Regina v Walenenea [2013] SBHC 2; HCSI-CRC 141 of 2010 (4 February 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(APANIAI, J)
Criminal Jurisdiction

CRC No.141 of 2010

REGINA

-v-

CHRIS WALENENEA

Dates of Hearing: 10th to 13th December 2012 and 14th January 2013.
Date of Judgment: 4th February 2013.

Mr. A. Aulanga with Mr. J. Naigulevu for the Crown.
Mr. E. Cade with Mr. N. Galo for the accused.

JUDGMENT

The charge:

1. The accused, Chris Walenenea, is charged with the murder of Steward Romeasi ("deceased") under section 200 of the Penal Code. It is alleged that the accused, with malice aforethought, caused the death of the deceased on the 20th June 2009 at the main road near Talakali in Malaita Province.
   
2. The Crown's case is that the accused caused the death of the deceased by attempting to stab the deceased in a bus, that is, bus no. AB3111 ("Bus"), thereby causing the deceased to take evasive action by jumping out of the Bus onto the road and, in doing so, sustained serious head injuries from which he died 4 days later. The Crown relies on section 207(c) of the Penal Code.
   
3. The accused was arraigned on the 10th December 2012 and pleaded not guilty to murder. He had, however, offered to plead guilty to manslaughter. His offer was rejected and the Crown then proceeded to call evidence in relation to the murder charge.
   

The Facts:

4. There is no dispute that on the 20th June 2009, Bus no. AB3111 ("Bus") left Auki with about 10 persons on board and headed along South Road towards the Talakali feeder road junction ("Talakali junction").
   
5. Among the passengers in the Bus were the deceased, the accused, PW5 and PW6. The Bus was a 10-seater Bus and was owned by LR. The driver was PW3 and the Bus conductor was PW1.
   
6. There were 4 rows of seats in the Bus. In the first (or front) row were 2 seats, the left seat (seat 1) being a passenger seat and the right seat (seat 2) being the driver's seat. On the left side of seat 1 was a door which can also be opened from the inside and on the right side of seat 2 was another similar door for the driver's use.
   
7. In the second row were 3 seats (seats 3, 4 and 5) and in the third row were 2 seats (seats 6 and 7) while in the fourth (or back) row were 3 seats (seats 8, 9 and 10).
   
8. At the start of the journey from Auki, the deceased sat in seat 1 while PW3, being the driver, was in seat 2. Seat 3 was occupied by the Bus conductor, PW1, while seats 4 and 5 were occupied by 2 female passengers. Seat 6 was unoccupied while in seat 7 was the accused. In seats 8, 9 and 10 were PW6 and other passengers including PW5.
   
9. The accused had been drinking kwaso (an illegal home-made alcohol) and had with him a 1.5 liter bottle containing kwaso drink when he boarded the Bus at Auki.
   
10. The first stop made by the Bus was at Maoro village where a passenger got off. The Bus then continued on towards Talakali junction.
    
11. After leaving Maoro, the accused asked PW1 to join him drink the kwaso. He asked PW1 to move back and join him in the third row. PW1 moved back and sat in seat 6. However, he refused to drink kwaso with the accused saying he was providing a service and would not drink.
    
12. Upon refusal by PW1 to join him with the kwaso drink, the accused stepped over PW1 and moved forward to seat 3 which had earlier been vacated by PW1. That seat was right behind the deceased's seat (seat 1).
    
13. On reaching seat 3, the accused did something which caused the deceased to jump out from the Bus. As a result of that jump, the deceased sustained head injuries. What the accused did is the subject of some dispute and will be discussed later in this judgment.
    
14. After the deceased had jumped out, the Bus did not stop but continued on to Talakali junction and then on to Talakali village where most of the passengers, including the accused, got off. The Bus then returned to where the deceased had jumped down, picked up the deceased and took him back to Talakali clinic where a nurse, Grace Nisa ("Nisa"), attended to the deceased.
    
15. According to Nisa[1], the deceased had injuries to his head and was in great pain and was very unsettled. Because of his condition, nurse Nisa had to refer the deceased to Kilu'ufi hospital. She gave some treatment to the deceased, wrote a note and then asked the Bus to transport the deceased to Kilu'ufi hospital for further treatment.
    
16. Unfortunately, the deceased died at Kilu'ufi hospital 4 days later. Exhibit P12 confirmed that the probable cause of death was severe head injury secondary to trauma from vehicle accident.
    
17. The defence has conceded, and rightly so in my view, that the cause of death was the deceased's head injury and that the deceased had received the injury as a result of jumping out of the Bus near the Talakali junction.
    
18. In his record of interview (P13), the accused admitted coming up to the deceased and talking to him. He also admitted removing a home-made knife from the deceased's basket. However, he denied having threatened the deceased. He said that the deceased opened the door and jumped out from the Bus when he removed the home-made knife from his basket.
    
19. In the record of interview, the accused had also referred to a long standing dispute between the deceased and his family. I am satisfied that this dispute has contributed to the incident that occurred in the Bus.
    

The crucial Issues:

20. The crucial issues in this case are whether the accused caused the death of the deceased and whether in doing so he had intended to cause the death of, or serious injury to, the deceased.
    
21. The accused denies having caused the death of the deceased and further says that, even if the court finds that he did cause the deceased's death, he says he had no intention either to cause the deceased's death or to cause him serious bodily harm.
    

The Crown's case:

22. In an attempt to prove its case, the Crown has called 6 witnesses. They are Stanley Meke (PW1), Veronica Geifala (PW2), Zebedee Maetora (PW3), Nelson Suiga (PW4), Donald Make (PW5) and Godfrey Anikofe (PW6).
    
23. In addition, the Crown has also tendered 13 exhibits. These are a sketch map of the bend in the South Road where the incident occurred (P1), a photograph showing that bend as viewed from the entrance to the Talakali feeder road (P2), a second photograph showing the same bend as viewed from the same entrance to the Talakali feeder road (P3), a third photograph showing the same bend as viewed from the same entrance to the Talakali feeder road (P4), a statement by Nelson Suiga dated 1st July 2009 (P5), a further photograph tendered by Nelson Suiga showing the same bend as viewed from the same entrance to the Talakali feeder road (P6), a statement by Kubrick Tobata dated 30th June 2009 (P7), a statement by Alison Akalise dated 30th June 2009 (P8), a statement (with agreed deletions) by nurse Grace Nisa dated 9th September 2009 (P9), a further statement by nurse Grace Nisa dated 13th December 2012 (P10), a statement by Michael Tofe dated 8th September 2009 (P11), a Medical Report on late Steward Romeasi by Dr. Rex Maukera dated 1st December 2009 (P12) and the record of interview by the accused dated 23rd June 2009 (P13).
    

Objections:

24. The defence has raised no objections to the tender of 10 of these exhibits. These are exhibits P1 to P4 and P8 to P13. It has, however, raised partial objections to the tender of exhibits P5 and P7 while, in respect of exhibit P8, it has totally objected to the tender of that exhibit.
    
25. It is important that these objections are dealt with before continuing with the crucial issues for the reason that a decision to admit these evidence will result in them forming part of the overall evidence in this case.
    

Objections to P5 and P7:

26. P5 is a statement given to the police by Nelson Suiga ("Suiga") who was one of the witnesses to testify in this case. Suiga was called to testify on Day 4 of the trial. During his testimony, objection was raised regarding the reported statement made to him by the deceased. The matter was then adjourned for submissions.
    
27. However, when the trial resumed the next day, both counsels agreed that Suiga's statement to the police, as well as Tobata's statement (P7), may be tendered into evidence subject to the objections to the admissibility of the deceased's statement ("reported statements") contained in those 2 statements. As such, there was no need for Suiga to continue testifying and he was therefore stood down from the witness box.
    
28. The reported statements made to Suiga and Tobata were made in the following circumstances: Suiga and Tobata had attended a SDA service at Talakali village on the day of the incident (Saturday 20 June 2009) and were on their way back to their villages. On their way to the Talakali junction, they met the Bus travelling down to Talakali village. When they came to the Talakali junction, they saw the deceased coming up the slope from the bend where he had earlier jumped off the Bus. This was the slope immediately before the entrance to the Talakali junction.
    
29. They approached the deceased and saw that he did not look well so they asked what the matter with him was. The deceased then answered and told them what happened.
    
30. According to Suiga, the deceased answered them in pidgin saying "Enemy blong me long Bus outim knife and like for Busam me and hem nao me jump". This was what Suiga stated in his statement to the police during investigations. In English, this statement means "My enemy in the Bus took out a knife and wanted to stab me that is why I jumped".
    
31. Tobata's version of the deceased's answer was slightly different. According to Tobata, the deceased's answer was "Enemy blong me long Bus outim knife and like for Busam me and hem nao me jump" which means in English "My enemy in the Bus took out a knife and wanted to stab me that is why I jumped". This was also what Tobata stated in his statement to the police during investigations.
    
32. Despite the difference in these two versions, the message conveyed by the reported statements was that the deceased jumped out from the Bus because of the fear of him being stabbed by the accused.
    
33. Mr. Cade's objection to these reported statements is premised solely on his proposition that the res gestae principle no longer forms part of the laws of Solomon Islands by virtue of sections 117 and 118 of the Evidence Act. He does not dispute that the reported statements do fall within the common law principle of res gestae.
    

Sections 117 and 118 of the Evidence Act:

34. Mr. Cade submits that the common law principle of res gestae no longer forms part of the law of Solomon Islands and that admissibility of hearsay statements is now governed under sections 117 and 118 of the Evidence Act 2009. Section 117 provides that a hearsay statement is not admissible except as provided by the Evidence Act or other law. He submits that the only law governing admissibility of hearsay statement in Solomon Islands is the Evidence Act. He further says that the phrase "other law" in section 117 means statute law and not the common law. He says that there is no other statute law that governs the admissibility of hearsay statement apart from the Evidence Act. He refers to section 3 of the Evidence Act and the definition of "law" in section 16 of the Interpretation & General Provisions Act ("Cap. 85") to support his interpretation of term "other law" in section 117.
    
35. With respect, I disagree with Mr. Cade's submission in relation to the interpretation of the phrase "other law" in section 117. First, section 3 of the Evidence is, in my view, of no assistance in defining the term "other law" in section 117.
    
36. Second, I agree that the definition of "law" in section 16 of Cap. 85 does include statute law but I do not agree that it is confined only to statute law. It is clear that it also includes other laws "for the time being in force" in Solomon Islands. The common law is one such law by virtue of paragraph 2(1) of schedule 3 to the Constitution. In my view, if it had been the intention of the legislature to confine the term "other law" in section 117 to statute law, the Act would have said so in clear terms or would have used the term "other written law" which is also defined in section 16 of Cap. 85 as an Act, a subsidiary legislation or an imperial enactment. As stated by Lord Mersey in Thompson v Goold & Co[2], "It is a strong thing to read into an Act of Parliament words which are not there and in the absence of clear necessity it is a wrong thing to do".
    
37. Third, if Mr. Cade's submission is to be accepted, it would result in the phrase "other law" in section 117 being meaningless or mere verbiage. Statutes are creatures of the legislature and every word used in a statute conveys, or helps to convey, the intention of the legislature. The duty of the court when interpreting statutes is to ascertain the legislative intent and in doing so it must give meaning to every word used in the statute.
    

The res gestae rule:

38. I now turn to the question whether the res gestae rule has been abrogated under the Evidence Act. The starting point is to determine what the res gestae rule is and then determine whether the Evidence Act has abrogated that rule.
    
39. It is agreed by both counsels that the doctrine of res gestae has now been clarified in Andrews[3]. In that case, the House of Lords held that where the victim of an attack informed a witness of what had occurred in such circumstances as to satisfy the trial judge that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim so as to exclude the possibility of concoction or distortion and the statement was made in conditions of approximate but not exactly contemporaneity, evidence of what the victim said was admissible as to the truth of the facts recited therein.
    
40. That means to qualify under the res gestae rule, the statement must relate to a dramatic, unusual or startling event; the event must have so dominated the thoughts of the declarer so as to exclude the possibility of concoction or distortion; and, the making of the statement must be approximate to, though not necessarily contemporaneous with, the event.
    
41. It is agreed by both counsels that the deceased's reported statements as recited in Suiga and Tobata's statements have met these qualifying criteria. Also, there is no dispute that the res gestae rule has been part of the law of Solomon Islands pursuant to paragraph 2(1)(a) of Schedule 3 of the Constitution. That provision stipulates that the principles and rules of the common law and equity shall have effect as part of the law of Solomon Islands, save in so far as they are inconsistent with this Constitution or any Act of Parliament. Furthermore, there is no dispute that an Act of Parliament may repeal or amend any of the principles or rules of the common law having effect as part of the law of Solomon Islands.
    
42. The question, however, is whether the Evidence Act has abrogated the common law principle of res gestae.
    

Statutory abrogation of common law principles:

43. There is a general presumption of law that legislation is presumed not to alter common law doctrines unless it is clearly shown that the legislature had intended to do so. The intention to do so must be established by clear words to that effect.
    
44. In Potter v Minahan[4], O'Connor J said:
    

"It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law without expressing its intention with irresistible clearness..."

45. A similar statement was expressed by Griffith CJ in Hocking v Western Australian Bank[5] where he said:
    

"It is a sound rule to be applied in the construction of all Acts altering the common law, that they are to be taken to alter it only so far as is necessary to give effect to the express provisions of the Act."

46. Crafter v Kelly[6] was a case where power was given to a board to require persons appearing before it to answer all questions put to such persons by the board. Failure to answer a question is an offence. The court held that the provision did not take away the common law right to refuse to answer questions on the ground that it would incriminate the person concerned. The court said that it would require a clear statement by the legislature before it would be thought that the privilege was to be abrogated.
    
47. The same approach was also adopted by the House of Lords in Leach v R[7] in interpreting a provision that permitted a wife to give evidence against her husband. The House of Lords ruled that the provision should not, in the absence of a clear intention to the contrary, be taken to override the fundamental common law principle that a wife could not be compelled to give evidence against her husband.
    
48. In my view, these authorities have shown that if the intention of the legislature was for the Evidence Act to abrogate this fundamental common law principle of res gestae, the Act would have said so in the clearest language. It has done so in relation to the common law rule regarding to corroboration of certain evidence (sections 7 and 18), the rule relating to the means of proving the contents of documents (section 8) and the rules regarding the need to exercise caution in relation to evidence given by a child or evidence given by a victim of sexual offence or where there is delay in reporting a sexual crime (section 19).
    

Res gestae rule not abrogated:

49. Unfortunately, I find no clear words in the Evidence Act to convince me that Parliament had intended to abrogate the res gestae rule. To the contrary, section 3 of the Evidence Act has made it clear that all common law principles relating to evidence that are not inconsistent with the provisions of the Act are preserved. Section 3 has also made it clear that the Evidence Act is not intended to be a code of the law of evidence in Solomon Islands. The theoretical idea of a code is that the code replaces all existing laws and becomes the sole source of the law on the particular topic. This was not the legislative intent when the Evidence Act was passed.
    
50. It is my view therefore that the common law rule relating to res gestae has not been abrogated by the Evidence Act. As such, the reported statements by the deceased as contained in the written statements by Suiga and Tobata are therefore admissible under the res gestae rule.
    

Objection to the admissibility of Alison's statement (P8):

51. A further objection was raised in relation to the admissibility of the statement by Alison Akalise ("Alison") dated 30th June 2009 (P8). The objection is based on non-compliance with section 118 of the Evidence Act.
    
52. Alison was one of the passengers on board the Bus on the 20th June 2009 and had witnessed the incident that happened in the Bus including the jumping off the Bus by the deceased.
    
53. She had given a written statement (P8) to the police on 30th June 2009 and was one of the witnesses who was to be called by the Crown to testify on the basis of her written statement. Her written statement contained evidence implicating the accused.
    
54. Unfortunately, Alison was not available to give evidence at the trial which took place at Auki from the 10th to the 14th December 2012. As a result, the Crown had sought to tender Alison's statement into evidence under section 118 of the Evidence Act. The tendering of Alison's statement was done by handing the statement to the court from the bar table.
    
55. To prove that the statement complies with section 118 of the Evidence Act, the Crown had filed a sworn statement by PC Hamilton Toremana on 13th December 2012.
    
56. The defence, however, has raised objections to Alison's statement on grounds of the admissibility and the failure to give reasonable notice of the intention to offer that statement into evidence.
    

Specific requirements of section 118:

57. For a statement to be admissible, the requirements of section 118(1) must be satisfied. That is to say, section 118 (1) stipulates the criteria for the admissibility of the statement as evidence. A statement is admissible only if the criteria is satisfied. Where the criteria is not satisfied, the statement is inadmissible and cannot be admitted into evidence. The court has no power to admit the statement if it is inadmissible and compliance with the procedure for notice under section 118(2) will not cure that defect.
    
58. Section 118(2), on the other hand, stipulates the procedure to follow where a statement is tendered as evidence. The basic requirement under section 118(2) is to give reasonable notice of the intention to offer the statement into evidence. Since this is a procedural requirement, non-compliance is not fatal and the court has a discretion to admit the statement in the interest of justice[8].
    
59. There are two requirements which have to be satisfied if the statement is to be admissible under section 118(1) of the Evidence Act. The first is that the circumstances relating to the statement must be such as to provide reasonable assurance that the statement is reliable and the second is that either the maker of the statement is unavailable as a witness or the court considers that undue expense would be caused if the maker of the statement were required to be a witness.
    
60. To be sure that the statement is reliable, regard must be had to the nature and content of the statement, the circumstances that relate to the making of the statement and the truthfulness of the maker of the statement as well as any other circumstance that relates to the accuracy of the observation of the person.[9]
    
61. In regards to the second requirement, a person is unavailable as a witness if the person is dead or is outside Solomon Islands and it is not reasonably practicable for him or her to be a witness or is unfit to be a witness because of age or mental condition or cannot, with reasonable diligence, be identified or found or is not compellable as a witness[10].
    
62. In his sworn statement, PC Toremana said that on 22nd November 2012 he served a witness summons on Alison at her home at Green File village; that on the 8th December 2012 he went to Green File village to bring Alison to Auki for a witness conference but was told by Alison's father and mother that Alison had left home due to a family dispute and no one knew where she had gone to; that on the 11th December 2012, he went to Green File village again in an attempt to locate Alison or get further information concerning her whereabouts but without success; and that as a result, he was not able to bring Alison to court to testify.
    
63. The evidence contained in PC Toremana's sworn statement goes only to proving that Alison is unavailable as a witness. On the basis of the sworn statement, I am satisfied that PC Toremana had exercised reasonable diligence in finding Alison and that he could not find Alison. I am satisfied Alison is an unavailable witness.
    
64. I have also read Alison's statement. Alison was a passenger on the Bus at the time of the incident. She described what she saw happened in the Bus and how the deceased jumped from the Bus and how he landed on the ground. She described the actions of the accused which caused the deceased to jump out from the Bus. She heard what the accused said in the Bus. These were the things which she talked about in the statement which she made 10 days after the incident. I am satisfied that in these circumstances, there is reasonable assurance that the statement is reliable.
    

Proper procedure for tendering of documentary evidence:

65. However, admissibility of a hearsay statement is one thing and offering the statement into evidence is another thing. In order for the statement to be admitted as evidence, it must be properly tendered and unless it is properly tendered it forms no part of the evidence.
    
66. In this case, Mr. Cade's submission, as I understand from the various points he raised, is that, for Alison's statement to amount to hearsay statement as required under section 118, a witness should have been called to produce or offer Alison's statement as evidence in court. Only then would Alison's statement amount to hearsay statement within the meaning of section 118 and capable of being admitted into evidence as hearsay statement pursuant to that section.
    
67. I think there is merit in that submission. The proper procedure for producing or offering a written document as evidence in a proceeding is to call a witness to prove or produce the document under oath or to file a sworn statement proving the document. Such witness would then be subject to cross examination in the usual manner in connection with the document if so required.
    
68. Handing from the bar table of documents intended to form part of the evidence in a case is not proper in the absence of agreement to do so by the other party to the proceedings. A document tendered in such manner cannot form part of the evidence in the case.
    

Alison's statement not part of the evidence:

69. In the present case, the statement by Alison Akalise has not been properly tendered in evidence. The evidence contained in the sworn statement by Toremana goes only to prove that Alison's statement has been made under circumstances which made it reliable and that Alison was not available as a witness. It did not prove Alison's statement nor did it offer Alison's statement into evidence.
    
70. I therefore rule that Alison Akalise's evidence is not part of the evidence in this case and cannot be taken into account in determining the guilt of the accused.
    
71. Having so ruled, I need not consider the issue whether reasonable notice has been given in relation to the statement nor is it necessary for me to rule on the question whether or not to admit the statement on the basis that undue expense would be caused if Alison were required to be a witness under section 118(1)(b)(ii).
    

Return to the crucial Issues:

72. Having admitted the deceased's reported statements as contained in P5 and P7, and having disallowed Alison's statement, I now return to the crucial issues in this case, that is, whether the death of the deceased was caused by the accused and whether the accused is guilty of murder in relation to the death of the deceased.
    

Section 207(c) of the Penal Code:

73. Section 207(c) of the Penal Code provides as follows:
    

"207 – A person is deemed to have caused the death of another person although his act is not the immediate or the whole cause of death in the following cases –

[c] if by actual or threatened violence he causes such other person to perform an act which causes the death of such person, such act being a means of avoiding such violence which in the circumstances would appear reasonable to the person whose death is so caused".

74. This provision caters for the situation where a person dies or receives a fatal injury while escaping or trying to escape in fear of violence caused or threatened by another person. It is different from the case where the death or the fatal injury is the direct result of the actions by that other person.
    
75. The principle applicable where a person ("deceased") dies or receives fatal injuries while escaping in fear of an unlawful act from another person ("aggressor") is that the aggressor will be deemed to have caused the deceased's death if the attempt to escape is a natural consequence of the unlawful act by the aggressor and the unlawful act is of such a kind that all sober and reasonable people would inevitably realize that it would subject the deceased to, at least, the risk of some harm resulting, irrespective of whether the harm be serious or not[11].
    
76. To attribute responsibility for the deceased's death to the aggressor, the Crown must prove the following elements beyond reasonable doubt:
    

[a] that immediately before he was injured, the deceased was in fear of being hurt physically;

[b] that the fear had caused him to try to escape;

[c] that while trying to escape and because he was trying to do so, he met his death or he got fatally injured;

[d] that the fear of being hurt was reasonable and was caused by the accused's conduct; and,

[e] that the conduct was intentional and such that any sober and reasonable person would recognize it as likely to subject the deceased to at least the risk of some harm resulting from it, albeit not serious harm[12].

Actions of the accused immediately before the injury:

77. The evidence of PW1 and PW3, as well as the reported statement by the deceased, which has been admitted under the res gestae rule, are crucial as to what happened in the Bus immediately before the deceased jumped out and why the deceased jumped out of the Bus.
    
78. The evidence by PW1 as to the events immediately before the deceased jumped from the Bus is that after he had refused the accused's invitation to drink kwaso with the accused in the Bus, the accused stepped over him and went to seat 3 located behind the deceased who was sitting in seat 1. The accused then removed a carving knife from the deceased's right side then removed a round black muslim-like cap from the deceased's head. He placed both the cap and the carving behind the deceased's seat and then said to the deceased in Langalanga language "You are the man I've been looking for". At the same time he pulled out a knife from under his shirt with his right hand and told the driver, PW3, to speed up. He then turned to the deceased with the intention of stabbing him but the deceased opened the door of the Bus and jumped backward out from the Bus and onto the road. During cross examination, PW1 agreed that the accused did not actually stab the deceased. He said the accused held the knife in a way that showed that he would stab the deceased. He said it was at that time that the deceased opened the door and jumped out.
    
79. PW3's evidence relating to the events immediately before the deceased jumped from the Bus is that he heard the accused shouted saying in Langalanga language that that was the man he was looking for. He said he saw the accused pulled a carving knife from the deceased's basket. He then pulled a muslim-like cap from the deceased's head. He held onto the deceased's head and pulled out a knife from the front of his waist and pointed the knife at the deceased. He said the accused had wanted to stab the deceased but the deceased jumped out from the Bus. He said the deceased turned towards his right, saw the knife in the accused's hand and then jumped out. He said the deceased looked frightened when he jumped out from the Bus. In cross examination, PW3 said that the accused held the deceased's head and pulled a knife from under his shirt. He then said the accused held the knife close to the deceased's face. It was then that the decease opened the door and jumped out.
    
80. In his statement to Suiga and Tobata, the deceased said that he jumped out from the Bus because his enemy in the Bus had wanted to stab him.
    
81. From the evidence by PW1 and PW3, coupled with the statement by the deceased to Suiga and Tobata, there can be no dispute whatsoever that the reason why the deceased jumped out from the Bus was because he feared that the accused would stab him. Indeed there is no evidence that the accused had actually stabbed him or had even swung the knife at him.
    
82. Nevertheless, when one considers the situation in which the deceased had found himself, that is, the fact that he was being confronted by a drunken person who was not on good terms with him and who had been looking for him all these times to settle scores, the fact that they met on a bus with very limited space to manoeuver, the fact that the accused grabbed his head and said that he was the person he had been looking for, the fact that he took out a knife and held it in a manner which indicated to the deceased that he was going to use it on him, there can be no doubt whatsoever that a sober and reasonable person would recognize it as likely that the deceased would be subjected to some risk of harm if he were to remain in the Bus. I am sure that in those circumstances, any sober and reasonable person would conclude that the accused's fear was reasonable and that his action in jumping out from the Bus was an option which, though dangerous, was fairly open to him to take if he wanted to avoid being assaulted by the accused.
    
83. I am satisfied that the requirements of section 207(c) of the Penal Code have been satisfied and in my judgment, the death of the deceased was caused by the accused.
    

The murder charge – mens rea:

84. Having found the accused to have caused the death of the deceased, the final issue is whether the accused is guilty of murder.
    
85. I have found that the reason the deceased jumped out of the Bus was because he thought that the accused was about to stab him. However, there is no evidence that the accused had actually stabbed the deceased or had actually swung the knife at the deceased. I agree with Mr. Cade that, having regard to the size of the front compartment of the Bus where the deceased was sitting, the accused could have easily stabbed the deceased before the deceased could move towards the door if indeed he had wanted to stab the deceased. No one could be certain as to what would have happened had the deceased not jumped out of the Bus. Whatever the accused could have done would be nothing more than mere speculation. Unfortunately, in a criminal trial, conviction cannot be based on speculations. The onus is on the Crown to prove each element of the offence charged beyond reasonable doubt including the element of mens rea necessary to establish murder.
    
86. Mr. Aulanga submits that the necessary intention to cause serious injury to the deceased was present and therefore the accused is guilty of murder. He submits that that intention is shown by the attempt to stab the deceased in the Bus with a bayonet and his statement in the Bus made immediately after the deceased had jumped off the Bus, as heard by PW1, saying "good, if he died" including his statement to PW2 (Veronica Geifala) who said in her evidence that the accused had made a statement to her saying "I have to do that so that he would die".
    
87. With respect, I do not agree with that submission. The actions of the accused were only an attempt or threat to stab the deceased. The attempt or threat to stab the deceased is, at most, an unlawful act. That means the death of the deceased was the result of an unlawful act committed by the accused. In my view, that is manslaughter which is defined in 199(1) of the Penal Code as "causing the death of another person by an unlawful act or omission".
    
88. In Mackie[13], the accused had lived with the deceased, who was 3 years old, and the deceased's elder brother and their mother. There was evidence that he had ill-treated the deceased on previous occasions. As a result, the deceased was always in fear of him. The deceased had fallen from a stair and died as a result of that fall. The evidence showed that the accused had told the deceased to go upstairs to get a potty. The deceased did not come down so the accused followed him upstairs and found him sitting on a window. The accused "pelted" him up and threw a book at him. The deceased ran to the stairs to get away from the accused. In doing so, he fell down the stairs, dislocated his neck and died. The appellant was charged with manslaughter and was found guilty. He appealed.
    
89. His appeal was rejected. The court held that when one person causes in the mind of another, by violence or the threat of violence, a well-founded sense of danger to life or limb so as to cause such other to try to escape, and in the endeavor to escape he is killed, the person creating the state of mind is guilty of at least manslaughter.
    
90. In Daley[14], the court has described cases where a person dies while trying to escape from violence, or threat of violence, caused by another person as "manslaughter by flight".
    
91. In that case, the accuseds had an argument with the deceased. The deceased ran from them, tripped on a concrete ramp and fell. He died a few days later. The accused had thrown stones at him while he was running from them. The prosecution alleged that he died as result of being hit by the stones and charged the accuseds with murder. It was suggested that the deceased died as a result of his fall onto the ramp. The court found that there was no sufficient evidence that his death was the result of injuries received by being hit by stones. However, the court found that there were only two ways in which the deceased could have received the injuries which caused his death, that is, either by being hit by stones thrown at him by the accuseds or by his fall over the concrete ramp. Since the court was not satisfied that the deceased's death was caused by being hit by stones, the only probable and reasonable conclusion was that he died as a result of the injuries he received when he fell onto the concrete ramp as he was running away from the accuseds. The court held that there was sufficient evidence that this was a case of "manslaughter by flight" and accordingly the accuseds' conviction of manslaughter were upheld.
    
92. In Newbury[15], it was held that where the act in which a person is engaged in performing is unlawful, then if at the same time it is a dangerous act, that is, an act which is likely to injure another person, and quite inadvertently he causes the death of that other person by that act, he is guilty of manslaughter. The basis of the manslaughter charge is that the deceased person had sustained fatal injuries while trying to escape from an unlawful assault by the defendant.
    

Verdict:

93. I am satisfied that the deceased in the present case died from injuries he received as he tried to escape from the threat of being stabbed by the accused.
    
94. In my view, the mens rea necessary to found a case of murder has not been proved to the required standard in this case. However, I am satisfied beyond reasonable doubt that the evidence has established a case of manslaughter. Under section 159(2) of the Criminal Procedure Code (CPC), where a person is charged with an offence and facts are proved which reduce it to a lesser offence, the court has the power to convict that person of the lesser offence although he was not charged with it.
    
95. I therefore acquit the accused of the charge of murder and convict him of manslaughter pursuant to section 159(2) of the CPC.
    

THE COURT

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^[1] See exhibits P9 and P10.
^[2] [1910] AC 409 at p. 420.
^[3] Andrews v Regina [1987] 1 AC 281.
^[4] [1908] HCA 63; (1908) 7 CLR 277, at p.304.
^[5] (1909) 9 CLR 739, at p.746.
^[6] [1941] SASR 237.
^[7] [1912] AC 305.
^[8] See section 118(2)(c), Evidence Act 2009.
^[9] Ibid, section 118(4).
^[10] Ibid, section 118(5).
^[11] Mackie (1973) 57 Cr. App. R. 453.
^[12] DPP v Daley [1980] AC 237; see also R v Williams & Davis (1992) 95 Cr. App. R. 1
^[13] Mackie (1973) 57 Cr. App. R. 453
^[14] DPP v Daley & Another [1980] AC 237.
^[15] DPP v Newbury (1967) 62 Cr. App. R 291.