Regina v Malefo [2012] SBHC 113; HCSI-CRC 330 OF 2011 (7 September 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(PALLARAS J)

CRC No. 330 of 2011

REGINA

-V-

MALEFO

Dates of Hearing: 4-5 September 2012
Date of Verdict: 7 September, 2012

DPP and Ms M. Suifa'asia for the Prosecution
Mr Ghemu and Ms McSpedden for the Defence

VERDICT
Pallaras J:

Introduction:

[1] On the morning of 2nd May, 2011, Louisa LUCY ("the victim") fell from a bridge at Tenaru One Bridge in east Guadalcanal.

[2] On the Crown's case she was pushed from the bridge by her husband, Alosio Fanataloa MALEFO ("the accused").

[3] On the defence case her fall was an accident in that in trying to avoid being assaulted by the accused, she stepped backwards and in doing so fell from the bridge.

[4] The area of dispute in the case is therefore very confined. Her fall was either as a direct result of being pushed by the accused or it was as a result of her attempts to avoid being struck by the accused.

The Crown Case:

[5] The first witness called by the Crown was the victim. She testified that she was 31 years of age, was the wife of the accused and that she had two children who were 4 and 2 years of age.

[6] On the morning of 2nd May 2011, she was in Tenaru preparing to harvest cocoa with her sisters. She had arrived the night before and had left the accused with the children in their family home. Her sisters had left the house before her and when she left the house she saw her husband on the roadway. She walked towards him and said "good morning" to him. At the time she was walking with a woman named Trina.

[7] Her family members and friends were sitting on the bridge a little further down the road waiting for her to arrive.

[8] When she greeted the accused he said to her "you will feel it today" as he walked away from her and in the direction of the bridge. She was then walking behind him but in the same direction.

[9] When she got to the bridge and to the point where the others including the accused were sitting, the accused approached her, took out a can of beer and after opening it told her to drink the beer. The victim refused the beer at which point she says that the accused slapped her on the back of her head and then described how he then grabbed her and threw her from the bridge.

[10] She landed on some pieces of iron which are said to be relics from World War 2 and suffered severe injuries, particularly to her legs. One of her "brothers" Garnet MAORI (PW4) ran from the bridge to help the victim. Ultimately he carried her home from where she was conveyed to hospital.

[11] She said that just before she was thrown off the bridge by the accused he said to her "today is your day".

[12] She testified that the state of their marriage at that time was not good and that although there had been violence and she had run away from the accused previously, she had forgiven him and had returned home.

[13] She said that she was unable to return home after harvesting cocoa on the Sunday night because the money she had earned had been taken from her by "Michael" who was upset with the accused who had apparently taken Michael's torch. The victim said that as a result of this she had no money for the bus fare home and so stayed the night with a view to doing some more harvesting before returning home. She said that her husband's appearance at the bridge was a surprise to her because she had left him with the children at their home in Burn's Creek.

Cross examination

[14] Under cross examination it was put to her that the reason that she didn't return home was that she had been drinking with the others and was drunk. She denied this allegation.

[15] It was put that it was while she was drunk that Michael approached her for the money for his torch and took $80 from her. While accepting that Michael took the money she denied being drunk. (I note here that "Michael" was not called as a witness in the trial.)

[16] She agreed that Mary (PW2) and Garnett (PW4) and others were at the bridge before her and that Mary called out for her to hurry.

[17] It was put that when she arrived, the accused said that she was only there to drink beer and that she had forgotten her children. The victim denied that the accused said these words and this version was not corroborated by any other evidence in the trial.

[18] It was put that after the accused said that, he slapped the victim, that she "bent backwards", a slap contacted her on her hip and that in attempting to avoid further slaps she fell off the bridge. The victim denied that this version of events was true.

[19] When it was put that the accused tried to stop her falling but was too late, the victim replied "No, it's not like that."

[20] It was put that the accused did not say "this is your day" and did not offer her beer.

[21] The victim said that when the accused pushed her she fell in a way that caused her to face the river as she was falling.

[22] As can be seen from this summary of the victim's evidence in chief and her cross examination, the only vital live issue was whether the victim was pushed or fell from the bridge. In my discussion of the evidence of the remaining Crown witnesses I will therefore limit myself to summarising their evidence on this point. This by no means is meant to indicate that I have not considered all of the evidence that they have given in the case on this and other issues.

PW2

[23] The second Crown witness was Mary TABALA (PW2). She was in the house with the victim preparing to go harvesting with her. She left the house before the victim and waited for her on the bridge.

[24] She saw the accused approach the victim as she came onto the bridge, saw him take out a can of beer and offer it to the victim while saying "here have a drink". When the victim refused she saw the accused grab hold of her and then saw him push her off the bridge. The accused then walked off the bridge and ran away.

Cross examination

[25] In cross examination she said that she was about 4 metres from the victim at the time the victim was pushed from the bridge, that she was in a position to see everything that happened, that she heard the accused ask the victim to drink from the can and that the accused held and then pushed the victim off the bridge. It was put that she herself had said to the accused that the victim had got drunk on the previous night. PW2 denied that she said any such thing.

PW3

[26] The third Crown witness was Riko TEINAKI. He was on the bridge when the victim approached and he saw the accused walk towards her and hold out a can of beer. She refused to accept the beer. He said that the accused wanted her to drink and began to push her. He then said (and demonstrated by swinging his arms) that the accused then swung the victim off the bridge. The accused then ran away.

Cross examination

[27] When it was twice put to him that he did not see the accused push the victim off the bridge his responses were "I saw him push her" and "I saw it".

PW4

[28] The fourth Crown witness was Garnet MAORI (PW4). He testified that as he was walking towards the plantation where he had planned to harvest cocoa, he met the accused. He was asked why the victim had not returned the previous evening and PW4 told the accused that someone had taken her money and that she had no money for a bus fare home. They then walked to the bridge and sat down together with Mary (PW2) and Riko (PW3).

[29] He saw the victim approach and then saw the accused get up and walk towards her. He saw the accused take out a can of beer saying as he did so "here is your beer" to the victim. He then saw the two of them struggling during which the accused grabbed the victim and pushed her off the bridge. He became frightened after seeing those events and after seeing the accused pull out a bush knife. He said "easy, easy" to the accused who then ran off.

Cross examination

[30] It was put to PW4 that from where he was positioned he could not see everything clearly. He agreed that there were moments that parts of the bodies of the accused and the victim may have been obscured from him but maintained that the actions that were happening were clear for him to see.

[31] He denied that the accused had ever tried to stop the victim from falling from the bridge, denied that she had fallen because she had stepped backwards and denied the suggestion that he had not actually seen the accused push the victim.

Other statements

[32] Several other statements, including a medical report outlining the victim's injuries, were tendered by consent and the Crown closed its case.

The Defence Case:

[33] The accused elected to give an unsworn statement.

[34] In his unsworn statement the accused said -

"The victim is my wife. I was walking, I met my wife, I slapped her and hit her hips. I was surprised, my heart fell. I deny my wife's evidence that I said 'today is your day, I'm going to kill you.' I further deny that I forced her to drink beer. I was startled, panicked, didn't know what to do. Tears were running down. I ran away."

[35] The defence called no other evidence and closed their case.

Verdict:

[36] I find the evidence in this case to be overwhelming and have no hesitation in finding that the Crown has satisfied me that it has discharged the onus upon it and proven its case beyond reasonable doubt.

[37] Given the weight of consistent evidence on the vital issue in this case, whether the victim was pushed or fell, I am satisfied beyond all doubt that the accused pushed his wife off the bridge who then fell a distance of between 6.5 – 7.7 metres to where she landed on what appears from the photographs to be the steel frame of the wreckage of a boat of a World War 2 relic.

[38] It is extraordinary and most fortunate for the victim and indeed the accused that the victim was able to survive such a terrible experience. I have no doubt that the accused's actions were accompanied by the requisite intent and that was to kill his wife. He took every step necessary to cause the death of his wife and it is a matter of great relief that he failed in his objective.

[39] I find that the evidence enables me to draw the inference of his intent to kill by a consideration of what he said to his wife, whose evidence I accept on this point and his actions on the bridge which were inherently dangerous and clearly life threatening. I find that this is the only reasonable inference open on all of the evidence.

[40] It is curious to me that he obstinately denies what many people saw him say and do in relation to the incident with the can of beer. It may be that this reflects his inability to accept what he himself did after forcing the beer upon his wife.

[41] The law in relation to attempts is fairly settled. When a person intending to commit an offence begins to put that intention into effect by some overt act but does not succeed in his purpose to commit the completed offence, he is deemed in law to have attempted to commit the offence[1].

[42] It is through nothing but good fortune that the victim in this case did not lose her life. The accused sought to put his intention, as I have found it to be, into effect by the overt act of deliberately throwing his wife from a bridge to whatever lay below.

[43] It was indeed a sad commentary on the accused, although I have not used this fact in reaching my conclusions as to his guilt, that he left his wife draped broken and crying on the relic and at no stage did he ever show any interest in whether she had survived the fall or whether he could do anything to help in obtaining medical help for her. He simply ran away.

[44] The accused is convicted of one count of attempted murder contrary to section 215 of the Penal Code (Cap.26).

THE COURT

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^[1] See the Penal Code (Cap.26) section 378.