R v Kaipua [2014] SBHC 136; HCSI-CRC 295 of 2013 (24 October 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
PALLARAS J

Criminal Case Number 295 of 2013

R

v

ALLEN KAIPUA

Coram: PALLARAS J
Crown: Mr. A. Kelesi
Defence: Mr. N. Galo
Hearing Dates: 22-24 October 2014
Verdict Delivered:

VERDICT

1. Allen Kaipua (the accused) was charged with one count of murder contrary to s.200 of the Penal Code [Cap. 26] (Count 1) and one count of common assault contrary to s.244 of the Penal Code [Cap. 26] (Count 2). To both charges, the accused pleaded not guilty. As a result of his pleas, the onus is on the Crown to prove his guilt in respect of each charge, beyond reasonable doubt. I remind myself that there is no onus on the accused to prove his innocence or anything else.

2. The prosecution called four witnesses in its case, although only one witness PW1, saw the fight between the accused and the deceased.

3. PW1 was Seldon Taikake. He testified to seeing the accused punch the deceased causing the deceased to fall to the ground. He then saw the accused sit on top of the deceased who was at this time lying motionless on the ground, and hit the deceased to the face and head using swinging alternating blows with both of his hands.

4. Prior to the assault, the deceased was part of a large group of men who were talking and drinking together near a bottle shop. The accused was also part of this group although on his version, he was only with the group at a later stage. Several of these men were related to the accused and the deceased who were themselves wantoks.

5. At some stage after all of the men had drunk a large quantity of beer, the issues of logging and mining were being discussed. There was some evidence, although quite scant, that the accused and his family had connections with the logging industry. Some comments were passed by the deceased which were regarded by a number of witnesses to be said in a joking fashion, criticising the logging industry. According to PW1, the accused responded with a similar remark about the mining industry. The deceased then said to the accused that he should not be angry because "your mum and dad are not part of the logging".

6. According to PW1, the accused walked away a little distance and sat on a table that was normally used for selling market goods. The deceased approached him and said "what do you want to do to me?"

7. PW1 then said that he heard a sound of a person hitting another. He said and repeated after being challenged, that he did not see who hit whom. When he looked up, he saw the accused hit the deceased by punching him to his face. The deceased twisted to the left and fell in a way that both his feet came off the ground. He fell onto the ground which was a cemented area.

8. As soon as the deceased fell, PW1 moved closer to the two men and saw the accused sitting on top of the fallen deceased, swinging both fists and hitting the deceased to the head. PW1 said that the deceased "wasn't doing anything, he was sort of like asleep". I took this evidence to mean that the deceased was unconscious or only partly conscious on the ground

9. PW1 tried to stop the fight by grabbing the accused and by trying to pull him off the deceased. The accused then punched PW1 who fell back onto the ground hitting his head on the cement and causing him to be momentarily dizzy and dazed. The accused again began to hit the deceased to the head. PW1 shouted to him to stop hitting the deceased. The deceased had still not moved. PW1 became scared and shouted in a loud voice so that he could get the attention of some of the other men "why are you hitting Saueha?"

10. In an attempt to frighten the accused into stopping his attack on the deceased, PW1 said "here comes John with a knife". John was John Tongaka (PW2). When this was said, the accused stood up, ran off, and was chased by John who failed to catch him.

11. PW1 saw that the deceased had a "huge gash" to his head with blood coming from his ear. He used his shirt in an attempt to clean the blood from the deceased.

12. PW1 agreed that it was the deceased who was initially being more verbally aggressive to the accused but denied that he ever saw the deceased strike the accused.

13. In cross examination, PW1 agreed that the topic of land ownership was being discussed among the group with much of the talking being done by the deceased and PW2. He said that the discussion was not heated. He agreed that the accused came over to the discussion and said words to the effect of "you people should allow mining and we will continue with our logging". At one point the deceased said "Rennell people should masturbate with their logging".

14. At a later stage in the evening, the timing of which is not clear from the evidence, a similar exchange of words occurred between the deceased and the accused. PW1 said that the tone of the comments was a joking tone. The deceased's comments were characterised as swearing by the defence and PW1 agreed that the deceased "swore" at the accused several times in this manner.

15. Someone said to the accused "is this you Allan, are you the one?" While PW1 was unable to give any clear description of what these comments conveyed, he testified that this was a common "joke" in his community and was regarded as such by them.

16. The accused at one point said "we have just drunk from a logging man", which I took to mean that the person who bought the cartons of beer from which they were all drinking, was paid as a result of work done in the logging industry.

17. It was then put to the witness that he lied about not seeing who threw the first punch. He ultimately agreed to this suggestion and further agreed that it was the deceased who punched the accused before the accused struck the deceased.

18. In response to a question from the Court PW1 admitted that he lied on this issue because the deceased was his uncle and he was still upset that he had died.

19. It was put to PW1 that he fell to the ground in the act of trying to stop the accused from hitting the deceased, that the accused was prevented from hitting the deceased further by the actions of PW1 and that the accused only struck the deceased one blow to the mouth. PW1 disagreed with each of these suggestions.

20. It was put to PW1 that when John (PW2) arrived he did not chase after the accused but instead, kicked the head of the deceased who was lying on the ground. Both of these suggestions were denied. It was then suggested that PW1 was protecting John because of a fear that PW1 might lose his job because his employer was John's relative. This too was denied.

21. PW2 was John Tongaka. He was drinking with the group of men when he and a man named Lennon, decided to walk to a stall to buy more beer. They were a short distance away from where the accused and the deceased were. He was about 15-20 meters away when he heard the accused and the deceased joking together. As he continued walking he heard shouting coming from the area where the deceased and the accused were. Lennon called to PW2 and both of them ran back to see what was happening.

22. When he got to that area he saw the deceased lying on the ground bleeding from his ear, nose and eye. The accused was standing on a raised area about three metres away from the deceased. PW2 shouted to the accused to get a taxi but the accused refused. He shouted again and the accused still refused. PW2 then grabbed the accused by his clothing and pulled him down from the raised area. The accused then ran from the scene and was chased by PW2 who failed to catch him.

23. In cross examination it was put that he and the deceased were discussing land ownership issues. This was denied. It was put that the deceased said to the accused "you just masturbate with your logging". The witness testified that he did not hear that or anything like it. PW2 agreed that it took less than a minute for him to run back to where the deceased was lying and he said that the deceased was not moving when he got there. He denied asking the accused "why did you punch the deceased?", and denied that the accused said "because the deceased swore at me and my father". It was suggested that he got angry and kicked the deceased in the head because he was related to the accused's father. This suggestion was denied.

24. PW3 was Doctor Rooney Jagilly. He conducted a post mortem examination on the deceased. He read from his report which itemised the injuries that he found. He concluded that the cause of death was "significant bleeding inside the head, causing raised intracranial pressure and compression." He testified that in his opinion the injuries were consistent with "repeated punches of significant force, not a single punch." He allowed the possibility of the injuries being caused by a kick.

25. PW4 was Lenon Haibanga. He was the man walking to a stall to buy beer with PW2. After he passed the area where the deceased and the accused were, he heard "a bang". He called to John (PW2) and together they ran back to the area. He saw the deceased lying on the ground and the accused standing on a higher structure looking down. He tried to help lift the deceased who was unconscious, but he could not. He called for help from others to help the deceased and to try to wake him but they were unsuccessful. PW2 had already ran off chasing after the accused.

26. In cross examination he agreed that he heard the accused say "I punched him because he swore at me" but did not hear PW2 say anything to the accused. He denied that PW2 kicked the deceased in the head and said that he was the one who went to the deceased while PW2 chased after the accused.

27. The prosecution tendered a statement from Dr. Scott Siota that upon admission the deceased was bleeding from the nose and ear and had a blackened left eye. He noted that the deceased was intoxicated. X-rays revealed a skull fracture and as his condition deteriorated, he was operated upon. The operation revealed "extensive subdural haematoma".

28. The prosecution closed its case.

29. The defence called the accused to testify on oath and called no other evidence.

30. The accused testified that over the period of time he drank about 6 cans of beer. He said that there were several of his wantoks and relatives drinking beer that evening and he described how he was asked to purchase more beer with money given to him by his cousin. At a later stage he approached his relatives to get another beer and he heard them discussing land ownership issues. He said that the discussion "became intense" and that he attempted to change the subject. He said "you should concentrate on your mining and us from Rennell will carry on with our logging."

31. The accused testified that it was a vigorous discussion but that no one was getting angry. He said his uncle, the deceased, swore at him. He later said that his uncle was not swearing at him but rather at the topic that he raised. He said that he wasn't swearing at him but just using unpleasant language. He then left to buy some diapers for his child and then walked home.

32. Later, after having a sleep, he returned to the area at around 7:30 p.m. to get more beer. PW2 and PW4 were standing nearby and the deceased then spoke to him. The deceased said "Allan is that you?" PW2 and PW4 walked away while the deceased swore at the accused saying "you people from Rennell are shit". The accused replied "we are drinking beer from money taken from logging". The deceased then said to the accused" you should not be angry, your dad is not part of logging." He then testified that the deceased said "you and your father are penises".

33. The deceased then asked the accused "do you want to fight?" to which the accused said nothing. The deceased then punched the accused on the mouth. The accused turned his head quickly and the hand of the deceased "slid past". The accused then punched the deceased in the teeth with his right fist while he was still holding a can of beer. The deceased "sat down" then he "collapsed down" and lay on his side. The accused "paused for a few seconds and then the anger built up". He decided to hit the deceased again and as he was attempting to do that he was pushed aside by PW1 who prevented him from striking the deceased. He struggled with PW1 and continued to try to punch the deceased.

34. According to the accused, the deceased then raised his knee, pushed him and caused him to fall on to the ground. PW1 then lifted him up and told him that John (PW2) was coming with a knife to get him. The accused then jumped up on top of a wall. When John arrived, he could see that he had no knife. John asked him "why did you punch that man?" John then pulled him down off the wall and the accused told him that the deceased had sworn at him and his deceased father. PW2 released his hold on the accused and walked over to the deceased. The accused began to walk away and when he looked back he saw PW2 kick the deceased in the head.

35. Cross examination consisted principally of the prosecution putting its case to the accused. However, during cross examination the accused was asked whether he had ever told anyone that he had seen PW2 kick the deceased in the head. The accused said that he had, during a chat that he had with one detective but that in his Record of Interview he did not mention it. He was asked several questions by the prosecutor and also by the Court about why he didn't take the opportunity to tell the police what he had seen.

36. During the course of cross examination I asked the prosecutor not to ask any further questions touching upon the accused's Record of Interview, as for some unexplained reason it had not been produced during the prosecution's case and I was concerned about questions of fairness to the accused. I indicated to counsel that I would hear them on the issue of the admissibility and fairness of that evidence. The trial was adjourned to the following day for submissions to be prepared.

37. The prosecution submitted that the evidence was admissible and that no unfairness attached to its reception. The defence submitted that it was not admissible. In my judgement, in allowing the prosecution to continue with that questioning and indeed by exacerbating matters by asking questions on the topic myself, I have permitted the prosecution to split its case. As such, the evidence was inadmissible and in any event, its reception was unfair to the accused. As a result, all of that evidence arising out of questions put to the accused about his Record of Interview or why he didn't tell the police about seeing the deceased being kicked, I rule to be inadmissible. It will play no part in my assessment of the evidence in this case.

38. As can be seen there were two distinct and different accounts as to what occurred on this evening. The prosecution produced only one witness (PW1) who saw the accused punch the deceased and that witness admitted to lying on oath. Serious issues arise as to his truthfulness and reliability and all of his evidence must be scrutinised with great care. If the evidence of PW1 was the only evidence adduced by the prosecution their case would fail on the issues of reliability and credibility.

39. The issue over which PW1 admitted lying, was whether he saw the deceased strike the accused. At first he said that he did not and later admitted that he did. When asked to explain himself he said that he was still very upset that his uncle had been killed. I inferred from his evidence that he did not want to incriminate his uncle in any way as he had died. However, he later reneged and said that his uncle did strike the accused.

40. While PW1's change of story is significant and serious, it did not relate to what I consider to be the primary factual issue in the case, namely, how did the deceased get his injuries? On the prosecution case, the deceased received his fatal head injuries by the combination of punches delivered to him by the accused which may have been contributed to by the hard surface onto which the deceased fell. On the defence case, the deceased received only one punch from the accused, when he fell he did not hit his head on the ground as he "sat down", and was kicked in the head by PW2. It was this later kick that the defence suggest caused the fatal injury.

41. An essential factual issue to be determined therefore is has the prosecution proved beyond reasonable doubt that the deceased's injuries were caused by the accused and that PW2 did not kick the deceased in the head.

42. Several witnesses testified that when they reached the deceased, he was either not moving or was unconscious. They all testified that the deceased was bleeding from various parts of his head, nose, eye and ears. The accused however testified that the deceased was still struggling against him after he fell to the ground and suggested that the deceased had raised his knee and forced him to fall back onto the ground. He said that he did not see the deceased bleeding at all from the head.

43. When asked whether PW2 was angry with him when he approached him, the accused agreed that he was. He also agreed that PW2 approached him and not the deceased.

44. I accept the un-contradicted evidence of PW4 when he says that he went directly to help the deceased and that he called others in the group to help him. The accused said that none of the men assisted the deceased in any way and just left him on the ground. I find this account to be untruthful particularly given the immediate response of two of them in running back to see what was happening, the fact that they were friends or relatives, and the evidence of PW4 who tried to do what he could to help the deceased. At a later stage, the accused said that what he meant was that no-one helped the accused to hospital even although in his testimony he suggests that the deceased was not seriously hurt at that stage.

45. I find as a fact that the deceased was already seriously injured when PW2 and PW4 reached him and I reject the accused's testimony that he was still struggling with him or was able to push the accused away with his raised knee.

46. If the deceased was already seriously injured at the time he was lying on the ground, the question is how did he get those injuries? Leaving aside the testimony of PW1, the medical evidence from Dr. Rooney Jagilly (PW3) is to the effect that, in his opinion, the significant amount of bleeding found in the skull of the deceased would not be explained by a simple fall. In his view, it was more likely to result from a more significant force. It was also his opinion that the injuries would not be explicable by a single punch but by repeated punches which impacted with significant force on the head of the deceased. He also allowed for the possibility that kicking to the head could cause the injuries seen.

47. Having found that the deceased was already seriously injured when he fell to the ground and before PW2 and PW4 reached the scene, there are only two possibilities open. The first is that the injuries were caused by the accused repeatedly punching the deceased in the head with considerable force. The second is that the deceased was kicked in the head by PW2 after the accused had left the scene.

48. Neither PW1 nor PW4 saw PW2 at any time kick the deceased. They in fact rejected the suggestion outright. PW4 himself rejected the suggestion. I am satisfied that PW4's sole purpose in returning was, after finding out what had happened, to hold the accused to account for what he had done. I am satisfied that he chased the accused for this very purpose. I reject the suggestion that PW4 kicked the deceased in the head or that he in any way caused the death of the deceased. I find beyond reasonable doubt that the deceased died as a result of injuries inflicted on him by the accused punching him to the head several times with significant force.

49. The issue of self-defence has been raised by the accused. While a good argument might have been made in respect of the first punch delivered by the accused to the deceased, his subsequent actions of sitting on the deceased and punching him repeatedly to the head, do not have any hallmarks of acting in self-defence. Indeed they suggest the opposite. The accused himself testified that after the first punch which felled the deceased, the accused "paused". During this pause, he says that anger grew in him and he decided to attack the deceased again who was at this stage on the ground. The attack that followed was one made out of anger and temper, not self-defence. Even if I am wrong about that characterisation, I find that what the accused did in purported self-defence far exceeded the needs of the moment. It was grossly excessive.

50. The issue of provocation arguably, has been raised on the evidence. The accused contends that he and his deceased father were insulted by the deceased. The evidence on this issue is contradictory, one prosecution witness agreed with defence suggestions that the deceased said "you and your father are penises". Others heard nothing of the sort.

51. While in some instances this comment would be insulting to those being referred to, in the context of the facts of this case where several related men were drinking beer together for some hours, engaging in "joking" and what I find to be common banter between those engaged in logging and those engaged in mining, I cannot find that provocation has been established. I do not find that what was said would be sufficient to make an ordinary Solomon Island man in the situation that prevailed on this evening, with the background and characteristics of the accused, lose his capacity to control himself. From the preponderance of the evidence, I have formed the view that it was common for those from Bellona and those from Rennell to engage in banter over the issues of logging and mining. Several witnesses said that the conversation that occurred on this evening was of this character or was simply "joking".

52. The accused himself said that the deceased was "just looking at me as a nephew" and that he was "not trying to provoke me or anything". He also said that the deceased "was just swearing at the topic which I brought up, he wasn't provoking me". Furthermore, the accused testified that after this conversation occurred he left the area for some time and came back later to drink more beer with the group.

53. As a result of these findings, I am satisfied beyond reasonable doubt that the prosecution have established that the deceased died as a result of injuries deliberately inflicted on him by the accused. I find that those injuries were caused when the accused struck the deceased a forceful blow to the head causing him to fall to the ground, at which point the accused sat on or knelt by the deceased and continued to punch him to the head with several forceful blows. I am satisfied beyond reasonable doubt that when he engaged in his attack upon the deceased the accused intended to cause grievous bodily harm to the deceased. I also find that the accused knew that what he was doing would probably cause the death of or grievous bodily harm to the deceased.

53. The accused is therefore convicted of one count of murder.

54. In relation to the count of common assault, I am not satisfied that the Crown has made out its case and the accused is acquitted of this charge.

ORDERS:
1. The accused is convicted of one count of murder contrary to section 200 of the Penal Code [Cap. 26].

2. The accused is acquitted of the count of common assault (Count 2).

THE COURT