Regina v Baeoro [2010] SBHC 52; HCSI-CRC 308 of 2008 (13 August 2010)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua, J)
Criminal Jurisdiction

Criminal Case No. 308 of 2008

REGINA

V

CHRIS BAEORO AND MICHAEL WANMAN

Date of Hearing : 24,25,29 and 30 June, 1,2,5,6,8,12,13,14,16,19, 26 July, and 2 August 2010
Date of Judgment: 13 August 2010

R Iomea and R Christensen for the Crown
R Cavenagh, W Ghemu and L McSpeeden for Chris Baeoro
M Wagavonovono and B Ifuto'o for Michael Wanman

JUDGMENT

Mwanesalua, J: Chris Baeoro and Michael Wanman are charged with Murder, contrary to section 200 of the Penal Code (Cap. 26). The burden of proving guilt lies upon the prosecution. The standard of proof is beyond reasonable doubt. The prosecution must prove all the elements in the offence necessary to establish guilt. If the prosecution does not prove any of the elements, it fails, and, Baeoro and Wanman must be acquitted.

The case for the prosecution against Baeoro is that he with Malice aforethought caused the death of Frank Parahu ("the deceased") by on unlawful act on 16 December 2007 in Honiara. As for Wanman, the case against him is that, he is guilty of murder either under section 21 (C) or section 22 of the Penal Code. Both Baeoro and Wanman pleaded not guilty to the charge of murder laid against them in the information.

The Scene of the offence

There were twin towers (flats) near the sea opposite Town Ground in Honiara on the date of the offence. The first flat ("the flat") was near the Main Road, while the other ("second flat") was some distance away to the sea. There were two dancing places located close the flats. The first was called the Moon Light Night Club ("the club") while the other was called the twin tower dancing area ("the dancing area"). The offence was committed within the vicinity of the flat. The flats and the dancing places were all demolished sometime before this case went to trial. The court therefore did not have the opportunity to view the scene of the offence during the trial.

Expert evidence

There is dispute about the admissibility of expert evidence in this case. I have considered views of the prosecution and the defence on the issue. I have decided to exercise the courts discretion under section 136 of the Evidence Act 2009 (Act No. 12 of 2009) to exclude the evidence as its probative value was outweighed by its prejudicial effect shown on the grounds advanced by the prosecution. Those grounds, with fresh paragraphs from 1 to 5 are as follows:

Ground (c) – Probative value outweighed by Prejudicial effect

1. In relation to this ground, the Crown submits that the opinion of the witness is of such little weight that it has no probative value and ought to be excluded.
   
2. The Crown submits that the features which demonstrate the little weight that can be given to this evidence include:
   
   1. The witness's opinion was based on assumptions as to the manner in which the kwaso was brewed (XXN p 38);
      
   2. The witness's opinion was based on assumptions as to the ingredients used (XXN p 38);
      
   3. The witness gave evidence about a substance (kwaso) for which there was little information available to him for which no papers had been published (XXN p 38, 40);
      
   4. The kwaso tested by the witness was not from the same brew consumed by the accused (XXN p 39, 40);
      
   5. The witness's evidence as to his opinion as to the percentage of alcohol was for a 'typical kwaso' and was not able to be more specific than a range from 30 to 60 % alcohol by volume.
      
   6. The Crown also relies on the submissions in ground (b) and the witness's lack of knowledge of the effect of Melanesian ethnicity on his opinion as matters relevant to the determination that the opinion is of no weight.
      
3. The witness stated that he was unable to consider any of the papers that Professor Stama discussed with him (in relation to ethnicity) and that he hadn't referred to all of the papers that he would have liked to in preparation of his report (XXN p 35, 37).
   
4. The rate of alcohol metabolism by the accused is unknown. The witness stated that "there are some very very rare individuals who metabolise alcohol outside the range of the Widmark Formula but they are very very rare. Some individuals can metabolise alcohol at four, perhaps five times the rage of the average person. And some individuals can tolerate extraordinary levels of blood alcohol concentration. But once again they are very very rare' (XN p 25). There is no basis to exclude the accused as been one of the 'very very rare individuals'.
   

Further, when put to the witness that he didn't know exactly the rate that the accused was eliminating alcohol from his body on this particular night, the witness stated that the only way you could do that would be to perform a control drinking study and he agreed that he had not preformed such a study for this matter (XXN p 6).

5. The witness agreed that he was not present in Court to hear the evidence adduced in the Crown case and that he had not read the trial transcript of the evidence (XXN p 12). The witness's opinion was based on a history that was not established as admissible evidence and did not take into account factors such as the accused having a detailed recollection of the events of the night.
   

In Tipusua v Regina [2009] SBCA 10 the Solomon Islands Court of Appeal considered a matter where expert evidence of a psychiatrist was adduced in relation to diminished responsibility. The Court held that the opinion of the expert was flawed as "the doctor failed to take into account the contemporary evidence that was available to him and ought to have been considered by him" [emphasis added] and further "It is trite law that the finder of fact is not obliged to accept expert evidence. "It is a standard direction to a jury that they will give proper weight and consideration to a witness' expertise but at the end of the day the decision is for them and that it is a trial by jury and not by expert The same applies when the finder of fact is a judge sitting alone. The judge has carefully assessed the evidence and there was a proper evidential foundation for his finding. In this case the judge was perfectly entitled to reject the psychiatrist's evidence".

The prosecution evidence

Michael Maeile arrived at the flat sometime between 3 am and 4 am on 16 December 2007. He went to the flat to visit his boy friends but they were all asleep. He however saw two girls there still awake. He and the girls came out of the flat as the girls wanted to smoke. The deceased arrived by taxi when they were standing at a market stall at the front of the flat where they were going to buy tobacco and paper. The deceased came out of the taxi and told Maeile that he came from Aloha Night Club, and that he was hungry. The deceased walked to another market stall and bought fish with cassava. He ate the fish but it was too salty. He gave the food to Maeile who ate some of it and gave the rest to the girls. The deceased said he wanted to drink water, and so he walked towards the direction of the second flat where he was then living.

Maeile saw a group of boys sitting on a cement slab at the front of flat when the deceased left. They wanted to argue with Maeile so he and the girls went back into the flat. Maeile heard one of the boys asking for a person named "Eric", and he heard one of the boys responding by shouting out, saying, "Iu go, there is no Eric here". Maeile then heard Baeoro's voice while he and the girls were walking up the stairs of the flat. Maeile knew Baeoro for sometime before that night.

In his evidence Eric Fugui says that he knows the deceased. They lived in the second flat in 2007. He is related to Baeoro and that they come from Forau village. In the early morning of 16 December 2007, the deceased woke him up from his sleep. The deceased said that boys from Fugui's area demanded compensation from him. They both left to the front of the flat to see the boys. They saw about six of them including Baeoro. Baeoro argued with the deceased because he said the deceased was acting smartly. Fugui told Baeoro not to fight with the deceased, but Baeoro punched the deceased to the ground. The fight moved towards the garage within the vicinity of the flat. Baeoro and the boys then chased the deceased towards the main road. Fugui says he did not know the boys except Baeoro.

Steward Auriu's evidence is that he went to the club after midnight on 15 December 2007. The club closed at 2 am but he left it at 2:45 am. He went to a market stall close to the cement slab in front of the flat and bought paper and tobacco from a woman. He saw boys sitting in front of that stall. That area was lit up by candles and hurricane lamps from the stalls, and, a spotlight from the entrance to the flat. While he was sitting down, smoking, he saw the deceased arrived. The deceased asked the boys what they wanted from him. Auriu saw one of the boys punched the deceased on his right cheek, while another boy punched his neck. He then saw the fight moved towards the garage, and from there the boys chased the deceased to the main road. One of the boys who assaulted the deceased shouted out, saying his name was "Chris".

Rose Waitahi's evidence is that she used to live in the flat before 15 December 2007. She used to see Wanman come to the flat to visit his one-talks. She knew the deceased who lived at the second flat. At about 6 pm on 15 December 2007, she saw Baeoro and Wanman drinking Kwaso on a cement slab in front of the flat. On the night of 15 December 2007, she left the flat at about 11 pm to the club with Wanman and Angela to dance. They were in the club until it was closed at 2 am on 16 December 2007. Later she went to the dancing area with another person. On her way to the dancing area, she saw Wanman, Baeoro and some boys drinking Kwaso in front of the flat. When came back to the flat to purchase beer, she saw boys surrounding the deceased. She saw some of them kicking and punching the deceased. She stood at a distance of about 7 metres away from the fight. She saw Wanman hit the deceased's head with an unidentified object. She also saw Baeoro punched the deceased on the face. The boys then chased the deceased towards the main road. She saw the deceased's body at the hospital during day time on 16 December 2007. A week later, she and another girl went with Wanman to the Botanical Garden for a swim. She saw a screw driver with him. Wanman told her that the Screw driver with him was the one he used to kill the deceased.

Waitahi altered her evidence against Wanman during cross-examination. She said that she did not see Wanman drinking with Baeoro in front of the flat while she was on her way to the dancing area; that she did not see Wanman assault and chased the deceased; and that Wanman did not tell her that he killed the deceased with his screw driver. She explained that she implicated Wanman in this case because she was angry with him for slapping her for not giving him the money she had promised to him earlier, a week after the deceased was killed.

Francis Noliasi's evidence is that he saw Baeoro and Wanman drinking Kwaso in front of the flat in the early evening of 15th December 2007. He was at the garage area when the boys fought the deceased in front of the flat. Baeoro also fought with the deceased. The fight then moved close to his stall where the deceased fell to the ground. The deceased stood up and the boys chased him towards the main road. He walked behind the boys and saw Baeoro stabbed the deceased with a knife. He saw the stabbing motion from the light of two vehicles which passed each other on the main road. He saw Baeoro raised his right clenched fist up to the right side of his head and moved his arm in a downward semicircle motion. After that Baeoro and the boys left the deceased and returned to the market stalls. The deceased fell down near the main road. A while later, he saw two persons washing the deceased's head. He saw Wanman involved in chasing the deceased with Baeoro and the boys. It became obvious through cross examination that Noliasi merely included Wanman as one of the boys chasing the deceased through information he heard from Waitahi. That is hear say and is not evidence against Wanman.

Maeile heard shouting outside the flat where the boys were sitting when he was in the flat. He heard many voices saying "kill that man, Killem". He looked down and saw the boys running towards the main road. Maeile could recognize Baeoro running ahead of the boys who were chasing the deceased. Not long afterwards, the boys returned to the vicinity of the flat but not the deceased. Maeile and Gabby went out to check the deceased. They found him lying near the main road. They poured water over him and saw blood running out from his forehead and nose. The deceased was taken to the hospital but died.

The Medical Report

The autopsy on the deceased's body show the following injuries:

1. External injuries are made up of a ragged open wound on the midline position on the forehead; an abrasion on the forehead; a bruise located above the right eyebrow; a bruise located lateral to the angle of the right eye; bruises on the nose; an abrasion on the right side of the upper lip; a bruise located above the left elbow; and a stab wound, 23mm long, located on the midline of the back and 140mm below the base of the neck.
   
2. Internal injuries on the respiratory system are made up of the stab wound from the back which entered the left chest cavity between the 6th and 7th left ribs adjacent to the spine; a superficial wound on the left lung posteriorly; the left lung collapsed while the right lung was normal; and there was 200 mls of blood with clots in the left pleural (chest) cavity.
   
3. Internal injuries on the cardio-vascular system are made up of a stab wound on the pericardium; the stab wound entered the left atrium of the heart; the wound on the heart was 10mm long; and there was a blood clot in the pericardium cavity.
   

The case for the defence

Wanman's unsworn statement is that he went to the twin-tower for the first time on the evening of 15 December 2007. Upon his arrival he drank Kwaso with Baeoro and other boys. He then went to the club with Waitahi and another girl. They stayed there until the club was closed. He then walked to the Main Market and slept in a canoe as he was very drunk. He woke up at 10 am and walked to the twin-towers to ask her aunty for bus fare to return to Kobevatu. He obtained $10.00 for bus fare from his aunty and left to Kobevatu. A week later he returned to the twin-towers. He went with Waitahi and another girl for a swim at the Botanical Garden. On their way there he found a screw driver. After swimming they returned to the twin towers because Waitahi had promised to give him some money. When they returned to the Twin-tower Waitahi failed to give the money, so he was angry and slapped Waitahi. He came out from the first flat and took a bus back to Kobevatu.

Baeoro gave evidence under oath. His evidence is that he arrived infront of the flat at 6 pm on 15 December 2007 to sell his Kwaso. He started drinking Kwaso at 7 pm. Wanman was drinking with him until Wanman, Waitahi and another girl went to the club. He never saw Wanman again that night. He did not see any screw driver with Wanman that evening. He also drank hot staff from midnight. He argued with the deceased before the deceased came back to him with Eric Fugui. He stood up and fought with the deceased. He punched the deceased to the ground. The deceased stood up and ran. The boys who were drinking with him were still there at that time. Fugui was not involved in the fight. He and the boys chased the deceased to the main road. He was running ahead of the boys. He pulled out his knife from the back pocket of his jean with his right hand when they were running towards a fence. He stabbed the deceased at the back. The deceased kept running after he stabbed him, while he turned back and met the boys who were running behind him and the deceased. They all went back to the front of the flat where they had been drinking. He bought the knife from a boy who was drinking with him at midnight after Wanman, Waitahi and Angela had gone to the club. He placed it in the back pocket of his jean with the handle facing down and its blade facing up. He covered the blade with the low end of the shirt he was wearing that night. He drank two bottles of 300 milliliters of Kwaso and hot staff that night. He was fully drunk. Some one told him he drank five bottles of kwaso. This piece of evidence is hear say and is excluded.

The Law under Sections of the Penal Code

21. When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say:-
    
    • (a) every person who actually does the act or makes the commission which constitutes the offence;
      
    • (b) every person who does or omits to do any act for the purpose of enabling or aiding another to commit the offence;
      
    • (c) every person who aids or abets another person in committing the offence;
      
    • (d) ........................................
      

..................................................

22. Where two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such a purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.
    
200. 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.
     

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.

Assessment of evidence

Wanman

This court accepts that Wanman was merely drinking with Baeoro in the early evening of 15 December 2007. Wanman accompanied Waitahi and Angela to the club at about 11 pm until the club closed at 2 am on 16 December 2007. He did not return to the flat. He walked to the main market and slept in a canoe. Waitahi admitted that she falsely made up her evidence against Wanman for slapping her. Noliasi's evidence that he saw Wanman took part in chasing the deceased to the main road. This piece of evidence came from Waitahi, it is hear say and not evidence against Wanman.

Baeoro

Baeoro admitted causing the death of the deceased. But he denied having any intention to cause the death of the deceased because he said he was fully drunk when he stabbed the deceased with the knife.

The evidence in respect of Baeoro is that he started drinking at about 7 pm that night infront of the flat. At the same time he was selling his kwaso. By midnight he was also drinking hot staff. Sometime before day break on 16 December 2007, he spoke to the deceased. The deceased left him and went to the second flat where he lived. The court infers from the evidence of Fugui that the talk between Baeoro and the deceased was about the payment of compensation. Fugui said that the deceased woke him up indicating that his boys demanded compensation from him. The deceased wanted Fugui to sort out the matter between him and Fugui's boys, meaning Baeoro and the boys drinking with Baeoro.

The deceased and Fugui came to the flat. The deceased asked Baeoro and his boys what they wanted from him. Baeoro was angry with the deceased, because he said, the deceased was acting smart. Fugui asked Baeoro not to do anything to the deceased. But Baeoro punched the deceased to the ground. Baeoro and the boys then chased the deceased to the garage kicking and punching him. The deceased fell down again, stood up and escaped toward the old SMI office close to the road. Baeoro run after the deceased with the boys coming behind him. He was wearing a jean. He drew out his knife from his back pocket and stabbed the deceased on the back. The deceased kept running until he fell down near the main road. He later died at the hospital.

Conclusion

Wanman was not at the scene of the offence when Baeoro punched the deceased at the flat. He was also not there when the deceased was chased to the garage. He did assault the deceased during the fight that night. The prosecution failed to adduce any evidence to prove beyond reasonable doubt that Wanman assisted or encouraged Baeoro to stab the deceased. There is also no evidence to prove beyond reasonable doubt that Wanman made any plan or agreement with Baeoro to stab the deceased with the knife on 16 December 2007. There is therefore no evidence to link Wanman to the unlawful stabbing of the deceased by Baeoro.

Baeoro admitted stabbing the deceased with a knife at the back. The knife penetrated the lung and the heart of the deceased, as described in the Medical Report. But Baeoro denied having the specific intent to commit murder. (See sections 200 and 202 of the Penal Code set out above). He claimed this was because he was fully drunk at the material time he stabbed the deceased. The prosecution must prove beyond reasonable doubt that Baeoro had the requisite intent for murder and that he was not drunk at the time of the stabbing, before he can be convicted of murder. However, if he is convicted of murder, but he was drunk from alcohol at the time of the stabbing, he will only be guilty of manslaughter. This court will decide these issues.

During the trial, Baeoro gave clear accounts of the events which occurred from the time he arrived at the flat until he stabbed the deceased (see his evidence under oath above) Further, there is evidence from the prosecution that he assaulted the deceased infront of the flat, chased and stabbed the deceased with the knife. Then after stabbing the deceased, Baeoro warned Fugui not to report him. He exhibited no signs of drunkenness, such as staggering, swaying uncontrollably and stumbling that night. He knew he had a knife that night and lifted it up to stab the deceased at the vulnerable part of the body. This court is of the view that the prosecution have proved beyond reasonable doubt that Baeoro had the specific intent to cause grievous bodily harm to the deceased. Further, Baeoro was not intoxicated when he stabbed the deceased to death on 16 December 2007. He knew he unlawfully stabbed the deceased and told Fugui not to report him. Baeoro is therefore guilty of the murder of Frank Parahu and is convicted accordingly.

Orders of the Court:

1. There is only one sentence for murder. That is life imprisonment. Chris Baeoro is therefore sentenced to life imprisonment. Order accordingly.
   
2. Wanman is acquitted of murder. He is to be discharged from custody forthwith. Order accordingly. Right of appeal explained to parties.
   

THE COURT