Regina v Sukulu [2012] SBHC 108; HCSI-CRC 100 of 2009 (18 September 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(APANIAI, J)
Criminal Jurisdiction

REGINA

-v-

SONY SUKULU

Date of Hearing: 6th, 8th and 9th August 2012.
Date of Judgment: 18th September 2012.

Mr. Aulanga for the Crown.
Mr. Aupai for the accused.

RULING ON NO CASE SUBMISSION

Introduction:

1. The accused, Sony Sukulu, is charged with the murder of Andrew Bua ("deceased"). It is alleged that the accused murdered the deceased at Maoro village, Central Kwara'ae, Malaita Province, on Friday 17th October 2008. The accused was arraigned on the 6th August 2012 and pleaded not guilty to the charge.
   
2. At the close of the prosecution case, counsel for the accused made a submission of no case to answer. The question, therefore, is whether or not the accused has a case to answer.
   

The law on no case submission:

3. No case submissions are made pursuant to section 269(1) of the Criminal Procedure Code ("CPC"). Section 269(1) provides as follows:
   

"269. - (1) When the evidence of the witnesses for the prosecution has been concluded, and the statement or evidence (if any) of the accused person before the committing court has been given in evidence, the court, if it considers that there is no evidence that the accused or any of the several accuseds committed the offence, shall, after hearing, if necessary, any arguments which the public prosecutor or advocate for the prosecution or the defence may desire to submit, record a finding of not guilty."

4. In R v Tome ("Tome")[1], the Court of Appeal said that the test called for by that provision is whether or not there is 'no evidence that the accused committed the offence'. The court said at p. 3:
   

"The test called for by s 269(1) is whether or not there is 'no evidence that the accused committed the offence.' That must mean that if there is some evidence that the accused committed the offence the case must proceed to final determination by the tribunal of fact."

5. The court has likened the position as similar, if not identical, to that of Doney v The Queen ("Doney")[2] in which the court said (at p. 212) that it was the duty of a trial judge to direct the jury to return a not guilty verdict "if the evidence cannot sustain a guilty verdict, or as is commonly said, if there is no evidence upon which a jury could convict". The court concluded that if there is some evidence, (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a guilty verdict, the matter must be left to the jury for its decision.
   
6. Doney has qualified the test laid down in R v Galbraith (Galbraith)[3] which had been the leading authority in Solomon Islands on no case submissions. Tome has followed Doney. It is clear that Tome is now the authority on no case submissions in Solomon Islands.
   
7. Tome has differentiated the tests to be applied under s 269(1) on a no case submission and that which is to be applied at the end of the trial. The court has made it clear that at the no case stage, inconsistencies in evidence (whether in the testimony of a witness or as between witnesses) are not relevant and that the court must take the prosecution case at its highest when determining whether or not the accused has a case to answer. Taking the prosecution case at its highest means accepting the evidence most favourable to the prosecution. Where the evidence most favourable to the prosecution is capable of supporting a conclusion beyond reasonable doubt that the accused is guilty, there is a case to answer. The question is not whether the prosecution has proved its case beyond reasonable doubt. That is a question to be determined by the jury after trial, not at the no case stage.
   
8. In Tome, the court held that the evidence adduced at the close of the Crown case, even taken at its highest, was not capable of proving beyond reasonable doubt that it was the accused who murdered the deceased. The accused was therefore acquitted.
   
9. R v Somae ("Somae")[4] was another case in which the Court of Appeal was called upon to consider the principles applicable in a no case submission. In that case, a no case submission was made at the close of the Crown case. The judge below, having considered the evidence adduced by the Crown, held that there was no case to answer and acquitted the accused. The reason for acquitting the accused was that at the end of the prosecution case, there was evidence which showed that there was a reasonable possibility that the accused was acting in self-defence when he shot the deceased. The court held that the Crown had the burden of adducing evidence capable of establishing beyond reasonable doubt that the accused was not acting in self-defence and that the Crown had failed to discharge that burden.
   
10. The Crown appealed against the judge's decision arguing that the judge was wrong in considering the totality of the evidence adduced by the Crown at the close of its case, instead of confining himself only to those parts of the evidence that assisted the Crown.
    
11. The Court of Appeal, however, reiterated that the evidence to be considered for the purpose of a no case submission must be capable of proof beyond reasonable doubt of the accused's guilt, that is to say, the evidence must be capable, if accepted, of proving guilt beyond reasonable doubt without inappropriate speculations. In that case, it was open to speculation whether or not the accused was acting in self-defence. The Court of Appeal confirmed the judge's decision to acquit the accused.
    
12. In my view, Somae has not overruled Tome. The decisions in Tome and Somae must be understood in the context of their own peculiar facts. Somae was a case where the Crown evidence had shown that there was a possibility that the accused was acting in self-defence when he shot the deceased. In Tome, the issue of self-defence had not arisen. It was simply a case where, at the close of the Crown case, there was no evidence capable of proving beyond reasonable doubt that the accused murdered the deceased. Somae is therefore distinguishable from Tome.
    

The evidence:

13. In the present case, three witnesses were called to testify on behalf of the Crown. They were Tony Aba (PW1), Eddie Justice (PW2) and Dr. Jack Siwainao (PW3). Twelve witness statements have also been tendered into evidence by consent. These are exhibits P2 to P13. I interpolate to say that the statement marked as exhibit P1 was later withdrawn and forms no part of the consent documents or of the evidence in this case. Three other exhibits (exhibits P14 to P16) have also been tendered into evidence by consent. All these statements and exhibits as well as the testimonies of the three witnesses who testified in court form the Crown evidence at the close of the Crown's case.
    
14. The statements by Wincy Ramo (exhibits P2), Robert Hata (exhibit P4), Dunstan Ata (exhibit P5), Henson Fulu (Jr) (exhibit P6), Billy Henson (Jr) (exhibit P7) and Eddie Tumu (exhibit P8) have shown that the deceased was a drunkard and a very dangerous person who had been drinking kwaso (a dangerous home-made alcoholic drink) since the 16th October 2008. The statements show that on the 16th and 17th October 2008, the deceased was drunk and was roaming the village with a bush knife in his possession intending to assault a number of young boys in the village, including the accused.
    
15. In his statement (exhibit P2), Wincy said that on Thursday 16th October 2008, he and other boys from his village were sitting on an old wooden bridge singing when the deceased came and asked them for matches. The deceased was told that none of the boys had any matches. He became angry and tried to assault Wincy with a bush knife which he was carrying at that time. Wincy escaped injury from the deceased's knife by jumping down from the bridge.
    
16. In the evening of Friday 17th October 2008, Wincy went to Eddie Tumu's canteen where he saw the accused, Nathan Salemanu, Tony Uka and Eddie Justice listening to music in front of Eddie Tumu's canteen. At about 11pm, the deceased was seen approaching them. They all escaped. Wincy escaped to his home and did not return again that night.
    
17. Robert Hata, in his statement (exhibit P4), said that in the evening of Friday 17th October 2008, there was a party in his house and he was having some food when he saw the deceased enter the house. He saw the deceased drinking kwaso from a schweppes bottle and was drunk. He saw a bush knife tucked up in the deceased's trousers. He recognized the knife as his knife and asked the deceased where he got the knife from. He said the deceased was quite aggressive so he warned the deceased that he might cause trouble with the knife. The deceased replied telling Robert Hata not to worry and that he would take responsibility for any trouble caused in relation to the knife.
    
18. Dunstan Ata is the son of Eddie Tumu. In his statement (exhibit P5), Dunstan said that in the afternoon of the 17th October 2008 he was in his family's canteen serving customers. In the evening, Eddie and Wincey, Tony, Nathan and the accused came to the canteen and bought tobacco. Dunstan then went to get his food and by the time he returned, Wincey and his group of boys were no longer at the canteen. However, he saw the deceased talking with Eddie Tumu in front of the canteen telling Tumu that he had chased the boys away. He said he saw that the deceased had a bush knife and heard the deceased saying that he would use the knife to cut any of the boys. He said he heard his father, Tumu, telling the deceased to stay away from trouble but that the deceased was furious and did not want to listen to Tumu. He said the deceased then got down from the canteen and went away. He did not know where the deceased went.
    
19. Henson Fulu (Jr) was another person who gave a statement to the police (exhibit P6). Henson was the nephew of the deceased (the deceased being the younger brother of Henson's father). In his statement, Henson said that he used to be the deceased's drinking partner but had to stop drinking with the deceased due to the deceased's aggressive behavior when drunk. Henson then started drinking with other boys. This did not go down well with the deceased. Henson said that at about 9 or 10pm on Thursday 16th October 2008, he was with a group of boys at a bridge when the deceased approached them and asked for matches. No one gave him any matches so he got angry and ordered them out from the bridge. The deceased had a knife with him at that time and was full drunk. Henson said that it was from there that the deceased started to pursue them with the aim of fighting them. He further said that on Friday 17th October 2008, he saw the deceased still drinking kwaso and was still in possession of the bush knife. Henson's statement is consistent with that of Wincy Ramo.
    
20. Billy Henson, in his statement (exhibit P7), confirmed Henson Bulu (Jr)'s statement that the deceased had been drinking kwaso on the 16th October 2008 and that in the evening of Friday 17th October 2008 the deceased was still drunk and in possession of a bush knife. He said the deceased then left him that evening saying he was going to Maoro village.
    
21. Eddie Tumu, in his statement (exhibit P8), said that he was in his house at about 9.30pm on Friday 17th October 2008 when the deceased came up to him at his canteen and asked to light his cigarette. Tumu said that the deceased had asked him whether he knew where Henson was. Tumu said that the deceased had a bush knife and that the deceased had told him that if he saw Henson he would cut him. Tumu told the deceased not to hurt Henson as Henson was his nephew.
    
22. Tony Aba (PW1) was one of the witnesses who had testified in court. Tony is the younger brother of the accused. His evidence is that in the evening of the 17th October 2008, he was at the accused's lodge at Daudau village, which is close to Maoro village. Also in the lodge with him at that time were Sale, Eddie and the accused. They then went to Eddie Tumu's canteen to buy cigarette. On arrival at Tumu's canteen, they bought cigarette and sat at the front of the canteen listening to music. Wincy was also there.
    
23. While they were listening to the music, they saw the deceased coming towards them holding a bush knife. On seeing the deceased approaching, they all ran away. Wincy and Eddie ran to Wincy's house. Sale went and hid himself inside Tumu's canteen while he (Tony Aba) and the accused ran and hid behind Tumu's canteen. The deceased ran after Wincy and Eddie but then came back to Tumu's canteen and asked Dunstan Ata where Tony and the accused had gone to. Dunstan told him that they had gone back to their house. The deceased then left.
    
24. After the deceased left, Tony and the accused then decided to return to the accused's lodge. On the way, they met Eddie who came along with them. They came to Sonny Kwalibata's house and sat down under the house. Sonny Kwalibata's house is located close to the accused's lodge. While they were sitting under Sonny Kwalibata's house, Tony noticed someone moving around and making noise inside the lodge. Then he saw the person coming out from the lodge and walking towards a poultry house which is located near the lodge. By then the accused was on his way to the lodge.
    
25. As the deceased was walking to the poultry house, the accused, thinking that he was Wincy, called out Wincy's name. At that time, the accused was already at the side of the lodge. On hearing the accused calling Wincy, the deceased came back to the lodge and walked towards Sonny Kwalibata's house where Tony and Eddie were sitting. The accused was still standing at the side of the lodge. It appears that the deceased did not see the accused and had walked past him. The deceased then chased after Tony and Eddie who escaped to Smilie's house. The deceased still had the bush knife with him at that time.
    
26. While they were at Smiley's house, Tony heard someone making painful sounds. Tony did not recognize the voice. About 7 minutes after hearing that painful sounds, Tony heard the accused calling out his name. He came out from hiding and met the accused on the road leading to Maoro village. The accused showed him the injury on his left hand. The hand was bleeding.
    
27. The accused then told Tony that when he (Tony) and Eddie escaped from the deceased, the deceased ran after them but then saw the accused so he turned back towards the accused and a fight then occurred between the deceased and the accused. During the fight, the deceased swung the bush knife at the accused, however, the accused blocked the knife with an iron rod (that is, a galvanized pipe) and in doing so the knife slid and cut the accused's hand. The accused then whipped the deceased on his left hand which caused the knife to fall from the deceased's hand. Then the accused hit the deceased on the head with the galvanized pipe. According to Tony, the accused had hit the deceased twice only, the first on the deceased's hand, which caused the deceased to lose grip of the knife, and the second was on the deceased's head.
    
28. Tony said he knew the galvanized pipe mentioned by the accused. He said it was a galvanized pipe that they were using as a stand for cooking. Tony pointed to the microphone stand to indicate the size of the galvanized pipe and held up his two hands to indicate the length of the pipe. The distance between his two hands is about 4 feet 6 inches so the galvanized pipe must be about 4 feet 6 inches long.
    
29. After hearing the accused's story, Tony, Justice and the accused then went and asked Tumu to take the accused to hospital for medical treatment. The deceased was still lying down at the place where he fell when the accused hit him. Tumu then transported the accused to Kiluufi hospital.
    
30. Eddie Justice (PW2) had also testified in court. His evidence is that in the evening of Friday 17th October 2008, he attended a Form 3 graduation at Maoro School. After the graduation, he went with the accused to the accused's lodge. At the lodge at that time were Nathan Sukulu, Tony Aba and Wincy Ramo. About 9pm, Eddie along with Nathan Sukulu, Tony Aba, Wincy Ramo and the accused went to Eddie Tumu's canteen and sat there listening to music and smoking at the front of the canteen. As they were smoking and listening to the music, they saw the deceased coming towards them. They all ran away from the deceased.
    
31. Later, Justice, the accused and Tony Aba came back again and then decided to go to the accused's lodge. They went to the lodge but then decided to go to Sonny Senior's house fearing that the deceased might come to the lodge and argue with them. While they were going down the steps of the lodge, the accused picked up an iron bar (that is, the galvanized pipe) from the floor of the lodge and said he would teach the deceased for his bad habits.
    
32. Justice and Tony Aba went and sat under Sonny Senior's house leaving the accused at the lodge. The deceased then came to the lodge and proceeded on to the poultry house close to the lodge. It was then that the accused called Wincy's name. The deceased heard the accused calling Wincy so he returned and went straight to Justice and Tony who were sitting under Sonny Senior's house. Tony and Wincy escaped to the house belonging to the accused's parents.
    
33. About twenty minutes later the accused came to his parent's house. His hand was bleeding. He then told Justice and Tony and his parents that he fought with the deceased and that the deceased had cut his hand. He also told them that he had knocked the deceased down to the ground and that the deceased was not fit to follow them. They then went to Tumu's house to ask Tumu to transport the accused for medical treatment.
    
34. At Tumu's house, the accused repeated again that he had had a fight with the deceased and that the deceased had cut his hand. Tumu then suggested that they all go back and tell the accused's parents again about the incident. On their way to the residence of the accused's parents, they went past the deceased and saw that he was lying face down on the ground and that there was blood on his head. Tumu then drove to Kiluufi hospital with the accused and Justice.
    
35. The third witness who testified for the Crown was Dr. Jack Siwainao (PW3). In his evidence, Dr. Siwainao said that he had carried out an examination on the deceased when he was brought to Kiluufi Hospital on the 18th October 2008.
    
36. He said that when he saw the deceased on the 18th October 2008, he recognized him to be the same person who, in the morning of the previous day (that is Friday 17th October 2008), was behaving disorderly on the road when they were travelling by ambulance to Maoa clinic in response to an urgent call from that clinic. The deceased was drunk and was holding a bush knife. The deceased came over and stopped the ambulance and wanted to smash the windscreen of the ambulance with the bush knife but was prevented from doing so by other young boys who were there at that time.
    
37. Dr. Siwainao said that when the deceased was brought to the Kiluufi hospital, he noticed a wound on the deceased's head just above the left ear. He shaved the hair around the wound to see it properly. The deceased was in pain when he was examining him and he smelled of alcohol and was drunk. Dr. Siwainao said the deceased was not co-operative during the examination and was murmuring. He described the wound as starting from the frontal area and extended to the parietal area of the deceased's head. He further said that the wound was about twelve centimeters long and about one centimeter deep. Furthermore, he said the wound was located at a very critical area of the head that controls movements and sensations. He also said that there was a fracture of the frontal bone and that the wound was consistent with a direct hit on the side of the head with a blunt object with some great amount of force. He said that while in hospital the deceased's condition deteriorated and he became unconscious. He said the deceased died four days later. He examined the deceased when he died. He concluded that the deceased's death was the result of the injury to his head.
    

Analysis of the prosecution evidence:

38. It is clear from the Crown evidence that the deceased was a drunkard who had been pursuing certain young boys in the village, including the accused, and threatening to assault them with a bush knife. It is also clear that the deceased was very dangerous and aggressive. Wincy Ramo was lucky to have escaped the deceased's bush knife at a bridge on the 16th October 2008. At around mid-day on the 17th October 2008, the deceased was drunk and stopped an ambulance which was on its way to attend to an emergency call at Maoa clinic. He was about to damage the wind screen of the vehicle with his bush knife when he was restrained by others standing nearby. He was drunk at that time. In the evening Friday 17th October 2008, the day of the incident, the deceased was roaming the village with a bush knife ready to attack the young boys in the village, including the accused. He was also drunk at that time. Tumu tried to talk sense into him but without success. It was that same evening that he met his fate.
    
39. The evidence shows that he had a fight with the accused who hit him on the left front side of his head causing the injury from which he later died.
    
40. From all these evidence, it seems to me that the Crown's case, at its highest, is that there was a fight between the accused and the deceased during which the accused hit the deceased at the side of his head just above the left ear with a galvanized pipe of about 4 feet long thereby causing injury to the head of the deceased which caused the deceased's death.
    
41. However, the prosecution evidence has also shown that there is a possibility that the accused may have been defending himself when he hit the deceased on the head and caused the injury from which the deceased died. The Crown denies that this was so. Counsel for the Crown argues that the evidence showed that the first hit by the accused on the deceased's hand had already caused the knife to fall from the deceased's hand and that the accused was no longer exposed to any danger when he hit the deceased on the head. The second hit, says counsel for the Crown, was therefore an act which was intended either to kill the deceased or to cause the deceased grievous bodily harm. As such, there is evidence capable of proving beyond reasonable doubt that the accused murdered the deceased.
    
42. It seems to me that this case is similar to Somae. In Somae, the deceased was a martial arts person who was aggressive and quite dangerous. In that case, the deceased had assaulted the accused earlier. He then continued to pursue the accused with intent to further assault and harm him. The accused had escaped from the deceased but the deceased had followed the accused to the accused's house where the accused's family lived. The accused, fearing for his life and that of his family, shot the deceased. The post mortem report revealed gunshot wounds to the left wrist and the right mid-thigh and that the bullet which caused the mid-thigh wound went through the pelvis and entered the retroperitoneal space where it caused a major bleeding resulting in the deceased's death.
    
43. At the close of the prosecution case, the trial judge acquitted the accused of the charge of murder holding that there was evidence that the accused might have been acting in defence of himself and his family.
    
44. The Crown appealed against the judge's ruling but the Court of Appeal dismissed the appeal holding that in a case of murder the prosecution must also establish beyond reasonable doubt that the act of the accused was not done in self-defence. The Court of Appeal said in that appeal that there was no evidence at all either directly or inferentially capable of negativing the reasonable possibility that the respondent (accused) was acting in self-defence.
    
45. In the present case, the evidence before the court shows that the deceased was the aggressor and that the act of the accused in striking the head of the deceased may have been done in defence of himself.
    
46. The Crown has argued that the first hit had already dislodged the bush knife from the deceased's hand and that the second hit on the deceased's head was unnecessary.
    
47. However, as stated by the Privy Council in Palmer v R[5], 'if there has been an attack so that defence is reasonably necessary it will be recognized that a person defending himself cannot weigh to a nicety the actual measure of the defence action'.
    
48. I am satisfied this was what happened in the present case. The accused had found himself in a situation where it was necessary to defend himself. The deceased was drunk and was dangerous. The deceased was the first to strike at the accused. He struck the accused with a bush knife. The accused blocked the knife and in doing so the knife cut his hand. The accused hit the deceased's hand with a galvanized pipe followed by another blow to the deceased's head.
    
49. In those circumstances, I do not believe that it was possible for the accused to weigh the niceties of how he should react to the deceased's attack on him. He did as his instinct dictated in the light of the situation he was faced with at the time.
    

Verdict:

50. Accordingly, I find that there is no evidence either directly or inferentially capable of negativing the reasonable possibility that the accused was acting in self-defence when he hit the deceased's head.
    
51. I therefore rule that the accused has no case to answer and he is acquitted of the charge against him.
    
52. I order that he be discharged forthwith.
    

THE COURT

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^[1] [2004] SBCA 13, at p. 3.
^[2] [1990] HCA 51; (1990) 171 CLR 207
^[3] [1981] 1 WLR 1039.
^[4] [2005] SBHC 151.
^[5] [1971] AC 841.