Regina v Ketei [2014] SBHC 58; HCSI-CRC 74 of 2011 (28 May 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
PALLARAS J

Criminal Case Number 74 of 2011

R

v

STEVEN KETEI

Coram: PALLARAS J
Crown: Mr. R. Iomea and Ms R. Olutimayin (Advisor)
Defence: Mr. C. Rarumae and Mr. S. Valenitabua
Hearing Dates: 19-21 May, 2014
Verdict Delivered: 28 May, 2014

VERDICT

1. Steven Ketei ("the Accused") was charged that on 13th February 2010 at Lunga in Honiara, he did murder George Napiei ("the deceased") contrary to s.200 of the Penal Code [Cap. 26]. To this charge he pleaded not guilty.

2. I remind myself that with this plea he has put the Crown to proof and that they must therefore establish their case beyond reasonable doubt if they are to succeed. If at the end of the evidence there remains any reasonable doubt, the accused is to be given the benefit of that doubt and is to be acquitted. He bears no onus of proof at all, the onus resting entirely on the prosecution to prove his guilt beyond reasonable doubt.

3. The Defence admitted that the accused had stabbed the deceased with a screwdriver but submitted that when he did this he was acting in self-defence and/or did not have the necessary intention to kill or cause grievous bodily harm.

The Crown Case

4. The Crown case is that on the night of the 13th February 2010, the deceased, his brother John Teigake (PW1) and another man named Leonard Menima, boarded a taxi being driven by Junior Ephraim Toriahuia (PW6) at Chinatown bus stop intending to travel east towards Henderson.

The Evidence of the Taxi Driver Ephraim Toriahuia (PW6)

5. The three men wanted to purchase some beer and cigarettes and on the way, stopped the taxi at Lunga market so that they could do so. Leonard Menima alighted from the taxi to buy beer and a few moments later the deceased followed him. John Teigaki was sitting in the front seat next to the driver. There was also a driver's assistant sitting in the back of the taxi.

6. A group of several young men were at the market when the taxi arrived shortly before midnight. The accused was amongst this group. While the taxi was parked at the market, one of the young men came to the driver's window and spoke to the driver. The evidence was contradictory as to the identity of this person but ultimately the defence case was that it was the accused who approached the taxi.

7. On the Crown case, the accused asked the driver for beer and cigarettes. The driver replied that he had none of either. The driver described how he became frightened at the actions of the accused and because a number of other young men were very near the taxi. At one stage, the accused was said to have leant into the taxi and flashed the headlights of the taxi, which caused a number of men to approach nearer the taxi.

8. The two passengers who had alighted from the taxi had been away for some time. One estimate was that they had been away for up to 30 minutes. After that time, according to the driver, they came rushing back to the taxi with one of them saying "they have stolen some of my money and wanted to punch me". Other parts of the conversation between the three men were in a dialect not understood by the driver. It was clear however that the men were frightened.

9. The three men then ran from the taxi and were pursued by the accused and a number of the men at the market. The taxi driver wanted to pursue the men for his fare and shouted out to them but his taxi was initially blocked by the men. When they ran off, he put on his headlights and drove along the road behind the men who had run off. He testified that he was concerned for his own safety in the situation he was in and wanted his money so that he could "go away for my safety".

10. His evidence was that when driving he saw a number of people running along the road. Of the three passengers, he saw two (the deceased and his brother) being chased by four or five men but did not see where the third passenger (Leonard Menima) had gone. He kept driving past the men and further down the road, did a u-turn and drove back.

11. Upon his return he saw many people on the road and saw one person (the deceased) being "dragged" by two people who were holding the deceased on either side of him. The deceased seemed unable to stand and he was lifted and dragged towards the centre of the road. He testified that one of the two men holding the deceased had a screwdriver in his hand. The deceased fell to the ground again and, while on the ground, was kicked in the ribs by one of the group of men. The deceased was not moving at all.

12. The driver testified that one of the men then came to his taxi, opened the boot and the deceased was placed in the boot of the car. He was told to drive off. He drove off intending to take the deceased to Central Police Station so that he could retrieve his unpaid fare.

13. On the journey to the police station, the driver said that he and his assistant heard "heavy breathing" coming from the boot. He stopped the car, opened the boot and was "shocked" to find the deceased with blood on his mouth and chest. He checked the deceased and found that he was not breathing.

14. He then continued to drive a little further until he reached Panatina fields where he stopped his taxi and, with the help of his assistant, dumped the body of the deceased under a tree. He then drove home.

15. Under cross examination PW6 said that he thought that the person who spoke to him at the market was drunk as he could smell beer on him. He was also one of the people who ran after the passengers.

16. PW6 also said that the man who had spoken to him at the market was one of the men he saw dragging the deceased across the road and was the one holding the screwdriver.

PW1 John Teigake - Deceased's brother:

17. The deceased's brother, John Teigake PW1) gave evidence. He said that he waited in the taxi with his brother when Menima left the taxi. After some time the deceased went to check on Menima and was approached by a man who asked him for beer and money. The deceased said that he had none and returned to the taxi. The same man who had approached the deceased then asked him (PW1) for drinks and money and was told that there was none.

18. He said that the man was holding what he described as 30cm knife and threatened him with it. I note however that it was not the Crown's case that anyone had a knife, the only implement alleged by the Crown to have been brandished was a 30cm screwdriver. PW1 testified that the man spoke to the driver in Malaitan dialect and then the driver reversed the taxi back towards a group of men who were drinking beer near the rear of the car.

19. He became extremely frightened and concerned for his safety as the men then moved to surround the car. He then said to his brother "they are going to kill us, we should run away". He and the deceased then ran from the taxi and were chased by some of the men and by the taxi. He described how he had to jump out of the way of the taxi to avoid being hit by it.

20. PW1 then changed direction and ran across the road to where he scaled a fence and dropped over the other side. He came across two security officers (PW2 and PW3) and sought help and protection from them.

21. He saw his brother being chased up the road by approximately nine men some of whom who were shouting "grab him, kill him". He heard his brother cry out "don't kill me, don't kill me". The pursuers called out "kill him, where's the other one?" He heard his brother cry out and began to run back to him but fell into a drain and was cut by barbed wire.

22. He returned to the security officers and again heard his brother cry out "don't kill me". A little later he could see people holding his brother. He saw the taxi stop nearby and then saw it drive away. He did not see what happened to his brother.

23. Some of the men then came for him and began to climb the fence that he was behind. Because it was dark, he could not recognise the men climbing the fence. At that moment, the police arrived and the men ran off.

24. In cross examination - he described the man who had approached the taxi as wearing a white shirt and blue jeans. The accused was later to describe the clothing that he wore as a camouflage shirt and shorts. The Crown did not dispute that evidence.

PW2 Fred Fatai – Security officer:

25. PW2 was Fred Fatai, one of the security officers. He was on duty that night and at around midnight went with a fellow security officer John Tom Tikini (PW3), to the Lunga market to buy some cigarettes. He heard shouting coming from the road beyond the market and ran to see what was happening. He saw some men running, one was grabbed by his pursuer and the other man escaped. A taxi was following the running men.

26. He was about three to four metres away when he saw the accused grab the deceased. He saw the accused pull out a 30cm screwdriver and tell the deceased to pay the taxi fare. The accused then stabbed the deceased with the screwdriver. The deceased had tried to struggle to escape from the accused but had said nothing. After being stabbed, the deceased fell to the ground and was crying. The deceased had not threatened the accused.

27. The deceased was lying on the road helpless, so he and PW3 lifted him over to the taxi and told the driver to take him to hospital.

28. He then saw the accused cross the road and begin to climb a fence. He was wearing a camouflage shirt and shorts. Later that evening he spoke to the accused and asked him why he stabbed the man. The accused said "I stabbed him because the screw slipped and penetrated".

29. In cross examination the witness denied that the deceased had fought back when grabbed by the accused. He also denied that the deceased was arguing with the accused. He did not hear the deceased threaten the accused. The deceased was a larger man than the accused. The accused did appear to be drunk, he was shouting, aggressive and had a "no-care attitude". He denied that he had been drinking with the accused on that day or when the taxi arrived. He didn't know if the deceased was alive when he put him in the taxi.

PW3 John Tom Tikini – Security Officer

30. John Tom Tikini (PW3) was the security officer working with PW2. He testified that when he went to the market with PW2, he saw the taxi parked at the market. He saw the accused speaking to the driver and then run after a man. He saw only the accused running after the man and heard him say "grab that man". He walked up to see what was happening and saw the accused stab the other man with a screwdriver. The deceased then fell to the ground. He was two to three metres away when this happened and he did not hear the two men say anything.

31. He said to the accused, "I think that man is dead". The accused replied "No he isn't, he's just pretending". Then the accused ran after the other man and crossed to the other side of the road. PW2 and he then lifted and carried the deceased to the taxi. He didn't know if the deceased was alive or dead at that point. They put the deceased into the boot of the taxi because the taxi driver had opened the boot and said to put him in. The taxi then drove off. He saw the accused throw the screwdriver into the bushes.

32. In cross-examination, he said that the accused appeared to be drunk. He said that the accused and the deceased were "struggling a bit" and that "they looked like they wanted to fight each other and I saw the accused wanted to stab the other boy". He denied that the deceased was fighting back with the accused. He said that the accused was struggling to stab the boy and after that the boy fell down.

PW4 Marshall Hiro – Security Officer

33. PW4 was Marshall Hiro, another security guard who was working near the scene. He heard people running on the road from Lunga market towards Henderson and heard people shouting "grab those two".

34. He then saw a man (PW1) climbing the fence where he was working and heard him fall to the ground inside his compound. The man begged them to help him and he and his colleagues gave him some assistance.

35. He noticed a group of men forcing a person into a car parked nearby. Someone said "take him to the Black Jack base" which apparently is the name of the taxi base. He saw two men grab the man and force him into the taxi. They put him into the back seat of the taxi. Before that happened, he heard a man begging the others, repeatedly saying "don't kill me". The last thing he heard was the man shout "I'm dying". The taxi drove off.

36. He testified that a group of men were looking for the other passenger. They came around to the front gates of the compound. They demanded that he release the man. Soon the police arrived.

37. In cross-examination, he denied the suggestion that the deceased was resisting and fought back with those who held him.

PW5 Bentleigh Akwasia – Security Officer

38. PW5 was Bentleigh Akwasia. He was a witness required to be called by the Defence. The point of his evidence was that he claimed to have seen the deceased being lifted into the boot of the taxi by two men. However, he said that one of the two men was the accused, whom he recognised.

39. After the tendering of a medical report and two witness statements, the Crown closed its case.

The Defence Case:

40. The Defence called the accused to give evidence on oath. His testimony was the only evidence called on behalf of the Defence.

41. Steven Ketei (the accused) said that on the afternoon of the 13th February 2010, he had been working at a car wash. He started to drink beer at approximately 3:30 p.m. From there he went to the Lunga market where he bought cigarettes and then went home arriving between 6:30 p.m. - 7:00 p.m.

42. He returned to the Lunga market at around 11:30 p.m. and was drinking with friends when the taxi arrived. The taxi was parked at the market for over 20 minutes and so he went to ask the driver if he needed anything. He said that the driver said he was waiting for someone who was buying beer and asked him if he would buy some cigarettes for him. The accused agreed to do so. The driver gave the accused $10 and said "take it and spend $5 on cigarettes".

43. The accused then bought five cigarettes and as he was about to light one he heard the driver shout "grab those two, they haven't paid for the taxi". The driver was shouting at the two passengers. He then ran "to help the driver apprehend the passengers". He ran alongside the taxi and could see the two men in the car's headlights. One of the men ran across the road towards a compound and the other ran and jumped to the left.

44. He saw the man who went to the left jump over to the grass. He ran over and could hear the man breathing, so he parted the grass and found the man. He was hiding from the accused about one meter from the road. He grabbed the man and pulled him back to the road and told him to pay the taxi fare. The man told him to let him go and tried to run off but he was held by the accused.

45. He then testified that the deceased said to him "let me go, I'm going to kill you, you're only a child". In the ensuing struggle the accused's shirt was torn. He produced a camouflage shirt which had evidently been sewn up. The shirt was tendered by the Defence.

46. Hearing those threatening words, the accused became frightened so he pulled out a screwdriver from his shirt pocket and stabbed the deceased with it who exclaimed "I'm dying". Some of his friends arrived and one asked whether the accused had stabbed the deceased to which he replied that he had. One of his company then kicked the deceased although the accused said that it was too dark for him to tell who it was.

47. He then decided to go after the other passenger and was going to leave the deceased on the ground. He said that he did not expect the man he stabbed would die. He denied that he was one of the men who dragged the deceased to the taxi. When he returned to the scene after looking for the second man, he said that he wanted to lift up the deceased but that his friends said "he's dead".

48. He did not lift the deceased and because he was frightened, threw away the screwdriver. He said to his friends that the deceased "might be just pretending" and that they should "check him properly". He then said that he heard the deceased cry a little and so he said to others to take the deceased to Central Police Station.

49. He then testified that he went across to the taxi driver because he still had not given him the $5 change from the cigarettes and gave him the money. I note that this was not put to the driver (PW6).

50. In cross-examination, he denied asking the taxi driver for money. He said that he did speak to him but that he could not see into the taxi because it was dark and the windows were up. He spoke to the driver for about a minute and a half. He denied asking the passenger for money. He chased the passengers because he wanted to help the driver who would have a difficult time getting the money.

51. The deceased kept asking him to leave him alone. He grabbed the deceased with his left hand and used his right hand to hold the screwdriver and stab him. It was when the deceased tried to turn away that he stabbed him.

52. He agreed that the deceased had never tried to hit him. When he stabbed the deceased he expected that the deceased would block it but he didn't block it. He was drunk at the time. He thought that the deceased wanted to fight him because he said those words (the threat to kill) and because he tore his shirt.

Autopsy Report:

53. The Autopsy Report of Dr Maraka describes the passage of the wound caused by the screwdriver as entering and exiting from the upper right arm into the chest cavity, through the upper lobe of the right lung, through the right side of the pericardium and into the aorta of the deceased's heart. The screwdriver tendered by consent, was a Philips head screwdriver with a long shaft estimated to be 30cms in length. It is clear that given that the screwdriver went through the right arm of the deceased first before entering his chest and yet still penetrated to the left side of his body and into his heart, that most if not all of the screwdriver entered the deceased's body. It was this wound that caused the death of the deceased.

54. It is clear then that the accused caused the death of the deceased by stabbing him with the screwdriver.

55. As stated, the Defence indicated at the opening of the trial that the issues would be intention and self-defence. In closing written and oral submissions, the Defence conceded that "the issue of self-defence is not supported by sufficient evidence". They argue that the accused's actions constituted an unlawful act manslaughter in that the Crown had failed to prove the necessary intention. The Defence relied upon the evidence of intoxication in making this submission.

The possible issues for consideration therefore are self-defence, intention, intoxication and, possibly accident.

Self Defence:

56. If the issue of self-defence is raised on the evidence, then the onus is on the Crown to prove beyond reasonable doubt that the admitted actions of the accused were not done in self-defence. On this issue as with every other issue in this case, the Defence do not have to prove that their version is preferable, they have no burden of proving anything at all. The Crown must prove beyond reasonable doubt that the accused did not act in self-defence.

57. However before the matter can be considered, there needs to be a finding based on the evidence in the trial that the issue of self-defence properly arises. In this case, the only suggestion in the evidence that self-defence might arise comes from the evidence of the accused. He testified that he became frightened when the deceased threatened to kill him and that was why he stabbed the deceased.

58. It is notable that of all of the people in the vicinity at the time of the stabbing, the only person who claims that the deceased spoke threateningly to the accused is the accused himself. No-one else heard the deceased make any threats. No-one else saw the deceased acting aggressively towards the accused. Indeed no-one else heard the deceased say anything other than "don't kill me".

59. The suggestion that the deceased threatened the accused is contrary to the tenor of much of the evidence led at trial. It is clear that the deceased was very frightened at the market. He ran off into the night seeking to escape his pursuers and the accused. He hid in the grass trying to evade the pursuing accused. It is accepted by the accused that at no stage did the deceased ever try to hit the accused. In fact, he tried to run away from him. When he was seized by the accused, the deceased repeatedly exclaimed "don't kill me".

60. I accept the evidence of the Crown witnesses who say that the accused was not fighting back when grabbed by the accused and I accept the evidence that all he said was "don't kill me". I reject the evidence of the accused in so far as he claims that he was threatened by the deceased before he stabbed him.

61. In this regard, that leaves the evidence of the accused where he said that the deceased tore his shirt. Again, the overwhelming tenor of the evidence is that the deceased was not fighting back when grabbed by the accused. Certainly, some witnesses said that the accused and the deceased were struggling but, in the context of all of the evidence, I take this to mean that the deceased was struggling to get away from the accused who was, and continued to be the aggressor. Taking all of the evidence into consideration, I am satisfied beyond reasonable doubt that the deceased neither threatened the accused nor tore his shirt.

62. Given these findings of fact, I am of the view that the issue of self-defence is not raised by the evidence.

63. However, even if the issue is raised (notwithstanding the Defence concession that it is not), it is my judgment that the defence of self-defence would not avail the accused in any event.

64. Section 17 of the Penal Code [Cap. 26] provides that:

Subject to any express provisions in this Code, or any other law in operation in the Solomon Islands, criminal responsibility for the use of force and the defence of personal property shall be determined according to the principles of English common law.

65. In Palmer v The Queen [1970] UKPC 2; [1971] AC 814 at 831-832, Lord Morris of Borthy-y-Gest articulated self-defence as follows:

It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do what is reasonably necessary. But everything will depend upon the particular facts and circumstances ..... It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation ....

Further:

If there has been an attack so that self-defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken ... the defence of self-defence, where the evidence makes its raising possible, will only fail if the prosecution show beyond doubt that what the accused did was not by way of self-defence ... The defence of self-defence either succeeds so as to result in an acquittal or it is disproved, in which case as a defence it is rejected.

66. In Zecevic v Director of Public Prosecutions [1987] HCA 26, the joint judgments of Wilson, Dawson and Toohey JJ, following the Privy Council in Palmer at 831-832, said:

The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitle to an acquittal.

67. In The State v Li Jun CAV 17 of 2007 at [46]:

The test in Zecevic is not wholly objective. It is belief of the accused, based on the circumstances as he or she perceives them to be, which has to be reasonable. The test is not what a reasonable person in the accused's position would have done: R v Conlon (1993) 69 A Crim R 92, per Hunt CJ at 99; R v Hawes (1994) 35 NSWLR 294, 304. It follows that where self-defence is an issue, account must be taken of the personal characteristics of the accused which might affect his appreciation of the gravity of the threat which he faced and as to reasonableness of his or her response to the threat: R v Conlon, 99.

68. In the present case, it is clear that the accused might have taken some avoiding action or simply let the deceased go. Even on the accused's account there was no serious attack on him and the deceased did not try to hit him. I cannot find that the accused had a reasonable belief that it was necessary to stab the deceased and in my judgment, it is not reasonable for him to have done so. Such retaliation is wholly out of proportion to the necessities of the situation.

Intention:

69. The screwdriver used by the accused to stab the deceased was tendered in evidence by consent. In appearance and in reality it proved to be a lethal weapon. It is incomprehensible that any person who used a screwdriver of that length in a way that entered one side of a person's body through his arm on that side and then continued on to pierce the heart on the other side of his body would not have at least intended to cause grievous bodily harm. I find beyond reasonable doubt that the accused did realise that such an assault would or would be likely to cause at least grievous bodily harm, and that when he stabbed the deceased that his intention was precisely to at least cause grievous bodily harm to the deceased. For the avoidance of doubt, I further find beyond reasonable doubt that in the circumstances of this case, the accused must have realised that such an attack would or would be likely to cause the death of the deceased.

Intoxication:

70. The evidence on this point is that the accused was drinking at 3:30 p.m. on the afternoon of the killing. There is no evidence at all as to the quantity that he had to drink nor is there any evidence as to how long he continued to drink. Further, there is the evidence that he was drinking at 11:30 p.m. that night but again there was no evidence led as to the quantity of alcohol consumed. There is the evidence of some of the Crown witnesses who agreed that he appeared to be drunk because he was shouting and because they could smell beer on him. Finally, there is the evidence of the accused himself who said in evidence that he was drunk.

71. Section 13 of the Penal Code [Cap. 26] provides that:

(1) Save as provided in this section intoxication shall not constitute a defence to any criminal charge.

(2) Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and –

(a) the state of intoxication was caused without his consent by the malicious or negligent act of another person; Or

(b) the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of the omission.

And further:

(4) Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.

72. In the present case, no evidence was led in relation to sub-section (2) of section 13 and I find that neither paragraph (a) nor paragraph (b) of sub-section (2) applies.

73. The issue for determination is whether an intention to kill or cause grievous bodily harm was formed taking into account the presence of alcohol. I am prepared to accept that the accused had some alcohol in his system at the time of the offence. However, he testified that he had a good and clear recollection of the matters he spoke to in his evidence. Even after going through the traumatic events of stabbing the deceased, he was able to remember that he still had $5 of the taxi driver's money and returned the change to him. He was able to run after and catch the deceased in the relatively dark conditions and was able to describe in detail giving times, what his movements were on that day. On all of the evidence in the case I am in no doubt that the accused's actions were, throughout the whole incident, conscious and deliberate and that despite whatever alcohol he may have consumed, he had absolutely no difficulty in forming the relevant intention and did so.

74. The Defence did not raise the issue of accident but I have mentioned it because of the evidence that the accused said to a witness that the screwdriver "slipped and it penetrated". I find beyond reasonable doubt, that the stabbing of the deceased by the accused was not in any sense accidental. I reject the evidence of the accused's statement in so far as it suggests otherwise. In fact, it is the accused's case that he stabbed the deceased because he was frightened and acted in self-defence.

75. Given these findings the only proper conclusion is that the Crown have proven their case beyond reasonable doubt and the only proper verdict is one of guilty.

Order:

The accused is convicted of one count of murder contrary to s.200 of the Penal Code [Cap. 26].

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The Court