Regina v Totoha [2016] SBHC 109; HCSI-CRC 144 of 2016 (14 June 2016)

HC-JEF No. 144 of 2016

REGINA

-V-

William Totoha

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Numbers 406 of 2014 and 6 of 2015

HEARING: 19-20 May, 23 – 27 May, 1-2, 6 and 8 June 2016.

Judgement: 14 June 2016.

For the Crown: Mrs. M. Suifa’asia and Ms. Freliz Fakari’i;
For Defence: H. Lawry and J. R. Brook for William Totoha.

Palmer CJ.

1. The defendant William Totoha is charged with the offence of manslaughter for the unlawful killing of the deceased, Michael Chikia at Tenaru, N.A.C^[1]. road, Guadalcanal Province on the 18^th November 2013.
   
2. He was initially charged for the offence of murder together with Samson Totoha but after a successful application of a submission of no case to answer, the charge was reduced to one of manslaughter.
   

The Prosecution Case.

3. The case for the prosecution from the outset is that the defendant, William Totoha (“William”) assaulted the deceased by punching him on the face and or, the forehead and that this assault contributed to the death of the deceased.
   

The Defence Case.

4. The defence case on the other hand is that the prosecution have failed to prove that the defendant punched the deceased or assaulted him in in the first place; secondly if he did, that it was in self-defence; and thirdly, even if there was a punch, Prosecution had failed to prove to the requisite standard that the punch contributed to the cause of death.
   

The cause of death.

5. The report of the doctor, Dr. Roy Maraka, who carried out the post mortem report on the deceased is directly relevant to the question whether the defendant caused or contributed to the death of the deceased in this case. In his report the Doctor noted the cause of death as follows:
   

“It is my opinion that he died from subarachnoid haemorrhage as a result of blunt trauma to the head. Subarachnoid haemorrhage is bleeding under the arachnoid, a covering of the brain. The traumas to the head that occurred on the forehead most likely led to the fatal injury on the brain.”

6. In his evidence in court the doctor pointed out that the injuries noted on the head of the deceased including the lips were capable of causing the fatal injuries that led to the death of the deceased. He also clarified that a single punch depending on the severity and intensity of the force applied was capable of causing the blood vessels in the brain to rupture and cause internal bleeding, apart from a combination of punches to the face or head.
   

Evidence of the actus reus (assault) on the deceased.

7. I have had the opportunity to carefully consider the evidence of assault by the defendant on the deceased and I am more than satisfied there is credible evidence of an assault to the face area of the deceased by the defendant.
   
8. I accept the evidence of Meltus Koti, which is also admitted to by the defendant in his statement to the police that the deceased had thrown a punch at him. Meltus Koti says that the punch did not hit the defendant although the defendant in his statement says that the punch hit him at his right eye. I accept her description of what happened thereafter and that her evidence has been confirmed by other witnesses, Vivian Betty, Nelson Dou and James Sau, that the defendant hit or punched the deceased on the face or the cheek area.
   
9. In his submissions learned Counsel, Mr. Lawry also pointed out that the defendant was acting out of self-defence when he attacked the deceased. Apart from the evidence by James Sau and Vivian Betty of seeing the defendant also kick the deceased towards the stomach area, no other evidence has been adduced of any other assault by the defendant. I accept their account as correctly portraying the assault by William on the deceased.
   
10. Having raised self-defence, it is for prosecution to disprove that the action of the defendant was not out of self-defence and therefore unlawful. As pointed out in my judgement^[2], on the submission of no case, I am satisfied the actions of the defendant were consistent with that of someone reacting spontaneously to an attack, than deliberate and consistent with the element of self-defence or self-preservation. In such heated circumstances, a person cannot weigh to a nicety the extent of the force applied. I am satisfied prosecution have failed to discharge the onus of proof that the force applied was unlawful in the circumstances.
    

Proof of cause of death.

11. But even if the force applied was unlawful I am also unable to find that prosecution have discharged the onus of proving beyond reasonable doubt that the assault by the defendant contributed to the cause of death. As correctly pointed out by learned Counsel, Mr. Lawry it is not sufficient, that a possibility exists, even to the extent of a probability that the assault on the face of the deceased contributed to the cause of death.
    
12. Learned Counsel Mr. Lawry has conveniently referred this court to three cases, R. v. Gould^[3], R. v. Hennigan^[4], R. v. Kuka^[5], which refer to the importance of establishing the causative link to death, to be a “substantial cause of death”, “something more than a de minimis”, that is, “it must be a real cause as opposed to being a minimal cause”, or “a substantial and operative cause of the death of the deceased”.
    
13. In his report the learned Doctor could only surmise that a single punch to the face or head could contribute to death depending on the force and intensity. He pointed out that in order for the blood vessels in the brain to rupture, some considerable force to the head or face would need to be applied, which would have the effect of causing drastic internal movements of the brain without any visible injuries to the skull or the covering of the brain.
    
14. It is here that prosecution in my finding have failed to discharge the onus of proof of that nexus or causal link to death. It has not been shown for a certainty, that the punch to the face or cheeks of the deceased was more than a de minimis cause, or a substantial and operative cause of death. The most that can be said is that it may have contributed if certain conditions were met. I am satisfied the evidence adduced falls short of that standard necessary to bridge that crucial gap to the death of the deceased and accordingly the benefit of the doubt must go in favour of the defendant and he is entitled to be acquitted as well of the offence of manslaughter.
    
15. This leaves the offence of assault to be dealt with and I can proceed herewith to consider sentence after hearing any submissions.
    

ORDERS OF THE COURT:

(i) Acquit William Totoha of the offence of manslaughter.

(ii) Convict him of the offence of common assault of Alex Joshua.

The Court.

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^[1] NAC are the initials for the words Nazareth Apostolic Centre.
^[2] Regina v. William Totoha and Samson Totoha CRC 406-2014 and 6-2015, 6 June 2016.
^[3] [1963] 2 All ER 847 at 848 para. F
^[4] [1971] 3 All ER 133 at 135 from para. b
^[5] [2009] NZCA 572 at paragraph [21]