Regina v Thugea [2016] SBHC 31; HCSI-CRC 285 of 2014 (11 March 2016)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 285 of 2014

REGINA

V

Celestine Thugea

HEARING: 13-14, 19 – 23 October, 26-30 October, 11- 14, 20 November, 7 December 2015 and 25th January 2016.

Judgment: 11th March 2016

For the Crown: A. Kelesi.
For Defence: C. Rarumae.

Palmer CJ.

1. The defendant, Celestine Thugea is charged with one count of murder contrary to section 200 of the Penal Code, that on the 1st day of March 2011, he killed the deceased, Godfrey Bosa at Dudula village, Tasimboko, East Guadalcanal. He had been charged together with four others who had been acquitted following a submission of no case to answer.
   
2. The defendant pleaded not guilty to the charge of murder and a trial has been held.
   

Brief facts.

3. A gathering had been organised by Chiefs and leaders in the community between the deceased and another man, Albert Gaua Tanipari("Tanipari") and other members of the family of the defendant at Dudula village that day. Rumours had been spread that the deceased and Tanipari were blamed for the death of a child who was closely related to the defendant[1]. It was alleged the deceased and Tanipari had practiced witchcraft (more commonly referred to in the Guadalcanal dialect as "vele"), to kill the son of Saniel Manedika.
   
4. The gathering involved many people from the families of both sides together with chiefs and leaders who had been tasked with the responsibility to coordinate the reconciliation meeting.
   

The case for prosecution.

5. Prosecution alleges that shortly on arrival the deceased was chased and attacked by the defendant. The deceased tried to escape but was subsequently caught and cut on the left side of his stomach, which resulted in his death not long after. Prosecution alleges the defendant had the necessary mens rea when he did this, that is, he had intention to commit murder, or, knew that his action in cutting him with a bush knife would probably cause the death of, or grievous bodily harm of the deceased.
   

Case for the defence.

6. The defence on the other hand say the defendant acted in self-defence when he cut the deceased. The defendant gave unsworn statement in his defence. He says that the deceased managed to escape when he was chased but then returned to attack him. The defence say that the defendant's action in cutting the deceased was done in self-defence. The defendant says he was alerted by the shout of others that the deceased was about to cut him and that what he did was to protect himself. He claims that but for his quick reaction in self-defence he would have been cut and killed instead.
   

Issue for determination.

7. The issue for determination in this case is primarily one of fact. It depends ultimately on whose version of events the court accepts, for two different versions of the events that day were presented before this court. It is clear therefore that someone has lied to this court about the events that transpired thereafter. As the final arbiter of the facts it is pertinent to be reminded that the burden of proof lies with the prosecution to prove its case beyond reasonable doubt.
   

Findings of the Court.

8. Prosecution called five witnesses and made available six witnesses, four of whom were investigating officers and two civilian witnesses for cross examination and tendered a number of documents as exhibits.
   
9. I have had the opportunity to carefully consider the evidence adduced by prosecution, tested as usual in cross examination and re-examination, contrasted with the unsworn statement of the defendant, and come to the following conclusions.
   
10. I find on the evidence that a reconciliation ceremony had been planned or arranged for that fateful day of 1st March 2011. Many people comprising mostly of relatives of the parties, including women and children attended that supposed reconciliation meeting. No one it seems anticipated what transpired later at that supposed reconciliation meeting. On the deceased's side, there were a number of family members, mostly those related to his wife who accompanied him to the reconciliation ceremony. His wife also took their children with him. There were also women and children on the other side who were also present at the village for the ceremony. It is not disputed that the deceased's wife, PW1, is closely related to the defendant in this case.
    
11. What happened on arrival and what transpired thereafter, leading to the attack on the deceased is the major issue of contention in this case. The defence say that when the deceased and his group were asked to wait for the arrival of the chief, the deceased reacted angrily by driving or pushing his knife into the ground and stating that he had not come there for reconciliation but for "his compensation". The defence says this was provocative or insulting behaviour, which elicited an angry response from the defendant, who then leapt out of the vehicle (a land cruiser) he was sitting in and chased the deceased.
    
12. The prosecution on the other hand adduced evidence to the contrary that no sooner had they sat down after arrival when the deceased was chased and attacked by the defendant. They testified to the fact that the atmosphere did not seem right on arrival, those on the defendant's side appeared stern and angry.
    
13. I find as proved on the evidence that shortly on arrival after John Sikua had uttered words to the effect that had he found the deceased at his residence the day before he would have killed him, the defendant immediately thereafter then uttered words to the effect to "kill him" or "cut him", jumped out of the vehicle he was in and then chased the deceased.
    
14. I find the evidence of prosecution witnesses on this account to be clear, consistent and un-contradicted. Everything on arrival happened very quickly and they were all taken by surprise at the violence and aggression that was displayed against the deceased for there was virtually no time given to be able to try and settle or resolve the matter peacefully. By the time the deceased was being chased, the pleas for mercy from his wife and others fell on deaf ears. And while the defendant tried his best to escape and to defend himself, he could not, for he was soon caught and mercilessly cut by the defendant. The other witnesses also ran away shortly after that. Jeffrey Vota (PW3) told the court he was frightened about what had happened and ran away quickly thereafter. Albert Gaua Tanipari (PW4) however was not so fortunate for he was attacked and injured before he could eventually escape as well.
    
15. I am more than satisfied that Prosecution have established beyond reasonable doubt that the deceased was cut with the knife when he was caught by the defendant. I find the evidence of the prosecution witnesses' on the description of what happened thereafter to be clear, consistent and unambiguous. They remained firm in cross examination and maintained their evidence throughout that the defendant was the aggressor from the beginning and not the deceased. I believe their accounts on this as to what transpired on arrival.
    
16. I reject the defence version that the deceased was armed with a knife and pushed it defiantly into the ground. I find that suggestion that he was the aggressor so incredible and improbable when contrasted to the circumstances that prevailed that time and in particular, the suggestion he returned to attack the defendant as unbelievable. Everyone who came with him, his wife and in-laws, and others, had to flee for their lives as a result of the aggression displayed by this defendant. This has not been disputed. In the context of that background how could he be expected to return? It was simply not safe for anyone associated with the deceased, a fortiori for the deceased to be around at that particular time. From the evidence adduced, it was obvious the deceased's party were also outnumbered. It is so improbable that he could therefore return as suggested and try to attack the defendant. I accept the prosecution witnesses' version of account as to what transpired and reject the submission of the defence that the deceased returned to attack the defendant. I simply do not believe that account of self-defence.
    
17. I note much argument has been raised as to whether the deceased was struck with a knife when he was standing or whether he was already lying down on the ground but I am not satisfied this discrepancy detracts from the substantive evidence and account of Crown's witnesses as to what happened, their observations and where liability falls. I am not satisfied their evidence on this has been discredited and any reasonable doubt raised in my mind. It was a merciless attack on a fleeing, defenceless and helpless man.
    
18. In terms of the element of malice aforethought, I find that the words uttered by the defendant, "killem hem" or "cut him", entirely consistent with the element of knowledge and intention to kill and his conduct and behaviour that immediately followed in giving chase and cutting the deceased.
    

Cause of death.

19. It is not in dispute that the injury caused by the defendant was noted by the Doctor who carried out the autopsy report a major contributing factor to the demise of the deceased not long thereafter.
    

Conclusion.

20. I am satisfied prosecution have proven beyond reasonable doubt that the defendant was not acting in self defence when he attacked the deceased and he must be convicted of the offence of murder.
    

ORDERS OF THE COURT:

(i) Find the defendant Celestine Thugea guilty of the murder of the deceased Godfrey Bosa.

(ii) Enter conviction against the defendant.

The Court.

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^[1] The defendant and Saniel Manedika are brothers.