Regina v Kiriau [2012] SBHC 67; HCSI-CRC 153 of 2010 (26 April 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 153 of 2010

REGINA

-V-

ISAAC KIRIAU AND HENRY GWAO

HEARING: 5, 16 - 20, 23 – 25 April 2012
RULING: 26 April 2012 (submission no case to answer)

R. Iomea for the Crown
S. Valenitabua for the first Defendant;
H. Fugui for the second Defendant.

Palmer CJ.

1. Both defendants, Isaac Kiriau and Henry Gwao (hereinafter referred to as "the first and second defendants" respectively) have been charged with the offence of murder contrary to section 200 of the Penal Code, that they with malice aforethought caused the death of Edmond Pairangi ("the deceased").
   
2. At close of prosecution case, a submission of no case has been made by counsels for the defendants pursuant to section 269(1) of the Criminal Procedure Code ("CPC").
   
3. The test on a submission of no case to answer has been succinctly set out by the Court of Appeal in Regina v. Tome^[1] and Regina v. Somae^[2], in which the Court stated that: "...in order to establish a case to answer there must be some evidence capable of establishing, whether directly or inferentially, every element of the offence charged beyond reasonable doubt." In other words, there must be cogent evidence capable of inferring a conviction beyond reasonable doubt.
   

The argument by the defence.

4. The submission of defence can be summarised as follows.
   
   1. That there is no evidence or insufficient evidence to show that the defendants committed any unlawful act.
      
   2. That there is no evidence or insufficient evidence to show that the defendants had the necessary mens rea, whether intention or knowledge, to cause grievous bodily harm and from which the deceased died from.
      
   3. That there is no evidence or insufficient evidence to show that the defendants caused the death of the deceased.
      

Is there evidence of an unlawful act?

5. The evidence adduced showed that there was a fight which occurred around midnight on the road leading to Bokonavera 2 not far from the Bokonavera 1 and 2 junction, beside a culvert. This fight occurred as a result of words exchanged between two groups of people around that place at that time.
   
6. The group of the deceased were standing next to and immediately above the culvert along the Bokonavera 2 road. At the side of that culvert is a big rain tree which overhangs that spot. This tree provides a natural shade over that place as well. There were five of them in that group.
   
7. The other group which attacked the group at the culvert were passing by opposite the junction and consisted of four people, including the two defendants. The other two who were supposedly part of the group, provided critical evidence of identification of the two defendants as the attackers.
   
8. The first ("Junior James") of those two however turned adverse during examination in chief, denying that anything happened that night. This necessitated an application for leave to have him cross examined, which was granted. He was accordingly cross examined about his prior statement to police.
   
9. He admitted giving a prior statement to police and agreed when asked that it contained a true account of what happened that night. When asked to explain his earlier response denying that anything happened he pointed out that he had forgotten what was in his statement.
   
10. His evidence in cross examination by Mr. Iomea was to confirm as correct what he had told police in his statement. Out of those two witnesses, his evidence was that he saw three people being pushed into the culvert by the first defendant. These would have been Henry Huita, John Naku and the deceased.
    
11. When cross examined by Mr. Valenitabua however, he changed his version and denied the accuracy of what he told police. When asked if what he told police was what he saw or heard, he responded that he told police what he heard and denied seeing anything because it was dark.
    
12. I find him to be uncooperative, evasive and an unreliable witness. He contradicted himself throughout the trial. He is not a witness of integrity and it would not be safe to rely on his evidence. While he was present at the scene of the crime he was simply not prepared to speak the truth in court of what he saw and changed his version to suit whatever purpose he had in mind.
    
13. The second witness ("Junior Ririko") provided consistent evidence throughout of seeing the two defendants attacking the group of men at the culvert. He confirmed seeing the first defendant hitting two people at the side of the culvert who fell into the culvert. Those two who fell into the culvert would have been Henry Huita ("Henry") and John Naku ("John") in that order. This is not disputed. In his evidence Henry confirmed that John fell onto him before both getting up and walking away in opposite directions.
    
14. Junior Ririko also told the court that he saw the first defendant hitting the third man at the side of the culvert who fell onto the road. This is different to what Junior James had told the court, that he saw the first defendant pushing three people into the culvert, which would have meant that the third man, the deceased, also fell into the culvert at about the same time as the other two. This however is inconsistent with the evidence adduced from other witnesses, including Junior Ririko's evidence.
    
15. The third witness who gave evidence of the attack on the deceased was Watson Lamae ("Watson"). In his evidence in chief he told the court that the same man that hit the other two also hit the deceased who fell into the culvert. During cross examination he initially said that the deceased fell into the culvert but with further probing from Mr. Valenitabua he conceded that he did not see how he fell, whether he fell into the drain or onto the road.
    
16. It would seem that his evidence was that when the deceased was punched, he saw him falling out and so assumed he fell into the drain. He could not be sure however if he fell into the culvert or on the road. In re-examination, when asked if he saw him falling towards the road or the side he told the court he saw him falling towards the side of the culvert.
    
17. The fourth man who gave evidence on the attack on the deceased was Melchio Pworipwori ("Melchio"). His evidence is significant for it would seem that out of the five who were standing at the culvert, he was the only one who was sober; he told the court he was not drunk at that time.
    
18. When he saw the group of four persons approaching them he moved to a clearing. He then saw two of them rushing towards them. He confirmed seeing Henry and John being pushed into the culvert and Watson falling down after he had been kicked.
    
19. His version regarding what happened to the deceased is slightly different but with more detail. He also saw the same person who attacked Henry and John attacking the deceased and saw them fighting and struggling with each other. He told the court he saw them struggling on the ground. He was then attacked himself by the other man. He told the court that he avoided his punch but lost his balance and fell down. By the time he got up, he saw that other man walking towards where the two were fighting on the ground. He left the scene immediately after that with John who had walked back up the road from the culvert.
    
20. The next crucial evidence is that of those who attended the scene of the crime immediately after the fight, including that of Jeffrey Araitoea ("Jeffrey"). This witness told the court that he found the deceased lying in a pool of water at the bottom of the culvert with his face partially covered by water. He told the court that when he carried him out he noticed water and bubbles or froth coming out of his mouth. When he pressed him to resuscitate him he again noticed dirty water and bubbles coming out of his mouth. They were able to revive the deceased and rang the police who helped to transport him and Watson with another relative to the hospital.
    

Assessment of the evidence.

21. I am satisfied there is evidence of an unlawful act in the circumstances of this case which can be gleaned from the evidence adduced. That consisted of an attack on the deceased by the first defendant. He was last seen struggling with the deceased on the ground.
    
22. The second defendant is linked to the attack as a party to the commission of the offence under section 21 of the Penal Code. He was last seen going in the direction of the deceased and the first defendant.
    
23. While there is no direction evidence about what happened between that struggle and the deceased being found in the culvert by Jeffrey, I am satisfied there is sufficient circumstantial evidence which seemed to point to no one else being responsible other than those two.
    

Evidence of mens rea of malice aforethought.

24. Malice aforethought a necessary ingredient in the offence of murder can be established in one of two ways:
    
    • - where there is evidence of an intention inter alia to cause grievous bodily harm, or
      
    • - where there is evidence of knowledge that the act which caused death inter alia will probably cause grievous bodily harm.
      
25. I have had the opportunity to assess the evidence adduced from Dr. Maraka regarding the possible cause of death of the deceased, being "aspiration of soil and secretions into the airways". During cross examination it was put to the learned Doctor if the injection of tetanus could also possibly cause the secretions that he saw in the airways of the deceased. While this was not ruled out as being possible, in re-examination he maintained his view that he did not consider the effect of medicine as a probable cause of death to warrant being included in his report. He reiterated that he had expressed an opinion on the cause of death because he had been convinced about his findings.
    

Conclusion.

26. I am satisfied there is evidence which showed that the cause of death was directly related to the events at the Bokonavera Road 2 and that the presence of soil particles in the airways of the deceased could not have come any other way than from the pool of water in the culvert, which was one of, if not, the major contributory factor in the cause of death.
    
27. The evidence of Jeffrey which appears not to have been mentioned in submissions did mention dirty water and bubbles coming from the mouth of the deceased when he was being resuscitated.
    
28. I am satisfied there is cogent evidence of the offence of murder in the circumstances of this case and that there is a case to answer.
    

Orders of the Court:

Dismiss submission of no case to answer.

The Court.

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^[1] [2004] SBCA 13; CA-CRC 4 of 2004 per Lord Slynn of Hadley (President) and Goldsbrough and Williams JJA at page 3;
^[2] [2005] SBCA 18, [2005] 2 LRC 431, per Lord Slynn of Hadley (President) and Adams and Kabui JJA at page 5.