.
Murder charge against D2
D2 has been charged with the offence of murder of the Deceased as well on the basis of section 207(d) of the Penal Code. I quote:
“A person is deemed to have caused the death of another person although his act is not the immediate or the whole cause of death in any of the following cases –
........
(d) if by any act or omission he hastened the death of a person suffering under any disease or injury which apart from such act or omission would have caused death;”
Prosecution seeks to submit that D2 prevented any prompt action to assist and/or prevent the Deceased from bleeding to death by menacingly walking around him with his rifle for some thirty minutes or so.
Unfortunately I had found against the submission that there was a delay of some thirty minutes or so after the Deceased had been shot. At the most and this is conceded by the defence, the delay was around ten minutes or so, could even be less. As to the part played by D2 at the scene, unfortunately I am unable to find that he played a significant part to the critical events affecting the Deceased. There was clear evidence that when D2 came into the scene he had his rifle on his shoulder pointing upwards. At no time did he train it on anyone apart from what PW3 overhead him to be saying that he was looking for Iro Malefo because he was the person he believed had struck him with a piece of stick and broken his left arm. Although the presence of D2 did and could have aggravated the fear in the villagers and bystanders around the place at that particular time, I am not satisfied so that I am sure that his actions hastened the death of the Deceased. Whether he was present or not, his actions contributed little to the fatal injuries caused to the Deceased. It would have made little difference whether he was present at the scene of the crime or not, because the principal offender did not leave the scene until some ten or so minutes later. The evidence of PW2 and PW3 seemed to imply that the person they were more worried or concerned about was D1 as he was the one that had come in with his rifle in a firing position and had discharged his rifle. D2 on the other hand only had his rifle in what I would describe as a “standby position”. Accordingly I cannot be satisfied so that I am sure that D2 can be held directly or indirectly responsible for the death of the Deceased. Whether D2 was present or not would have made little difference to the blood lost by the Deceased in that position. Even if D2 was not present, it took some ten minutes or so before D1 was successfully removed from the scene.
Attempted Murder
The crucial element which prosecution is required to prove in an offence of attempted murder is the element of intention to kill (see Whybrow (supra)). In this particular instance, prosecution must show beyond reasonable doubt that D1 intended to kill Galu. Unfortunately, this is where prosecution fails. There is no evidence or insufficient evidence to establish intent to kill, though there is evidence to show that D1 intended to cause grievous bodily harm to the Deceased. Unfortunately this standard will not suffice for a conviction on this charge. D1 is acquitted of this offence.
Illegal possession of firearms
There is very little defence that can be raised by D1 and D2 on this charge. It is not disputed that they did not have any firearm licence from the Principal Licensing Officer for this type of rifle. It is clear the rifles had been acquired illegally from the Rove Armoury without any permit or valid licence. I take note of the submissions made on behalf of D2 that he had possession of the said rifle for only a limited time period. Unfortunately it coincided with the unfortunate happenings of the 26th September 2002 and which resulted in their illegal usage. Their possession however short was illegal and accordingly they must be convicted for those offences.
Going armed in public
It is an offence to go armed in public without lawful occasion in such a manner as to cause fear to members of the public. That his actions caused fear among those standing around the scene of crime at that time cannot be denied or disputed. It has been submitted by the defence that his actions were warranted in the light of what had happened, that he did not threaten anyone with the rifle or point it at anyone or discharge any shot in public. Unfortunately, those are matters for mitigation. I have found that there was no immediate threat to him or his family or his property when he escaped from the scene of the fight and ran back to his house. From his own words, after picking up the rifle he walked towards D1’s residence in the direction of his petrol shed. There was no evidence of anyone in hot pursuit behind him and that it was necessary for him to fend off or frighten off any of so-called pursuers. After picking up his rifle he should have remained at his premises instead of walking back to the scene of the crime. His subsequent action in walking back to the main road with the rifle was without lawful excuse or occasion. He must be convicted of this offence.
Common Assault
The law on this offence is fairly straightforward. It is an offence to intentionally apply unlawful force on the person of another. The issue in respect of this charge against D3 is whether an assault did actually occur. D3 elected to remain silent. If I accept the evidence of PW1, PW2, PW3 and PW9 then that settles the matter. Prosecution’s case is that the Deceased was hit with a piece of timber by D3 on the face at least once. Defence case is that there is inconsistency in the evidence of the prosecution’s witnesses such that it would not be safe to enter a conviction.
Unfortunately I must disagree. If there was any inconsistency it was minor and not to the extent that I am required to rule the whole evidence on it as unreliable. PW1 gave clear evidence that he saw D3 came in with a piece of timber. He identified it as a 4 x 2 piece of timber. He was unshaken in cross-examination about his observations. PW2 and PW3 were the key witnesses of the unlawful assault on the Deceased. They were clear, frank and sure of this incident. They stated that D3 hit the Deceased three times whilst he was already on the ground after having been shot by D1. The only discrepancy was that PW2 described the assaults as all occurring on the face of the Deceased whilst PW3 described it as once on the face and twice at the back. This discrepancy however is not significant to the extent that their evidence should be ruled out as unreliable. The discrepancy relates only to how and where the blows were applied, otherwise the fact of the assault is unassailable. There evidence is supported by the observations of PW9, the nurse aid at Fo’ondo Clinic who described what he saw in the mouth, nose and face of the Deceased (refer to my earlier findings in sub-paragraph (j) of paragraph 4(ii) of this judgment). Much reliance sought to be placed on what appeared to be an oversight in the preparation of the final report of PW9 which did not include those observations on the mouth, nose and face of the Deceased. I am satisfied nevertheless of PW9’s evidence regarding his observations of the Deceased. But even if his evidence may be excluded, that does not alter the fact that an assault did occur as directly witnessed by PW2 and PW3. I am satisfied prosecution has discharged its onus and D3 must be convicted of this offence.
7. Decision
D1: D1 has been charged with three offences; murder (count 1), attempted murder (count 2) and illegal possession of firearm (count 3). I find him guilty of murder and convict him of this offence the sentence of life imprisonment being mandatory. I also find him guilty of illegal possession of firearm. I find him not guilty for the offence of attempted murder and he is acquitted of that offence.
D2: D2 has been charged with three offences; murder (count 1), illegal possession of firearm (count 3) and going armed in public (count 4). I find him not guilty of the offence of murder and he is acquitted of that offence. I find him guilty however of the other two offences of illegal possession of firearm and going armed in public.
D3: D3 has been charged with only one offence, that of common assault. I find him guilty.
The Court.
[1] (1951), 35 Cr. App. Rep. 141. See also Loughlin [1959] Crim. L.R. 518 and Grimwood [1962] 2 Q.B. 621; [1962] 3 All E.R. 285. The Court of Criminal Appeal in Whybrow held at p. 147 that: “But if the charge is one of attempted murder, the intent becomes
the principal ingredient of the crime.”
[2] [1968] 3 All E.R. at p. 445
[3] [1971] N.I.L.R. 13 at p. 33
[4] Devlin v. Armstrong, above; Chisam (1963) 47 Cr. App. Rep. 130 at p. 134
[5] CRAC No. 3 of 1991 at p. 5
[6] [1985/1986] SILR 223 per Ward CJ at 232
[7] (1963) 47 CAR 130
[8] (1969) 53 Cr App. R 132 per Lord Diplock at 134
[9] [1985/1986] SILR 158
[10] [1978] UKHL 2; (1978) 67 Cr. App. R. 14
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