Regina v Maitaki [2013] SBHC 12; HCSI-CRC 176 of 2011 (28 February 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(PALLARAS J)

CRC No. 176 of 2011

REGINA

v

MAITAKI

Hearing Dates: 25 - 27 February 2013
Verdict Delivered: 28 February 2013

Coram: Pallaras, J.
Crown: Mr. Talasasa & Ms. Suif'asia
Defence : Mr. Ghemu & Mr. Fugui

Verdict:
(Pallaras J)

1. The accused was charged that on a date unknown between 13th January 2011 and 18th January 2011 he murdered Francis Muna ("the deceased").
   
2. The deceased was born on 12 March 2010 and at the time of his death, was a little over 10 months old. The mother of the deceased was Ms Grace Constantine Lulu who gave evidence for the Crown in the trial. The accused and Ms Lulu lived together with the child in a house belonging to the father of the accused. The accused was not the father of the deceased.
   
3. The deceased was found in a grave located at Gogona Village on Bellona Island on 22 January 2011.
   
4. An autopsy was conducted on the body of the deceased by Doctor Roy Roger Maraka who also testified in this trial. In his autopsy report dated 26th January 2010, he stated that he found the cause of death to be multiple blunt traumas to the body of the deceased.
   
5. His report details 19 separate sites of injury with significant bruising all over the child's body including the face, head, torso, arms and legs. The left arm was broken in three places both above and below the elbow. The right arm was broken above the wrist. The right leg was broken in two places above the ankle. The left shoulder was dislocated.
   
6. In the doctor's opinion, this number and severity of injuries could not have been caused by a single event such as a fall. The significance of this finding was that it was common ground that sometime shortly before he died, the deceased had fallen from the doorway of the house to the ground below. Various estimates were given as to the height of the drop from the house ranging from between 4 - 6 feet (as demonstrated by the mother of the deceased and also by an investigating police officer who attended the scene), to a suggested 10 feet as demonstrated by the accused in the witness box (he later reduced this estimate to what appeared to be approximately 7 – 8 feet).
   
7. Photographs of the house tendered by the Crown clearly show that the estimate of 4 – 6 feet is a far more realistic estimate.
   
8. Ms Grace Lulu described how, on a Thursday night, the same day that the child had fallen from the house, the accused had been enraged by the thought that she had been having an affair with his father. She said that she told the accused that the accusation was not true but that the accused was very angry and did not accept her assurances.
   
9. The following morning (Friday) the accused was still very angry with Ms Lulu and forcefully pushed his wife around the house and banged on the door. The baby awoke and started crying. He pushed her down and began to beat her all over her body with a stick that he had in the house. He then picked up the baby and threw him to Ms Lulu, who due to her injuries, was unable to catch the child who fell to the floor.
10. The accused then struck the child in the mouth with the stick. He then picked up the child by holding his left hand and then proceeded to whip him all over his body with the stick in front of the child's mother. He then left the child on the floor and left the house.
    
11. Ms Lulu says that she was in such a state that despite wanting to get help for her child, she couldn't move due to the injuries that had been inflicted on her by the accused.
    
12. Later, she did try to get away from the house to get help but the accused saw her, grabbed her by the hair and pulled her back towards the house where he took her to a point behind the house. At this stage she was still struggling against the accused who then hit her and kicked her.
    
13. He left her crying on the ground and went to the kitchen area from where he obtained some sticks. He returned to Ms Lulu and beat her severely with the stick.
    
14. Ms Lulu was bleeding from the injuries inflicted but was unable to say anything. He, on the other hand, was insisting that she tell the truth about his father. He made threats to kill both her and his father.
    
15. He then took her to an area of the property where a cement sink was located. He took off the woman's shirt, pulled her into the cement sink and turned on the tap.
    
16. The accused then went back to the house to fetch the child who was still crying. He returned with the child and said to Ms Lulu "the child that you are sorry for is here – that is why you are not sorry for me".
    
17. He then threw the child at Ms Lulu who was still in the sink and again she was unable to catch him. In her words when the child was thrown into the sink, he "drank the dirty water".
    
18. The accused then grabbed the child and held him up while he beat him on his back. He then threw him onto the ground and dragged him along the ground for some distance before finally putting the crying child back in the house.
    
19. He returned and again spoke about the allegations concerning his father. He then carried Ms Lulu to a chair, put her in it and then after setting up a hammock, went to sleep.
    
20. Later because her hands and feet were by now swollen from the beatings, Ms Lulu was lifted out of a chair by the accused and placed on a mat on the ground.
    
21. On that Friday night the child was still alive. For the next two days (Saturday and Sunday), the child's mother could not move herself being in such pain. She says that the accused would not allow her to hold the child and would not allow her to try to tend to the child.
    
22. During the Saturday and Sunday the child was left alone. He slept a little but would not eat the food that the accused offered him. The child spent those two days crying and struggling without moving much at all.
    
23. On Monday, Ms Lulu discovered that her child had died. She was told this by the accused.
    
24. The accused buried the child in a grave next to the house. He did not inform the relatives living nearby and did not permit Ms Lulu to do so.
    
25. When questioned by the police about these events, Ms Lulu told them that the baby had fallen from the house. She did not mention the beatings on her or on her son. In a subsequent statement, she gave a description broadly consistent with her testimony.
    
26. When cross examined about this discrepancy, her explanation was that she was so frightened of the accused that she dare not incriminate him. She also said that he had told her not to tell on him, to wait for him and that he would marry her.
27. In cross examination she also said that after the baby had fallen from the house she only saw a slight scratch and swelling on the child's head and that there were no other injuries evident. She said that the scratch was on him prior to the fall. The child slept that night without incident.
    
28. It was put to the mother that it was she who injured the child after he had fallen. This suggestion was denied. She also denied saying that she wanted to throw the baby away.
    
29. The case for the accused was essentially that although he admitted beating Ms Lulu, he denied ever having assaulted or mistreating the child. He said that the deceased had fallen from a height of about ten feet and that he had placed rocks of varying weight on the body when he buried him. These were possible explanations for the existence of so many injuries. He did not repeat the allegation put in cross examination that it was the deceased's mother who inflicted injuries on him after he had fallen.
    
30. He said that the disagreement he had with Ms Lulu had nothing to do with his father. That was never an issue. He said that he chastised her because she was a careless and ignorant mother who had allowed the child to fall. He said that she refused to accept this rebuke so he picked up the stick and beat her with it. He did not ever strike the child.
    
31. He said that it was Ms Lulu who stopped him from informing the relatives of the death because they did not approve of his relationship with her and that she would be chased out of her uncle's house if they were told.
    
32. In this regard, when the uncle was called to testify, he said that he and everyone in the family were quite happy that Ms Lulu and the accused were together in a relationship and that he had never chased her out of his house.
    
33. The Crown called a number of other civilians who ultimately did not take the case much further except to support Ms Lulu's evidence that she was beaten and unable to move in the days before the child died.
34. Witnesses testified to seeing her at the house, appearing unwell, swollen and bruised. As it turned out, the accused ultimately admitted beating this woman and if he disagreed with anything, it was only the extent to which he had beaten her and the extent of her disability as a result.
    
35. Of significance was the evidence of Josephine Angiki (PW7). She was a registered nurse who would see the deceased when he was brought into her clinic by his mother. Her records indicated that the child was a healthy baby who was only ever brought to the clinic for his inoculations.
    
36. It can be seen from this brief outline of the evidence, that the issues are to be determined by an assessment of the credibility of the witnesses. This is not to say that I am to choose which version I prefer for that would place a burden on the accused which he does not bear. It is not for the accused to satisfy me that his version is the truth. He does not have to satisfy me of anything at all. But having chosen to give sworn evidence, he falls to be judged against the touchstones of credibility and reliability as with any other witness.
    
37. In this case, as in all criminal trials in this country, the onus is solely on the Crown to prove its case beyond a reasonable doubt. There is no onus on the defence to prove anything and in particular, it does not have to prove its version of events.
    
38. Unless the Crown satisfies me that its witnesses are reliable and credible and that the effect of their testimony is to prove the case as alleged beyond reasonable doubt, then the case fails and the accused must be acquitted.
    
39. Together with this onus of proving its case, the Crown also carries the task of proving the case to the criminal standard of beyond reasonable doubt. If at the end of the evidence a reasonable doubt remains as to the guilt of the accused, then he is to be given the benefit of that doubt and is to be acquitted. This is not as the result of any generosity but because it is his legal right.
    
40. In reaching my verdict in this case, I have made a number of findings of fact which I list below.
    
    • (i) the deceased died on an unknown date between 13th January 2011 and 18th January 2011;
      
    • (ii) death was not caused by the deceased falling from the house to the ground below;
      
    • (iii) the injuries found on the deceased were not caused as a result of the deceased falling from the house to the ground below;
      
    • (iv) the injuries found on the deceased were not caused by the accused placing rocks over the body after he buried the deceased;
      
    • (v) the injuries found on the deceased were the result of multiple blunt traumas being inflicted upon him;
      
    • (vi) the multiple blunt trauma injuries inflicted upon the deceased were the cause of his death;
      
    • (vii) those multiple blunt trauma injuries were inflicted upon the deceased by the accused lifting and holding the deceased by one arm, beating the deceased with a stick and with his hands, by throwing the child onto the floor, by throwing the child into the sink and by dragging the child along the ground. I reject the evidence of the accused as untruthful and conniving. I accept the evidence of the mother of the deceased as credible and reliable.
      
41. I find therefore that the actions of the accused caused the death of the deceased and that the accused killed the deceased. It has not been put to me that if the accused beat the deceased that there is insufficient evidence of an intention to kill. Such an argument would have been untenable in this case and I have no difficulty whatsoever in finding that the Crown have proven beyond reasonable doubt that the accused had an intention to kill the deceased.
    
42. This is a killing of an innocent and thoroughly helpless 10 months old child. It was accompanied by a sadistic cruelty and violence that I have rarely seen before. Not only did the accused viciously beat the mother in front of the child, he then viciously beat the child in front of the mother. This is a brutality of such appalling viciousness that it is difficult for normal people to comprehend.
    
43. Why this individual descended to such levels of savagery may never be understood and if understood should never be forgiven. It is an appalling crime which plumbs the depths of individual human behaviour to new nadirs.
    
44. The accused will be convicted of one count of murder as charged.
    

THE COURT