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High Court of Solomon Islands |
HIGH COURT OF SOLOMON ISLANDS
Criminal Case No. 014 of 2004
REGINA
-v-
HENRY MIKI
Honiara: Brown PJ
Date of Hearing: 15th - 26th November 2004
Date of Judgment: 16th March 2005
DPP for the plaintiff
Public Solicitor for the defendant
REASONS FOR DECISION.
Brown J. Henry Miki was charged with murder pursuant to s.200 of the Penal Code.
The prosecution case is that the accused, Henry Miki and others, having gone to investigate a break-in on the second story of a house adjacent to the Airport Motel, Henderson Airport, disturbed a man in a bedroom. This man was Selwyn Iro. The man pushed past the accused, Miki and one Moses Lakwolly who was with him, and started to make his way out in the direction of the door. He had taken a few steps; the accused pursued him. In the vicinity of the middle of the lounge, the accused stabbed him from behind, striking him on the right side of the neck - severing his carotid artery - causing an immediate and substantial external loss of blood that quickly resulted in Iro’s death.
The prosecution has the onus of satisfying the court beyond reasonable doubt of the accused’s guilt; an element of course to be proved is that the death was caused by the “malice aforethought” of this accused person and not least, that causation can be directly related to the use of a knife carried by Miki, for that is the assertion.
The Prosecution alleges that on the night of the 7th October, 2003 Henry Miki stabbed the Elwyn Iro with a knife and as a result of that stabbing Iro died.
Consequently I propose to adopt the prosecutions sequence of witnesses relevant to these issues and set out parts of the evidence adduced by the Crown, on all of which evidence it seeks to rely to prove its case.
The prosecution correctly says the central issue is one of causation.
The defence is that the injury was not caused by stabbing, but by the deceased, in an attempt to flee from his attackers, attempting to jump through a louvre glass window on the eastern side of the lounge. The glass shattered and a shard of glass caused the injury to the right side of the neck, penetrating the carotid artery as a result of which Iro died of massive blood loss. This was accidental death. But if the court was to find the accused did strike the deceased with a knife, then there is evidence sufficient to raise a reasonable doubt of the guilt of the accused for the reasons advanced by Mr. Averre. So the principle argument by the defence is that the death was caused by accident. As a triple pronged defence, however, Mr. Averre says there is evidence upon which the court may find accident, self defence or provocation. I shall come to those assertions later.
Mr. McCalm for the Crown fairly concedes there is a substantial body of evidence to support the defence assertion of death by accident. The RAMSI police investigators came to that conclusion. The difficulty faced by the defence is that various admissions were made by the accused, Miki, to stabbing the deceased, whilst Iro was attempting to escape from this particular building where he had no right to be.
Indeed the views expressed by the RAMSI police that they believed this was an accidental death were not unreasonable conclusions at the time, given their observations and taking account of what they were told on the night. Apart from a witness, one Valenti Tua, no-one said to the RAMSI police who were called to investigate (since RSIP couldn’t be contacted,) that a stabbing had occurred. There was an express denial by Miki on the night that he carried a knife.
The evidence of these RAMSI police, (when Tua was queried about such an assertion about a stabbing he had made apparently to the deceased’s relatives at the scene), was answered by Tua, for that he had asserted this to the relatives, not because it was true but because of his concerns about retribution by the relatives, including the risk of burning the motel in the absence, apparently of a blameworthy person. For Tua’s mother, Ruby (Lee) owned the motel.
Tua had not mentioned a knife when he had the first opportunity to speak to the investigating police, rather Tua’s assertion became known to the RAMSI police through conversations with the relatives. The assertion was discounted by RAMSI investigators for the reasons the investigators gave.
The evidence in the statements tendered by consent.
Various witnesses gave evidence in court that they had seen a man trying to jump through an upstairs window. A large quantity of blood was found at the bottom of the smashed window. Iro had died at the scene of massive blood loss. No knife was found. The accused and others were closely examined for signs of blood and none was found on Miki or those others. The accused gave a version on the night, that when he located the intruder in a bedroom, Iro ran past him, striking Miki as he did so. The next thing Miki heard was the sound of breaking glass. (see exhibit “12”, unsigned statement of Henry Miki taken by AFP Sgt. Sinead Judith Done on the morning of the incident tendered by consent). So at the scene shortly after the incident, the accused made no mention of stabbing the deceased, Iro.
The various RAMSI investigating police statements.
The statement (exhibit”11”) of Sergeant Sinead Judith Done, was tendered by consent. She recounts the substance of her conversations with various people she interviewed at the scene after she arrived at the Airport Motel around 1am on the early morning of the 8 October. She interviewed a number of these people in company with Insp. Corry, including Maui Felix (who had been in the upstairs portion of the house with the accused,) and about 3.25am, the accused before the court, Miki Henry. She recounted in her statement;
Henry stated that:
Later she spoke to Tua Valenti and recorded that conversation. He made no mention of Miki having a knife, a stabbing or Miki’s part in any stabbing. He did talk about hearing the sound of breaking glass while he stood outside the building on the ground and seeing the 3 men come running down the stairs. Later she said Insp. Schmidt told her Tua had said to him that Miki had had a knife when he went up-stairs. Sgt. Done did not record Tua as having said this in her earlier conversation with Tua on the morning of the affair at about 4.05am. She had another conversation with Tua. He told her (at about 4.20am) that he, Tua, had made up the story about the knife so that the motel wouldn’t be blamed for the man’s death. He “thought police would take Miki away that night so that he, Tua, wouldn’t be in danger of retribution, compensation or pay back”
Sgt. Done was aware that throughout the night, a number of wantoks of the deceased were at the motel demanding compensation of the motel owner. At about 4.25, Sgt. Done spoke again to Mani Felix, (one of the three men who went upstairs) who denied anyone was carrying a weapon. At about 4.27, Henry Miki, the accused, also denied it when questioned by Sgt. Done.
I heard Sgt. Done in the witness box and I believe her evidence of Tua’s subsequent denials to the police about a knife. Her statement and evidence in court contradicts the story which Tua later gave in court before me. Where there is conflict, I prefer the evidence of Sgt. Done.
The accused’s reconstruction and admissions at the scene.
Later that day, the 8 October, about 5.30pm in the afternoon as a result of a phone call, Stat. Sgt. Nathan Thompson of the PPF, Airport Motel spoke to Inspector Errol Corry, who again saw Henry Miki at the motel to put allegations of the stabbing to him. This time Miki told him he’d had a knife to force his way from the verandah into the front room of the house and to open locked doors and that when the deceased had lunged out at him (Miki), he had then stabbed the deceased in the neck with a knife. He ran out of the house with others and ran to tell Ruby Valenti (the Motel owner) about what happened. He said he had thrown the knife away and didn’t know where it was.
This statement, exhibit “10” of Errol Corry tendered in evidence by consent of the defence is quoted. It recounts that on the afternoon of the 8th, at about 5.30pm, Insp. Carry went with Tua, Thompson and Miki to the scene in the upstairs part of the house where Henry Miki described in detail what he did. Detective Inspector Corry records:
"I asked Henry to describe to me what happened when he entered the house. Henry went and showed me where he turned on the lights of the front room. He then went to the first room on the right and showed me how he used the knife to open this locked door. He then showed me how he went through this room to look for the intruder. Henry then went to the second door on the left and told me how he used the knife to open this locked door. He then explained how the deceased then lunged at him as he opened this door and how he then used the knife to stab the deceased in the neck. At this point I asked Henry if he was sure this was how the deceased died, to which Henry told me he was sure it occurred this way. I then looked at the floor and walls near where Henry stood and saw there were no blood marks in the vicinity. The closest blood marks were in the front living room. The closest distance being about 5 meters. I then advised Henry if he had stabbed the deceased he would have been covered in blood. A short time later I drove Henry home".
Dect. Inspector Corry said in his statement that in his opinion Miki could not have stabbed the deceased as he had said he did. The Inspector held that opinion up to and after the re-enactment some time after 5.30pm on the afternoon of the 8 October. Inspector of Police Schmidt (exhibit "9") stated after hearing an allegation about a knife used, he spoke to Miki early in the morning of the 8 October, looked and inspected him and saw no blood. Miki had previously denied having had a knife but of using his shoulder to open the door to gain entry upstairs. The police officer said it was Tua Valenti who had told the deceased’s relatives of a knife. The Inspectors’ statement recounted;
"I then went and had a conversation with the relatives of the deceased and they told me that one of the hotel staff had told them that one of the three men who had entered the house had a knife and had used it to enter the front door and had stabbed the deceased person. I then went and had a conversation with a male person I now know to be Henry Miki, who was the person alleged to have had the knife and stabbed the deceased. I shone my torch on Miki’s arms, hands, clothing and boots, no blood could be seen on his person. He denied having a knife and stabbing the deceased and maintained that he used his shoulder to open the front door of the residence. This was consistent with other witness’s accounts of the incident. I then requested that Forensic member, Craig Petterd, check the front door for any signs of a knife being used to open the front door and was later informed none were found. I went and interviewed the son of the owner of the airport motel, Tua Valenti who was responsible for telling the relatives about the knife. He told me he told them this story in order to shift blame for the death from the motel to one of its employees as he was afraid they would damage the motel and seek retribution. He said there was no truth to the story about the knife or that Henry Miki had stabbed the deceased.
Following completion of the forensic examination I had a discussion with Craig Petterd who agreed that forensic examination of the scene supported the account given by the witnesses that the deceased had tried to jump through the window and no evidence to support the use of a knife to stab or cut the deceased was apparent."
Evidence in court
Dect. Inspector Corry was called to give evidence. He affirmed the truth of his statement, exhibit “10” already in evidence. He pointed out various places on the plan shown him (exhibit "1") where Miki had said he’d disturbed the man, and the distance from that particular door-way to the closest blood marks, some 5m.
In cross examination he attributed responsibility for the greater part of the investigation to Station Sgt. Done and to Inspector Schmidt. He said after a forensic examination of the scene, the initial version of events given by Miki was consistent with the forensic finding of an accidental death by a drunken man caused by a broken glass shard from a louvre entering his neck and piercing his carotid artery. This gave rise to an acute and torrential blood loss, almost exclusively external. (See post mortem report of Dr. Malcolm John Dodd, forensic pathologist dated 10 October 2003).
Returning then to Inspector Corry’s statement (exhibit "10") it is clear that he based his reasons for concluding that Miki could not have stabbed the deceased as he had claimed, on particular factors which he detailed in his statement. They were:
- absence of blood on Miki;
- the distance from the door way (where the deceased had lunged at Miki) to the first areas of blood (a distance of some 5m);
- the understanding that arterial blood from severed carotid artery would gush in spurts from the area of the wound;
- the absence of a knife which Miki claimed to have thrown away between the house and where Ruby Valenti lived (a short distance) and Miki claimed not to know where;
- at the time of his initial inspection about 1.10am. with Smith, Done, Young and Nicholson of the upstairs portion of the building, he had observed, in and about broken louvres on the right hand side of the room, a large amount of blood about the floor;
- the deceased was slumped in a chair in the side of the room;
- no other witnesses had blood on themselves or clothing.
Importantly he does not recount in his statement any-thing about a knife until about 5.30pm on the afternoon of that day, 8 October.
It was then, while with Thompson, that Miki confessed to Corry to having stabbed the deceased with a knife. Of course that confession was made without caution but the Inspector at that time had no reasonable belief that Miki was involved in the death and the confession was volunteered without apparent prompting by the police officers. The confession is relevant and admissible in the circumstances in which it was given.
The RAMSI police officers conclusions on their enquiries and investigations
So that, even after speaking with Tua Valenti earlier in the night, Inspector Corry’s statement, (exhibit "10") makes no mention of Tua speaking of a knife. Yet Tua was at the house when the 3 men, including the accused, ran down the stairs after the incident. Tua may have seen a knife then, had Miki been carrying one, for he had stopped the accused and Mani Felix, two principal witnesses to the incident upstairs. Inspector Corry was sufficiently satisfied, some time after 4.05am in discussions with Inspector Pettard, to suggest that "this was a case of a disturbed burglar who had tried to jump out of a window when confronted and had mortally injured himself in doing so." It is this reasoning which is the basis of the defence case of accidental death.
Inspector Pettard (statement exhibit "24") agreed with the interpretation of the incident scene (which he had inspected also) by Station Sgt. Young. Young commenced her investigations at the crime scene about 12.50am on the 8 October in company with Inspect. Pettard and Station Sgt. Nicholson. When she examined the deceased in the chair he was not long dead, for although cold to the touch, rigor mortis had not then set in.
It is clear her thorough investigation of the scene gave rise to her conclusions, for she makes no reference to any information told her about the actions of the three men who went into the upstairs area and found the intruder.
Inspector Smith, a New Zealand Police Officer was one of the earlier police to attend, following a call at about 2330 on the night of the 7 October. Snr Sgt. Silk had radioed him and he went with two others.
On arrival he was informed that a body of a person was in the upstairs portion of the building, and that a number of people had been isolated, people able to assist the police.
After recounting what he saw upstairs, he stated that "the blood on the floor gave the impression that a person had circled both the dinning table and the lounge while bleeding profusely". He saw no obvious weapon. After going down-stairs he said 2 main witnesses had been identified and later 2 more were identified and isolated. He further said that a Special Constable had been present but had since disappeared. (See Smith exhibit “22”). This person was subsequently shown to be Moses Lakwally. He later briefed the Forensic team at about 1.00am about his understanding at that time. He recounted that:
Done’s statement (Done exhibit "11") was read in evidence. She went to the motel with Inspector Corry. There she met Inspector Smith (who was in charge) and forensic members Pettard, Young & Nicholson. She detailed what she saw as she was shown through the premises where the dead man remained. She recounted the important aspects of the conversations she had with various persons including one with Gerald Alwin of Malaita, who believed the deceased to be his brother. She also spoke to a woman Helen Tiuta who lived at the Airport Motel and who saw Iro arrive there about 1900hrs on the Tuesday 7 Oct, with Francis, his cousin and later she was told he (Iro) was already dead. She had heard the sound of breaking glass before being told of Iro’s death.
Sgt. Done and Inspect Corry spoke to 4 persons who worked at the Motel. She had the assistance of RSIP Sgt. Aaron Kodo as an interpreter. (In the circumstances of these interviews it is not possible to determine the degree of accuracy, understanding or ability of the interpretation.) These 4 were;
Later at about 4.05 she recounts a conversation with Tua Valenti who remained out-side the house; heard breaking glass and saw the 3 run down the steps. (Tua recounted no conversation with Miki at that time).
Later Done was told by Inspector Schmidt that Tua spoke of Henry Miki as having had a knife when he went upstairs. Done again spoke to Tua about 4.20 with Schmidt but said that Tua told her he had made up the story of the knife so that the hotel wouldn’t be blamed; he thought police would take Henry away so that he, Tua wouldn’t be in danger of retribution, compensation or pay back. Soon after, at about 4.25 she spoke again to Felix Mani who said none were carrying a weapon when they entered the house and Miki also denied anyone was carrying weapons. At that time it is clear Done had no reason to believe a knife had been used on the deceased.
The Inspector named as Inspector assisting the RSIP, CID, Central Station Aln Schmidt’s statement was tendered as exhibit "9". The material part at 3, 4. His evidence accords with that of Done and Corry.
(Tua Valenti speaks good English and there is little doubt in my mind that the police officers had recorded accurately what had been told them by Tua on the night.)
Tua Valenti’s evidence in court.
Tua Valenti’s evidence was taken in court on Monday 22 November. He said a Security, Kasi Palmer had told him someone had broken into the house at back of the motel. He went down with Mani Felix (a friend with whom he was having dinner) Henri Miki, an employee of the motel, one Moses Lakwolly (whom he didn’t know) who had been stopped by staff while passing by, another Moses and one Sam. The first three mentioned went up-stairs, while Tua remained on the ground at the back of the house.
In evidence in chief Tua said when the three men ran back down the stairs,
"they were all scared, all ran down, Miki told me he might have been in trouble. He said "I think I’m in trouble" I asked all of them what happened, glass was still breaking. I said "what happened." Mani said we should go & ring ambulance."
Clearly the prosecution, seeks the court to draw the implication now that Miki was concerned he may have been in trouble because he knew he had just stabbed the deceased. For why else would he express personal concern when the person up-stairs was an intruder and wrongdoer. Tua in evidence in chief said he didn’t see Miki carrying anything although Mani had a torch. Tua asked what happened and Mani said "we should go & ring ambulance" When asked in chief if anyone had anything in their hand at that stage Tua said that Mani had a torch. Then he saw Moses Lakwally push Miki aside and made his way. Tua did not see him again that night.
When asked whether Mani had said anything about the happenings upstairs, Tua said Mani told him to report to his mother Ruby Lee for the guy (in the house) was cut pretty badly. This was said on the stairs. After telling his mother Ruby Lee, he said he went with Mani back to his own house and recommenced eating, shortly afterwards he asked Mani if the guy was going to be all right. Mani answered that he was bleeding pretty badly; he would probably be dead by then. So they went back to the motel, collected the Fijian Army guy Delai, Silas Joyce & Mani before going back to the house where Delai & Silas found the guy dead. Tua returned to the hotel and sat out side on a coconut tree waiting for the real police to come. While there with Miki, Mani & Delai, Miki said "Oh, me garem little bit accident on top." Tua asked what. Miki said, as he opened the door, he saw the guy and shouted. He was then with the new Moses. The guy in the room punched both of them as he ran between them, and then Miki stabbed him with a knife. Miki said the guy started to run and jump out of the louvres, "that’s when we all ran out – when the guy stated to jump." Tua said he hadn’t seen Miki carrying anything that night. When asked about Elwyn Iro’s relatives, Tua said "heaps arrived, one after another, they hung around the main house and Wilson’s house. Wilson’s wife is related to Iro.
Court’s comments on this evidence.
The story given here by Tua of the stabbing confession by Miki while sitting on the coconut tree awaiting the arrival of police was not given the police when Tua was interviewed by Stn. Sgt. Done and Insp. Corry at about 0405. Tua had the opportunity then to recount this confession.
In Mani Felix’s statement (exhibit "14") of the 8 October, Mani makes no mention of this confession at the coconut tree.
The evidence of the Fijian Corporal.
Cpl Delai Waqa of the 3rd Bn., Fijian Infantry Regiment makes no mention of this confession in his statement (exhibit "20"). He says Ruby Lee, (his cousin), spoke to him and asked him if he had a vehicle to uplift a wounded guy from one of the houses in the village. He makes no mention of sitting at a coconut tree with Tua or Miki. Cpl Delai in fact confirmed the death of Iro. He and another Fijian, Silasa and Peter were with him. He described the scene in the various photographs which are exhibits. When he had descended from the upstairs portion of the house, the police had arrived on the scene. He makes no mention of any discussion with Miki and Tua together, rather accounts for his time and events leading up to the finding of the deceased upstairs without reference to any discussions at a coconut tree. (Yet on Tua’s evidence before me, this confession of Miki’s had taken place before the police arrival.)
The defence criticism of Tua Valenti’s evidence.
Mr. Averre’s cross examination left me in no doubt that while Tua had told relatives of the deceased of a stabbing; he inexplicably didn’t tell the police.
Mr. Averre suggested to Tua that he had made up the story of the stabbing to save the motel; Tua conceding that he was worried what would happen but denied he had admitted to police that he had made up the story. He categorically denied telling RAMSI officers it was not true that Miki had stabbed the deceased; rather he told them he was worried about what would happen. Apart from the 7 relatives of the deceased, Tua denied telling anyone else of Miki’s confession to the stabbing. Later in his cross examination Tua deposed to a conversation with Miki later on the 8 October, about lunch time; when asked about contacting the police Tua said "Miki was going to admit it, he hadn’t admitted it on the night, and he did it that day." For Tua said Miki rang the police, probably from the motel and told them what happened. In the course of the conversation with Miki, Tua said Miki was crying about what had happened, the night before and that Miki was anxious to know what would happen to him; would he go to jail or what would happen. Tua was well aware of the threats the relatives of the deceased had been making for he recounted that his mum had been told "to watch your kids for a chance, what happened to their relative."
When asked directly in cross examination whether Miki rang, Tua said no, he thought his mom, Ruby Lee had telephoned the police. (This accords with Insp. Corry’s account that Stn. Sgt. Thompson had been contracted later on the 8 October by Ruby Lee). I must say I was not impressed by the evidence of Tua for it lacked precision and appeared to suffer from a willingness to recount what he had heard from others as 1st hand experience, which rather undermined his credibility.
Tua then accompanied Miki and the police officers, to assist with language interpretation while Miki re-enacted the events of the previous night, at the site in the upstairs house. Tua confirmed in cross examination Miki demonstrating stabbing the deceased in the corridor by the bedroom.
Tua said, when asked about the police discussions at that time;
"They had a look around, I don’t think they believed my story or what Miki said - they took him any way, into custody."
This "taking away" was factually incorrect. Miki was driven home. And later when questioned about compensation demands of the relatives, Tua said "yes, they did go on every now and then I heard something, even when Miki was in Rove, they were making threats." Later the SI police continued the investigation, and took further statements.
Tua had visited Miki at Rove on two occasions. He admitted discussing with Miki how long he might serve in jail, Tua opining probably not long.
When asked by Mr. Averre, "as a result of these discussions, (midday on the 8th) were the police contacted”, Tua said “sort of, yes"
Q. At whose suggestion?
R. His (Miki)
In fact it was Ruby Lee who rang Sgt Thompson. Miki had been employed at the motel some 12/13 years. Tua denied discussing with Miki that he take the blame. He denied there was an agreement with Miki to protect the motel.
Later in cross examination Mr. Averre asked, (after Tua had spoken of giving two statements to the SI police)
Q. Why not tell them what Miki told you on the night.
A. Miki said he would admit to it. Anyway, I told them what I saw.
Court comments on Tua Valenti’s recollection of events.
I have very great reservations about accepting this recent assertion in court that Miki had confessed to Tua on the night before the police arrived, at the site of the coconut tree. Those others there say nothing of it. Tua does not mention it at the first opportunity, when questioned by the police at the scene, despite having been accosted by the police about his stabbing assertion to the 7 relatives of the deceased. Clearly one would expect a truthful witness to then explain & justify (after he had asserted a stabbing to the 7), to the police by relying on the fact of the confession by Miki at the coconut tree.
From a consideration of the cross examination, then, Tua has had 3 opportunities to speak of this earliest confession to a stabbing. Firstly to the RAMSI police on the night and on two other occasions, when the SI police took his, Tua’s statements. Tua’s explanation was that Miki intended to confess anyway but that Miki’s admission to police came after the discussion at lunch time on the 8th, a discussion including the motel owner, Ruby Lee.
Her evidence is also material, for she said that night she saw Miki outside her room. He said "me killem onefala man over there." There was no-one else with her when this conversation took place. She told him to go down & she would follow. She later spoke to the RAMSI police who had arrived. They asked her if it was “her place."
When asked whether she heard Miki tell the police about this killing, Ruby Lee said "they/police) had taken Miki into the truck already - I thought Miki told police a statement – I didn’t say anything to police at that point."
Again from a member of the same family, there is this reluctance to open upon a most important admission by Miki, by telling the police. Anyone with a modicum of common sense would realize the importance of such an admission for Ruby Lee was the very person to contact the police on the afternoon of the 8 October, after speaking again with Miki at the motel. For Ruby said in cross examination that;
Q. Why did the police come to take him?
A. Miki wanted to go
Q. How did you know?
A. We walked over to him
Q. We?
A. Me and my little boys
Q. Where was Miki?
Resting in the house where he stays?
Q. You went with the boys to speak about what?
A. He said "it’s good for me to get out of here so you won’t get into trouble."
Q. You said to him
A. I agreed with him
Q. Then?
A. Police came over
Q. You telephoned police?
A. Yes we did
Q. We?
A. I went back with the children and later
Q. Did Henry say more about the night?
A. No
Q. What was the discussion with Miki?
A. That the police might have to take him away.
Q. Anything else?
A. No
And later, for Miki wasn’t arrested by the police on the 8 October
Q. Know that he went to his house in Kobito?
A. No, he went with police
Q. Next time you heard about him?
A. Later, I heard he went to Kobito, I don’t know when he went to prison.
And again speaking of her son Tua (aged in his 20’s).
Q. Once you knew Miki was locked up, did you try to assist him?
A. Tried to get a lawyer, yes.
Q. Agreement or suggestion that Miki take blame for motel
A. No
Q. Know that Tua had gone with the police upstairs in the house with Miki.
A. I don’t know.
Her evidence is unsatisfactory.
Her discussion with Miki (which gave rise to the phone call to the police) does not mention Tua as being present. I find it disconcerting that Tua should also recount a discussion with Miki about lunch time, along similar lines concluding that his mother rang the police. Since the son Tua appears reliant on his mother (he was told by Mani to report to her); he in fact reported before & after the incident; it is unlikely these two discussions were separate in time and place, for Ruby Lee as the owner of the motel and employer of Miki would be unlikely to telephone the RAMSI police without checking the supposed admissions with Tua, who had been with Miki that night.
Again I find it inexplicable that a lady, to whom an admission of stabbing a man had been made, would calmly rise in the darkness of the early hours of the morning of the 8 October yet not tell RAMSI officers of that fact, when they quite clearly were called to investigate the incident.
That in itself, need not undermine the worth of their testimony but when both give evidence here, of separate admissions by Miki, as I have shown above, on the night, the fact and manner of their communication not having been given either RAMSI officers or RSIP officers before now, certainly does.
The other eye-witness to the stabbing, Moses Lakwally.
The only other eye witness to a stabbing was the new Moses Lakwolly, the Special Constable. He lived close by the airport motel where he was building a house. He was called on Wed 17 Nov and gave his version of the happenings that night. He was driving by, before coming to the main road, with another. He was stopped by two women who asked for assistance, for somebody had gone into their house. He went up with Miki (whom he knew) and Mani (whom he didn’t). He had a torch.
Once inside the upstairs building a fluo light was turned on & they commenced to search the rooms. Mani was then at the back of the house. He said Miki used a knife in the door button of bedroom 2 to open that door when he saw a man inside. Miki said "here he is", the man pushed Miki and him apart and ran towards the front door. Miki ran after him and on reaching the centre of the sitting room Moses said he saw Miki stab the man with the knife on the R side of the neck, one time. Moses says he called out as if to stop him but the knife had landed. Moses had followed the two while this was happening. Moses marked the sketch, exhibit "8" with 7, the spot where Miki stabbed the man. He described blood shooting out of neck when Miki took the knife out, facing the main door; then he turned and Moses saw blood pouring down.
He and Miki went out the main door to the verandah, Miki going back down the stairs then up again when the sound of louvres breaking attracted their attention. Moses saw the man staggering up at the bar area. He said to Miki who asked "ho", "its all right, we’ll go now". Mani was on the verandah at that stage.
When down stairs, Moses heard Tua say "you’re in trouble" and Miki say "quiet, quiet."
Miki was still holding the knife when he went down the stairs.
Court comments.
It is interesting that Moses attributes the words "you’re in trouble" to Tua and positions the stabbing in the living room at point 7 on the plan, well away from the door, marked 3.
Moses Lakwally’s evidence.
Moses left the scene, driving back to his house, with-out waiting for the police although he stated he suggested RAMSI be called.
Mr. Averre spent sometime in cross examination. His first question was;
Q. Why didn’t you wait for the police?
A. I wasn’t happy with what Miki had done, very angry so I left.
In fact the RSIP eventually found him for he was known to people at the motel. He made a statement on the 30 October (after being requested to do so in the morning, he went to Central Police Station in the afternoon).
Why the misnomer, Special Constable was even adopted for this man is beyond me. When asked of his duties in such circumstances, he said he should assist that person but he was not good when seeing blood. He reiterated that the reason he left the scene was that he was very angry.
He denied speaking to anyone afterwards about the condition of the man stabbed, rather
Q. Why not?
A. (After a long pause) I didn’t want to get busy with this.
Q. Why not?
A. (Again after along pause) yes, as I’ve said, I left. I was angry with the stabbing, I didn’t expect this would have happened.
When asked how he found out the man had died, he said he heard it on the SIBC radio news.
Throughout his cross examination the witness was uncomfortable, shifting about in his seat, after having long pauses before answering questions. His evidence in chief did not suffer from this which led me to believe he had either a clear recollection of what he had witnessed or he had come to court with a scenario firmly fixed in his mind but that cross examination on the facts worried him.
He says he spoke to no-one about the events, except two living with him, Lionel and Colin and had no communication with the motel. Mr. Averre satisfied me, with the implausible answers in the cross examination about events subsequent to the events on the night that this witness’ evidence was of limited value. He was not a man to be trusted on matters of such importance when despite supposedly witnessing a stabbing, he thinks it of such little moment that his reaction was to suggest RAMSI be called but he didn’t think it of sufficient importance for him to assist police with their enquiries.
I cannot rely on his version of the stabbing when I have serious reservations about this man’s credibility.
I need not conjecture why this witness left the scene, it would seem to stretch credulity to leave if one were angry, having seen a stabbing, knowing the police would be interested. Then again this witness’ statement to Miki immediately after incident when he said "its all right, we’ll go now" beggars belief.
Perhaps the man was likely frightened and sought refuge in flight. Perhaps the ethnic group of the deceased worried him to an extent that he avoided helping the police. This is conjecture but what-ever the reason, his story under cross examination, appeared contrived and left me as I say, with serious doubts about his truthfulness.
The evidence of Felix Mani.
Felix Mani on the other hand, I found to be a witness of truth. He had know Tua Valenti for a long time. He was visiting Tua that night, having a meal. They were told that a man was stealing from the house. They went down, and while Tua remained on the ground, Mani and two others went up. Felix recounted the broken fly wire, the removed louvres and on entering, the fact that the light was put on before they commenced looking through the rooms. Both he and Moses had torches. Mani went to the room at the far end of corridor and went inside. There was no light in the room. While in the room he hears someone say "Em, someone here" then footsteps running down the corridor. He came out of the room & saw Miki and the Special Constable, Moses trying to go out the main door, onto the verandah. He walked towards the sitting room down the corridor, when he saw a man covered with blood from the chest down. The man approached him as if to fight. Mani said "If you fight me, both of us will be in trouble." The man said nothing in reply, as Mani left through the main door. He saw the Special Constable & Miki on the verandah. He did not see Miki stab Iro.
From viewing the sketch that Mani marked, when he first saw the bloodied man, (exhibit "13") it is apparent the bloodied man must have come into view as Mani came down the corridor, for the bloodied man was near the main door and adjacent to blood on the floor, blood in a squirt pattern shown by the various photographs especially photograph 4, (exhibit "5").
Interestingly Mani gave no evidence of having heard any glass breaking before he saw the bloodied man. This is consistent with an injury to Iro before any breaking glass, but the evidence is not strong nor corroborated by others outside whose recollections of breaking glass were paramount.
It wasn’t until Mani was outside that he spoke of glass breaking. Mani followed the others down the stairs and spoke to Tua and told him to tell his mom to ring the police. He went with Tua to Ruby Valenti’s house and then resumed his meal with Tua. Later he spoke to the RAMSI police about the incident. He said the Special Constable had disappeared.
He was cross examined. He knew Miki to be an employee of Tua. He was particularly asked whether he heard breaking glass before the struggle he witnessed of the other two trying to exit the door onto the verandah. He could not recall. It was put to him that in his earlier statement he alleged that he heard the sound of breaking glass at the time these other two were at the door seeking to exit. He said that his story in court was the better, and as a consequence of the witness’ resiling from the earlier inconsistent statement, that earlier statement was allowed into evidence, tendered by the prosecution and became exhibit "4". I have previously quoted from it. Notwithstanding the inconsistency in court, I accept the witness’ was seeking to recall, here, to the best of his ability, events so long ago. I also accept his statement, as contemporaneous with the events on the night and to be preferred in this instance on the fact of the glass breaking. In other words, the glass breaking was about the time Mani saw the other two trying to go through the door onto the verandah.
Mr. Averre then sought to suggest that the witness had knowledge through Inspect. Taga of the RSIP/ CID, of Moses Lakwolly’s story of the stabbing, but Mani could not recall the Inspector telling him this. Mani does not mention Miki using a knife nor does he speak of any admissions by Miki immediately afterwards, nor of being seated about a coconut tree that night.
Averre’s questions were obviously based on various statements given by this witness to the RSIP/CID which had taken over the investigation, but the questions came to naught when no attempt was made to discredit the witness further.
Curiously the witness was then asked in cross examination to mark the blood on the sketch, blood that the witness said he had seen all over. The mark was adjacent to the position of the bloodied man when first seen.
Those blood marks were the squirt patterns on the photographs and clearly may be associated with the place of stabbing given by Moses Lakwolly. For had the deceased been stabbed there, the spray of blood could be reasonably expected to land in that squirt pattern on the floor as illustrated by the photographs.
The argument over admissibility of the Record of the accused’s statement
Mr. Averre raises a novel argument in this trial by seeking the rejection of the tender of an admission statement contained in a record of interview. That is not novel in itself, rather the argument which Mr. Averre puts is, for he directs his argument to the understanding which this court should bring to the accused’s position whilst in custody. That position illustrates a manifestation of his cultural environment. Whilst his will was not overborne, in that he was not coerced into such admission, in this case Mr. Averre says, the impact of knowing what Moses Lakwally had said in the circumstances, gave rise to the adoption of that version of events that implicated Miki. For Mr. Averre says Felix Mani in cross examination indicated if the police Special Constable Moses Lakwally confirmed the deceased was stabbed with a knife by Miki, it must be true. For in the accused’s case, the version of events put by Moses in his statement was that used by the police when interviewing the accused; the corollary is that the accused also adopted that version by admitting the stabbing in the Record of Interview. As Felix Mani adopted the fact of the stabbing when giving his statement to the police, earlier, so did Miki when interviewed.
Mr. Averre argues then that the accused has adopted, as it were, a version put to the accused on the 12 November 2003 when "overborne as it were" the accused confessed. Mr. Averre says the whole of the circumstances surrounding the RAMSI investigation evinces a trait in this accused of a vulnerability to adopt suggestions put to him. RAMSI had discounted an earlier confession. Mr. Averre says, as the accused’s advocate he has concerns about the psychological vulnerability of this man and suggests through lack of funding, he is unable to explore this. Yet Mr. Averre seems to have ignored the earlier more damaging confession and demonstrated reconstruction by the accused, on the afternoon after the death. He was not apparently overborne then.
Mr. McCalm in answer says the R of T was voluntary. The circumstances in which it was taken were not unfair. He says there clearly was no coercion in the manner of the female Sgt taking the statement in the form that she did. He says there is nothing before the court to suggest the statement was anything but voluntary. Mr. McCalm says what are pointed to by Mr. Averre’s argument do not amount to grounds as to amount to matters which would cause me disquiet as it were, so as to find unfairness.
More importantly Mr. McCalm says there is no evidence that the accused is vulnerable to suggestions to the extent implied by Mr. Averre.
In the R of I there is no ambiguity in the questions asked. They did not beg the answer. Those questions are to be found at; Q36 What happened then; Q37 What happened taem yu kasim room 3; Q38 How nao you openem; Q41 What happened next; Q42 What happened then; Q43 What happened next; Q44 What nao you makim, you cuttem hem ia; (arising out of the earlier answer) Q45 What nao you cut wetem.
When I read the questions and answers I cannot see any suggestion that this accused has been coerced into adopting the story of Moses for he recounted in answer to questions which did not suggest their own answers as implied by Mr. Averre and, without any particular reference, in the police officers questions, to anything that may have earlier been told her by Moses, Tina or the RAMSI police.
When I look at the evidence on which Mr. Averre relies as giving rise to this trait of vulnerability to suggestion in these particular individuals, I see that it arose in his cross examination of Mani Felix on the 18 Nov at about 1455. Mr. Averre said
Q. "did you tell Inspector Toga that if police officers say, stabbed with knife, it must be true for Moses was with Miki in the lounge and the Inspector had the Senior Constables story."
A. "I would think so, he (policeman) came back to me, came to Moses...."
So the reliance Mr. Averre seeks to put on this vulnerability to adopt suggestions of others really rests on his own crafted question, rather than the answer which is ambiguous, of Mani Felix. But I cannot accept, on this passage, any trait or propensity in the accused, to adopt suggestions of police officers, least of all by analogy to Mani Felix’s answer in court, or suppose such a trait because he was in company of police when he made his statement. Any such suggestion or trait is some-what patronizing and lacks evidence on the material before me.
The accused has been recorded as speaking with others not in authority, and I have heard Tina Valenti and Ruby Lee on the same matter of the knife that the accused recounted to the police-woman in the Record of Interview. Mr. Averre has had an opportunity to cross examine these witnesses and suggested to Tina Valenti the story about a stabbing had been made up. This was denied for Tina Valenti said in answer to Mr. Averre’s question;
Q. Earlier (before speaking to the deceased’s relatives) Miki told you he’d stabbed deceased.
A. He told me
Q. When you spoke to RAMSI it was not true Miki stabbed deceased
A. No. I didn’t say that. I told him (policeman) I was worried about what would happen.
There are stories of an earlier admission by the accused to several of the witnesses before me. What weight I place on such evidence and how I treat it will be a matter for consideration. But the material in the Record of Interview cannot be said to be a recent fabrication, for instance which should give me pause when addressing the issue of fairness. The story of the knife was not new. There is no false implication in the question technique of the female police officer. No false statements of other persons have been incorporated in the R of I so as to mislead the accused.
The accused in his evidence on the voir dire says he was arrested & charged with manslaughter.
That happened he says, after the R of I. I can see no breach of the common law rules relating to warning, adopted judges rules or any implied coercion of any type sufficient to make me reconsider whether in all fairness, the r of I should be excluded.
The objection is over ruled. The Record of Interview may be admitted.
Summary of evidence
I will deal then with the evidence I have summarised. The RAMSI police statements all support the proposition relied upon by defence that the death was brought about by Iro bleeding to death when he accidentally fell upon glass louvres and a shard of glass penetrated his neck, severing his carotid artery. Although the examination of the doors supposedly forced by Miki using a knife can not rule such a possibility out. The RSIP investigation subsequently found the Special Constable, Moses Lakwally, whose story of a stabbing, coupled with the apparent admissions by the accused, thus became the basis for this information for murder. These admissions of the accused date back to the day of the incident. I have heard both Tua and his mother, Ruby Lee speak of Miki’s admissions to them, admissions which caused Ruby to telephone RAMSI police about lunchtime on the day of the incident. Miki recounted and demonstrated the events of the earlier night when Iro lost his life, but the RAMSI police were not minded to change their decided view about the cause of death.
The Record of Interview which I admitted did not take Miki’s explanation of the events of the night anywhere near to the detail given the RAMSI officers in his reconstruction on the day in question. The fact of the admission in the Record, then does not advance the prosecution case beyond the earlier state subsisting at the conclusion of the RAMSI investigation on the day.
The evidence that does advance the prosecution case is that subsequently collated by RSIP.
For until the RSIP found and interviewed the eye-witness, Moses Lakwally, their investigation was to a large extent, reliant on the statements already obtained by the RAMSI officers. But the RSIP pursued their enquiries of Tua especially, further, so that various other statements were taken from him.
I find Tua to be a witness whose recollection suffered from the lapse of time and I cannot reconcile his evidence in the witness box about the conversation with Miki at the coconut tree that early morning before the police spoke to him, with the RAMSI police evidence of their conversations with him. He has embellished his account in the witness box and I prefer the contemporaneous records of the RAMSI police. I consequently cannot accept his assertion that his talk with Miki at the coconut tree in company with others included admissions by Miki at that time. Those others supposedly present did not corroborate Tua. Again Ruby Lee’s account in the witness box also included more recent recollections of Miki’s admissions, which were never made known to the early RAMSI officers at the scene. For it must be remembered that Miki denied having a knife when asked by RAMSI officers on the night in question. I cannot rely on the evidence of these two in so far as their recollections of the conversations with Miki are concerned but rather prefer to rely on the actual statements and acts of Miki when reconstructing the scene for the RAMSI police. For Tua and Ruby Lee to have knowledge of Miki’s admissions about his use of a knife yet fail to convey such information to the investigating RAMSI police at the time undermines their credibility.
Miki’s reconstruction of the stabbing does not accord with a rational view of the scene. If the stabbing took place where Miki said it did, adjacent to a bedroom door-way, then it is conceivable much blood would have been about the immediate vicinity or on Miki but contemporary investigations rule both out. I accept the RAMSI evidence on these important points.
The version of events given by Moses Lakwolly, where he locates the stabbing in the area about the spray pattern on the floor, does accord with a reasonable scenario of events consistent with the guilt of the accused, were I to wholly believe Moses Lakwolly. But this is a man, supposedly a Special Constable, who leaves the scene without explanation and says now he was put out by the blood and didn’t want to become involved. He draws on paper in court, a diagram of a small knife he says Miki carried and used on the night yet despite having been an eye-witness to a killing, he goes to ground in circumstances which possibly demonstrate his ethnicity rather than any wish to advance the search for the truth. He is unreliable for these reasons.
The version of events does not accord with that given by Miki, anyhow so it is difficult for the court to reconcile such differences. Both the manner of the stabbing and the place are different.
The most important aspect Mr. Averre urges on me is that of the forensic pathologist’s opinion of the cause of death. This is the crux of the defence case. The forensic pathologist, Dr. Malcolm John Dodd, MB BS (Melb); FRCPA; DMJ(Path); Assoc. Dip. MLT; MACLM; AAIMLT; FACBS of the Victorian Institute of Forensic Medicine, Coronial Services Centre Southbank Victoria, Australia carried out a final post mortem report on Iro on the 10 October. I quote from his report (exhibit "6") tendered.
"Interpretation and Pathologist’s Comments.
The cause of death in this case is one of an acute and torrential blood loss. The blood loss in this case would have been almost exclusively external. In addition to this, a moderate amount of inhaled blood (aspiration) could almost certainly have occurred. This is evidenced by a moderate amount of pink frothy material around the external nares. The deep penetrating injury to the right neck has incised the carotid artery on that side and also perforated the larynx. In all probability a long pointed shard of glass is implicated in this case. Information conveyed to me prior to autopsy strongly indicated that the deceased may have accidentally pierced his neck with a shard of glass after breaking a louvred glass window during the act of a burglary. It is also suggested that the deceased may have been intoxicated at the time of this event. An internal examination was not performed however the body did smell strongly of intoxicating liquor. It is my determination that the death of Elwin Freeman Iro was caused by: ACUTE BLOOD LOSS AND ASPIRATION OF BLOOD AFTER A SINGLE DEEP INCISED INJURY TO THE NECK. Manner of death: ACCIDENT."
In court Dr. Dodd reiterated his opinion that the wound to the neck was most likely a shard of glass; even having had the alternate hypothesis of a knife wound put to him. He put the probability of the wound having been caused by a knife in the lower range, 30/70. He did not exclude the use of a knife but based his reasons for the more probable cause on his observations of the flesh wound, identifying characteristics which in his experience led him to believe a shard of glass was the probable cause. The subtle features of the raised flap of skin about the wound gave him to believe the glass shard was the probable cause of the incision. He said the blood would have immediately gushed out, in a pulsing flow fashion.
Mr. Averre relied on Davie v Edinburgh Magistrates (1953) S.C. 34 where Lord President Cooper at 40 stated the principle function of the expert witness in assisting the court.
"The (duty of the expert witness) is to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions so as to enable the judge or jury to for their own independent judgment by the application of these criteria to the facts proved by the evidence. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case."
So the features of the incision into the neck which related more likely to that caused by a glass shard than a knife were apparent to the trained eye of the doctor. I accept the existence of those features and the reasonable hypothesis of the cause of the wound as a consequence. But the doctor does not exclude a knife absolutely as the instrument.
Mr. Averre points to the second principle, "if there is nothing to contradict the expert’s opinion then the jury should accept it" He refers to May Criminal Evidence 5th Edit., which says:
"(a) if the expert evidence is clear and uncontradicted by any other evidence, the jury should accept it."
The expert’s opinion is not wholly one way. He does not say a knife could not have caused the wound. The other evidence of a stabbing comes from two sources. The accused himself and the eye witness, Moses Lakwally.
There was no knife found; the accused says he threw it away. There is conflicting evidence about the actual manner of the stabbing for the accused’s version places the stabbing outside the bedroom doorway where there was no blood on the floor. There was no blood seen on the accused, blood likely to have spurted over his hand at least had he struck the artery. The RAMSI police discounted his story as implausible. The accused may have concocted such a story with sufficient foreknowledge of events yet have distanced himself from the actual site of the stabbing by mistakenly believing he struck the blow as Iro faced him, coming from the doorway, when in fact he struck him from behind, as described by Moses Lakwally. For certainly Moses Lakwally’s version places the accused in the vicinity of the pattern of blood on the floor to be expected from an excision cutting the carotid artery. That would go some way to explaining why Miki was not bloodied by the spurting artery for Iro was facing away from him when the knife pierced the artery and the blood spurted up and forward as described by the doctor. I am also mindful of the angle of the puncture wound, consistent with a downward knife thrust described by Moses Lakwally and the accused. To my mind, there is every possibility of a knife thrust as described by Moses Lakwally, since a right handed stab directed to the right side of the neck of someone moving away in front of the knife wielder would likely cause such a wound as inspected and described by the doctor. In the absence of an inspection of the knife, the doctors opinion on the instrument used to pierce the neck, (the shard of glass), is wholly reliant on his experience but must lack the certainty which may follow had he inspected the knife. Thus it is the doctor’s opinion that the probability does exist of a knife wound, although only a 30% probability when considered with the glass shard.
Is the evidence sufficient to contradict the doctors' considered opinion?
It is clear I am not minded to place much reliance on the motel owner or her son whose evidence, manner and self interest in the accused’s later admissions, tend to lessen the weight which I could normally be expected to give the obvious admissions of the accused. There is the suggestion that the accused has adopted a course of action, by admitting this act of stabbing, consistent with the wishes of his employer and that through some obligation or other, Miki has been minded to protect, as it were, the motel owner by such admissions. It would be difficult in my view, to presume such a weak frame of mind in Miki, when the ramifications of admission are so great, even were he to be reassured that a conviction for manslaughter was the most he could expect with a lesser sentence in years, not life imprisonment. For it is clear these outcomes were discussed by Miki and Tua during the day of the 8th October. Yet admit the stabbing he did, and demonstrated it before the RAMSI police officers on the afternoon following the incident. The difficulty with that reconstruction is that weakness relied upon by the RAMSI police to discount the admission; it takes no account of the objective signs about the room. Had Miki stabbed the intruder at the bedroom doorway as he recounted, it is reasonable to expect signs of blood in the immediate vicinity and there were none. As well, had Miki stabbed Iro as he faced him, the stab wound would most likely have been in the left side of Iro’s neck, not the right side. The absence of blood on Miki is also a material matter for my consideration. On the expert’s evidence, one could reasonably expect the perpetrator of the wound to be subjected to an immediate blood flow that would be unavoidable and obvious on inspection. No blood was seen on Miki afterwards. The police had good reason, then to discount the admission of Miki.
But what of the evidence of Moses Lakwally?
This man’s story accords with a reasonable hypothesis of the Crown case. He places the accused at the spot where blood spurts on the floor clearly accord with the expert doctor’s description of the type of blood flow to be expected when the carotid artery is pierced. Moses describes and draws a knife which he says was used by Miki. It is not beyond common understanding to accept that a knife as described and drawn could cause such a wound. Moses demonstrates the manner of the stab action which would accord with the wound as seen in the post mortem and described by the doctor. Moses and the accused were aware very serious injury had been occasioned to the intruder. They both tried to exit the door onto the veranda together, in a hurry. Moses ran away for fear of being involved as he put it.
Yet the witness, by his behaviour, leaves me with the impression that he is quite unreliable. While I could accept part of his evidence and discount other parts, his attitude throughout the investigation leading up to and including his evidence in court leaves me with sufficient disquiet that I could not convict on his evidence alone.
The effect of the Record of Interview.
The Record of Interview goes no further in inculpating the accused than his demonstration for the RAMSI police. He does not cogently describe in his statement his acts leading up to the stabbing, the act itself nor the aftermath. It does corroborate his earlier admissions, however and he may be convicted on his voluntary earlier admission to RAMSI over the stabbing, for a wound in that place carried out with a knife is clearly intended to cause grievous harm. Had there been no other proximate cause, despite the inconsistencies in his explanation, he would clearly face the need to justify his act to avoid conviction. The Record, given voluntarily shows the fact of the stabbing with a knife without pleading cause or reason, except perhaps of an unstated intention to prevent flight by the intruder.
Reasons for decision.
The fresh material obtained by RSIP was instrumental in having the accused charged and brought to court. It included the statements made by Moses Lakwally and afterwards, the Record of Interview itself. In addition, various other statements were taken from Tua Valenti and other witnesses. Armed with this material the RSIP were satisfied there was evidence sufficient to bring this man to his trial to answer this most serious charge and the Information has been so laid. The importance of this fresh material particularly relates to the evidence of Moses Lakwally, for he was the material eye-witness who accompanied Miki upstairs, accosted the intruder and had the opportunity to see just what happened to Iro. He says Iro was stabbed by Miki. That was the only wound on the man’s body. It caused his death. Miki says he stabbed Iro although by his plea of not guilty, the Crown has the onus of proving the stabbing as having caused death. As I have shown, whilst I accept the possibility of the stabbing in terms described by Moses Lakwally, the weight I place on his evidence suffers from the view I have formed about his reliability. Had his evidence been corroborated in that vital aspect, the site and manner of striking, by the accused’s admissions, then I would have been satisfied beyond reasonable doubt of the fact of the stabbing leading to the death. But the accused’s admissions and demonstration for the RAMSI police do not accord with a sequence of events or acts which sufficiently correlate to the objective visible signs of blood about the room and the state of broken louvres, so as to afford me confidence of the reliability of the admissions. The RAMSI police were not satisfied in the face of the accused’s reconstruction and I accept the reasons given by Corry, as correctly explaining why the reconstruction by Miki of the stabbing could not have happened as described.
The evidence of the expert, Dr. Dodd does not support the fact of a stabbing. Dr. Dodd puts the possibility at 30% when faced with the alternate glass shard theory. This percentage was suggested by the doctor after he was fully apprised of the suggested use of a knife to wound. In other words, at the time of the autopsy, he was fully satisfied with the hypothesis of the glass shard, but in court only conceded a 30% possibility of the use of a knife to cause the wound.
I consequently cannot be satisfied beyond reasonable doubt that this accused stabbed the deceased for the doctor’s percentage possibility lends no real weight to the only plausible story given by Moses Lakwally, a story which suffers from the unreliability of its author. The issue of self defense or provocation cannot arise.
Stand up. I find you not guilty. You are acquitted and discharged.
THE COURT
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