Regina v Kwaiani [2006] SBHC 52; HCSI-CRC 272 of 2005 (1 December 2006)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case Number 272 of 2005

REGINA .V. FREDSON KWAIANI

(Palmer CJ.)

Date of Hearing: 21st – 23rd August 2006 at Auki, Malaita Province.
Date of Judgement: 1st December 2006

H. Kausimae for the Crown
Ms. G. Brown for the Defendant

Palmer CJ.: The defendant, Fredson Kwaiani ("Fredson") has been charged with murder contrary to section 200 of the Penal Code Act (cap. 26), that on 11th January 2005 at Koa River he stabbed and killed Steven Albert ("Steven").

Prosecution alleges that the stabbing was intentional and done without any provocation. They allege Fredson intended to cause the death of Steven or knew that what he did would cause either grievous bodily harm or death and therefore is guilty of murder.

The defence on the other hand says the stabbing was accidental, that the injury occurred as Fredson was trying to escape from those who were chasing him. He had no intention to stab or injure anyone or to cause the death of or grievous bodily harm to Steven. He did not know that what he did would cause death or grievous bodily harm. The fatal injury was accidentally caused as he ran past Steven and another witness Robert Tala ("Robert").

The issues before this court.

The crucial issue is whether the stabbing was intentional or was it accidental? If intentional, did Fredson have the necessary malice aforethought? Did he intend to cause the death of or grievous bodily harm to Steven or did he know that what he did will probably cause the death of or grievous bodily harm to Steven? Where the defence of accident is raised the onus of proof is on Prosecution to prove beyond reasonable doubt that what happened was not accidental.

It is not in dispute Steven died from a single stab wound to his left shoulder and that this was caused by Fredson. It is not in dispute the weapon used was a six inch knife with a screw driver handle – see Exhibit 4.

1. Evidence of accidental stabbing.

The evidence of accidental stabbing came primarily from Fredson himself. In his unsworn statement made to court in his defence he says he did not know and could not recall what happened that evening. He does not remember seeing Steven or stabbing him. All he could remember was being chased and trying to escape from his pursuers. He says he had no intention or plan or even any motive for stabbing Steven. He says the injury must have been caused as he was running past Steven but denies knowledge of it. He did not know when his knife came into contact with Steven’s back. He did not know the boy was there and did not see him.

In his recorded statement to Police taken on 12th January 2005, one day after the incident, he says that what he could remember was being chased by a lot of people and in an attempt to escape he used the knife to threaten them with, but not to cause any harm or death to anyone. He says that what happened was accidental. In answer to question 31 when asked if he remembers stabbing anyone, he says that he could not recall what happened as he was drunk and was trying to escape for his own safety.

2. Evidence adduced by Prosecution regarding whether the stabbing was intentional.

The case for prosecution is that the totality of the evidence and circumstances leading to the stabbing need to be looked at to appreciate the context in which it occurred.

They say Fredson was armed with a knife when he left Auki to go to Buma village as well as being drunk.

He had told Daniel Maelifaka ("Daniel") that although he was afraid someone might kill him if he was attacked he would kill him.

When seen earlier on in the bus, his knife was at the back of his pocket. When seen by Daniel he was holding it in his right hand with the blade pointing towards his wrist.

There is evidence from Ruth Liu ("Ruth") that before he left her house he struck the wall of her kitchen with his knife. She had told him to leave as he was drunk and it was inappropriate for him to come to her house when he was not invited and a stranger.

There is evidence that Fredson had cut Douglas Malelo ("Douglas") with the knife earlier on at the road leading to the main road. That incident happened shortly before the fatal stabbing at the river. While their accounts differ on how the incident happened they did agree it occurred on the Buma road leading to the main road. Daniel says it happened when Fredson punched Douglas with the knife when he heard Douglas telling him that the man Robert Kwaiga he wanted to see was his enemy. Douglas on the other hand says Fredson punched him with the knife when he tried to stop him from going back into Buma village. In his statement to Police he says the injury was sustained at a hill near the main road when Fredson turned around and struck at him with his knife. He was cut when he attempted to block the knife. He told Police that Fredson had run away from them when told to leave as it was against the village rules for any drunken man to enter the village. They had then chased after him until they reached the hill where the attack occurred.

Yet another version was given by Fredson in his unsworn statement in court, where he claims Douglas was cut when he tried to grab his basket from him as he struggled to get away from them. In his statement to Police however, he did not mention anything about anyone been cut with his knife when he struggled to get away from them.

What is not in dispute is that at some point in time, Douglas was injured. Having considered the evidence, I come to the conclusion that the most probable time the injury was inflicted was on the road from Buma to the main road when all three (Daniel, Douglas and Fredson) were together. At some point in time there before Fredson ran off Douglas was injured.

There is evidence that Fredson was chased by Daniel and Douglas. Basil Ofarara ("Basil") confirms this. Fredson alleges there were others, but the evidence adduced by prosecution and which I accept is that although there were other boys they did not give chase and merely shouted out that he was drunk and to chase him away. I do not accept the defence suggestion that Fredson was being attacked at this point of time or that he was being hit with a stick or shot with any stones by anyone else.

There is evidence that Douglas followed Fredson but at a distance. When he turned aside from the main road and followed a track to the Koa river, Douglas shouted out to those at the river to warn them about him. It was suggested by defence that there were others who also shouted out at that time but the evidence from Prosecution witnesses which I accept is that no one else apart from Douglas had shouted. But even if there were others who may have shouted at that point of time, this was not heard by those at the river.

Robert Tala ("Robert") and Max Solodia ("Max") who were having their bath with Steven at the river denied hearing any shout from Douglas or anyone else. They told the court that what happened that evening was both sudden and unexpected.

Robert told the court he and Steven had just finished having their bath and were drying themselves at the side of the river when Fredson ran down towards them. He said Fredson was about 3-4 metres away when he saw him. He said it was still very clear at that time and he could see clearly. Fredson ran down towards them, stabbed Steven and continued running across the river, past Max where he was having his bath and continued up the river. At that critical point of time, Steven was bending down to get his soccer boots, his back was towards Fredson when he was stabbed on the left shoulder.

3. Burden of Proof. What does Prosecution have to prove beyond reasonable doubt?

It is for Prosecution to prove beyond reasonable doubt that the stabbing was intentional. That necessarily entails disproving that what happened was accidental or non-intentional. It is also for Prosecution to prove beyond reasonable doubt that what happened was done with malice aforethought.

4. Medical evidence.

The medical evidence of the wound was described as "...a wound slightly curved vertically, length 5 cm, width 3 cm going to the ribs 1-3." The doctor performing the autopsy concluded that Steven died from a tension pneumothorax. This was where air gets trapped in the chest and eventually compressing the lungs together with the heart and causing death.

5. Submission of defence.

Defence submits that the injury was caused accidentally as Fredson ran past Steven and Robert. Ms. Brown says Fredson was not aware they were there, it was getting dark, visibility was therefore not very clear. He did not see them until he came upon them. He was drunk and would have been feeling dizzy from the effects of having been hit on the head by stones and possibly a piece of timber by those chasing him earlier on. He would not therefore have knowledge of what transpired as he ran past. She says the medical evidence supported his version that it was not a deep wound and would not have been caused by much force and therefore consistent with the suggestion that it was caused by the running action of Fredson; being an accident. No word was expressed by him as he ran past and simply continued on. Ms Brown submits that when he yelled out that he was dying, it was consistent with someone escaping for his life. There was no intention or motive to cause death or grievous bodily harm or knowledge of same. Ms. Brown submits Fredson should be acquitted of murder, but convicted of a lesser charge of manslaughter.

6. Assessment of the evidence and conclusion.

Did Fredson intend to stab Steven with his knife? For the following reasons I answer this question in the affirmative.

1. Fredson had a motive or reason for traveling to Buma village that afternoon. It wasn’t an innocent or ignorant trip as one would like to think. He wanted to make contact with Rose Sui ("Rose") a female student he had been having an affair with living in Buma village. His decision to travel to Buma village was therefore deliberate and intentional.
   

In his unsworn statement he says he had pre-arranged to meet up with Rose at the Airport, but that when she failed to turn up at the pre-arranged place and time, he decided to travel to the village in the hope of seeing her. He says in his statement that all he wanted to do was to try and talk to her himself.

In his statement made to Police on 12 January 2005[1] however, the reason given to Police was different. He told Police he had heard a rumour and had wanted to go and find out what it was about. It had been alleged he had made Rose pregnant and that her father was planning to take him to the Social Welfare Division. The Social Welfare Division is normally responsible for arranging payments of maintenance in such situations for the support of a child of a single mother.

Basil confirmed seeing him in the bus. Fredson told him that he wanted to go to Buma village. He also asked about Eddie Sui, father of Rose. At Fiu Bridge when the bus stopped he got off to buy a cigarette. Basil however told the bus driver to drive off and leave him behind as he was drunk and did not want such a person going to their village.

Despite having been left behind he walked all the way it seems to the village. Ruth saw him when he was taken across in a canoe by a small boy but then capsizing in the middle of the river. Not long after that, he came into her kitchen and enquired for Eddie Sui ("Eddie") and for Augustine. When told Eddie had left Buma village with his daughter, he asked her to show him the road. As he got up he struck the wall of her kitchen with his knife. At this point she told him to leave. Ruth denied there were any other women apart from one other woman that came to her house. I accept her evidence as correct and true on this matter having listened carefully to her evidence and observed her in court.

2. Fredson is a man from Kwaio; Buma village is in West Kwaraáe. Not only are the villages different, but the language and people are also different from each other. Many of the witnesses who gave evidence in court confirmed it was their first time to see him around the vicinity of their village and described him as a stranger. In Melanesian culture, a stranger from a different area does not normally go to another village unless there is good reason for doing so and observes the protocols in that village. The most common reason for visiting a different village is to see a wantok or friend. But even if that were the case, respect, courtesy and plain common sense are expected of any visitor.
   
3. Fredson had no valid or justifiable reason to go to Buma village that afternoon. He should never have gone in the first place. He already had a taint to his name. He was a teacher and should not have engaged in a sexual relationship with Rose, a female student. This was ethically wrong. He was also a married man and this was wrong morally and also in custom.
   

He cannot plead ignorance, for he is a man from Malaita and should be aware of the cultural mores, traditions and practices of Malaita. His visit to Buma village can be viewed as a deliberate flouting and disrespect for custom and for the family and relatives of Rose.

He cannot say that because he had paid compensation that it entitled him to go to Buma village and see Rose or her parents for that related to past breaches in custom and does not entitle him to continue with that immoral and illicit relationship. For what he should have done after paying compensation is to sever the relationship completely, resume his normal life with his family and leave the young girl alone to at least have a decent start in life.

4. The manner in which he decided to go to the village was inappropriate and audacious. He was drunk when he went. Basil who was in the same bus with him confirmed he was drunk. In Melanesian culture, any person wishing to go and find out or discuss things about any rumour involving a girl or "girl business", whether it is with her parents or relatives should not get drunk and go. "Girl business" in Melanesian society can be a sensitive issue. He should not have acted presumptuously. A drunken man with a taint to his name and a stranger is not normally welcome in a village.
   

Because he was drunk, he was talkative and obviously obnoxious to normal people. When Basil realised who he was and his intentions, he told the bus driver to leave him behind. In like manner, Ruth told him to leave immediately as soon as she became aware of who he was. Douglas also told him to leave the village and sought to prevent him from re-entering the village when he realised he was drunk.

5. He was armed with a sharp and dangerous weapon[2]. There was no justifiable reason for him to take a knife with him if he had meant to go on a peaceful and meaningful mission, whether it is to investigate any rumour, talk with the parents or relatives of Rose, or just to see her. Even if his motive or reason for taking a knife was innocent (for cutting tobacco or whatever), he had no reason to hold it in his hand when he arrived at Ruth’s kitchen. He could easily have placed the knife in his bag out of view, especially when entering the kitchen of a woman in a different village, he being a stranger. A drunken man with a knife in his hand does not portray a picture of a man with peaceful or innocent intentions. Any person who visits at a different village is expected to observe the protocols of that place for if he is drunk and talkative he is more likely to be seen in a negative light. Fredson was talkative and animated in his actions and this would tend more to create apprehension, uncertainty and fear. His action in striking the wall of Ruth’s kitchen was not only inappropriate but insensitive and callous.
   
6. That attitude is consistent with what he told Daniel that if anyone attacked him he would kill that person. This is evidence of a general intent to do something with his knife if he was attacked. In pidgin it is better described as "Hem garem mind for duim something if anyting happen long hem."
   
7. The fact he was chased out of the village was normal and to be expected. Although he was chased out, it wasn’t the case where Daniel and Douglas were right close behind him. If that were the case they would have arrived at the scene of the crime very shortly after the stabbing incident and Robert would have met them along the track as he ran to the main road to call for help. Robert says he saw them at the main road. This is consistent with their claim that they were quite some distance behind him. Douglas estimated the distance between him and Fredson as about thirty metres. This has not be challenged or contradicted. Daniel was further behind.
   

Robert says that when he shouted for help, Daniel then ran down to see Steven. Max Solodia ("Max") confirms this that not long after Robert had gone and called for help, Daniel came down to where he was.

8. Apart from Daniel and Douglas no one else was chasing Fredson. I accept their evidence on this. I also find that no one else was shouting at that time apart from them. Both Ishmael (Junior) and Michael Robo ("Michael") told the court they heard no one else shouting at that time. Ishmael says he was on the Malu’u side of the Koa Bridge when he heard Robert shouting. Michael says they had just finished playing soccer at Koa hill and were walking towards the river to have their bath when they heard shouts that Steven had been stabbed. There was no other evidence of any other persons shouting or chasing Fredson other than Daniel and Douglas.
   
9. Although it was getting dark, there was still sufficient lighting around at that time. The defence says it was quite dark at that time and that Fredson would not have been able to see Steven and Robert until he came upon them. Robert however says that he could still see clearly, although he acknowledges it was getting dark at that time. Max also says that he saw Fredson as he ran past him up the river.
   

I do not accept the submission that it was too dark for Fredson to see clearly and reject the suggestion that he did not see or could not have seen Steven as he ran past. The evidence adduced and which I accept is that there was still sufficient lighting around for them to see someone from a distance of 3-4 metres away. Robert says he saw Fredson at that distance when he ran towards them.

10. The critical evidence that the stabbing was intentional came from Robert. He said he saw Fredson ran past and stab Steven. He said they were standing at one side of the river in a clear place. The photographs of the scene of the crime showed that the place where they were standing was a clear place and at one side of the clearing. There were logs on the other side of the track which widened out towards the river. It would not have been difficult for Fredson to have seen or noticed them in time as he came around the track towards the river and could easily have avoided them if he wanted to. They were standing at the spot identified as "B" in the photo marked "SOO3". He could have continued running straight into the river without having to turn in towards where they were standing or having to make contact with him as the area he ran towards was wide enough for him to run through unhindered. No one was attempting to block his way, attack or do anything to him. Robert says he was not aware Fredson was running towards them as he had not heard any warning shouts from Douglas. Douglas had told the court he had shouted towards those at the river to warn them about Fredson. This is consistent with the fact that Douglas must have been quite a fair distance away. Had he been close they could have heard him when he shouted.
    

In cross examination it was put to Robert that Fredson was running and did not stab Steven. This was denied by Robert.

It was also put to him that Fredson did not do anything that would indicate that he stabbed Steven. Again Robert maintained that Fredson came along and stabbed Steven before continuing on.

I do not accept the submission that it may have been incurred as he was running along for although that was put to Robert he expressly denied any suggestions to that effect. His evidence was very clear and simple. He saw Fredson when he was about 3-4 metres away running towards them and stab Steven before continuing on. He did not say that he saw him run towards them and continued past them before realising that Steven had been injured. There was no suggestion that the injury may have been incurred accidentally as Fredson was running along and past them. This was put to him in cross-examination but he denied this.

Robert’s evidence in relation to how the stabbing occurred has never been seriously challenged or discredited. I find this is evidence of an intentional act by Fredson. As he ran down the road towards the river and saw Steven and Robert, he could have avoided them and continued running along if he wanted to. If as sought to be submitted he had no intention, motive or desire to stab Stephen, he could have avoided him and continued running along. There was plenty of space at that place for him to run through and past them. He was not threatened in anyway at that point of time by Steven, Robert or Max. No one was blocking his way. He had ample time to avoid them. His view was not blocked. Robert saw him at a distance of some 3-4 metres. He would have been able to see them and avoid them. It was not too dark for him to see where he was going. He was not too drunk to the point he did not know where he was or what he was doing. I do not accept his statement that he had been hit with any piece of timber or stone or was dazed when he ran along. He may have been in fear as he ran along but that was because he was at the wrong place at the wrong time for the wrong reasons and had been told to leave the village. The chase occurred as a result of the injury he had inflicted on Douglas and was confined to the two of them with Daniel following Douglas at a distance behind. Douglas was also at a distance behind Fredson.

As sole judge of the facts (we do not have a jury system in Solomon Islands) before me I have considered and weighed carefully the evidence and submissions of learned Counsel for Fredson in this matter. I have carefully considered the possibility argued meticulously before me by Ms. Brown that the injury was inflicted accidentally, taking into account all the relevant facts and circumstances surrounding that event, but do not find that these raise reasonable doubt in my mind that the stabbing was anything other than that it was deliberately and intentionally applied. It could not have been incurred any other way.

On the other hand, I find on the evidence before me and submissions of learned Counsels that the stabbing was a deliberate and intentional act of his will and mind at that particular point of time. At the critical point of time he came upon Steven and Fredson he exercised his will to stab Steven.

Proof of Malice Aforethought

Malice aforethought is defined in the Penal Code as:

"202. Malice aforethought may be expressed or implied and express malice shall be deemed to be established by evidence proving either of the following states of mind preceding or co-existing with the act or omission by which death is caused, and it may exist where that act is unpremeditated—

(a) an intention to cause the death of or grievous bodily harm to any person, whether such person is the person actually killed or not; or

(b) knowledge that the act which caused death will probably cause the death of, or grievous bodily harm to, some person whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused."

There are two states of mind either of which if proven by Prosecution will sustain a conviction for murder. The first limb is proof of a specific intent to cause death or grievous bodily harm. The second requires proof of specific knowledge that the act which caused death will probably cause the death of, or grievous bodily harm although it may be accompanied by indifference or even a wish that it may not be caused.

As to the first limb, I find no evidence of specific intent to cause the death of or grievous bodily harm to Steven. I agree with submissions of Ms. Brown that Prosecution had failed to discharge the onus required of them in respect of that limb.

The second limb however is relevant. Prosecution is required to establish beyond reasonable doubt that at that time Fredson knew that the act of stabbing would probably cause the death of or grievous bodily harm to Steven. Whether he was indifferent to the result or did not wish it to happen is immaterial.

For the following reasons I find the requirement for malice aforethought as set out in the second limb established to the required standard.

(i) The weapon used is a knife. It has a six inch (16 cms) blade, sharpened at both sides with a pointed and sharp tip. The widest part of the blade measures 5/8 of an inch (1.7 cm). When used as a weapon it is deadly. On whatever part of the body of a person it is used, it is bound to cause very serious injury. Where vital organs are located it will be fatal. When applied on the body of Steven it wouldn’t have required much force to inflict the fatal injury to him.

Where a deliberate or intentional force is applied, Fredson cannot have failed to realise at that particular point of time that the act of stabbing would probably cause the death of or grievous bodily harm to Steven, for that was what was inflicted and death occurring soon after.

The injury described by the Doctor (Dr. Theodor von Fellengberg), who carried out the autopsy was a very serious injury. He described it as a slightly curved vertical wound, length of about 5 cm and width 3 cm going through the 1-3 ribs. The wound penetrated beneath the second rib inside the thorax cavity with a width of about 2 cm. Although the wound inflicted would not have caused heavy bleeding it was equally severe enough to cause what he described as a tension pneumothorax that kills a patient fast. In other words, the wound inflicted was deadly or fatal unless swift medical intervention occurred. That was not possible in the light of the location of the attack and distance from the nearest Hospital. By the time he was taken to Kilu’ufi Hospital, which I would estimate to be about two or so hours later, he was already dead.

The requisite knowledge to satisfy the requirement for malice aforethought in this case I find on the evidence before me as co-existing with the intentional or deliberate act of stabbing.

His explanations that what happened was accidental, that it was unintentional, that he had not intended to harm or kill Steven, are immaterial to the fact that from the moment he decided, that is, exercised his will to stab Steven, he must have known, or cannot have failed to realise, that such action would probably cause the death of or grievous bodily harm to Steven. It may be described as tragic or unfortunate, but our law as I find on the facts and circumstances before me, describes it as murder.

(ii) I do not accept the submission that he was too drunk to know what was happening. I do not believe him on this point. He knew exactly where he was going and what he wanted. He caught a bus to go to Buma village that day. When he was left behind by the bus driver as directed by Basil, he could still find and make his way to Buma village. Although it was obvious he was under the influence of alcohol, he knew what he was after on that occasion and what he wanted. He did not drown when the canoe tipped over so he must have still been in control of his senses and to be able to get safely across although wet. When he went to Ruth’s kitchen he knew what he wanted to find out. When told that Rose had left for Arabala village with her dad, he asked to be shown the road back to the main road to return to Auki. By the time Douglas arrived at the scene he realised he was not welcome at the village and ought to make his way out quickly. That however was compounded by an altercation between him and Douglas resulting in an injury sustained by Douglas. That naturally angered Douglas who wanted to retaliate. As he ran off, Douglas followed with Daniel some distance behind. I do not believe and accept the suggestion that he was chased by other boys as well. I do not believe him that he was shot and hit with stones, sticks etc. as he ran away by any one. The evidence before me does not support any such finding. I reject his statement that someone had shot him with a stone which hit his head so that he was dizzy as he ran along the river. There is simply no other evidence from Prosecution witnesses to support this and I do not believe his statement on this. He called no other witnesses in support of his case. He also did not take the witness stand, merely electing to give an unsworn statement which could not be tested by cross-examination. I prefer and accept Prosecution witnesses’ evidence on this rather than his unsworn statement that no one else was chasing him apart from Douglas and Daniel. The hue and cry occurred after the stabbing at the river when Robert shouted for help.

Fredson therefore was as much in control of his senses as he ran down the track to the river. I do not believe him that he did not know what happened as he ran towards the river. I do not believe him that he was too drunk to recall what happened. I do not believe him that it was too dark so that he could not and did not see Steven bending down to retrieve his shoe.

Section 200 defines murder as:

"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."

The burden lies with Prosecution from start to finish, to prove beyond reasonable doubt that Fredson with malice aforethought caused the death of Steven by stabbing him with a knife. Where accident is pleaded in defence it is for Prosecution to prove beyond reasonable doubt that the stabbing was not incurred accidentally.

For the reasons given in this judgment, I am satisfied Prosecution has discharged the onus placed upon it, that the stabbing was done intentionally and not accidentally and that when he stabbed Steven he cannot have failed to realise that it would probably cause the death of or grievous bodily harm to him. I find Fredson guilty of the murder of Steven and convict him accordingly.

Since there is only one sentence for murder, life imprisonment, Fredson is sentenced to life imprisonment accordingly.

The Court.

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^[1] See answers to questions 22 and 23 of his statement.
^[2] See exhibit 4 in which the knife had been produced.