Regina v Ramo [2012] SBHC 170; HCSI-CRC 93 of 2012 (22 October 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(PALLARAS J)

(CRC NO. 93 of 2012)

REGINA

–V-

PETER RAMO

Hearing Dates: 17-19 October, 2012
Verdict Delivered: 22 October 2012

Mr Hartmann & Ms S. Ngava for the Prosecution
Wayne Kituru Ghemu & Ms Spence for the Defence

VERDICT – Peter RAMO
PALLARAS J:

Information:

[1] An amended Information alleged one count of attempted murder contrary to Section 215(a) of the Penal Code. Peter Ramo (the accused") was accused of attempting to murder Moses Selwyn TUTU ("the victim") at Saono Village, Guadalcanal Province, on the 21st August, 2011.

Agreed Facts:

[2] It was agreed between the parties that at about 7 am on 21st August, 2011, the victim was sitting at a table inside a house owned by Gideon Guramo senior ("PW4"), playing cards with Francis Allen Gideon ("PW3") and with Gideon Guramo junior ("PW2). The accused who lived behind this house came into the room. In his hand he held a long bush knife which he used to attack the victim.

[3] The accused first struck the chair that the victim was sitting on and then inflicted injuries on the left back shoulder, left forearm and left hand of the victim. The victimm escaped through a window and fled from the house and was later to be treated at hospital.

[4] The laceration to the victim's shoulder measured 8 cm and the laceration on the dorsal aspect of the left forearm measured 12 cm. there was also a laceration of the palmar aspect of the victim's left hand exposing the 5th metacarpo-phalangical joint with bone fragments being visible. There were some minor abrasions on the victim's face. The victim was treated with suturing, pressure dressings and intravenous antibiotics.

[5] As can be seen from the agreed facts, the only issue between the parties was the intention of the accused when he inflicted those injuries. On the Crown's case the accused intended to kill the victim. On the Defence case, whatever was the accused's intention, it was not to kill.

The Defence Case:

[6] Because of these circumstances, I choose to start with the Defence case first. I am of course aware that the Prosecution bears the sole onus of proof and that the standard of proof that must be reached is beyond reasonable doubt. The accused bears no onus of proving innocence, nor any onus to prove anything else.

[7] The Defence case consisted of calling the accused to testify. No other evidence was presented. Having decided to testify, the evidence of the accused falls to be assessed with all of the other evidence in the case against the touchstones of credibility and reliability.

[8] Having heard and seen the accused testify, I find that he was a witness who was almost totally incredible. He was a witness who was obviously intelligent and well educated but one who steadfastly refused to give responsive answers to questions unless pressed for them numerous times.

[9] His claim that the knife belonged to the victim bordered on delusional in the face of overwhelming evidence that the knife used belonged to Jonathan Misi (PW6) the owner of the house that he, the accused, lived in.

[10] His claim that the first time he saw the knife was when he entered the house where the victim was sitting was equally farfetched in the face of the evidence of ownership and the evidence from Dorothy Misiona (PW5), a young girl who lived in the same house as the accused and who had seen him earlier that morning, sharpening the same knife.

[11] In the face of evidence from the victim and at least three of the Crown witnesses that the accused deliberately swung the knife at the victim and struck him several times, the accused's claim that these incidents were accidental caused me to have serious doubts about his rationality.

[12] His claim that he picked up the knife only so that the people in the house couldn't use it against him is another aspect of his evidence that I reject in the face of the evidence that he had the knife before he entered, that the young and much smaller people in the room could represent no physical threat to the accused who is a strongly built man and having "secured" the knife there was no compulsion for him to use it on the victim.

[13] His evidence concerning his intention was consistently that he did not intend to kill the victim, merely to frighten him away and to get him out of the village. His motive for wanting the victim to leave was never adequately revealed in the prosecution evidence nor in the accused's testimony. However, he maintained that his actions were solely directed at getting the victim out of the village and that once the victim had fled, he did not chase him as he had achieved his purpose.

[14] He also said, as was obvious through observation, that he could have killed the accused with his bare hands had he wanted to achieve that end.

The Crown Case:

[15] Crown witnesses described how the accused entered the room carrying the knife. He approached the victim from behind and then swung the knife into the chair that the victim was sitting on. The next strike was to the left shoulder of the victim who got up and sought to make his escape through a window. As he was doing that he was cut on the left hand and arm by the accused.

[16] On the victim's version, he saw the accused swinging the knife at him as he was escaping through the window and putting his arm back to protect himself, was struck and cut on the hand and arm.

[17] On the accused's version, as the victim was escaping from the window the accused pointed the knife at him and the victim then swung his arm back on to the blade causing the injuries. To this extent, the accused claimed that the injuries were inflicted accidentally.

[18] I have no hesitation in accepting the account of the victim and rejecting the account given by the accused on this point.

[19] As I have already outlined, I have difficulty in accepting as truthful, anything that the accused said in his testimony. This is partly with the exception of his evidence in relation to his lack of murderous intent. However, even if I were to reject the accused's evidence in toto, that would not avail the Crown. I would have to be satisfied on the Crown's case that an intention to kill had been proven beyond reasonable doubt.

[20] At the end of the Crown's evidence, the Defence made an application of no case to answer on the basis that the evidence could not support a finding of the necessary intent. I dismissed the application on the basis that the Crown's evidence, taken at its highest, was capable of supporting a finding of the necessary intent.

[21] The evidence which was relevant to this issue included the following –

• Evidence from three witnesses that they had heard the accused say words to the effect of "Don't you know me? I'm the murder man."
• The nature of the weapon – a sharp, 26" long bush knife.
• Evidence that the accused had been sharpening the knife prior to the attack.
• The number of blows inflicted on the victim.
  

[22] In my view that evidence taken at its highest, was capable of supporting an inference that at the time of the attack, the accused intended to kill the victim.

[23] However, the test now is different. I have to be satisfied that when taking all of the evidence into account, the Crown has established not whether the evidence is capable of supporting the finding of the necessary intent to kill but rather that it does establish such an Intent beyond a reasonable doubt.

[24] In drawing any adverse inference against the accused – such as inferring from the evidence an intent to kill – I have to be satisfied beyond reasonable doubt that it is the only reasonable inference open on the evidence.

[25] In this regard I find the following features of the evidence instructive.

• Evidence that on approaching the victim from behind, the accused chose to strike the chair.
  
• Evidence that the second strike was to the shoulder and involved a comparatively minor injury.
  
• Evidence that at one stage, the accused had the victim by the head with his knife to the victim's throat and did not cut his throat.
  
• Evidence that the accused did not pursue the victim when he fled the house.
  
• The comparative size and physical capacity of the accused and the victim.
  
• The unsatisfactory nature of those aspects of the Crown evidence relating to the words alleged to have been spoken by the accused that he was "the murder man".
  

[26] In my judgment, the evidence that I referred to in finding a case to answer is also capable of supporting inferences other than an intention to kill. The nature of the knife, the fact that it was sharpened and the three blows inflicted on the victim, are also capable of supporting the defence proposition that they are consistent with an intention to cause serious bodily injury.

[27] However, the fact that the accused had several clear opportunities to inflict far more serious injuries and, in fact, to kill the victim when he was totally unprotected and helpless but refrained, his capacity to physically overpower the much smaller victim, and the evidence that he simply walked after the victim and did not run to pursue him is in my view evidence that assists me in finding that the Crown have not proved this aspect of their case beyond reasonable doubt.

[28] I do have a reasonable doubt that the accused's intention was to kill the victim and as a result he is acquitted of the charge of attempted murder.

Alternative Verdicts:

[29] The issue of alternative verdicts have been the subject of submissions by counsel and the parties agree that other verdicts are open on the evidence. I have been referred to the provisions of the Criminal Procedure Code sections 159 and 251.

[30] Section 159(2) provides as follows –

"When a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence although he was not charged with it."

[31] The Defence urge me to find that the lesser offence can only be that of unlawful wounding contrary to section 226 of the Penal Code. The Crown on the other hand submits that an appropriate alternative is that of intentionally causing grievous harm contrary to section 224 of the Criminal Code.

[32] This issue is to be determined by the nature of the injuries and for this, I must go to the medical evidence. A "grievous" injury includes a serious external or internal injury. The medical evidence in this trial consisted of the reduction of the report of Dr Peter Roy Nukuro who sets out the injuries that I have described above into the Agreed Facts. In relation to those injuries, the parties have agreed as follows in Exhibit P1, the Agreed Facts, that –

"It is agreed that, per the medical report, those injuries are consistent with harm which amounts to seriously injuring health."

[33] In my judgment, the evidence and common sense establishes beyond reasonable doubt that these injuries are grievous and that the appropriate alternative verdict is that of the charge of intentionally causing grievous bodily harm contrary to section 224 of the Criminal Code.

[34] The accused is convicted of intentionally causing grievous harm contrary to section 224 of the Criminal Code.

THE COURT