R v Bolea [2013] SBHC 164; HCSI-CRC 45 of 2011 (9 July 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
PALLARAS J

Criminal Case Number 45 of 2011

R

v

Frederick BOLEA

Coram: PALLARAS J
Crown: Mr A. Aulanga
Defence: Mr S. Aupai with Mr S. Valenitabua
Hearing Dates: 1 July – 4 July 2013
Verdict Delivered: 9th July 2013

VERDICT

1. Mr Frederick Bolea ("the accused") was charged with one count of murder contrary to section 200 of the Penal Code. It is alleged that he murdered Mr Edward Tove ("the deceased") on 17th March 2010 at Haroro Village, West Big Ngella in the Central Islands Province.
   
2. The Crown's case is that following a dispute between the accused and the deceased, the two men argued and fought, with the accused striking the deceased on the head with a large wooden stick, that he pursued the fleeing deceased and that during the chase he again assaulted him by kicking him to the body and to the head.
   
3. The deceased's injuries were found to include a left extradural haematoma, a fractured skull and laceration to his brain. The pathologist found these injuries to have been consistent with the deceased suffering blunt trauma to the head and were the cause of his death. He died at Tulagi hospital on 18th March 2012.
   
4. The tendered Agreed Facts (Exhibit P5) described the issues as – (1) whether the accused caused the death of the deceased by an unlawful act and (2) whether the accused acted with malice aforethought. In fact, it ultimately emerged that the Defence case was that the accused was acting in self-defence by protecting himself against the deceased who approached him swinging an axe. He denied kicking the deceased in the head during the chase or at any other time. He was arrested on 19th March 2012 and brought to Rove Police Station where he exercised his right to remain silent during interview.
   

The Prosecution Evidence

5. Pricilla Koisali (PW1) testified that she was an eye witness to the fight between the two men. She saw the deceased approaching the kitchen hut where, to her knowledge, the accused was sitting. She followed the deceased and took up a position under a coconut tree approximately two metres from where the men began to argue. She was anticipating that there would be some trouble. Indeed, the existence of the animosity between the two men seemed to be widely known amongst the villagers.
   
6. PW1 heard the deceased say to the accused "Why are you still here? You should leave". The accused, who was sitting on a wooden bench outside the kitchen, replied that it was his house and that he was not going to leave. PW1 saw the accused get up and strike the deceased on the head with a large stick. The deceased fell to the ground as a result of being struck by the accused.
   
7. The accused then lifted the deceased to his feet and kicked him. He pushed the deceased towards a frangipani tree where he kicked him again. She saw the deceased get up and try to run away. He was moving "like a drunken man" and whilst being pursued by the accused, he fell down again behind one of the village houses. The accused picked him up from behind and pushed him towards the front of a village house where he kicked at the legs of the deceased causing him to fall face down onto the ground. The accused then kicked the deceased in the head. At this point the father of PW1 yelled out "don't kick him again, you've kicked him so hard he'll be dead".
   
8. These events occurred around 7pm - 7:30 pm and although it was a "little dark" she could clearly see what was happening as she was quite close to the men. There was also a light coming from the house outside of which the fight occurred.
   
9. On one occasion when the accused was kicking the deceased, he kicked him in the ribs only. She described the force of the kicking as "strong". She saw the accused kick the deceased in the head on one occasion only. It was in front of the village house and was "very strong".
   
10. In cross examination it was put that she could not see what happened because it was too dark, that she was four meters away not two meters, that she couldn't see the people around her and that no light was coming from the house. It was suggested that the deceased said to the accused "I already told you to leave, what are you doing?". PW1 rejected these suggestions.
    
11. It was then put that the deceased was carrying an axe when he approached the accused and that he swung the axe at the accused while he was sitting outside the house. PW1 said that she did not see the deceased with any axe during the fight although she had seen him holding an axe sometime after midday on that day.
    
12. It was then put to the witness that when the deceased fell to the ground, the accused only slapped him on the left side of his face and that when the accused later kicked the deceased, he had only kicked him on his thighs and not his head. The witness rejected these suggestions.
    
13. Nester Lelegi (PW2) testified that she was sitting outside the kitchen with the accused and her mother Matilda Bolea. The accused arrived somewhere between 6 p.m. and 7 p.m. carrying a large stick. The accused's sister Doreen Buri (PW5) arrived crying and said "these people chased Bolea out of another place." When she saw the deceased approaching, PW2 told the accused to leave Haroro village saying "you have to leave now before you have a bigger argument". She said that she was expecting an argument to occur. She saw the deceased arrive and heard the two men begin to argue. She too did not see the deceased carrying anything.
    
14. Not wishing to witness the trouble she got up and went to the rear of the kitchen building. A few minutes later she went inside the kitchen where she could again see and hear what was happening in front of the kitchen.
    
15. She said that she "heard the sound of a stick banging on somebody's body". The deceased was on the ground while the accused was still standing. She said that she moved towards the men because she was "trying to get Bolea out from Tove so that he would stop fighting" but that the accused just shrugged her off.
    
16. She saw the accused kicking the deceased from his legs to his head. She did not see them fighting with fists. When he was kicking the deceased, the accused was "aggressive and strong". He was kicking "very strongly" but the deceased still managed to get up. She then told the accused to stop fighting, to go away and not to "spoil a relative".
    
17. She said that when the accused kicked the deceased in the head, the accused's sister (PW5) tried to pull the accused away while saying "leave him alone, don't kill him – they will kill our people".
    
18. At the time he was kicked in the head, the deceased was laying on the ground face down. PW2 said to the accused "don't kill him, leave him alone". The only words that she heard the accused say during the incident were "I will kill him die". The deceased ran away and was chased by the accused. She saw nothing after the men ran off.
    
19. She said that she knew the deceased as he was from the same village and that the accused was her nephew.
    
20. In cross examination, she agreed that when the deceased arrived the tone of his voice was aggressive. When she first told the accused to leave, he agreed to do so and that he was waiting for his canoe to arrive. It was put to her that she did not make any attempt to separate the men as she had described. She rejected this suggestion. When it was suggested that the accused had only slapped the deceased's face while he was on the ground, she rejected that suggestion. It was put to her that the accused never said "yes I will murder him". She replied that the accused said these words to his sister and that she "heard them with my own ears".
    
21. Margaret Mudu (PW3) lived in the village where the incident occurred. On the day of the fight, during that evening, she was walking along a road in the village. She saw the accused chasing the deceased near "George's house". She heard the accused yell out, presumably to the deceased, "go away or I will kill you". She saw the accused kick at the deceased's back and head. She estimates that the deceased was kicked five times at his back before falling to the ground outside George's house. While the deceased lay on his back on the ground, the accused kicked him in the head and in the ribs. He kicked him many times with his right leg and the kicks were "very strong and hard". As he was kicking the deceased, the accused was very angry and said "I am going to kill you". She saw the deceased attempt to get up but he was unable to do so. George was on his verandah and called out to them to stop fighting. She said that she and others took the deceased to Christian's house where they washed him. He was vomiting blood and had blood over his face. Later he was taken to the clinic. She knew the accused as he was her cousin brother. The deceased was her relative in-law.
    
22. Cross examination consisted largely of repeating the evidence in chief of the witness and providing her with the opportunity to confirm her evidence. It was suggested that during the chase the accused only kicked at the deceased's legs, that he only kicked his legs while the deceased was on the ground, that there was only one kick to the leg after which the accused jumped over the body of the deceased and ran off. The witness rejected each of these suggestions.
    
23. George Kuvi (PW4) was at home when he was surprised by the appearance of the deceased and the accused who were fighting in front of his house. He saw the accused kick at the legs of the deceased who then fell to the ground. When the deceased was lying on the ground, the accused kicked him to the head with his right leg. It was only once but it was a "strong, hard kick". He was only 3-4 meters away and he had a good view of what was occurring. When he witnessed the kick he yelled to the accused "stop fighting or something bad will happen" and told him to leave the area. The accused, who was very angry, walked off while the deceased was still on his stomach on the ground. The deceased struggled to get up but managed to walk off. He seemed to be dizzy. In cross examination it was put to PW4 that the accused only kicked the deceased in the leg. The witness disagreed, repeating that the accused had kicked the deceased in the head. He said that he was lying face down on the ground when he was kicked in the head.
    
24. Doreen Buri (PW5) was the sister of the accused. She testified that she arrived crying outside the kitchen area of Nester's house. When Nester's mother (Matilda Bolea) asked why she was crying, she said that it was because the mother of the deceased had sworn at her brother (the accused) and she wanted to send her brother away by canoe to Maevo. She said that she saw the deceased arrive holding an axe and that he tried to cut her brother. Her brother picked up a stick and tried to defend himself. The accused hit the deceased with the stick on the shoulder/neck area. The deceased fell to the ground.
    
25. Application was then made by the prosecutor to treat the witness as unfavourable pursuant to section 102 of the Evidence Act. The defence indicated that the portion of her police statement from which she had digressed in her evidence, was evidence that the defence too wanted led. In other words, while her testimony was inconsistent with the defence case, her police statement was consistent with the defence case. Specifically, she had told the police that the accused had struck the deceased on the head with the stick and not on the shoulder/neck area as she testified in court. It was the defence case that the stick struck the accused on the head and not on the shoulder/neck area and judged that it was in their interests to have that part of PW5's statement to the police admitted.
    
26. I permitted the prosecutor to cross examine the witness while limiting the scope of the questioning. An edited extract of her police statement was tendered by consent of both parties. While the reasons for acceding to the application of the prosecutor were given during the trial, I indicate here that I regarded the witness as totally unreliable. She was very slow to answer any question that, after she gave it considerable thought, might have been in any way incriminating of the accused. I was not satisfied that she was a truthful witness and her frequent glances and smiles towards her brother were instructive. She was evasive and uncooperative in the extreme. While one can have sympathy for her position as the sister of the accused, she fell far below the standard required for a witness to be considered truthful, reliable or credible. I reject her evidence in toto.
    
27. Noel Binga (PW6) described how earlier during the day of the fight, he had seen the accused obtain the stick, which he used to strike the deceased. It was not in dispute that the stick, Exhibit P7, was the one used by the accused to strike the deceased.
    
28. Statement of Matilda Bolea (PW7) – Application Pursuant to section 118 of Evidence Act

The Crown applied to tender the statement of Matilda Bolea. She was unable to attend the trial due to her age and poor physical condition. The taker of the statement was called and his evidence satisfied me that the conditions for admissibility under section 118 had clearly been met. I admitted the statement.

29. In her statement, the witness said that she was sitting with the accused outside the kitchen area on the evening of the fight. She saw that the accused had a stick with him. She noticed the deceased arrive and approach the accused saying "you don't understand I have told you to leave?" As with other prosecution witnesses, she testified that the deceased had nothing in his hands.
    
30. The accused stood up and struck the deceased heavily on the back of the head with the stick. The deceased fell face downwards on the ground. The accused then kicked the deceased twice while he was on the ground. The kicks were very hard and were to his rib area. The deceased then got up and ran away and was chased by the accused. She saw the accused continue to punch the body and the head of the deceased as the men were running. The deceased fell down in front of the house of George Kuvi (PW4).
    
31. The witness was only 2 meters away from the men when the deceased was struck on the head. She has known the accused since his birth and he is like a grandson to her.
    
32. The Crown then tendered by consent the edited witness statement of Doreen Buri (PW5) and the statement of Nester Kelo (PW8) who saw the condition of the accused after he had been taken to a villager's house for assistance.
    
33. Leave was granted for PW1 to be recalled to enable the defence to put matters relating to what was said to be a prior inconsistent statement made by her to the police. She testified that, on the same day as and several hours prior to the fight between the accused and the deceased, she had witnessed an earlier dispute between them. She said that the accused had a large knife and that the deceased had an axe. They were arguing with each other and the deceased was swinging the axe and threatening to use it on the accused. The argument ended when the accused put down his knife and walked away.
    
34. The Prosecution then closed its case.
    
35. The Defence case consisted of the sworn testimony of the accused. While initially claiming that he had no idea whatsoever as to what had caused what he described as the aggressive attitude and the anger of the deceased, he then testified as to the long period of antipathy between he and the deceased and also between their respective families. He explained how his family intervened in a dispute between the deceased and his wife when the deceased was allegedly assaulting his wife. The accused took the deceased's wife and child away from the village in his canoe to another location. When the accused returned in his canoe, there was a hostile confrontation with the deceased and his family. What followed was a period of tension, anger, threats and aggression which continued from 2009 until 2010. He testified that the deceased had threatened to kill him on several occasions and that the family of the deceased had behaved aggressively towards him during that period.
    
36. The accused said that on the morning of 17th March 2010, he heard crying and shouting. He believed that the noise came from the family of the deceased arguing. He then saw the deceased fighting with his (the deceased's) brother. The deceased was holding an axe and seeing the accused, said "you wait for me, I'm coming".
    
37. He said that the deceased then came over to his home and behaved in a threatening manner towards him. The accused saw the deceased's father and called him to come over to take hold of his son, which he did.
    
38. Later on that day, in the afternoon of the 17th March, the accused said that he was approached by the deceased and his family. He said that the deceased again threatened to kill him, the deceased's father told him to get out of the village and the deceased's mother swore at him. It seems that after this particular confrontation and after being again spoken to by his sister, the accused decided to leave the village and sent instructions for his canoe to be brought to him at the house of a relative, Nester.
    
39. While waiting for the arrival of the canoe he and his sister walked to Nester's house and on the way he picked up a large stick (Exhibit P7) which he said he intended to use to support a radio aerial in his canoe.
40. He said that he was sitting outside a kitchen hut talking to his grandmother, Matilda Bolea (PW7), when the deceased approached him. The deceased stood about a meter from him and shouted "Fred, haven't you left yet?" He replied that he was about to leave in his canoe.
    
41. The deceased then said "leave" and stepped forward and swung an axe at the accused. The accused lent back and the axe missed him. He then stood up and picking up the stick, struck the accused with it. He said that he didn't know where the stick struck the deceased. He said that although he could see the axe in the deceased's hand and saw him swing the axe at him, it was too dark for anyone else to have seen either the axe or the deceased swing the axe.
    
42. After striking the deceased, the axe fell to the ground. The accused then charged the deceased causing him to fall to the ground. The accused then slapped the deceased, who was lying on the ground, on the face. The deceased got up, ran away and the accused chased him. He was unable to give any explanation as to why he chased the deceased other than that his mind "had blocked".
    
43. He says that the deceased fell over behind a village house and that he went and lifted him up. The deceased ran towards George Kuvi's house (PW4) with the accused chasing him and catching him by kicking the leg or thigh of the deceased. There was light coming from PW4's house which enabled him to clear his "blocked" mind, and then he walked away.
    
44. In cross examination he disputed the suggestions that his sister had tried to stop him from fighting, that he said he would kill the deceased, that he kicked the deceased in the head in front of the kitchen hut or that he kicked the deceased in the head in front of PW4's house.

He also said that he did not see PW4 and did not hear him shout out to stop fighting. He said that he has spoken with his sister and family about this case since being arrested and charged.

45. The defence then closed its case.
    
46. It is apparent from this summary of the evidence that there is a wide variation in the facts asserted by the Prosecution and the Defence. The case is not to be decided by a quantitative evaluation of the number of witnesses giving the varying accounts, nor is it to be decided by which account is preferred by the Court. It is not a question of preference or a numerical accounting of the versions given. The onus on this case as in all criminal cases, is on the prosecution to prove beyond reasonable doubt the elements of the offence as charged. The defence do not have to prove that their version is preferable, they have no burden to prove anything at all. It is upon the prosecution to prove their case and to prove it to the criminal standard of beyond reasonable doubt. Furthermore, once the issue of self-defence has been raised, as it has been raised in this case, the accused does not have the onus of proving that he was acting in self-defence. The onus is on the prosecution to prove that he did not act in self-defence.
    
47. The autopsy report of Dr Roy Maraka dated 21st March 2010 describes the external injuries as including bruises on the head and nose, swollen face, swollen right eye, swollen forehead, lacerations on the left side of the neck, lacerations and abrasions on the left shoulder, left ankle, right elbow and right leg.
    
48. Internal injuries included a large haematoma under the scalp, the skull was fractured with a length of 170mm involving the top, left side and left base of the skull. There was a haematoma located between the skull and the dura and both the dura and the brain were lacerated by the skull fracture with haemorrhaging at those sites. There was subarachnoid haemorrhage which is the area between the brain and the second covering of the brain. Death was caused by extradural haematoma consistent with blunt trauma to the head.
    
49. The evidence of several prosecution witnesses indicated that the deceased was kicked in the head aggressively and forcefully by the accused. There is also agreement that the accused struck the deceased on the head with a large stick. The accused claims to have only struck the deceased once with the stick and then once with a slap on the face. He also admits to kicking the deceased once on the thigh. In my view, the injuries found upon the deceased are consistent with a sustained and vicious attack as described in the prosecution case. Furthermore the persistence, ferocity and nature of the attack is consistent with an intention to, at the very least, cause grievous bodily harm. I find that given the force and the number of the kicks to the deceased's head, that any one of them or in any combination with the strike with the stick, is sufficient to explain the post mortem findings as to the cause of death beyond a reasonable doubt. In my view, the injuries are not consistent with the manner in which the accused claims to have assaulted the deceased.
    
50. The accused testified that when he was attacked by the deceased who was wielding an axe, he was in fear for his life and was acting in self-defence. Having rejected the evidence of PW5 as untruthful and unreliable, no other witness saw anything in the hands of the deceased and no other witness saw the deceased attack the accused in the manner described by him or indeed at all. The accused's claim that it was too dark for them to see the deceased swing the axe is rejected as fanciful given that they were very close to the action and were able to accurately describe seeing the actions of the accused in swinging the stick and striking the deceased, actions which the accused agrees that he did. I am satisfied beyond reasonable doubt that the deceased did not hold an axe or swing it at the accused and I am further satisfied beyond reasonable doubt that the accused did not act in self-defence when he struck the deceased.
    
51. Even if I were to find that the prosecution had not disproved self-defence(which I do not), the actions of the accused in pursuing the deceased and punching him and kicking him viciously in the head on three occasions after the deceased had already dropped the axe and was running away, were grossly excessive and committed long after any threat to the life of the accused had disappeared. There was thereafter no possible question of self-defence arising.
    
52. The prosecution stipulated that in relation to the element of malice aforethought, they relied upon section 202(b) of the Penal Code. Their case was that the accused in assaulting the deceased in the manner that he did, did so in the knowledge that it would cause or probably cause the death of or grievous bodily harm to, the deceased. I am satisfied that the prosecution have proven this element of the offence beyond reasonable doubt by the evidence produced of the conduct and utterances of the accused. In this regard, I accept the evidence of PW2 who testified that she yelled at the accused not to kill the deceased and that he replied "I will kill him..."
    
53. I also accept the evidence of PW3 who testified that as the accused was kicking the deceased he said "I am going to kill you".
    
54. On all of the evidence I would have been prepared to find beyond reasonable doubt not only that the accused attacked the deceased in the manner and with the knowledge that he would probably cause death or grievous bodily harm, but that he actually demonstrated a clear and unambiguous intention to kill the deceased. In the event, this finding was unnecessary.
    
55. As a result of these findings I am satisfied beyond reasonable doubt that the prosecution have proven the guilt of the accused of one count of murder and he will be so convicted.
    
56. Order of the Court is that the accused is convicted of one count of murder contrary to section 200 of the Penal Code.
    

....................................................
THE COURT