Regina v Popoe [2014] SBHC 126; HCSI-CRC 77 of 2010 (14 October 2014)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 77 of 2010

REGINA

-V-

JOHN POPOE

HEARING: 9 – 12 SEPTEMBER 2014
JUDGEMENT: 14 OCTOBER 2014

F. Joel (Ms) and Ms. R. Olutimayin for the Crown
Mr. J. R. Brook and Helena Blundell for the Defendant

Palmer CJ.

1. The defendant, John Popoe ("the Defendant") has been charged with manslaughter contrary to section 199(1) of the Penal Code, that he on or about 20 September 2009 at Lambi, Guadalcanal Province did unlawfully kill Monica Hanipange ("the Deceased").
   

The prosecution case

2. The prosecution's case is that the Defendant unlawfully killed the Deceased by sitting on her left shoulder on the night of the 19th September 2009, which caused severe internal injuries and led to her death several hours later on or about 2:00 am on Sunday 20th September 2009.
   

The defence case

3. The defence case is simply that prosecution have failed to prove beyond reasonable doubt that sitting on the shoulder of the Deceased caused her death. The defence do not deny that the Defendant sat on her shoulder that night, which is admitted, they argue instead that it has not been established to the requisite standard that that was the cause of the Deceased's death.
   

The issues in the case

4. There are essentially two issues in this case:
   
   1. Whether the act of sitting on the shoulder of the Deceased was an unlawful act?
   2. Whether that act caused the death of the Deceased?
      

Facts not in dispute

5. I find the following facts not in issue.
   
   1. The act of sitting on the Deceased's shoulder occurred on or about 10:00 pm on the night of Saturday 19 September 2009. What is in dispute is whether it was the left shoulder or the right shoulder and the amount of force that was used or applied; I will say more on this later.
      
   2. I find as a fact that prior to this the Deceased was fit and well. There was no evidence to suggest she was sick, unwell or complained of any pains in her body. This was confirmed by witness Cecilia Vovoti ("PW1") who last saw her at about 6:00 pm in the evening. She was well, laughing and happy. She had brought some food to help with a couple of visitors that PW1 was entertaining at her house earlier that evening. There was nothing to suggest she was suffering from any form of sickness or pain.
      

As well the Defendant's statement is consistent with this conclusion. There is nothing in his statement to suggest she was unwell, sick or was complaining of any severe pain prior to the assault. This evidence has been virtually un-contradicted.

3. I find as a fact that when the Deceased arrived at the house of PW1 it was late in the night; PW1 estimated the time to be around 10:00 pm. She came to her house shortly after the Defendant had sat on her shoulder. This is consistent with the account of the Defendant as recorded in his record of interview at page 6.
   
4. I find as a fact that she told PW1 that she was dying. The Defendant confirms hearing the Deceased saying the same thing to PW1. I accept that when she arrived at the house of PW1 her physical condition was no longer normal, it had suddenly changed for the worse. As soon as PW1 came out to her she fell onto her arms and had to be supported to prevent her from falling down.
   
5. I find as fact that her physical condition and general wellbeing was described as serious and severe shortly after the Defendant sat on her shoulder. By the time she arrived at PW1's house, she was in obvious distress. Something drastic had happened. PW1 told the court the Deceased complained of chest pains and was breathless or struggling to breathe when she saw her at her house. Dominic Buru ("PW2") who was asked to treat her with custom medicine also described her physical condition at that time as being quite serious. He noticed she was very sick, in pain and her body was hot. He observed on arrival that she was already lying down, crying out in pain and her body hot. He also heard her say that she was going to die.
   
6. She was eventually taken to the clinic after attempts to treat her with custom (traditional) practices and "medicine" failed. At the clinic she was attended to by a nurse, Veronica Pukuni ("PW3") at around 12:30 am on Sunday 20th September 2009 as recorded in her notes. Her notes marked as Exhibit "G" speak for themselves and are not in dispute. Her report confirmed inter alia that her condition by then was severe or extremely serious. PW3 recorded that the Deceased was brought into the clinic on a stretcher with the following complaints:
   

"dizziness, hallucinations, nausea, general body ache, weakness, numbness of whole body, bowel incontinence. Laid helpless in a stretcher. Bowel incontinence. Semi-conscious at times and response well at times. No physical injuries seen."

The nurse gave basically un-controverted evidence. She told the court that when she tried to check for the Deceased's vital observation signs, which included blood pressure, pulse and temperature, these were unreadable or too low. Her condition by then had deteriorated drastically and she was basically dying.

When asked if she knew what the cause was, PW3 stated she suspected the Deceased was suffering from some spinal injury or internal bleeding.

She discounted any suggestion of an overdose of medicine for she was of the opinion that the symptoms were inconsistent with someone having taken an overdose of medicine. She told the court that from her experience of observing patients, who had taken an overdose of medication as an act of suicide, symptoms which would appear include the patient lying down quietly, teeth grinding, lips would appear numb or heavy and could not talk and also vomiting. She told the court that because she could not determine what the cause was she put her on the IV drip for normal saline water and glucose to try and revitalise her vital signs. There was no improvement however and the Deceased died at around 2:00 am on Sunday 20th September 2009.

Facts or matters in dispute.

6. Did the Defendant assault the Deceased by sitting on her shoulder? The prosecution case is that the act of sitting on her left shoulder was unlawful and amounted to an assault. They say he did this because he was angry with her. They say this unlawful act directly accounted for or caused the internal injury, that is, caused her spleen to be lacerated or ruptured, which caused severe internal bleeding and resulted in her death a couple of hours later.
   
7. Prosecution relied on the evidence of a number of witnesses in particular that of PW1, PW2, the record of interview of the Defendant, the evidence of Dr. Jagilly who conducted the post mortem examination of the Deceased's body and Dr. Maraka, a pathologist.
   
8. The defence on the other hand while conceding that the Defendant sat on the shoulder of the Deceased deny it was with force and not unlawful. They say it was on the right shoulder of the Defendant, not her left shoulder and deny it caused any internal injury which resulted in the death of the Deceased.
   

Evidence of assault.

9. Is there evidence that the Deceased was assaulted by the Defendant on the night of the 19th September 2009? I find evidence of assault as follows.
   
10. First, evidence imputed to the Defendant. In the evidence of PW2 regarding his conversation with the Defendant on the night of the 19th September 2009, outside the clinic, PW2 stated that the Defendant told him he had had an argument with the Deceased about cucumber seeds that night and on his return from the village after buying cigarettes, he said he was angry with the Deceased and sat on her left shoulder.
    
11. During cross examination it was suggested to him that the Defendant did not say he was angry or that he sat on her left shoulder. PW2 however maintained that he heard the Defendant told him he was angry and that he sat on her left shoulder.
    
12. I accept the evidence of PW2 about the content of this conversation. In his statement to Police he repeatedly pointed out that the Defendant mentioned to him about an argument that he had with the Deceased. He also demonstrated to police how the Defendant had described and demonstrated what happened. He was also recorded as describing how he had imagined the force that was used to sit on the Deceased. These I find to be consistent with his oral evidence as to what he heard. I find little discrepancy in his evidence.
    
13. Can his evidence be relied on? I am satisfied I can rely on his evidence on the issue of credibility. I find nothing in his evidence to suggest that he might have any form of prejudice against the Defendant. His demeanour in court also does not suggest to me that he might have any bias against the Defendant. Although he is married to the sister of the Deceased I do not find that anything in his evidence to suggest he was biased against the Defendant other than simply recounting honestly what he heard.
    

I am also not satisfied that he might be lying to the court about what he heard. His statement to police and his evidence in court are fairly consistent.

I am also not satisfied that he had any particular interest or exhibited manifest interest that would taint or colour his evidence in court. In terms of any suggestion corruption, none has been suggested in his case. His evidence has been virtually un-contradicted, I find him to be a truthful and honest witness and that his evidence can be relied on.

14. Secondly, the statement of the Defendant positively supports the prosecution assertion of an assault than any other suggestion. In his statement, he admits to being angry or "cross" with the Deceased. This was shortly before the assault.
    

"Hem come insaed long room mi two fala lay daon long hem ia, mi stand up and go out, me talk olsem long hem, mi like (sic) lay daon waitem man mi cross long hem ia. So mi go out, mi go long kitchen, so hem go inside long nara room,...." (emphasis added).

His actions in getting up to go away from the Deceased when she came into the room, is reflective of his state of mind prior to the assault.

15. Thirdly, when he returned from the shop and saw her sitting in the kitchen beside the fire, he says he ran towards her and sat on her shoulder.
    

I find his action irregular, unnatural and abnormal. The only logical explanation is that his actions were consistent with that of an angry man, of an assault or a deliberate act being intended and committed, than anything else. I reject any suggestions his actions were an act of affection, friendship, love or could have amounted to a joke or being done in a funny way. The manner in which it was done rules out any suggestion that those were acts of affection or friendliness between a husband and wife.

16. Further, the words which the Defendant admitted to using do not suggest any form of affection or friendship or love between them. If anything there was a tinge of sarcasm in the words used. He states that when he sat on her shoulder he said to her and I quote: "you think say wea nao bae you go. No matter you go long home belong you bae you come back yet long here ia."
    

Whichever way those words can be construed they do not support any suggestions that what he did was anything else other than intentional or deliberate and amounted to an assault.

17. Fourthly, his actions after sitting on the shoulder of the Deceased support the version of prosecution of an assault. He stated that after sitting on her shoulder he walked off to cut his tobacco. I find his actions to be anything but reckless and careless, devoid of any form of feeling or concern as to what his actions may or might have caused on the Deceased. He expressed shock on hearing her shouting and running to her neighbour's house only after the event.
    
18. Fifthly, why didn't she call out to him or ask him for help after he had sat on her shoulder? The most natural, logical and normal thing in such circumstances would have been for the Deceased to call to the Defendant (her husband) for assistance for he was in the house with her and nearby. In normal circumstances, this is what should have been done or happened. Why did she ignore him, or was it more that she bypassed him or avoided him because she knew that he had hurt her by his actions. We now know that she had actually been fatally injured!
    

She had to run or walk across to her neighbour some 15-20 metres away for help! This is most extraordinary when immediate help was only a few meters away from her. I find this unusual behaviour to be consistent with the assertions of prosecution that she had been assaulted.

19. Sixthly, the undisputed evidence of PW1 as to what she heard the Deceased say to her on her arrival at her house to be consistent with the assertion of an assault than anything else. The first thing the Deceased told PW1 on arrival was that she was dying.
    

The Defendant confirms in his statement hearing those words. Why did the Deceased say she was dying? What happened to cause her to be in such distressed condition? Obviously, something drastic had happened to her.

Normally the quantum or amount of force used or applied can be deduced from the effect or impact on the victim. In this case, according to the evidence, the effect was almost immediate or instantaneous. It is only logical therefore to conclude that there had to be sufficient force applied for the impact to be felt almost immediately. Her condition rapidly deteriorated thereafter and there was nothing that could be done to arrest the condition for the injury caused was fatal. By the time the Deceased was taken to the clinic at about 12.30 am on Sunday 20th September 2009, her vital signs were critical. If the assault had occurred around 10:00 pm, this would have been only a couple of hours later.

20. No other evidence has been led to suggest or provide any reasonable explanation to account for the sudden deterioration in the condition of the Deceased that night. While submissions have been made that the Deceased was a hard working woman and had been involved in heavy work in the garden earlier that day and being involved in lifting heavy items, the connection or causal nexus simply does not exist or is too remote. No evidence has been led to suggest that she was feeling unwell, sick or in pain when she returned from the garden. To the contrary, earlier in the evening when she was seen by PW1 at her house, she was normal and well. I find nothing in such suggestions to raise any reasonable explanation and raise any reasonable doubt in my mind that her injury could have been as a result of having worked in the garden earlier that day.
    
21. Seventhly, PW1 told the court that the Deceased had said words to the effect that she was dying because she had been assaulted by her husband. This has been objected to by the defence on two grounds, first as hearsay and not admissible and secondly, that the court should not rely on it as PW1 had denied in her statement to police that the Deceased had told her anything.
    
22. Prosecution on the other hand say the Deceased's statement comes within the exception of a dying declaration.
    
23. A dying declaration is covered under section 123 of our Evidence Act 2009, which provides as follows:
    

"The hearsay rule does not apply to evidence of a representation made by a person that was a contemporaneous representation about the person's health, feelings, sensations, intentions, knowledge or state of mind."

24. In Ross on Crime[1], the learned author describes a dying declaration as "... a spoken or written statement made by a person before death. The statement is made when the person has a settled and hopeless expectation of death. The statement must be relevant. The person would have been a competent witness before death. The declaration is admissible only in a homicide case."
    
25. These principles were referred to in the case of R. v. Arnott[2], which quoted Cross on Evidence[3] as follows:
    

"The oral or written declaration of a deceased person is admissible evidence of the cause of the death at the trial for his (or her) murder or manslaughter provided he (or she) was under a settled hopeless expectation of death when the statement was made and provided he (or she) would have been a competent witness if called to give evidence at that time."

26. In R. v. Golightly[4] per Owen J., his Honour sets out five conditions which require to be satisfied for a statement to be admitted into evidence as a dying declaration.
    

"First, the maker must be dead. Secondly, the trial must be for the declarant's murder or manslaughter. Thirdly, the statement must relate to the cause of the declarant's death. Fourthly, it must be established that the declarant would have been a competent witness. Finally, the declarant must have been under a settled hopeless expectation of death."

27. It is not disputed the Deceased is dead; she died a couple of hours after the assault. It is not in dispute this trial was held on a charge of manslaughter against the Defendant. The first two conditions therefore have been fulfilled.
    
28. As to the third condition, I am satisfied the Deceased's statement relates to the cause of her death, that is, she died as a result of having been assaulted by the Defendant. The Deceased had told PW1 and another person attending to her that she was dying because she had been assaulted by the Defendant.
    
29. There has been suggestion that the statement was too vague, that the word "assault" was too general and could mean anything. However, when considered together with other evidence, including the statement of the Defendant, any vagueness or ambiguity is removed. In any event, the case for the prosecution is quite specific, that the assault consisted of him sitting on her left shoulder and that this caused internal injuries, that is, her spleen to be ruptured or lacerated and from which she subsequently died a couple of hours later. The cause of death being directly connected to the assault.
    
30. As to the application of the fourth condition, there is no dispute that the Deceased would have been a competent witness in this case if alive.
    
31. On the fifth and final condition, again I find that this too has been fulfilled. There can be no other reasonable explanation or conclusion than that she was under a settled hopeless expectation of death from the outset. She said this at the beginning and her condition rapidly deteriorated thereafter. I am satisfied by the time she made the statement to PW1, she was dying and she knew that.
    
32. I find that her statement should be admitted as a dying declaration and within the exception set out in section 123 of the Evidence Act 2009.
    
33. Should her statement be excluded on the ground of a prior inconsistent statement having been made to police on or about 20th September 2009. At page 2 of her statement she told police that the deceased "did not tell me anything happened to her." When asked in court to explain this inconsistency she told the court she was concerned about her safety at that time and therefore did not tell police about what the Deceased had said to her. When further asked to explain she told the court that she was frightened the Defendant might do something to her because the issue was still fresh and the Defendant was still around. She also pointed out that others might say that she was talking too much.
    
34. I have had the opportunity to observe this witness in court and determine the veracity of her explanation and her credibility. I am not satisfied her evidence in court about what she heard from the Deceased had been discredited so that it should be excluded or ignored. I find her to be an honest witness, clear and confident in her appearance, consistent in her evidence and her explanations reasonable and truthful.
    
35. I do not find anything to suggest that she may have had any prejudice against the Defendant. As well there has been no suggestion that she may have lied or have any reason or motive to lie to the court about her evidence. I find her to be an independent witness in this case. She is from Malaita and only connected through marriage. I find her explanations of being frightened and being concerned of being accused of talking too much to be reasonable explanations taking into account her position as being connected through marriage. I find her to be a neutral witness, truthful and sincere.
    
36. I am not satisfied as well that there is any suggestion of biasedness in her evidence in favour of the Deceased or any dislike against the Defendant for any reason and therefore to colour or tailor her evidence accordingly. I am not satisfied too that it has been established that she has any interest in the outcome of the case, which would have affected her testimony in court.
37. Finally, I find no suggestion of any forms of bribery or corruption in this case whereby her evidence should be excluded or even any form of mistake as to what she may have heard being said to her. I accept her explanation and her evidence as correct and truthful.
    
38. But even in the event her evidence should be excluded, I am still satisfied there is sufficient evidence before me of an assault.
    

The cause of death.

39. Dr. Rooney Jagilly, a surgeon at the National Referral Hospital carried out a post mortem examination on the Deceased's body on the afternoon of the 21st of September 2009, which is more than some 24 hours after she had died; she had died at about 2:00 am on the morning of 20th September 2009.
    
40. In his external examination, apart from a three centimetre ulcer on the right leg, he noted there were no obvious bruises, lacerations and fractures. He noted as well that the abdomen was moderately distended or swollen.
    
41. The internal examination revealed more and is central to his ultimate finding of the cause of death. He noted that the abdomen was filled with blood and estimated it at 4-5 litres. His examination of the major organs revealed a crucial finding that the spleen had distinctive lacerations on both sides. He concluded that the Deceased died of hypovolemic shock (Haemorrhage) from a splenic injury.
    
42. This finding on the cause of death has not been challenged.
    
43. The crucial issue and this sums up the defence case, is what is the cause of this splenic injury? The defence say that prosecution have not established beyond reasonable doubt that the splenic injury was caused by the assault, that is, the act of sitting on the left shoulder of the Deceased by the Defendant.
    
44. The defence have sought to suggest that the cause of the splenic injury could have been something else other than the assault. It seems that their case is that it could have been as a result of heavy work and lifting earlier in the day while working in the garden, or it could have been due to a fall or infection on her foot.
    
45. On the suggestion that the injury could have been caused by work done earlier in the day, the clear evidence before me is that there was no physical sign of any form of distress or pain which would indicate that the Deceased had injured herself seriously earlier that day while working in the garden. I have covered this point earlier in this judgment and so do not need to repeat that this suggestion must be ruled out as pure speculation because in the evening, and this would be well after having worked in the garden, she was well and normal.
    
46. The Defendant in his statement did not point or raise anything that would suggest that she was labouring under any intense pain or sickness earlier that evening.
    
47. I accept the opinions of Dr. Jagilly and Dr. Maraka that the circumstances described of sitting on the left shoulder of the Deceased was the probable or likely cause of the splenic injury apart from any other explanation. Both learned Doctors accepted that such action was capable of causing such injury. Dr. Jagilly in particular, who conducted the post mortem examination stated in court and virtually ruled out any suggestions that the injury may have been caused by any infection or as a result of lifting any heavy load or even of malaria for he pointed out that the lacerations on the spleen were quite severe which would have caused heavy bleeding to take place. This conclusion is consistent with the facts as to what occurred after the assault had taken place.
    
48. Under cross examination he reiterated that for such severe injuries and heavy bleeding to take place, apart from trauma, it could be caused by eptopic pregnancy where the fallopian tubes become enlarged and ruptured, causing heavy bleeding. That was not the case here for the Deceased was not pregnant. He also pointed out that the blood was recent, not old blood and so the injury as well was quite recent not something that had occurred over time.
    
49. Dr. Jagilly also clarified that in the case of mild bleeding, the victim will complain of pain in the left upper abdomen and as blood leaks it will become generalized and the victim will have pain on the left shoulder. As bleeding continues, the pain will increase and with the loss of blood the victim will start to exhibit symptoms of shock, light headedness, fainting, feeling of anxiety and so on. The tummy will become filled up and the abdomen swollen.
    
50. I find no evidence to suggest or support any assertion that the bleeding in this case was mild and may have started off earlier in the day and gradually increasing and becoming worse at night. There is no evidence to suggest that the Deceased had ever complained throughout that evening of having any pain or feeling unwell.
    
51. He also expressed the view that the spleen was not unnecessarily enlarged, which sometimes is observed in victims in Solomon Islands due to malaria. He ruled out any suggestions that the spleen may have ruptured suddenly because it was enlarged. There has been no evidence produced to suggest that the spleen had been injured because of this particular condition. Apart from the assertion of the defence they have not raised any evidence in support.
    
52. As well, the Doctor ruled out any suggestions that it may have been damaged as a result of the ulcer on her feet or bacterial infection. He pointed out that the lacerations were quite distinct and thought it was quite remote that the injury could have happened because of that suggestion. He maintained his view in cross examination. No evidence to the contrary has been produced to support any such suggestion as well.
    
53. While he conceded that the spleen can be quite sensitive and become fragile if enlarged or affected by any infection, it was well encased under the left rib cage and not normally injured without some significant force or trauma applied to the area around it, which included sitting on her shoulder.
    
54. I note that Dr. Maraka was more reserved in expressing any conclusive opinion on the cause of death but that was because he was not the Doctor who conducted the post mortem examination and could only comment generally on questions and scenarios that had been put to him to comment on. His general observations do not assist the defence case any further as to raising any doubt in my mind as to what the cause of death was in this case.
    
55. I find as unarguable and conclusive, that shortly after the Defendant had sat on the left shoulder of the Deceased, she began to complain of and to manifest symptoms consistent with severe internal bleeding. By the time the Deceased reached PW1's house, which is about 15-20 meters away, she was complaining of severe pain in her chest, was faint and weak and had to be supported by PW1. It would seem that by the time PW1 came out to her she collapsed into her hands. Her condition thereon went from bad to worse. It was so bad she had to be carried to her house by PW1 and the Defendant and was already in extreme pain. By the time she was taken to the clinic, her condition was critical. All these happened within a very short span of time, the defining moment being the act of assault by the Defendant.
    
56. It has not been disputed that all these symptoms took place from the moment she was assaulted by the Defendant. I am satisfied the defining act was the assault committed by the Defendant on the Deceased.
    
57. A mere assertion that the ruptured or lacerated spleen could have been caused by the Deceased earlier in the day lifting or doing heavy work in the garden, or by any infection, or by an enlarged spleen due to malaria, is insufficient without any supporting material or evidence to raise any reasonable doubt in my mind so as to break the nexus between the act, internal injury and death. If as asserted by the defence that she may have injured her spleen earlier that day, internal bleeding should have begun then and she would have complained of such symptoms much earlier for the injuries were quite serious or severe. The factual events simply do not support any such suggestion.
    
58. I am not satisfied the defence have pointed to any evidence that would support their assertions that would cause me to have any reasonable doubt about the nexus in the cause of death in this case.
    
59. Having heard and considered the evidence adduced and considered the totality of circumstances and the events surrounding the Deceased's death that night, I am more than satisfied prosecution have proven to the requisite standard that the Deceased died as a result of the unlawful act of the Defendant by sitting on her left shoulder, which caused her spleen to be ruptured or lacerated and subsequently caused her death. She died at the hands of the Defendant.
    

Decision.

60. I am satisfied a finding of guilty should be made in this case and I convict the Defendant of the offence of manslaughter contrary to section 199(1) of the Penal Code.
    

Orders of the Court:

1. Find the Defendant guilty of the offence of manslaughter contrary to section 199(1) of the Penal Code.
   
2. Convict him accordingly.
   

The Court.

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^[1] David Ross QC, fifth edition, page 568, para. 4.6100
^[2] (1992) 79 A Crim R 275 (Vic) per Coldrey J at 275-276.
^[3] (4^th Aust ed. 1974), paras. 33260 to 33310.
^[4] (1997) 17 WAR 401 (Owen J)