Regina v Waidia [2014] SBHC 45; HCSI-CRC 296 of 2013 (2 April 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Maina, J)

Criminal Case No: 296 of 2013

REGINA

v.

MICHAEL WAIDIA

Date of Hearing: 17th, 18th, 19th, 20th, 21st, 25th February 2014
Date of Judgment: 2nd April 2014

Mr. Holara for the Defendant
Mr. N. Dhita, Mr. J Naigulevu, Mr. B Dalipanda for Crown

JUDGMENT

Maina J:

Introduction

Michael Waidia is charged with one count of Murder contrary to Section 200 of the Penal Code.

Prosecution alleged that accused Waidia used a knife to stab the deceased Rex Bara on his head. The knife went into the left temporal region of the deceased's head cut through his skull and entered the brain of the deceased. He was taken to the National Referral Hospital but died a week later.

Fact of the case

On the 21st March 2013 accused Michael Waidia with deceased Rex Bara and his brothers Richard Colin, Alison Pegua had some drinks in Reuben Kabol's house at Moscow village. They decided to attend a wedding feast and went to Calvary village.

At Calvary village, Round-about area, a fight broke between the two brothers Alison Bara and deceased Rex Bara – fight described by prosecution witnesses as "pretending to fight". Accused saw the fight and he went to stop them. Also Richard Collin and Reuben Kabol came to stop the fight. The brothers hit or punched the accused and accused Waidia then swore or used swearing words to the brothers.

At the brawl or fight the accused struck or swung a knife to the deceased Rex Bara and landed on the left of his head. The knife went into the skull of the deceased. Accused tried to pull or retrieve the knife but only manage to pull out the handle and blade stuck on the head. Later Stephen Toto Ringo pulled the blade from the deceased's head.

Deceased was transported to National Referral Hospital and on 28th March 2013 but later died from the injury.

Dr. Roy Maraka in his medical report confirmed that the deceased died from the stab wound or injury on his head.

Issues

There are two issues in this case:

1. Whether the act of the accused when he stabbed the deceased Rex Bara with a knife was an act in self defence.
   
2. Whether the stabbing by defendant Michael Waidia was intended to kill or to do grievous bodily harm to the deceased Rex Bara.
   

Issue 1

Defence Counsel Holara submitted that the injury which caused the death of the deceased was inflicted by the accused with a knife when he defended himself from the deceased and his brother and his act was self defence.

He should be acquitted of murder and, in the alternative he did not intend to kill with malice aforethought hence the Court may also find him guilty of manslaughter.

Section 17 of Penal Code provides that self defence is to be determined according to the principles of English common law.

His Lordship Ward in the case R v Zamagita & Others [1985-96] SILR 223 outlined the self-defence in common law when he said that "to lawfully use a force in order to defend oneself or one's property or any other person such use of force must be reasonably necessary. The necessary force is a matter of act on a consideration of all the surrounding factors.

It is to be used in the most extreme circumstances of clear and very serious danger, as there are many other effective remedial measures available".

Prosecution case

The evidence is accused Michael Waidia pulled out the knife and held it in his hands, then struck or swung toward the victim and landed on his head. The knife went into the left temporal region of the deceased's head cut through his skull and entered the brain of the deceased. And he died a week later from the injury.

Prosecution submits he knew that the struck in that manner surely have put at great risk. And the knife cause grievous bodily harm to the deceased.

Defence case

The defendant claimed that Collin and Alison were fighting and he came in to rescue them but the brothers turned around and fought him instead. He asserted to have sworn so that the brothers could not fight him but they continued to assault him and in the circumstances, he swung the knife and injured the deceased.

At the fight, accused went and held on to Collin's shoulder and pulled him up, but Collin turned around him and said to "You too you want to be smart". Collin then hit the accused on his side. The brothers then reacted and fought the accused.

Accused Michael Waidia tried to defend himself and swore to the brothers in custom. He said,

"Fakem sister and mum bloniufala for iufala no kam killim mi".

In custom this means to stop them from coming to kill him.

After he swore to stop them from coming to fight him, accused Waidia reacted further and said:

"I thought of my little knife, it was then that I pulled out that little knife. Then I stood up and I spoke back to them. I said the knife is here. Then I turned back and I walked on the side of that roundabout, at that point I thought of escaping".

The knife was in the accused bag (made of coconut leafs) with him. He described (demonstrated) to Court of his act and behavior or his reaction when he pulled the knife.

There is no dispute that accused caused the injury which resulted in the death of the deceased Rex Bara when he swung the little knife and wounded the victim at the left side of his head. But accused claimed that he did this to defend him from the immediate danger as no one was there to help him when the brothers combined to fight him.

The swearing in custom was intended to stop the brothers from fighting or hitting him. He did this then showed the knife to them then tried to walk to the spot described as "Round-about". At this moving moment, that challenge of hands continued and he held the knife and struck on the victim.

There was no evidence to suggest that he ran or quickly rushed to get away, except after the incident of injury of the deceased that he wanted to escape.

At the moment of hitting or punching each other there was no evidence to show or indicate if the hits to the accused by the brothers were such to possess or cause reasonable apprehension of death or grievous bodily harm. Also there was no evidence from accused to indicate his believe on reasonable grounds that if he did not struck the victim with the knife the hits would cause him to death or grievous bodily harm.

There is no evidence to show he was at great risk from the hits of the brothers and would not be able to avoid or escape. But he could have escaped i.e. at the initial fight with the two brothers, after he swore to them in custom and even after he showed the knife to the brothers. And at least to say here that there is no evidence adduced to suggest any threat to death or grievous harm to him.
Self defence as stated earlier may be available for most extreme circumstances of clear and very serious danger, but with this case it is also not established as such by the defence.

The essence of common law or in order for the act of accused by self defence according to the principles in R v Zamagita & Others [1985-1986] SILR 223, the nature of the assault he used was such as to cause reasonable apprehension of death or grievous bodily harm and; he used the force by way of self-defence believes on reasonable grounds that he cannot otherwise preserve himself from death or grievous bodily harm. For accused it is not as such at all.

I am not satisfied that the act of the accused Michael Waidia as an act of self defence and is dismissed.

Issue 2

Whether the stabbing by defendant Michael Waidia intended to kill or to do grievous bodily harm to the deceased Rex Bara.

The deceased was stabbed by the accused on his head at the left side with a small knife. The knife went through the skull into the brain and caused the death of the deceased.

Accused Waidia in his evidence to Court described his act and behavior or his reaction when he pulled the knife. He thought of his little knife and pulled it out. He stood up and he spoke back to the brothers. And among them "I said the knife is here". When he stabbed the deceased he bent forward and aggressively swung the knife with his right hand and the knife landed on the deceased's head at the left side.

Accused Michael Waidia demonstrated to the Court how he reacted and swung the knife that injured the deceased. He knew that the knife is a dangerous weapon and he had spoken out on the consequences.

Clearly his acts and the tone of his talk shows that the accused knew the consequences of the knife when he swung it towards the brothers, that it would probably cause grievous bodily harm to any one of them. He cannot have failed to realize the consequences of his action with the knife. Whether the accused did not wish to kill or cause serious injury to the deceased, he would not have failed to realize what the probable consequences of his action. And the consequence was that the knife landed on the deceased's head through the skull and brain which caused the death of the deceased.

I am satisfied the use of the knife by the accused when he swung it to the deceased was such that he could not have failed to realize that it would probably cause grievous bodily harm. He knew deceased Rex Bara and the brothers were there and fighting with him, but swung the knife which eventually landed on deceased's head which the cause the death.

Decision

I am satisfied and find him guilty of the murder of Rex Bara and is convicted accordingly.

Orders of the Court:

1. Find accused Michael Waidia, guilty of the offence of Murder.
2. Convicted accordingly; and
3. He is sentenced to life imprisonment.
   

....................................................
Justice Leonard R Maina
Puisne Judge