|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of Solomon Islands |
IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona J)
Criminal Case No. 234 of 2008
REGINA
V
CLEMENT TAIKA
Date of Hearing: 26 July – 29 July 2010, 2 /8 /2010, 6/8 2010 and 10/8/2010.
Date of Judgment: 6 September 2010
For the Prosecution: Mr. Talasasa and Mr. Barry
For Defence: Mr. Barlow and Mr. Kesaka
JUDGMENT
Faukona J: The accused Clement Taika was charged for the offence of murder alleged to have occurred between 4th April 2008 and 6th April 2008, at Whiteriver, Honiara.
2. Upon arraignment on 25th June 2010, the accused denied the charge, hence a trial was commenced.
The facts
3. Between 4th and 6th April 2008 the deceased and PW1 Desmond Daudau were walking from PW1's house intending to attend Kaovare night club. Upon reaching the Namoruka junction they met the accused and his friend Haibangau opposite of Lester Hackle's house. This was at Whiteriver, Honiara. The deceased and PW1 were following the eastern side of the road whilst the accused and his friend were following the western side of the road.
4. Upon meeting there were exchange of words which the deceased eventually approached the accused who subsequently inflicted a single knife wound which involved the 10th left rib that consequently resulted in massive blood loss, heart failure and eventually died of that cause.
The Prosecution case
5. The Prosecution case is that this is not a case of a fight gone wrong. It is not a case of self defence, whether fully justified or a disproportionate response to a perceived attack. Nor is it a case of the death being caused merely by an unlawful assault (manslaughter). Nor was it a case of provocation, but simply a case of murder.
6. There was no fight but confrontation to some degree. At the time of physical confrontation, the accused was in possession of a knife, who then violently stabbed the deceased on his left chest. This is a clear indication of an intention to inflict grievous harm at the least.
The Defence Case
7. The defence relies on the free participation in a record of interview by the accused, which he did not have to tell his story to the police, but he chose to. It is an immediate credible, comprehensive and accurate account of the incident. That interview is supported by dock evidence in court.
8. The line of defence, the Defence Counsel relies on is four fold:
(a) That there is a reasonable possibility that the stabbing was done by accidental.
(b) That there is a reasonable possibility that the accused was acting in self defence.
(c) That the Prosecution has not proved beyond reasonable doubt the requirement of malice aforethought, and that the accused did not possess the necessary intent which amount to malice aforethought.
(d) In the event the Prosecution has proven malice aforethought there is a reasonable possibility the accused acted under provocation.
9. In all criminal trials the Prosecution carries the burden to prove its case beyond reasonable doubt, except in circumstances where the law provides that the burden be shifted.
10. In this case the Prosecution adduce evidence through five witnesses who gave sworn evidence in Court. Apart from that, there are number of witness statements tendered by way of consent. A number of exhibits also tendered including the accused record of interview, PW1's additional statement, two album sets of photographs, a sketch plan of the scene of incident and a post-mortem report.
11. It appears that the Prosecution case pivoted on PW1 Daudau and some corroboration from other witnesses. Daudau who was present at the scene gave account of what he actually saw. He said he was four meters from the deceased and the accused when the deceased and the accused came into physical contact.
12. Daudau in fact was observing the whole left back of the deceased from the direction he stood. It was the left side of the deceased that received the stab wound. Daudau in his evidence did not see the accused holding or using the knife to stab the deceased. However there is no dispute that Daudau was drunk that night. There is no dispute that the lighting was poor. There is no dispute that the accused used the knife to stab the victim.
13. The Defence Counsel argued that Daudau failed to see part of the incident involving the use of knife. Equally possible he failed to see the struggle described by the accused in his record of interview, and was withholding evidence.
14. If Daudau failed to see the rest of the incident that night, then what in law has justified the accused using the knife to stab the deceased. The Counsel for the accused opted to a number of reasonable possibilities that might have justified the action by the accused.
The defence of accident
15. The first possibility that the stabbing act by the accused was an accident. The defence of accident is outlined by section 9 of the Penal Code, which says:
"Subject to the express provisions of this Code relating to negligent acts or omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident."
16. This case operates on the second limb of section 9 that is to relieve the accused from criminal responsibility that what happened that night, resulted in the death of the victim, was an event occurred by accident. It has to be noted in the light of the defence raised, whether the deceased forced his way in which eventually caught up into the awaiting pointed knife held by the accused, and whereby he was killed, was an event occurred by accident; and not whether the death of the deceased following a deliberate act of stabbing was an event occurred by accident.
17. For the defence of accident be successful the event, that is, the act committed by the accused must not be intended by him, or must not be foreseeable even by an ordinary person. See State v Samson Tangau of Tebele ....... (Unrep. N463, Papua New Guinea).
18. In this case the accused in his record of interview stated that the stabbing of the deceased was an accident, and I quote from his record of interview;
"Q. 69 What happen then when he approached you?
A. 69 This is when the accident happened.
Q. 70 What do you mean by accident?
A. 70 That I killed him with the knife.
Q. 73 I put it to you that you intended to stab the victim?
A. 73 I only mean to scare him.
19. The Defence Counsel contended that the accused was simply holding the knife out to deter the deceased and the deceased unwittingly forced himself onto the knife, and the movement of the victim's body in forward and downward lunging motions towards the accused supports this possibility.
20. The evidence encompassing the actual occurrence of the incident is one against one with two extreme versions. Both agreed that the victim approached the accused. PW1's version was a frontal approach and not a side way. As the victim approached he bend low in order to identify the accused, which upon so near, within an arms reach, the accused pushed him away. Thirty seconds after that physical confrontation, and as the deceased was walking away two to three steps, he fell on the ground. The accused version is by way of his answers to the questions quoted above and the explanation by his Counsel. There is no further explanation by the accused as to what actually happened, how the knife eventually got into the left chest of the deceased. No explanation was given until the closing submissions when the Defence Counsel submits with some explanation of the reasonable possibility that the stabbing was done by accident. PW1's account was quite short, that he saw the physical push and thirty seconds after the victim fell down sustaining a stab wound to his left chest.
21. Importantly one has to acknowledge how Solomon Islanders express themselves, in particular, when someone claimed it was an accident; it was not an accident in actual fact, but he did what he did. It is clear from question and answer {70} that was what exactly the accused did; he killed him with a knife. It was not a kind of accident that in English be interpreted as a defence under section 9 of the Penal Code which has to fulfil certain requirements in law before defence of accident can be successful. Or would otherwise mean in English that something occurred without the accused intended it to be.
22. Another significant point is that if the deceased approached the accused in a manner as explained by PW1, frontal facing him, which is a normal approach any human would always prefer, then the likelihood the entry point of the knife would be at the front stomach or chest of the victim. Contrary to that, the accused version is that when they struggled for the knife it fell, and then he picked it up and position it in a manner he stated. Consequently the deceased sustained the fatal wound on his left chest. With no apparent logic the deceased would have forced himself towards the accused by his left side, which in most cases is unusual in any struggle or fight. In my view the brief explanation given by the accused in relation to the accident is insufficient and unreasonable in the circumstances. However, there was no explanation or by any demonstration as to how the accident occurred.
23. For authority I refer to the case R v Joel Nanango {[1]} where Palmer J stated at page 18:
"Having raised the defence of accident, is there evidence which supports this defence. Apart from the statement of the accused in his caution statement, he has not adduced evidence any other evidence in support. It is one thing to raise a defence; it is another thing to adduce some evidence in support of that.
Apart from saying that it was accident, there is no evidence even in that statement as to how that stabbing may have been accidental as claimed or suggested in his defence. Having raised this defence, the accused is required to point to some evidence in support of that defence. I must point out that it is not transferring the burden of proof to the accused. What is vital is that he should point to some evidence in support, and having done so, it is for the Prosecution to disprove that beyond reasonable doubt."
24. In this case, there is no explanation or evidence adduce explaining how the stabbing occurred by accident. A hint was made by answering question in the caution statement but no further explanation more than just that. Eventually the defence was raised in the closing submissions. The Prosecution was right in submission, that there is no cross examination question in regard to possible accident to prosecution witnesses in particular PW1.
25. Having said that I find the possible defence of accident is flawed. I accept the prosecution evidence beyond reasonable doubt. Therefore the defence of accident is dismissed and rejected.
Defence of Self-defence
26. The second option raise by the Defence Counsel that there is a reasonable possibility that the accused was acting in self defence. The starting point for self defence is Section 4 {2} of the Constitution;
4 {2} A person shall not be regarded as having been deprived of his life in contravention of this section if he dies as the result of the use, to such extend and in such circumstances as are permitted by law, of such force as is reasonably justifiable.
{a} for the defence of any person from violence or for the defence of property.
Section 17 of the Penal Code states:
"Subject to any express provisions in this code or any other law in operation in Solomon Islands, Criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English common law.
(See also Rachel Tobo v Commissioner of Police) {[2]}.
27. What are then the principles of self defence based on English Common law. In Palmer v Regina {[3]}, Lord Morris delivering the judgment of the Privy Council, stated at pages 241-243
"It is both good law and good sense that a man who is attacked may defend himself. It is good law and good sense that he may do, but everything will depend upon the particular facts and circumstances. It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack, it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril, then immediate defensive action may be necessary. If the moment is one of crises for someone in immediate danger, he may have to avert the danger by some instant reaction. If the attack is all over and no sort of peril remains, then the employment of force may be by way of revenge and punishment, or by way of paying off an old score or may be pure aggression. There may no longer any link with a necessity of defence.
If there has been no attack, then clearly there will have no need for defence. If there has been attack so that defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If the jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken".
28. Those Common Law principles had been applied in similar factual situation in many cases in this jurisdiction. A fine example is in the case of R v Zamagita and 6 others {[4]} where Ward CJ stated at pages 231-233 (in part)
"In general, the common law has always given a man the right to defend himself or his close family and property by such force as is necessary. What is necessary is a matter of fact to be decided on a consideration of all the surrounding facts. It was stated in 1924 in Hussey's case {[5]} that a man may use force, may even kill, to defend himself or his property. Much more recently Parker LCJ in Chisam -v- Regina {[6]} cited with approval the statement of the law in Halsbury's Laws of England where a force and violent felony is attempted on the person of another, the party assaulted, or his servant, or any other person present, is entitled to repel force by force and, if necessary, to kill the aggressor. There must be a reasonable necessity for the killing, or at least an honest belief based on reasonable grounds that there is such a necessity.
Thus, if the evidence establishes to the satisfaction of the court that the accused belief on reasonable grounds induced by the words and conduct of the deceased, the defence of self defence is made out".
29. In Regina -v- Owino {[7]}, Collins J held at pages 132 – 133:
"The essential elements of self defence are clear. The jury have to decide whether a defendant honestly believed that the circumstances were such as required him to use force to defend himself from an attack or a threatened attack. In this respect a defendant must be judged in accordance with his honest belief, even though that believe may have been mistaken". Also see Beck ford v Regina {[8]}.
30. One other circumstance which require the accused to use force to defend himself against a threatened attack. This was reinforced in Archbold Criminal pleadings, Evidence and Practice {2009} at paragraph 19 – 42 which states:
"There is no rule of law that a man must wait until he is struck before striking in self defence. If another strikes at him he is entitled to get his blow in first if it is reasonably necessary to do so in self defence".
31. This cause it necessary and desirable that the accused state of mind, that is his view of the danger threatening him at that time of the incident, is material. The test is reasonableness or not, see Regina -v- Whyte {[9]}.
32. On the other hand where self defence may not be appropriate, is an obligation to retreat. In Regina -v- Julier {[10]} where the court held at pages 410 – 411 respectively;
"The submission here is the obligation to retreat before using force in self defence is on obligation which only arises in homicide cases. As the Court understands it, it is submitted that, if the injury results in death, then the accused cannot set up self defence on the basis that he had retreated before he resorted to violence. It is not, as we understand it, the law that a person threatened must take his heels and run in a dramatic way, but what is necessary is that he should demonstrated by his actions that he does not want to fight. He must demonstrate that he is prepared to temporise and disengage and perhaps to make some physical withdrawal, and to the extent that is necessary as a feature of the justification of self defence is true".
33. However on the extreme, a person who is assaulted may not only defend himself or herself, but may also retaliate, see Regina -v- Deana ([11]}.
34. And of course the onus is on the prosecution to negative this defence beyond reasonable doubt if it is fairly raised. See Regina -v- Ome {[12]}; Regina -v- Saomae {[13]} and Regina -v- Moon {[14]}.
Incoming Force
35. In order for the accused to defend himself and rely on self defence there has to be some serious force from the deceased putting the accused in immediate peril, or to defend the attack by the deceased, or some forcible violent felony attempted on the accused by the deceased, or an assault by the deceased which the accused honestly believed that the circumstances were such as required him to use the knife to defend himself by stabbing the deceased, or that the deceased strike at the accused which entitled him to get his blow in first as he saw it necessary to do so in self defence.
36. In his dock statement there was no explanation as to how the victim applied force on him which circumstances required him to defend himself. However, he raised self defence in his record of interview. Reference is hereby made to relevant questions and answers.
Q. 62. Who was he swearing at?
A. 62. The two persons who passed us he swore at them saying "fuckem iu tufala". But these two persons didn't bother.
Q. 63. What about the four (4) persons did he also swear at them?
A. 63. Yes.
Q. 64. What did he say?
A. 64. He said fuck all of you (Fuckem you fala) and I saw them turn back towards two of us. Haibangau was falling down of me so I ....I do not wish to say anything further.
Q. 66. Who was fighting?
A. 66. It was true that I killed him.
Q. 67. Killed who?
A. 67. The boy kicked me first and I told him that the person is too drunk but the boy kept on coming towards me. When he came close to me I saw that he was going for his shirt and suspected that he had a knife.
Q. 68. Can you explain to me what else happened?
A. 68. The knife fell to the ground and I picked it up. The boy was standing just in front of me and the boys behind him were forcing him to grab me so he came towards me.
Q. 69. So what happened when he came towards you?
A. 69. That's when the accident happened.
Q. 71. Can you explained to me how that happened?
A. 71 When he jumped towards me I placed the knife towards him.
Q. 72. Why did you placed the knife towards him?
A. 72. I wasn't afraid of him but because I was afraid of the others, I wanted them to know that I was the one who had a knife.
Q. 73. I put it to you that you intended to stab him?
A. 73. I only mean to scare him.
Q. 74. I put it to you that the knife belonged to you?
A. 74. It's not mine it belonged to that boy he removed it from his shirt.
Q. 75. Which part of the boy's body did the knife reach/hit?
A. 75. I don't know.
Q. 76. Why don't you know that?
A. 76. I don't intend to stab him on any particular place. What I know is that I must have stabbed him somewhere around his belly but don't know where actually.
Q.77. Can you describe the knife?
A.77. It's around the size (indicating length of knife using his left arm, length from the hands to the wrist). I don't know the colour of the handle, as for seeing any blood; I only smelt the smell of the blade of the knife. I don't know what kind of knife it is.
37. PW1 Daudau the only Prosecution witness present at the scene stated in his evidence that upon reaching Namuruka junction, himself, the ten year old boy and the deceased met the accused and his friend Haibangau opposite of Chotu and Toxy Pole's house. Accused and Haibangau were coming from the O2 bus stop in the opposite direction. The witness then called to Haibangau. At the same time the accused came forward and jumped at him and said, you hao? The witness then jumped out from the accused and said, don't you recognise me? Accused did not say anything in respond. Then the deceased approached the accused and the accused pushed him away. The deceased then moved back and walked to the other side of the road. As soon as he walked, two to three steps he fell down. The witness then ran towards him and held him up. He then took off his shirt and with the assistance of his lighter he saw a hole in the left chest of the deceased, which appeared as a knife had gone into his stomach! The witness then shouted after both men calling Haibangau's name and said you stabbed this man. The witness said there was no conversation between him and the deceased, and there was no exchange of swearing immediately prior to the incident. There was no fight seen by him between the accused and the deceased. And that when the victim and himself left his house they were unarmed without any knife or weapon whatsoever.
38. This evidence is corroborated in some material fact by Tango's evidence, in particular that he did not hear any exchange of swearing. He only hears Haibangau swearing that night. He lived about 20 – 30 meters away from the spot of incident. Another piece of evidence which corroborates Daudau's evidence is the evidence of Anis Waqa, who earlier on at 9.30 pm that evening, saw the accused with the other boys who were drinking further up from 02 bus stop. They were walking towards him. When the witness was about 1-2 meters away from the accused he saw the accused holding a knife. He did not see the handle but could see the blade shining reflected by a light from Lae's house.
"there is no rule of law that a man must wait until he is struck before striking in self defence. If another strikes at him he is entitled to get his blow in first if it is reasonably necessary to do so in self defence".
The accused's act of self defence
41. The accused raised self defence in his record of interview in two manners.
Firstly in his answer to question 68 which he said, "the boy was standing just in front of me and the boys behind were forcing him to grab me so he came towards me. In fact the accused answer was given after the kick and after he and the deceased had struggled for the knife which eventually fell off. The accused then picked the knife, and whilst the deceased was just in front of him the accident happened, that is he killed him.
42. The law is clear that a person can use force to ward off anticipated attack provided that it is anticipated as eminent ([15]). There has to be an attack or an anticipated attack or assault in any degree which will require a defence. In this case the physical contact was undoubtedly between the accused and deceased. Any expected force which will require defence must come from the deceased. If the accused honestly believed that he was acting in self defence in such circumstance, in my view, the belief was not held on reasonable ground. The deceased was just right in front of him without any form of assault or force directed at the accused. It was a mere approach. The deceased was unarmed and defenceless that moment. It was right at that moment that accused was in possession of the knife and stabbed the deceased to his death. Fear of being grabbed was not an anticipated attack. The question is, has the force used reasonably necessary in the circumstances. The answer is no.
43. The accused further stated in his record of interview that he was not afraid of the deceased but because he was afraid of others so he wanted them to know that he was the one who had a knife. Two possible interpretations may emerge from what the accused said. One, that the deceased caused no threat at all to the accused, therefore unnecessary to resort to self defence with a knife. Secondly the accused expressed himself by challenging the others that he was on the upper hand possessing the knife and others should not attempt any thing on him. The fact is that others whom the accused refer to had never existed according to evidence of PW1. Even so, neither of them approached the accused or even as close to him to cause any eminent danger, or even in a position possible to strike. If it appears that the accused belief that it was necessary to use reasonable force, and one which he knows to be necessary, and that he cannot weight to a nicety the exact measure of his necessary defensive action, in my view the accused belief was not reasonable in the circumstances and therefore totally out of proportion.
44. The second circumstance is when the accused answered question 71 in his record of interview and said, "when he jumped towards me I placed the knife towards him". In fact, it may appear the accused evidence varied in regards to the in coming force which may require the actual act of stabbing in self defence. The first one was I killed him with a knife, whilst the second one he placed the knife toward him when the deceased jumped at him. It seemed that there are two instances. One is an actual stabbing; the second appears to be as an accident, which I have already dealt with, or alternatively, a possible self defence. In such circumstances the accused may seemed uncertain as to how the deceased administer force to his person, and how he resort to what he did by self defence.
45. The two versions in English cannot be interpreted as equally the same. There are two separate meanings of presuming a single act of an in coming force. As such it is apparently quite difficult to accept two accounts. However English version of jump would mean the deceased leaped into the air in order to gain distance and be closer to the accused, or intentionally jumped onto the accused careless of whatever happened.
46. There is need to understand how Solomon Islanders speak, and how they are interpreted in English. The Prosecution Counsel reiterated in submission that court must be cautious and must be mindful about how Solomon Islanders express themselves. Whilst I noted so, when a Solomon Islander said someone jumped on him, he meant someone approached him faster than usual. In this case the accused used exactly that, PW1 too used the same description when he said the accused jumped at him. It may not necessarily mean aggression. There is no actual leaping into the air upon the accused or PW1 for that matter. So when the accused said the deceased came towards him it was exactly the same as he was a bit faster in approaching than usual so he describe it as jump. Hence the accused answer to question 68 using the words "came towards him", and answer in question 71, 'that the deceased jumped on him" mean the same.
47. The question is has the prosecution proof its case? PW1's evidence is short. He saw the deceased approach the accused, and was attempting to identify the accused by moving closer when he was pushed away. Thirty seconds later he fell with a stab wound on his left chest. That was the only physical contact before the deceased fell to the ground. Apart from that the evidence of Tango and Waga has corroborated in some material fact to PW1's evidence as I have pointed out above.
48. The Defence Counsel argued that PW1's evidence was tainted because of a number of reasons. One, that the witness could not see the incident properly because he was impaired by the level of intoxication. Secondly that the witness did not clearly see the incident because it was dark. Thirdly the witness did not clearly see the incident properly because the deceased had his back on him.
49. There was no dispute that PW1 Daudau was drunk the night of incident. There was no dispute it was dark. Daudau himself admitted in sworn evidence that it was a dark night and the only light was a distance away. He also stated in evidence that he could see the accused and the deceased and admitted he was at the back of the deceased.
50. I must say not all evidence of a witness expected to be perfect and truthful. For Daudau I tend to believe him. He admitted he was drunk but not in a state to be regarded as helpless. He admitted it was dark that he could not see properly. He admitted he could not see the knife and could not see how the accused stabbed the deceased, except a push. He admitted he is related to the deceased. He could have lied in Court that he saw the knife in possession of the accused. He could have lied in Court that he saw the accused stabbed the deceased. This evidence is crucial and very significant because they related directly to what actually happened. They are the core issues upon which this case pivoted. However, Daudau gave an account of what actually he saw and no invention of any new story. That shows he was really honest in his evidence. The number of statements he gave to Police is a normal process of criminal investigation in this country. His sworn evidence in Court is the evidence this Court must consider.
51. He further stated that there were only three of them presented at the scene of incident. It was himself, the deceased and a child of 10 years old. He denied there were four mature men met the accused and his friend that night, and were at the scene. The Defence Counsel argued that the accused version of four men corroborates with Tango's evidence when he said he heard Haibangau swore by saying, "fuckem iufala".
52. The evidence related to three mature people accompanied the accused, including PW1, on the night of incident is another significant and crucial part of this case. I said it is crucial because it forms the basis upon which the accused relied on for self defence, that he believed he was out numbered with small status compared to others. Daudau has denied this in his evidence.
53. Again the Defence Counsel argued that the accused version corroborates Tango's evidence when he saw two persons ran towards the O2 bus stop. The question is, were the two persons seen by Tango the same two persons or comrades of PW1 and the deceased. There is no evidence to identify that being true. It must be noted that the incident occurred on Friday might, and Kaovare night club which is close to white river was opened. Of course expectation that people will still move around until late night or early hours of the morning.
54. One explanation can be drawn from a logical point of view, that if it were the same two persons who accompanied the deceased and PW1, who were seen by Tango running towards O2 bus stop immediately after the incident, then in Solomon Islands they are extraordinary and unique persons. The culture in Melanesian Solomon Islands is that no one will escape a comrade who was stabbed and down on the ground. They would for sure retaliate and seeing they have the number they would certainly made a chase and had it out with them if they were caught up. The accused did not explain where the two persons escape to. However, PW1 Daudau stood firm in his evidence that there were no two other mature persons with them that might. There were only three of them including a child. In such circumstances it would be fair to belief the version of Daudau as true.
55. In submissions the accused believed that he was outnumbered and that he was four foot and eight inches tall and slight build compared to the deceased who was tall with solid build. The submission further continues to the extent to safe guard Haibangau who was drunk and was incapable of helping himself. The question is whether the belief was a honest one requiring the accused to use the knife to stab to defend himself. I must point out that any belief that accused was out numbered is totally inappropriate in this case. The same can be said that it is unbelievable that the accused's height is four feet and eight inches tall. To save guard Haibangau is another unreasonable excuse. There was no one approached and touched the body of Haibangau. I have said earlier that fear of being attacked, or if a threat of force was expected to deter the attacker, it may be difficult to convince the court that it was reasonable to use actual force, see cousins ([16]). Indeed for sure, the accused belief was not held on reasonable ground based on the reasons I pointed out above.
Inconsistencies
56. Another issue submitted by the Defence Counsel intended to taint the PW1' evidence is the inconsistence with Tango's evidence in regard to the ten (10) year old Polynesian child. PW1 said when he ran to Whiteriver Police Post to report the stabbing, he told the child to stay with the deceased when he left. Tango said in evidence that when he arrived at the seen no one was there, only the deceased lying on the ground. What would one expect of a ten (10) year old child to care for a dying person on a public road, by himself, and was dark and again it was Friday night when people move around and most will of course be under alcohol. It is only proper and expected that such a child will not remain, but find his way out of the scene. And that is exactly what happened. I find there is no inconsistency exists at all in the prosecution evidence. I belief PW1's evidence, the child had made a right decision to leave for fear of being insecured. That is perhaps the explanation PW1 attempted to advance which is acceptable and logic as the circumstances permit.
Improper conduct by Police Officers
Corroboration
59. The Defence Counsel argued that evidence of Daudau lacks corroboration. He argued the Court to direct itself according to the principles in Regina -v- Murray {[17]}, approved by the High Court of Australia in Robinson -v- The Queen {[18]} at {21}; Tully v The Queen {[19]} at pages 55–59. Unless the Court is satisfied beyond reasonable doubt that Daudau is both an honest and accurate witness in the account he has given, the court cannot find the accused guilty.
60. I have scrutinised Daudau's evidence very carefully and I have made comments that Tango and Waqa's evidence has been corroborated in some material facts to Daudau's evidence that are pertinent in this case. I am satisfied on the evidence of Daudau. And can able to conclude that self defence raised in this case cannot be accepted as reasonable in the circumstances.
Manslaughter
61. The Defence Counsel submits that the Prosecution has not proved beyond reasonable doubt the requirement of malice aforethought. Therefore manslaughter submission is an alternative to the submissions on accident and self defence.
62. Section 202 of the Penal Code defines malice aforethought as may be expressed or implied. Express malice must be established by evidence in two states of mind preceding or coexisting with the act which cause death, and may exist where the act is unpremeditated. The Prosecution rely on the second limb that is {b}, and which reads;
" 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".
63. To establish a charge of murder, the Prosecution must prove beyond reasonable doubt the element of malice aforethought. It must be proved that the accused intended to cause grievous harm or was recklessly indifferent about causing grievous harm to the deceased. If there is no malice aforethought, the appropriate charge is manslaughter.
64 Section 202 makes it very clear that expressed malice aforethought must be proved by evidence that the accused possessed the state of mind prior or existing as required by subsection {b}, at the time of the act which caused the death. There has to be evidence prior and at the time of actual act, to prove the stabbing.
65. The Defence Counsel refer to Director of Public Prosecution -v- Newbury {[20]} where the House of Lords approved the following dictum in Regina -v- Larkin Criminal Appeal R. 18 at 23:
"Where the act which a person is engaged in performing is unlawful, then if at the same time it is a dangerous act, that is, an act which is likely to injure another person, and quite inadvertently the doer of the act causes the death of that other person by that act, then he is guilty of manslaughter". (cited in Archbold) at para 19-100).
66. In addition, in the case of Church, {[21]} the Court states;
"Where the defendant does an unlawful act of such a kind as all sober and reasonable people would inevitable recognise must subject another person to, at least, the risk of some harm resulting there from, albeit not serious harm and causes death thereby, he is guilty of manslaughter."
67. This is a case where the accused had admitted stabbing the deceased, which he believed necessarily justifiable in the circumstances of the case. By causing such harm he was acted on reasonable belief that he was in immediate danger. The question is whether by his action consisted of malice aforethought. PW1, the only Prosecaution witness present at the scene of incident at the time of occurrence said, that it was dark and could not able to see how the accused stabbed the deceased. What he actually saw was the deceased approached the accused face to face and he was bending low in an attempt to identify the accused, he was then pushed away by the accused; thirty seconds after the push the deceased fell and eventually died.
68. So what are the evidence prior to, and which are coexisted at the time of the act of stabbing that killed the deceased. The evidence coexisted at the time of the incident had been quoted above. Prior evidence was stated by PW4 Anisi Waqa who said that at 9:30 pm he saw some boys drinking alcohol at a place further up from O2 bus stop at Whiteriver. The accused was among them. They were walking towards him and the accused said to the witness "tongahichi." The witness was about 1-2 meters away from the accused. At that time the witness was with another boy. It was at that moment the witness saw the accused holding a knife. He did not see the handle but he saw the blade as it was shinning. There was a light from Lae's house that reflected the knife to him. The witness said he observed the knife for a while. The knife was in his shorts. During cross examination by the court he demonstrated how the accused handle his knife.
69. The accused in his record of interview denied being in possession of any knife. The knife he used that night of the incident was possessed by the deceased. It was his knife. On seeing the knife both struggled to possess it. Eventually the knife fell off to the ground and the accused picked it up and used it to stab the deceased.
70. On the other hand PW1 Daudau said to court that when he and the deceased left his house, the deceased was not armed with any knife. Both of them left his house without any knife or weapon whatsoever.
71. It would appear that evidence of Waqa corroborates with Daudau so far as the issue of ownership of the knife is concerned. The question is why would the accused possessed such knife in his person and hang out with others drinking alcohol right through out the night until the incident. In Solomon Islands it is not unusual to carry knives around. Many have various reasons for carrying knives and weapons. Some for security reasons, others to cut their tobaccos. Whatever the reasons may be I accepted the accused stabbed the deceased with his own knife; a negative reflection of a person without any prior convictions.
72. The Defence Counsel argued that the only evidence of intention is the statement of the accused in the record of interview which he said, "I only meant to scare him," which he said does not amount to malice aforethought. It is not the case for someone to admit they have intention to kill someone. Intention does not always necessary assessed on what the accused said, but what he did prior and during the incident.
73. I must reiterate again that the accused described his actions in his record of interview in two manners. When he picked the knife up the deceased was standing in front of him. The boys behind them provoked him to grab me, so he did. That was when the accident happened. I killed him with the knife. The accused knew the deceased was unarmed and perhaps fear of being grabbed, or attempted to do so when he killed him. At that moment the accused knew that the knife had entered into the deceased body. He knew by what he did will cause the death of the deceased or grievous bodily harm to him.
74. The accused then further described what he did in his record of interview by further saying, "the moment he jumped towards me, I put the knife to him". I have already interpreted the English version of the word "jump" in Solomon Islands context. Simply it meant the deceased approached the accused a bit faster than normal. After the accused have answered question {71} above, then he was asked questioned {73} which said, "I put it to you that you mean to stab him?" He replied by saying, "I only make him to fright of me".
75. If the deceased approached the accused in a bit faster manner than usual, in accordance with the evidence of PW1, assisted by normal human reasoning, then it must as always expected be a frontal approach. No one will approach another person side ways or from the back and make it indifferent from this case. That is not the evidence here. The evidence is that the deceased approached the accused face to face. And, if at that moment the accused put the knife to him, then the wound anticipated must be right in front of his stomach or chest. However, the wound as the result of the infliction was at the left chest of the deceased. By common sense the accused could have held the knife in his right hand and swayed in a motion to the left side of the deceased where the fatal wound was identified on the left chest. That action requires a thought of the mind to accomplish it. That of course was contrary to the Defence theory that the deceased lunged forward and downward onto a stationery knife. Such theory is totally misconceived, and whatever possibility the Doctor might in his opinion agree upon is secondary, cannot possibly be true in the circumstance of this case. It's a wound the Doctor describe as through and through which any human reasoning caused by force to some severe degree. Likewise PW1's description of how the deceased approached the accused, cannot be in the term as the Defence Counsel attested.
76. The truth accompanied by reasonableness is what actually had happened in this case, and I have analytically ascribed to that above.
77. In such circumstance, can it be true to say that the accused only meant to scare him. For a normal and right minded person to think like the accused, that what he did was to scare the deceased was a total fallacy which I can not accept.
Provocation
79. The Defence Counsel submitted that in the event the Prosecution has proved malice aforethought there is a reasonable possibility the accused acted under provocation.
80. The law on provocation starts with section 204 of the Penal Code, the section states;
"Where a person by an intentional and unlawful act caused the death of another person the offence committed shall not be of murder but only manslaughter if any of the following matters of extenuation are proved on his behalf, namely:
(a) that he was deprived of the power of self control by such extreme provocation given by the person killed as is mentioned in the next succeeding section; or
(b) that he was justified in causing some harm to the other person, and that, in causing harm in excess of the harm which he was justified in causing, he acted from such terror of immediate death or grievous harm as in fact deprived him for the time being of the power of self control.
81. And section 205 of the Penal Code states;
"Where on a charge of murder there is evidence on which the Court can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self control, the question whether the provocation was enough to make a reasonable man do as he did shall be determined by the Court; and in determining that question there shall be taken into account everything both done and said according to the effect which it would have on reasonable man.
82. In furtherance Lord Goddard CJ explained the meaning of provocation in the case of Regina -v- Whitefield ([22]), in fact he confirmed the meaning given in Regina -v- Duffy ([23]) and stated;
"Provocation is some act, or serious of acts, done (or words spoken) (by the dead men to the accused) which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self– control, rendering the accused so subject to passion as to make him or her for the moment not a master of his mind"
83. The test for provocation is two fold. One, was the accused provoked into losing self-control, and secondly, would a reasonable man react to the same provocation in the same way as the accused did. See Philips v Regina ([24]).
84. The position in law in Solomon Islands is that a defence of provocation is still available to an accused person where he intend to kill or cause grievous bodily harm but his intention to do so is the result of sudden passion causing him to lose his self control by reason of provocation see section 205 and Laumea v Director of Public Prosecution (DPP) ([25]). The test for provocation is an objective one and the Solomon Islands position is stated in Laumea's case above and is quite clear.
85. So what act or series of acts, or words spoken by the deceased that cause the accused a sudden and temporary loss of self control and did what he did.
86. The Defence Counsel submitted that the deceased was drunk and swearing. The deceased said, "fuckim mummy blong iu", and "fuckim iufala". PW2 Laki Tango told Police there was an exchange of swearing. There after the deceased aggressively approached the accused and moved his body in a head-but lunging type motion towards the accused, as demonstrated by Daudau.
87. In his sworn evidence in Court, Tango did not hear the deceased swear at the accused using the above phrases. He also did not hear any exchange of swearing between the deceased and Haibangau. On cross examination Tango maintains his stand. Whilst I appreciate the decision in Regina v Orinasikwa ([26]) accepting that threatening and insulting shouts by the deceased amounted to provocation, however, it did not apply in this case. There was no swearing or challenging by the deceased.
88. Tango's evidence corroborated with Daudau, that he did not hear any swearing, even from the deceased. What Daudau saw have been stated earlier in this judgment. And I'd rather reiterate for convenient purposes that the deceased approached the accused and because he had the height he was bending low in an attempt to identify the accused. It was then he was pushed away by the accused; thirty seconds after that physical confrontation the deceased fell down and later died. The version expressed by the Defence submission that it was an aggressive approach and moving his body in a "head but" lunging type motion, cannot be accepted, as being what Daudau actually told the Court or meant. That is the accused version of things and not Daudau.
89. With that evidence, the Court is not with a lingering source of doubt in its mind, but found the evidence of Prosecution an accurate version of the events. I find the Prosecution has proved its case beyond reasonable doubt that there was no means of provocation at any time, and therefore dismiss the defence of provocation as unacceptable. .
90. Having considered the entire evidence in this case, I am satisfied beyond reasonable doubt that the Prosecution has proved its case, and that I find the accused guilty of murder. The charge of murder has only one sentence that is life imprisonment. I hereby impose life imprisonment for the accused to be served and I so do order accordingly.
The Court.
[1] (Unrep. Criminal Case No 43 of 1996)
[2] (Unrep. Criminal Appeal No. 1 of 1993) Court of Appeal.
[3] [1970] UKPC 2; (1971) 55 Cr App R 223; (1971) AC 814; (1971) 1 A11ER 107
[4] (1985 – 86) SILR 223
[5] 1924 18 CAR 160.
[6] (1963) 47 CAR 130
[7] (1996) 2 Cr App R 128
[8] (1987) 3 All ER 425
[9] (1987) 85 Cr Appl R 283.
[10] (1969) 53 Cr App R 407.
[11] (1909) 2 Cr App R 75 at page 76.
[12] (1980 – 81) SILR 27
[13] (2005) SBCA
[14] (1969) 1 WLR 1705
[15] Chisam (1963) 47 Cr. App R 130 at page 134.
[16] (1982) QB 526
[17] (1987) NSW LR 122
[18] (1999) 97 CCR 162
[19] (2006) 230 CCR 234
[20] [1976] UKHL 3; (1977) AC 500; at 506 - 507
[21] [1965] EWCA Crim 1; (1965) 49 Cr. App R 206; (1966) 1QB 59.
[22] 63 Cr App R 39.
[23] (1949) 1911 ER 932
[24] (1969) 53 Cr App Regina 132.
[25] (1985-86) SILR 58.
[26] (1999) SBHC 28
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/sb/cases/SBHC/2010/56.html