Regina v Bosalea [2016] SBHC 226; HCSI-CRC 368 of 2014 (30 August 2016)

REGINA

-V-

Hency BOSALEA

IN THE HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 368 of 2014

Hearing: 18, 19, April, 8 June, 20 June, 21-22 June, 4, 8, 15, 20 July 2016.

Judgement: 30^th August 2016

For the Crown: Mrs. S. Ramosaea.
For Defence: Mr. M. Tagini.

Palmer CJ.

1. The defendant, Hency Bosalea is charged with one count of murder contrary to section 200 of the Penal Code, that on the 23^rd day of December 2011, he killed the deceased, Joseph Mara at Mbokokimbo Bridge area, in the Guadalcanal Province.
   
2. The defendant pleaded not guilty to the charge of murder and a trial has been held.
   

Brief facts.

3. The deceased, his wife (PW1), and wife’s mother (PW2), had been to the garden that day and were returning back to their village at Reko on Northeast Guadalcanal. On their way back they had to walk past the house of Andrew Tongoa, where a number of boys were drinking alcohol outside of his house at that time. They were accosted by those boys and attacked; the deceased sustained fatal injuries, which led to his death.
   

The prosecution case.

4. The prosecution alleges that the deceased was attacked by the defendant together with two other men who were with him. They say the incident happened in the late afternoon, early evening at around 5 – 6 pm as they walked past Andrew Tongoa’s house. They say it was still daylight and they could see everything clearly. They say it was the defendant who inflicted the fatal injuries to the body of the deceased with a bush knife.
   

The defence case.

5. The defence on the other hand claim the incident occurred much later, towards 7 - 8 pm in the evening when it was already dark and visibility would have been difficult. They assert Crown witnesses could not have satisfactorily identified the defendant, as well as see who had attacked the deceased.
   
6. They called three witnesses to contradict the evidence and version of events of the Crown. The crux of their evidence is that it was dark by then when the incident happened and so they could not have seen what had happened and who inflicted the fatal wounds.
   
7. The only defence witness who gave direct contradictory evidence was Mike Tobani (DW2), who told the court that it was him who came to the aid of the deceased and carried him to the Pastor of the Christian Outreach Centre (“COC”) church’s house, before he was taken to the Good Samaritan Hospital and then to the National Referral Hospital later.
   

The issue(s) in this case.

8. The main issue in this case turns on the question of credibility of Crown witnesses’ evidence as opposed to the evidence of defence witnesses and is dependent on whose evidence the court believes and accepts as credible and containing the truth. It is obvious someone has lied under oath in this case. There cannot be two very different versions, there has to be only one true and correct version in this instance and it is the court’s duty to shift the evidence and arrive at the truth where that is possible, based on the evidence adduced before it.
   

Findings of the Court.

9. There is no dispute on the cause of death. The deceased died of exsanguination (loss of blood), due to the fatal wound inflicted at the back of his head, neck and left upper back. This wound exposed the skull and neck bones and cut the spine, muscles and tendons. Despite accessing medical help soon after the attack he died later that night. The deceased was fatally wounded that day.
   
10. According to the Doctor’s report, the wound appeared to have been inflicted once with a sharp object, in this case, a knife; describing it as a clean cut.
    
11. This case turns on whose evidence the court believes. I have had the opportunity to consider carefully the evidence adduced in court and come to the clear conclusion that the evidence of prosecution witnesses should be accepted by this court as stating the truth of what transpired that day.
    
12. I find the evidence of the key crucial prosecution witnesses to be consistent, clear and accurate. The key witnesses, that is, the wife and mother in law of the deceased, were present in very close proximity to the events that occurred and not merely direct eye witnesses of what happened but were also able to identify the defendant without any difficulty. Their evidence on this has not been discredited. They remained firm, sure and clear about this throughout in particular during cross examination. Despite strenuous cross examination testing their powers of recall, they remained firm in particular about the fact that it was still daylight when the events occurred that fateful day and that they were able to see clearly what happened. It only became dark later after the incident. They remained firm in cross examination and were never shaken in their observations of what happened. They gave unchallenged evidence that the weapon used, a knife, was the knife of the deceased which had been taken from him and used to kill him with.
    
13. Their descriptions as well as to how the fatal injury was inflicted and other injuries on his body are also consistent with the injuries described in the medical report. They told the court that the wound was inflicted when the deceased had managed to get up and was trying to escape from his attackers. He was cut from behind.
    
14. Apart from suggestions that it was dark, which they denied, their recognition and identification of the defendant could not be faulted for he was known to them; he was not a stranger to them. They also named two others who were involved in attacking the deceased.
    
15. Their account on what happened is clear, consistent and credible. It was never put to them for instance, that they ran away and abandoned the deceased and that it was someone else who assisted him, in this instance, Mike Tobani who supposedly took him to the Pastor of the COC church’s home.
    
16. I find nothing to suggest that they might have any reason or motivation to lie to the court about their observations or have reason to tailor their evidence to implicate the defendant other than an obligation to tell the truth in court.
    
17. I do not believe the account of defence witness Mike Tobani, which I find lacking in detail, vague and ambiguous. It was very convenience based and tailored to fit in with the suggestion that it was dark at that time. He did not see the incident and only came upon the deceased by chance in the dark and helped him.
    
18. As well, as pointed out by Mrs. Ramosaea, Counsel for prosecution, the timing of events that evening according to the version of defence would not have been in sync with the unchallenged medical report, which placed the time the deceased was attended to at the National Referral Hospital as at around 9:45 pm. Their version of events, that the incident occurred possibly between 7 – 8 pm, if true meant, they would have been expected to cover the distances over a space of about 1½ - 2 hours, which would have been near enough an impossibility, bearing in mind the different locations and distances to be covered and the fact that the deceased was suffering from extremely grievous wounds, not to mention the fact that it would have been quite dark at that time and so movement would have been even difficult and slower. The witness Mike Tobani for instance, told the court that he carried the deceased himself to the Pastor’s house. If that were true it would have taken him sometime to try and carry the injured man that distance to the Pastor’s house.
    
19. It simply would not be possible for the deceased to be taken to the Pastor’s house, then to the Good Samaritan mini-hospital, and then to the National Referral Hospital all within that time frame. It would appear that the journey alone from the Good Samaritan Hospital to the National Referral Hospital would have taken in the minimum from thirty to forty five minutes to an hour, depending on the condition of the road, availability of a vehicle, traffic and weather conditions as well.
    
20. I have had the opportunity to consider the evidence of the defence witness Mike Tobani but do not believe his account as being truthful. He did not see what happened because he says it was dark and only came upon the deceased lying on the ground needing help. He did not see anyone including the wife and the mother in law of the deceased. Both stated they were with the deceased throughout but according to his evidence he found the deceased lying alone where he had been stabbed or cut.
    
21. I note other defence witnesses were also called to give evidence but I find their evidence to be of limited value for they all seemed to deny seeing anything happening on the basis that it was dark. I do not believe their account and discount their evidence and version.
    
22. The descriptions of the attack and who inflicted the fatal injury were never discredited or challenged in any significant way by the defence. I accept their evidence as giving an honest, truthful and frank account of their observations of the tragic events that occurred before their eyes and the trauma and distress they would be put through, and yet they never waived when tested in cross examination.
    
23. I am more than satisfied prosecution had discharged the onus placed on them regarding the killing of the deceased and find the defendant guilty of the offence of murder. He is convicted accordingly.

The charge of common assault.

24. As I was preparing this judgement I overlooked this minor charge of common assault against the defendant until it was brought to my attention by Counsel Mrs. Ramosaea in court. These are my reasons for the orders I issued to have the defendant found guilty as well.
    
25. As noted in this judgement, the wife of the deceased, PW1 was with the deceased throughout the time he was attacked. This witness told the court that she was kicked on the chest by the defendant while she was trying to help her husband and to prevent them from attacking him. She told the court that her husband was lying on the ground at this point of time and was continuously being attacked by the defendant and two others. She told the court that her husband was cut with the bush knife, when he got up and tried to escape from the defendant. In spite of this serious injury, the deceased managed to escape and ran off to her mother’s house.
    
26. PW1 told the court that the kick on her chest winded her and prevented her from helping her husband but she was still able to see what was happening.
    
27. I am more than satisfied as well that the evidence of the assault by the defendant on PW1 has not been contradicted and accordingly I also find him guilty of the charge of common assault and convict him as well.
    

ORDERS OF THE COURT:

(i) Find the defendant Hency Bosalea guilty of the murder of the deceased Joseph Mara and enter conviction accordingly.

(ii) Find the defendant guilty of the offence of common assault and enter conviction accordingly.

The Court.