Regina v Filibo [2009] SBHC 51; HCSI-CRC 09 of 2008 (11 September 2009)

HIGH COURT OF SOLOMON ISLANDS
(Naqiolevu, J)

Criminal Case No: 9 of 2008

REGINA

V

ROBERT KESIBALA FILIBO

Date of Hearing: 12 August 2009
Date of Judgment: 11 September 2009

Counsel For the Crown: Mr Ricky Iromea/Mr Rob Barry
Counsel for the Defendant: Mr D Hou

JUDGMENT

Naqiolevu J: The accused is charged with the offence of manslaughter contrary to Section 199 (1) of the Penal Code.

The Crown case is that the accused on the night of the 5th of March 2001 unlawfully caused the death of Margaret Koto, the deceased by kicking her which caused a ruptured spleen and her subsequent death shortly afterwards.

LAW

(Section 199 (1) – Penal Code)

Any person who by an unlawful act of omission causes the death of another person is guilty of the Felony known as manslaughter. An unlawful omission is an omission amounting to culpable negligence, a duty tending to the preservation of life or health, whether such omission is or is not accompanied by an intention to cause death or bodily harm.

Crown Case

1. On the night of the 5th of March 2001, between the hours of 7pm and 8 pm, the deceased was picked up by a white hilux. The victim boarded the vehicle at the Central Market area and in the vehicle were four men which included James Taemu who is the Crown’s main witness.

2. The four men and the victim then drove to the western end of the new Mataniko bridge, on the way James Taemu asked the victim if she could get a girl for him. When they parked the vehicle the victim went out of the vehicle and walked towards the Mamana Water Settlement.

3. Upon the return of the victim from the village, she met the accused on the footpath where she was kicked by the accused.

4. The witness, James Taemu, who was standing not far from the vehicle saw the accused kick the victim with his leg. The kick was delivered with great force that caused the victim to fall on the ground. The accused then immediately fled towards the Mamana Water Settlement and disappeared.

5. The deceased was then taken and dropped off by the men at the City Council area, and not long after that she was found in one of the City Council building suffering from pain by some Special Constables who were on duty that night at the Magistrate’s Court and Council areas.

6. The victim was put in the vehicle and transported to the National Referral Hospital where she was pronounced dead shortly after. The post mortem report shows the deceased’s spleen was badly ruptured and she died as a result of massive internal hemorrhage which led to hypovolaemic shock and death.

7. The accused was interviewed on the 8th of July 2007, but denied seeing the victim on the night of the 5th of March 2001, and denied assaulting her.

Defence Case

8. The defence case are based on two important points:

(1) Reliable or Unreliable Witness.

(2) Prior Inconsistent Statements.

The defence asserts that the evidence of the main crown witness, James Taemu is suspect and unreliable. The witness counsel claim was driving the deceased that night and was the only witness who saw the kick by the defendant. He was present with the deceased that night and was the one last seen by Crown Witness, Alosios Bata to have also left the hilux at the same spot where the deceased also left the hilux and not far away where the deceased was found lying at the top of the ladder of the Honiara Town Council Planning Office.

9. James Taemu was also the only witness who could tell where the injury was inflicted apart from witnesses at the hospital. Counsel assert when that is coupled with the dying declaration of the deceased that mentioned the name "James" as the person who kicked her immediately before her death, his evidence must be considered with the requisite warning analogous to an accomplice or other category where a warning should be given of the possible danger of basing a conviction on his testimony unless confirmed by other evidence. He also may have the motive like an accomplice to push the blame on another person like the defendant.

10. The second point in Counsel submission is the inconsistent statements of the Crown’s main witness, James Taemu. Counsel maintain the witness as submitted is suspect and unreliable although he does not fall into the specific witness of the kind consider outlined in the authorities, he is in that general class of witness about whom warning is required to be given to avoid risk of miscarriage of justice.

11. Counsel asserts the credibility of a witness depends upon his knowledge of the facts, his disintrestedness, his integrity and veracity. He is not a disinterested witness. The witness, (James Taemu), has made a prior inconsistent statement to the police on the 6th of March 2001, tendered and marked as Exhibit 1 by the Defence when cross- examined, the first point was that when they stopped at the western end of the bridge Robert was already there and tried to stop a taxi. The second when he gave the accused a lift to a Black Market at Point Cruz. The third inconsistency is in para 3 of the second page. "We didn’t actually see Robert kicking the girl but that was what the girl told us".

12. Counsel asserts those inconsistencies were stated as not true in his evidence on oath and that his statement in Court is the truth. He saw a car dropped the accused 5 meters behind the hilux; saw the accused got off the car and walked quickly down the path going down to Mamana Water, and saw the accused kick the deceased with a black shoe to her chest or ribs. He had explained the reason for the inconsistencies in Court as being due to the break down of law and order. Counsel claim person trying to put the blame of a crime or another could equally come up with such explanation.

In-Consistent Statement – Analysis of Evidence

13. The Court having considered the Crown case and the evidence of the witness, James Taemu, is of the view that there is conflict in his evidence. The witness is the only person who said he saw the accused kick the deceased. The evidence that seem to contradict the witness Taemu’s statement is that of Crown witness Alosios Bata who testified that they arrived at the Mataniko Bridge and the "two men asked the driver to take them to Lengakiki to buy beer". The two boys got in and himself and James went with them to Lengakiki.

14. The further contradictory evidence of Taemu is that all of the men in the car were asleep when the deceased came to the hilux from Mamana Water. This is not consistent with Crown Witness Bata’s evidence that they were telling stories when the deceased came back to the hilux and got in.

15. The other critical piece of evidence is that Taemu who testified that the deceased was suffering and in pain that he had to carry her into the vehicle. This again is inconsistent with Bata’s evidence who testified that he "did not notice anything wrong with the deceased", when she returned and "walked into the vehicle".

16. The Court is of the view that the Crown Witness, James Taemu, who was driving the deceased on the night in question and was the only witness who saw the kick by the defendant is of vital importance. He was present with the deceased that night and was the last one seen by the Crown Witness, Alosios Bata to have also left the hilux at the same spot where the deceased was found lying at the top of the ladder at the Honiara Town Council (HTC) Planning Office. The witness Taemu could not be considered a "disinterested witness". The witness would be protecting his own interest given the evidence that he clearly reveal where the injury was inflicted, apart from the expert witness at the hospital. This is important when considered with the dying declaration by the deceased, who named "James" as the person who kicked her prior to her death.

Time Factor - Kicking

17. The Court is of the view that a material piece of evidence not advance by the Crown is the time factor of the kicking. This was never put to the Crown’s main witness, Taemu, nor was it indicated by the Crown in its opening address. It is clear that the injuries as established by the expert witness, Dr. Vavala were very serious, and that it would have taken several minutes instead of two hours; and depend on how fast the blood is being lost.

18. Crown Witness Taemu’s evidence that they reached the Central Market around 8pm, however under cross-examination by Counsel he testified that they stopped at the market for only ‘two minutes". The Witness however, under cross-examination testified that he waited for the deceased to come back from Mamana Water for 5 minutes but, further answered that it happened "very fast straight after the accused came out of the cab." Clearly if Taemu is correct the kick could only have happened at around ten minutes past eight (8.10pm) that evening. This tends to support Witness Bata’s evidence that they arrived at the western end of Lengakiki with the accused when it was going up to 8pm.

19. It is clear that the Crown Witness, Taemu, in re-examination has not made any attempt to clarify the time when the kick occurred or how long they parked at the western end of the bridge when the deceased left for Mamana Water and when she was kicked. The injuries sustained could have been used by the doctor to determine the possible time death could have occurred after the injury was inflicted.

20. The Expert Witness in re-examination confirmed taking into account variable such as a person’s ability to resist, and the speed of the bleeding which is unknown, would be between 11 pm to 20 past eleven (11.20pm). The time is consistent with the fact that the deceased was found at the HTC Planning Office roughly at about 11 pm or shortly thereafter.

The Court is of the view that the burden is on the Crown to show beyond reasonable that death could only have occurred as it happened after 12 mid-night that night.

Credibility

21. The Court is of the view that the credibility of a witness depends upon his knowledge of the facts, his disintrestness, his integrity and veracity. The Crown Witness, James Taemu, had made a prior inconsistent statement to the police on the 6th of March 2001. The statement was tendered in Court by Counsel for the accused to contradict the statement made in Court that he saw the accused kick the deceased. Those inconsistencies were stated as not true in his evidence on oath and his statement in Court is the truth. He testified that the reason for the inconsistencies is due to the breakdown of law and order.

22. The Court is of the view that while it cannot accept the prior statement as evidence of the truth of the matter. The statement could be considered as going to the credibility of the Witness. In this regard, the Court adopt the principles of law enunciated by the Court of Appeal in the case of Ligabatu –v- Regina, where the Court, stated,

"The early written statements to the police could therefore not have been admissible or admitted under that statutory provision, but only, we consider, as suggesting a recent invention or fabrication on the part of the witness. As to that, the usual way in which such statements would have been admissible and admitted at trial would have been in re-examination of the witness by prosecuting counsel so as to rebut the suggestion by defence counsel of recent invention. As such, "the statements ought, it is true, have been regarded as going only to credit and not as evidence of the facts they contained." See Nominal Defendant -v- Clements [1960] HCA 39; (1960) 104 CLR 476, especially at p 493, per Windeyer J.

Reasons/Conclusion

23. The Court having considered the Crown case and the evidence of the main Crown Witness who testified that he saw the accused kicked the deceased on the night in question.

24. The Court having considered the defence case as presented by the Defence Counsel. The Court must consider the main Crown Witness, not an accomplice. However, as a tribunal of fact, must warn itself in a warning similar to the warning given in relation to accomplices.

25. The witness has clearly demonstrated in his evidence that his testimony is inconsistent with the testimony of the Crown witness, Alosios Bata, and more importantly material "time factor" that has not been established by the evidence.

26. The Court in considering his evidence must further warn itself of the danger of convicting the accused on the unreliable testimony of the main Crown Witness, that it would be dangerous to convict the accused on the evidence as presented. The Court adopt the principle of law enunciated by the High Court of Australia, in the case of Bromley v the Queen, where Gibbs CJ said,

What is required, in a case where the evidence of a witness may be potentially unreliable, but which does not fall within one of the established categories in relation to which the full warning as to the necessity of corroboration must be given, is that the jury must be made aware, in words which meet the justice of the particular case, of the dangers of convicting on such evidence. Where a warning is required as to the way in which they should treat the unsupported evidence of a witness whose evidence is potentially unreliable, the question is "Was that warning sufficient? Did it in clear terms bring home to the jury the danger of basing a conviction on the unconfirmed evidence of the complainants?" There is nothing formal or technical about this rule.

In DPP –v- Faure, the Court stated,

"While no particular formula is appropriate, a warning in a case such as the present should be given by way of a direction to the jury from the trial judge and with the force of his authority. It should be more than a general comment about the need to scrutinize evidence of important witnesses carefully. It is not sufficient that counsel have put the matters in argument which raise the considerations relevant to the assessment of tainted witnesses and that such arguments are repeated by the judge. Nor is it sufficient to say that care and careful scrutiny are desirable as a matter of common sense."

"The warning should include a reference by the judge to the matters of significance which are relevant to the assessment of the evidence of such witnesses. The jury’s attention should be drawn to the dangers inherent in such evidence and at least to the desirability, if not the need for, the search for supporting material."

What warning is appropriate and adequate depends on the circumstances of the particular case. The stronger the warning given with the authority of the judge and the more it deals with the specific factors which affect the evidence of the tainted or potentially unreliable witness, the more confidence exists that the jury has considered those matters in reaching its verdict and the further any risk of miscarriage of justice is reduced. (Underlining mine).

27. The Court in considering the witnesses’ credibility is of view that he is not a witness of credibility and must consider him as such.

28. The Court in all circumstances find the Crown has not proved its case beyond reasonable doubt and the accused is hereby acquitted of the offence as charged.

THE COURT