Regina v Sam [2008] SBHC 26; HCSI-CRC 286 of 2007 (16 May 2008)

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1	It is alleged that Rockson Sam murdered his nephew Conwall Harobule on 6 February 2007, by stabbing him with a knife. This is said to have occurred at Chuchulu Village, Marovo Lagoon, in the Western Province.

2	The Crown case is that during the early hours of that morning, before daylight, there was a verbal exchange between those two. At that time the victim, who had been drinking alcohol, was at a house in the village overlooking the sea, and Rockson Sam was paddling in his canoe. The Crown says Rockson Sam was angered by what the victim had said, and paddled to a jetty. The victim was at the jetty, and Rockson Sam is said to have then chased him from there to up the hill. Rockson Sam was carrying a fishing knife with him. Having caught up with him, he is said to have deliberately inflicted two severe wounds to the victim, one a deep cut to his outer arm under his right shoulder, and the other a deep cut in his lower abdomen, the latter causing portions of his large and small intestines to protrude externally. The victim was taken by canoe while still alive to Seghe mini hospital, but died about 5 hours after the incident from blood loss and internal infection.

3	The defence case is that in the verbal exchange Conwall Harobule was extremely abusive to Rockson Sam, and that when Rockson got to the jetty Conwall threw a stone at him and ordered him not to paddle away. Once Rockson Sam was on the jetty Conwall attempted to kick him, and threw a stone at his head which missed. Being thoroughly frightened, it is said that Rockson Sam ran off up the hill with Conwall in pursuit, tripped, got up, and then was grabbed and held around the neck by Conwall. Both fell to the ground, Rockson falling on top of Conwall. Conwall remained on the ground, having at some point incurred the injuries described. It was only when Rockson Sam had been led away from the scene by his brother that he, Rockson Sam, realised for the first time that he still held his fishing knife in his hand, which knife he had been using in his canoe alongside the jetty to clean his mamu (bait). He said he had not felt it in his hand when he was running away from Conwall. In other words, the defence case is that there was no intention on the part of Rockson Sam to stab the victim, and that if those injuries were caused by his knife then that was entirely accidental.

4	A crucial witness for the Crown was Frazer Roy, a brother of Rockson Sam. His evidence was that at around 3am that morning he had gone down to his jetty to lock his esky and to await the arrival of someone to weigh his fish so that it could be sold. While going to the jetty he heard his nephew Conwall Harobule noisily singing and shouting from another brother’s house. Frazer Roy then saw from the jetty a person out at sea in a canoe. He then heard a verbal exchange between his nephew and the person in the canoe.

5	He recalled hearing Conwall Harobule yelling to the person in the canoe "who are you?" I’d grab the rock and throw it to your canoe". He then heard the person from the canoe reply, and realised it was his brother Rockson Sam. The reply he heard was "why would you shoot my canoe", and he said there were some other exchanges he did not hear. He then heard Rockson Sam say "You have been disrespectful, everybody were asleep, you don’t respect the people", and the reply from Conwall that he was not afraid of anyone in the village and that even if he was his uncle (the person in the canoe) he was not afraid of him. He said he heard Conwall call out "get down here", heard his brother Rockson say "you wait for me" and Conwall’s reply "you wait for me as well there".

6	Frazer Roy said that he saw the victim Conwall Harobule then run down to the jetty, and at the same time Rockson Sam was paddling towards the jetty. He said Conwall was already at the jetty when Rockson Sam arrived in his canoe, at that the two met on the jetty.

7	Frazer Roy said that when they met Conwall Harobule turned and ran, followed by Rockson Sam. Not long after that he followed them and heard breathing near the side of his own house. There he found the victim on his back on the ground with Rockson Sam sitting on his thighs, and saw that Rockson Sam was holding a knife. He then said "what are you two guys doing, what you’re doing is not right", to which Rockson Sam replied in language "I killed him". Frazer Roy then led Rockson Sam away a short distance, and Rockson Sam was crying at the time. Frazer Roy then went back to Conwall Harobule, and noticed for the first time the wound to the lower abdomen with the intestines protruding. The victim was struggling and having difficulties breathing. Frazer Roy then went back to Rockson Sam, asked him why he had used a knife on the victim and not just punched or slapped him, and then told him to go back to his house, located across the water. He then assisted in the transportation of the victim to Seghe Mini hospital by canoe with an outboard motor. The victim was still alive at this time, and accompanied by his father and others.

8	At Seghe hospital, he heard the victim respond to a question by a police officer as to what occurred by saying in his mother tongue: "I had a row or fight with my uncle and he stabbed me with a knife" and then "Finish I can’t say anymore".

9	The undisputed evidence was that Conwall Harobule died at 8.21 that same morning and while at Seghe Mini hospital, which evidence I accept.

10	The alternative version of events is that given by the accused in evidence, and in his written statement given to the police. He said that he was in his canoe early in the morning of 6 February 2007 when he was verbally abused by his nephew from the shore. This included his nephew saying: "Who are you paddling in a canoe? I will throw rock at you. You eat shit. You fuck your mother and your father". and "I don’t care about anyone in the place. I’m not afraid of anyone in the place even you my uncle I’m not afraid of you either come here and we will fight I’m not scared of you".

11	Rockson Sam said that he then paddled to Frazer Roy’s wharf, stopped at the front of it, put his paddle in the canoe, and remained in it while he cleaned nuto (squid) with his knife. At the same time a rock flew to the front of the canoe, and when he protested and looked up at the wharf he saw his nephew Conwall. Conwall then said "Come up onto the wharf if you move I will shoot you with the rock" and he was holding a rock in his hand at the time.

12	Rockson Sam said he was very scared, and did what Conwall told him to do, namely climbed onto the wharf. At that point he said Conwall kicked out at him with his right foot and connected with his thighs and stomach, and then threw a rock at his forehead which missed. At this point Rockson Sam being frightened ran off the wharf and up the hill towards Frazer Roy’s house, tripped on a stone and fell to the ground near Frazer Roy’s house, and as he got up was grabbed by the neck by Conwall using both his hands. During the struggle they both then fell to the ground, Rockson falling on top of and to the side of Conwall. Rockson said he did not know where his own hands were at the time, and that he was very scared. He said his brother Frazer Roy then arrived, asked what the two of them were doing, and then led him away to the side of his house. After he had gone back to Conwall, Frazer Roy returned and told Rockson that Conwall was injured. Rockson then said "Oh I’m really sorry it must be the knife that I was holding that gave him the injury, I don’t know", and then cried.

13	He said that only at that point did he realise that he was holding a knife.

14	He said that while crying Revalyn Loleke and Frazer Roy’s wife Grental called down to him from the verandah of Frazer Roy’s house, calling his name and telling him to: "go away from that man, you will kill him so that he dies. Go away from him he’s dead, Rockson, Rockson, go out now, he’s dead leave him now".

15	He said that Frazer Roy returned a second time, and that he Rockson told him to take Conwall quickly to the hospital, that he then left in his canoe, met another brother Seth who was torching crabs on the side of a river, cried and told him that he and Conwall had had an accident and that he thought the knife he was holding was in the accident, and handed the knife to his brother and told him to show it to the police when they came.

16	Thus on Rockson Sam’s version he was attacked by Conwall Harobule, was scared and ran away from him, was caught by him and struggled such that both of them fell to the ground, and did not realise until afterwards that he was carrying his fishing knife. In other words, there was no intention to stab the victim with the knife, as he did not realise he was carrying it at the time he ran away from Conwall and then struggled with him.

17	I now consider whether I accept his evidence that it was Conwall Harobule who was the aggressor, and not himself. There were various accounts from witnesses who heard the verbal exchange between the two while Rockson Sam was still at sea in his canoe. While these accounts differed to an extent, a common theme was that Conwall Harobule had challenged if not taunted his uncle from the shore. Rockson Sam’s own evidence was that, amongst other things, he was the subject of highly offensive language from his nephew. I accept that he was the subject of abuse from his nephew while still at sea and before he arrived at the jetty.

18	The next significant point is the complete divergence between the evidence of Rockson Sam and his brother Frazer Roy as to what happened on the jetty. Frazer Roy said nothing of Conwall Harobule throwing a rock at his uncle’s canoe, or kicking out at his uncle on the jetty and throwing a stone at him. To the contrary, his evidence was that when Rockson got to the jetty he chased Conwall off the jetty and towards the village. Frazer Roy was closely questioned in cross examination as to whether he could be sure that it was Conwall who ran first, and whether Rockson could in fact have been the one to run first. On a number of occasions in his evidence he consistently stated it was Conwall who ran first, and he also refuted that it was possible Rockson ran away first. However, at one point there was the following exchange with defence counsel: "So, that makes it hard doesn’t it to remember exactly what happened and who went first?" During the time in the middle I couldn’t tell who ran first but it was Conwall that I saw turned around first." and a little later: "So, if Conwall turned around first, it is possible that Rockson actually [ran] away first but you just didn’t see who left the jetty first? I’m not sure about that from what I – what for my understanding is that Conwall turned around first and run."

19	Considered in isolation, Fraser Roy’s answers to these two questions could suggest that he was not completely sure who ran away first. However, his evidence has to be considered as a whole, and aside from those two answers, he consistently and unwaveringly maintained that he saw Conwall run away first. For instance, when asked by defence counsel: "So, is it possible that Rockson ran away from the jetty first and then Conwall followed him? he answered: "No, Conwall was first." I do not consider Frazer Roy was in any doubt about this.

20	His evidence that Conwall ran first is consistent with the evidence of Revalyn Loleke, who was living in Fraser Roy’s house and was the mother of Fraser Roy’s wife, Grental. She gave evidence that she was woken in the early hours of 6 February 2007 and observed from the balcony of the house Conwall running up the hill with Rockson running behind him. She said that she then saw the two tussle and fall to the ground.

21	I also draw an inference from the evidence as a whole that Rockson Sam was angered by the drunken abuse he received from his nephew. Revalyn Loleke gave evidence of hearing Rockson shouting out, "Wait there, wait I’ll come and kill you." Adam Rodger gave evidence of hearing Rockson call out from the canoe, "You wait for me today, I’ll come down and I’ll kill you." I accept that this is what they heard Rockson Sam say. While I do not draw from those words an inference that he had an actual intention to kill his nephew, they are indicative of a man who has been angered and who is threatening some kind of retribution.

22	I do not accept for a moment that it was Rockson Sam who was frightened by his nephew. Conwall was clearly drunk. His uncle, Rockson Sam, is a powerfully built man, and I accept he had not been drinking. I also accept that he had with him a fishing knife on his canoe at the wharf.

23	I therefore find that when Rockson Sam arrived at the wharf, he was already angered by the verbal exchange with his nephew. I reject his assertion his nephew threw a rock at his canoe and then when Rockson was on the wharf he kicked out at him and threw a stone at him. If that had occurred, Frazer Roy, would have seen it. Frazer Roy was a reliable and honest witness and I accept his version of events rather than the version given by Rockson Sam. I find that when Rockson Sam arrived at the wharf he chased Conwall from there to up the hill, in the direction of Fraser Roy’s house. As I have said, Frazer Roy was in no doubt about this, and it is consistent with Revalyn Loleke’s evidence as to seeing Conwall running ahead of Rockson. I accept the evidence of Revalyn Loleke as to that and the subsequent struggle she saw. I find also that Rockson Sam was chasing Conwall because he was intent on administering some form of retribution for the insults he had suffered.

24	I further find that Rockson Sam caught up with Conwall somewhere near Fraser Roy’s house, and that the two then struggled and fell to the ground. It is to be recalled that Fraser Roy found the two on the ground, with Conwall lying on his back and Rockson Sam sitting on his thighs.

25	The inescapable inference from the evidence is that Rockson Sam had with him, when he disembarked from his canoe onto the jetty, his fishing knife. I find that he was holding this knife at the time he chased Conwall up the hill. I reject completely his assertion that he could not feel the knife at all until after he had been led away from an injured Conwall. In other words, I reject his assertion that he did not realise he was holding a knife until after the struggle. As an angry man chasing another for the purposes of retribution, and holding a knife, he would of course have been aware of its presence.

26	I find that Rockson Sam was still holding the knife at the time he struggled and fell to the ground with Conwall. Frazer Roy saw him with the knife while sitting on Conwall, and he himself admitted that it was in his hand after he had been led away from Conwall.

27	An experienced supervising nurse at Seghe Mini hospital, Francis Tatapu, described the nature of Conwall’s injuries. In particular, he referred to two major cuts. One was a deep cut below his right shoulder region measuring 13 cm in length and being more than 4 cm deep. Another was the cut to his lower abdomen, measuring 19 cm in length, that cut being right through to the body cavity and sufficient to cause the external protrusion of the large and small intestines. There was also evidence of two small cuts to the intestines themselves. In addition there was a "stab wound" and a laceration to the right upper chest. Mr. Tatapu’s evidence was that the cuts were consistent with having been caused by a sharp object or objects. The cause of death, in his opinion, was haemorrhaging and peritonitis, caused by those wounds. I accept the evidence of Francis Tatapu in its entirety. I note there was no doctor available at Seghe Mini hospital.

28	I infer that it was the knife which Rockson Sam was holding which caused the injuries to Conwall as described, and which led to Conwall’s death. I find that there were inflicted on Conwall at the time of the struggle and when the two fell to the ground.

29	I reject entirely the possibility that they may have been accidentally inflicted in the struggle, and when the two men fell to the ground. The fact that there were two major knife wounds to completely separate parts of the body, and the severity of those wounds, points to the deliberate use of the knife with considerable force. I also note that there were at least three stab wounds, indicating deliberation. Further, the facts as I have found them point to an attack on the victim for the purposes of retribution and while armed with a knife, which is again consistent with its deliberate use.

30	Also consistent with its deliberate use is the fact that Rockson Sam took no steps to help the victim after the incident. If it was an accident one would have expected that this was the first thing that he would have done. Nor was his demeanour after the incident, and as observed by Hansel Loleke from the balcony of Fraser Roy’s house, suggestive of an accident having occurred. Hansel Loleke said he recognised Rockson Sam from about 7 metres away as the person who was pacing to and fro outside, saying, amongst other things, "Today, I will kill you die." Hansel Loleke said he was frightened by Rockson, who was "telling in a way that he wasn’t happy he was fighting." I accept Hansel Loleke’s evidence, which points to Rockson Sam being in an aggressive mood following the incident.

31	I have not overlooked the evidence from various witnesses that Rockson appeared to be upset and sad at times after the incident had occurred. I accept this was so. However, I do not consider that state of mind suggests that what had occurred was accidental. It is equally consistent with a person feeling sorry about the consequences of his actions, and indeed feeling sorry for himself and his predicament.

32	I consider the reason that Rockson Sam subsequently gave the knife to his brother Seth was simply a realisation that it was pointless to try and conceal the weapon. I accept Seth Sam’s evidence that Rockson told him it was an accident, but for the reasons I have given I do not accept this was a truthful statement.

33	I am satisfied that the Crown has discharged its onus of proving beyond reasonable doubt that Rockson Sam deliberately inflicted the knife wounds on Conwall Harobule, which in turn led to his death. I am also satisfied beyond reasonable doubt that Rockson Sam knew at the time he stabbed Conwall that the stabbings would probably cause his death or grievous bodily harm to him, and that he was either indifferent as to whether or not death or grievous bodily harm would be caused, or wished that it may not be caused.

34	I thus find there was malice aforethought within the meaning of section 202(b) of the Penal Code.

35	I therefore find that with malice aforethought Rockson Sam caused the death of Conwall Harobule by the unlawful act of deliberately stabbing him with a knife.

36	Rockson Sam, I find you Guilty of the murder of Conwall Harobule within the meaning of section 200 of the Penal Code. You are therefore convicted of that offence.

High Court of Solomon Islands

Regina v Sam [2008] SBHC 26; HCSI-CRC 286 of 2007 (16 May 2008)