Regina v Tipasua [2008] SBHC 27; HCSI-CRC 105 of 2007 (17 June 2008)

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1	MWANESALUA J The accused here is Mr Gibson Tahua Tipasua and the victim was late Hans Taupongi, aged about 9 years old. They were both residents of Niupani Village, in Rennell and Bellona Province on 29 January 2007. At midday that day, the accused went to Henua School to wash his clothes. He returned to the village in the mid afternoon and had a nap in his grandparents’ house where he stayed with them. At dusk that day he approached and killed the victim with a bush knife. He discarded the body in the bush about 3 kilometers away from the village. The body was found two days later during a search and was taken back to the village for burial. The accused was subsequently arrested, interviewed, charged, and was committed for trial to the High Court. The information was filed in court on 5 April 2007 and the trial commenced on 15 May 2008. He pleaded not guilty to the charge of murder when he was arraigned.

2.	There are four main issues to be determined by the court in his case. They are whether:

	(1)	The accused is fit to plead to the information;

	(2)	The accused is capable of understanding the proceedings;

	(3)	The accused had the requisite intent to murder when he killed the victim;

	(4)	The accused was suffering from diminished responsibility at the time of the killing.

3.	The case for the prosecution is that the accused is fit to plead; he understands the nature of the charge laid against him; he had the requisite intent to murder when he killed the victim; and that the defence of diminished responsibility is not open to him. The case for the defence is directly contrary to that of the prosecution.

	Fit to Plead

4.1	The question on whether a person is "fit to plead" is an issue to be tried by the judge before an accused pleads to the charge against him. The procedure in dealing with this matter is provided under S.256 of the Criminal Procedure Code (Cap. 7) ("the CPC"), which states"

		"S.256. If any accused person being arraigned upon an information stands mute of malice, or nor will, nor by reason of infirmity can, answer directly to the information, the court, if it thinks fit, shall order the Registrar or other officer of the court to enter a plea of "not guilty" on behalf of such person, and the plea so entered shall have the same force and effect as if such person had actually pleaded the same; or else the court shall thereupon proceed to try whether the accused person be of sound or unsound mind, and if he shall be found of sound mind, shall proceed with the trial, and if he shall be of unsound mind, and consequently incapable of making his defence, shall order the trial to be postponed and the accused person to be kept meanwhile in safe custody in such place and manner as the court thinks fit, and shall report the case for the order of the Governor-General. The Governor-General may order such person to be confined in a mental hospital, prison, or other suitable place for safe custody."

4.2	While S.256 empowers the court to investigate the condition of the accused’s mind, it is silent on the matters to be inquired into, if the court proceeds to try whether the accused is of sound or unsound mind. I think the test to be applied was the one set down in R.v. Pritchard([1]), where Alderson,B., dealing with a deaf mute who was physically unable to plead to the charge formulated the following test([2]) whilst directing the jury, he said this:

		"There are three points to be inquired into: first, whether the prisoner is mute of malice or not; secondly, whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend the course of the proceedings in the trial, so as to make a proper defence – to know that he might challenge any of you to whom he may object – to comprehend the details of the evidence, which in a case of this nature must constitute a minute investigation."

4.3	This test has since "been confirmed and followed over and over again" as appropriate to the general issue of fitness to be tried: R v. Robertson([3]).

4.4	The accused here pleaded "not guilty" when he was arraigned on 15 May 2008. His plea has the effect of rendering himself for trial (See S.254 of the CPC). On that basis, the prosecution opened their case, adduced evidence from their witnesses, and then, closed their case. That plea appeared to be based on legal advice, as the defence would have had Dr. Orotaloa’s medical report of 7 March 2008 with them, (but not the Court) which shows that the accused had vivid memory of the manner he caused the death of the victim; that he was ready to testify; that he knew the result of guilty and not guilty verdicts; and most importantly, that he was fit to stand trial. As a result of that plea, there was no reason to inquire into the fitness of the accused to plead to the information. S.256 does not apply in a case where the accused has entered a plea to the charge like in this case. S.256 therefore does not apply to this case.

4.5	It was probable that the defence raised the issue of fitness to plead in the wake of a follow-up report by Dr. Orotaloa on 20 May 2008, which shows that the accused may have been suffering from a mental condition; and that he was unfit to stand trial. As I understand, Mr Averre submits that this court deal the issues of fitness to plead and whether the accused is capable of understanding the proceedings under SS. 144 and 149 of the CPC. S.144 states: S.144

	(1)	When in the course of a trial, or preliminary investigation the court has reason to believe that the accused is of unsound mind so that he is incapable of making his defence, it shall inquire into the fact of such unsoundness.

	(2)	If the court is of the opinion that the accused is of unsound mind so that he is incapable of making his defence, it shall postpone further proceedings in the case.

	(3)	If the case is one in which bail may be taken, the court may release the accused person on sufficient security being given that he shall be properly taken care of and prevented from doing injury to himself or any other person, and for his appearance before the court or such officer as the court may appoint in that behalf.

	(4)	If the case is one of which bail may not be taken or if insufficient security is given, the court shall order that the accused be detained in safe custody in such place and manner it may think fit, and shall transmit the court record or certified copy thereof to the Director of Public Prosecution for consideration by the Governor-General.

	(5)	Upon the consideration of the record, the Governor-General in his discretion may by order under his hand addressed to the court direct that the accused be detained in a mental hospital or other suitable place of custody, and the court shall issue a warrant in accordance with such order; and such warrant shall be sufficient authority for the detention of the accused until the Governor-General in his discretion make a further order in the matter or until the court which found him incapable of making his defence orders him to be brought before it again in the manner provided by SS. 147 and 148".

4.6	S. 149 relevantly states: (1) If the accused, though not insane, cannot be made to understand the proceedings – (a) ................. (b) In the cases which are the subject of a preliminary investigation by the Magistrates’ Court and of trial by the High Court – (i) the Magistrate shall hear the evidence for the prosecution, and if satisfied that a prima facie case has been proved shall commit the accused for trial by the High Court, and either admit to bail or commit him to prison for safe keeping; and (ii) if the Director of Public Prosecutions has filed an information, the High Court shall proceed to hear the evidence, and, if at the close of the evidence for the prosecution and, if the defence has been called upon, of any evidence for the defence, the Court is of the opinion that the evidence which it heard would justify a conviction, it shall acquit and discharge the accused, but if the Court is of the opinion that the evidence which it has heard would justify a conviction, it shall order the accused to be detained during the Governor-General’s pleasure; (iii) .................. (2) A person ordered to be detained during the Governor-General’s pleasure shall be liable to be detained in such place and under such conditions as the Governor-General may in his discretion from time to time by order direct, and whilst so detained shall be deemed to be in lawful custody. (3) The Governor-General in his discretion may at any time of his own motion, or after receiving a report from any person or persons thereto empowered by him, order that a person detained as provided in subsection (2) be discharged or otherwise dealt with, subject to such conditions as to the person remaining under supervision in any place or by any person, and such other conditions for ensuring the welfare of the said person and the public, as the Governor-General thinks fit. (4) When a person has been ordered to be detained during the Governor-General’s pleasure under paragraph (b) of subsection (1), the confirming or presiding judge shall forward to the Director of Public Prosecutions a copy of the notes of evidence taken at the trial, with a report in writing signed by him containing any recommendation or observations on the case he may think fit to make."

4.7	As indicated in paragraph 4.1 above, fitness to plead is a matter to be tried by the judge before the accused pleads to the charge. S.144 deals with a situation where in the course of the trial after the accused had pleaded and before the defence opens its case, the court has reason to believe that the accused is of unsound mind so that he is incapable of making his defence. In this case, the Court has no reason to believe that the accused was of unsound mind, as the medical reports were withheld from the Court until the defence case. No inquiry was therefore made for that reason. S.144 does not apply to this case as the accused has already made his defence. It is apparent that S.144 of the CPC is to empower the Court to postpone the proceedings where it finds an accused of unsound mind after an inquiry is conducted under S.144(1), until such time as the accused is able to make his defence or is discharged (See SS.147 and 148 of the CPC). S.149 does not apply in this case, as the court did not assess the accused on whether he did not understand the proceedings as through his advocate elected to remain silent. Mental element in Murder

5.	The accused has been charged with murder. This offence is created under S.200 of the Code. A person can only be convicted of this offence if he causes the death of another person by an unlawful act or omission with malice aforethought. Malice aforethought is defined in S.202 of the Code as follows: "S.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 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 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 unaccompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused."
	Prosecution Evidence

6.1	There was no one around in the scene of the offence when the accused killed the victim. But the fact that the accused had killed the victim was not disputed on trial.

6.2	In a confession statement which he gave the police, the accused says, inter alia, that he was 23 years old and completed his secondary education at Henua School in 2006. He was not suffering from any illness except a mild cough. He was living at Niupani Village with his grandparents. On 29 January 2007, he went to wash his clothes at Hanua School at 12 midday. He returned to Niupani about mid afternoon and had a nap in his house upon his arrival. When he woke up he went to the young boys’ house by the lake. He saw the victim picking up cut-nut fruits under a cut-nut tree on his way back to his house. The victim did not see him. He left the victim and went to collect a bush knife which he identified in court (see Exh. P1-photograph 43, 44 and 45) under Kelesi’s house, and returned to the victim. He approached the victim and inflicted several wounds to his body with the knife. The victim died instantly. He said he intended to cause the death of the victim when he cut him with the knife. He took a blanket from his house and placed the body in it. He wrapped the body up properly, tied both ends of the blanket and carried it out of the village. He followed the bush track linking Niupani to Tebaitahe Village. As he was walking along, the severed head of the victim fell from the blanket to the ground. He did not pick it up. He kept on walking until he turned into the bush and discarded the body. He then returned to his house to sleep. On the following morning, he retraced his route, picked up the victim’s head where it fell down, he picked it up, threw it into the bush and returned to the village.

6.3	Mr Dick Taiake was the registered nurse posted at Rennell and Bellona Province at the time. He examined the body of the victim still wrapped with the blanket after it was retrieved from the bush (See Exh. P5). Mr Taiake described the brutal way in which the victim was killed during his testimony. He stated that the right hand, the head and the abdomen were all severed. There were deep cuts on the left and right groin, the left and right buttocks. There were further cuts on the front and back of the body.

6.4	It is apparent that the victim died instantly from those wounds. They were inflicted unlawfully upon him. The accused caused grievous bodily harm to the victim. Defence Evidence

7.1	The accused gave no sworn evidence nor make an unsworn statement from the dock. Dr. Orotalau, a Psychiatrist, gave evidence for the defence. He testified on the reports he made on the accused on 7 March 2007, on 28 March 2008, and on 20 May 2008. This the third report was done in the course of the prosecution case. He compiled the report of 7 March 2007 from records made by Dr. Judy O’donnell on the accused at the National Psychiatric Unit (NPU) at Kilu’ufi Hospital, between 25 October and 17 December 2005. That report shows that the accused was diagnosed with a condition called "Schizophreniform illness probably Schizoprenia – paranoid type with commorbid marijuana abuse". He was treated for the illness, fully recovered and discharged free of psychotic features after 2 months and 6 days admission. This report was made in response to request from the police.

7.2	The report of 28 March 2008 was made to Public Solicitor’s Office in response to, inter alia, to questions on whether the accused is fit to stand trial for murder and whether there were any psychiatric or psychological mitigating facts. This report shows that the doctor had interviewed the accused and found that the accused had been having disruptive pattern of sleep; hearing voices (running commentary auditory hallucinations); and at times would experience his thoughts being taken out of his mind and his mind would feel empty or blank. The accused was reviewed and cleared off post-traumatic disorder, panic disorder, obsessive compulsive disorder, drug abuse, manic depressive disorder, delirim and epilepsy. The accused told the doctor that that he was very drunk when he killed the victim; that it was an accident; and that he stopped taking medications upon his discharge from the NPU. At the time of this report, the accused was on the following medications: Haloperidol 10 mg oral twice daily and benzhexol 5mg oral daily. Dr. Orotaloa was of the opinion that the accused was likely to have had a relapse condition to the one which he had in 2005 at the time of the killing. This opinion was based on the facts that the accused stopped taking medications upon his discharge from NPU on 17 December 2005; that he was intoxicated at the time of the killing coupled with a relapse of a major psychological condition, which could synergistically contribute towards impairing his judgment capacity. His condition could have contributed towards the killing of the victim; that he understood charge made against him; he knew what a guilty and not guilty verdicts would have on him; he was ready to tell the court his side of the case and was therefore fit to plead.

7.3	The report of 20 May 2008 was again made to Public Solicitor’s Office to answer the question whether it was more probable than not that the accused was suffering such abnormality of mind as substantially impaired his mental responsibility for his acts and omissions in doing the killing. The accused told Dr. Orotaloa that he remembered hearing voices back in 2007; these voices told him to do things, but not to kill or harm any body; he had not suspected anyone in the village trying to harm him; and stated that the killing was an accident. The medical officer of the prison clinic told the doctor that the accused had ceased taking medications because of side effects caused by taking haloperidol. The doctor found that the accused was easily distracted by hallucinatory experiences; that he was very slow in mentation; was incapable of holding a free flowing conversation. In the doctor’s opinion, the accused was therefore not fit to stand trial. Further, the doctor was of the opinion that the accused’s psychological condition had significantly impaired his capacity to make rationale and logical judgments at the time of the killing due to the likely relapse of his condition. His slow mentation therefore had greatly impaired his mind so much so, that he would not have the mental capacity to be responsible for the act of killing the victim.

7.4	It is noted that there are opinions in the second and third medical reports based on facts which have not been proved by admissible evidence. For instance, first that the accused had a relapse of Schizophrenia-paranoid as he had in 2005, because he had stopped taking medications since he was discharged from NPU in December 2005. Someone may have told the doctor about this. Secondly, that the impairment of the accused’s judgment capacity was based on the fact that the accused’s intoxication and a relapse of his previous condition; third, that the recent relapse of his condition was due to the fact that the medical officer at the Prison Clinic had taken the accused out of medications because of side effects; and fourth, that the death of the victim occurred through an accident. The law regarding expert opinion is that the facts upon which expert opinions are based must be proved by admissible evidence: Abadon([4]). This case summarises the position as follows: "First, where an expert relies on the existence or non-existence of some facts which is basic to the question on which he is asked to express his opinion, that fact must be proved by admissible evidence: See English Exports.v. Eldonwall [1973] ch.415; [1973] 1ALL E.R. 276 per Megarry J at p.421E and P.731g and Turna [1975] 1QB834, 840B. Secondly, where the existence or non existence of some facts is in issue, a report made by an expert who is not called as a witness is not admissible as evidence of that fact merely by the production of the report, even though it was made by an expert: See for instance Crayden (1978) 67 CrApp. R1,3,4; [1978] 2ALL E.R.700, 702 d." (But note S.180 of the CPC for position in Solomon Islands regarding this second rule.) Intoxication and Diminished Responsibilities

8.1	In Di Duca([5]) the English Court of Appeal rejected the proposition that intoxication could amount to an "abnormality of mind" within S.2 of the Homocide Act 1957 (UK). It also rejected the proposition that substantial impairment of responsibility may occur from self-induced intoxication in conjunction with an abnormality of mind, which abnormality is a not by-itself for defence under the Section.

8.2	Mr Averre submits that the defence of diminished responsibility has been established on behalf of the accused on the basis of the medical reports.

8.3	S.203 of the Code provides for the defence of diminished responsibility. The defence entitles an accused to be acquitted of murder and convicted only of manslaughter in the following circumstances: "S.203 (1) - Where a party kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality mind (whether arising from a condition of arrested or retarded development of mine or any inherent causes or induced by disease or injury) as substantially impaired, his mental responsibility for his acts and omissions in doing or being a party to the killing.

	(2)	On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder.

	(3)	A person who but for this section would be liable, whether as principal or as accessory, to be convicted of murder, shall be liable instead to be convicted of manslaughter.

	(4)	The fact that one party to a killing is by virtue of this section not liable to be convicted of murder shall not affect the question whether the killing amounted to murder in the case of any other party or it."

8.4	This defence is to be proved on the balance of probabilities, R.v. Dunbar([6]).

8.5	The elements of this defence are (1) abnormality mind; (2) such abnormality of mind arising from a condition of arrested or retarded development of mind or any inherent cause or induced by disease or injury; and (3) that the abnormality of mind, whatever it was substantially impaired the accused’s mental responsibility for his or her acts and omissions in doing or being party to the killing.

8.6	The element of "abnormality of mind" was construed by Lord Parker in R.v. Byrne([7]). His Lordships said at p.4":

		"’Abnormality of mind’, which has to be contrasted with the time honoured expression in the McNaghten rules ‘defect of reason’, means a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It would appear to us to be wide enough to cover mind’s activities in all its aspects, not only the perception of physical acts and matters and the ability to form a rational judgment whether an act is right or wrong, but also the ability to exercise will-power to control physical acts in accordance with that rational judgment."
8.7	Further, Lord Parker also considered the use of Medical reports. On this, his Lordship said ([8]): "Whether the accused was at the time of killing was suffering from ‘abnormality of mind’ in the broad sense which we have indicated above is a question for the jury. On this question, medical evidence is, no doubt, of importance, but the jury are entitled to take into consideration all the evidence including the acts or statements of the accused and his demeanor. They are not bound to accept the medical report if there is other material before them which, in their good judgment, conflicts with and out weights it".

9.1	The accused was not examined by any medical officer soon after he killed the victim. He told the police in his confession statement recorded two days after he killed the victim that he was not suffering from any illness except a mild cough; it was also seen from the medical report made of him on 28 March 2008, that he had no abnormality regarding thought at the time of examination by the doctor. There was also no family history of Schizophrenic illness in that same report. Dr. Orotaloa confirmed during his testimony that the schizophrenia which the accused had in 2005 as shown in Dr. O’donnell’s medical notes on the accused, was related to paranoia and not to an "inherent cause" as submitted by Mr Averre (See Transcript P.40).

9.2	Apart from the medical reports of 28 March 2008 and 20 May 2008, there is also evidence from the prosecution to assist this court to determine the question of diminished responsibility. The prosecution evidence shows that the accused erased blood from the bush knife with which he killed the victim by pushing it through a banana trunk; he then attempted to obtain a bag to carry the body of the victim from the scene; having failed to do so, he got a blanket from his house, wrapped the body with it, tied both ends of the blanket properly and carried the body away from the scene of the offence; when a neighbour asked what was in the blanket, he answered her by saying it was "banana"; he carried the body along the track linking Niupani village to Tebaitahe village and discarded the body 5 metres from the track in the bush; that he walked along the same tract the following morning to pick up the victim’s severed head where it fell and threw it about 2 metres into the bush; then he left the village to live with a neighbour at the school until he was arrested by the Police. This evidence shows that whatever abnormality of mind he may have suffered from, had not substantially (Lloyd([9]) impaired his mental responsibility for killing the victim.

9.3	This Court prefers the evidence of the prosecution regarding issues of murder and diminished responsibility. The evidence of the prosecution as to the acts and statements of the accused shows that the accused knew he killed the victim. That such killing was wrong and that he had tried to conceal the body of the victim and his offence. The defence have not satisfied the Court on the balance of probabilities that the accused was suffering from diminished responsibility when he killed the victim on 29 January 2007. He has caused grievous bodily harm to the victim, intending to cause his death. I convict him of murdering Hans Taupongi. Sentence There is only one sentence for the offence of murder. That is imprisonment for life. This Court therefore sentence Mr Gibson Tahua Tipasua to life imprisonment accordingly.

High Court of Solomon Islands

Regina v Tipasua [2008] SBHC 27; HCSI-CRC 105 of 2007 (17 June 2008)