Regina v Abia [2017] SBHC 145; HCSI-CRC 451 of 2016 (13 October 2017)

REGINA

V

JOEL ABIA

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Jurisdiction
Criminal Case Number. 451 of 2016

Date of Hearing: 15^th – 16^th September 2017

Date of Judgment: 13^th October 2017

Counsels for the Crown: Mr Andrew Kelesi

Counsel for the Accused: Mr. Michael Pitakaka & Mr. John Taupongi

JUDGMENT

Kouhota PJ:

The accused Joel Abia was charged with murder contrary to section 200 of the Penal Code.

The prosecution alleged that he murdered Charles Meti at Honiara on 30^th April 2016. The accused pleaded not guilty to the charge thus putting the burden on the State to prove the allegation against him.

The prosecution called 5 prosecution witnesses including a medical doctor who did the post mortem on the deceased body. I will deal with the doctor’s evidence first as it was not disputed. The doctor’s evidence included his written report, which was tendered as evidence. He described the injury on the deceased as consistent with injuries caused by a sharp instrument such as a knife. The doctor’s evidence was not disputed and I accept it as true and correct.

PW1 is Joana Vaho, at the time of the incident, she was working at White River Clinic as a cleaner. She had worked at White River Clinic for 5 years. On the evening of Saturday, 30^th April 2016, she was at a nurse’s house at White River. While there, she received a call from the deceased and telling her that he was at Karaina with Nester Sandra, who is the second prosecution witness, PW2. The deceased told her that Sandra was playing cards and winning money. PW1 told the deceased to tell Sandra that she needs some money, adding, she would know if he told her because Sandra had owed her money. She was still at the nurse’s house drinking tea when Sandra and the deceased again called her on her mobile phone and told her to come down to the White River Clinic area. After this, she went down to the White River Police Station and clinic area. When she got there, she saw Sandra on the other side of the road by herself. She crossed the road to her and they hugged each other. She then looked to the other side and saw Charles Meti and another boy beside the fence near the playing field. She stood with Sandra talking, when Charles Meti called them to go over to him. PW1 and PW2, followed Meti and the boy and went into the playing field. They went and sat on the side of the field near the fence, close to the main road and the Police Station. PW1 estimated the time to be around 7- 8 pm. She said where they were sitting, there was light coming from the school and the Police Station. She noticed there were other people sitting on the other side of the playing field but she did not know what they were doing. She described their sitting positions as follows; Charles Meti and the other boy were sitting on the side towards the fence, Sandra was sitting facing the White River School and she was sitting facing Meti and the other boy with her back towards the school.

Charles Meti then shared 3 beers between her, Sandra and himself. PW1 took her beer and put it back in the plastic bag in front of the deceased while Sandra opened hers and drank it. The other boy had his own beer and was also drinking. Charles Meti then took the beer that PW1 put back in the plastic bag and opened it and gave it to her but she refused to drink, and told him that she only came for her money, but Sandra said the money is finished. Meti then said, “What can we do, it was already finished.” Charles Meti continue to tell her to drink the beer. She told Meti that Sandra had kicked the beer and it poured out. When Charles Meti heard the beer has been poured, he shouted at her, and PW2 saying the words, “hey and fuck”. The other boy, by that time, had left them.

She heard PW2 said, “There is a man coming.” and pointing into the playing field and saying, “He is coming towards us.” When PW1 looked back, the man, that PW2 Sandra, saw coming was already at the place they were sitting. He came to Charles Meti and said “You how?”, Charles Meti replied, “Mi how?”, the man then punched Meti on the mouth. PW1 try to restrain him by saying, “umi gang nomoa ia you no olsem.” (in English, this means ‘we are gang, don’t be like that’). PW1 said she saw the accused holding a knife in his left hand. She described the knife as 20 centimetres long, indicating on her arm as from her elbow to her wrist.

PW1 recognised the man who came and spoke to Meti and punched Meti. She had seen him before as he usually comes around the White River Clinic. PW1 said that he comes around the clinic a lot. She does not know where he lived but said she had seen him around the clinic area many times. Sometimes he came to the clinic and asked for medicine or water. She described him as tall, slim and had a long hair which he sometimes tied up as a girl. Sometimes he would come to the clinic bare body. PW1 said he has a lot of tattoos on his body. PW1 remembered one of the tattoos on his body is that of a traditional fan. She said the man is from Renbel. (Rennell and Bellona Province). She saw another person approaching, so she told Sandra that they should run away, so both ran out from the playing field to the main road.

The second prosecution witness is Esther Sandra (PW2). She met up with the deceased at Karaina settlement. They spoke to PW1 on the phone and later followed the deceased to White River to meet PW1. She went with PW1, the deceased and another boy whom she did not know his name, and sat at a spot in the White River Playing field. The spot had been marked “J1” on the sketch drawn by the defence and tendered in court marked as “Ex. J1.” While they were sitting, Meti told her to take the other boy and go somewhere else. She said she did not want to but eventually left with the boy and moved from Joan and the deceased. She returned to Joan and Charles Meti when she heard Charles Meti shouting and swearing. Charles and Joan were still sitting down when she came back. She said when Meti was swearing, she was surprised when a man suddenly arrived, and she did not see which direction he came from.

Under cross-examination, she said she saw the man punched Meti two times on the mouth. She stated that Joan said to the man “hey gang no olsem.” (in English this means, “hey gang don’t be like that.”). When she saw the man punched Charles Meti, she ran away. Joan also run away. Both of them ran away from the playing field to the main road and did not return to the field after that.

The evidences of PW1 and PW2 are consistent with each other, both saw the accused standing close to Meti. Both heard what the accused said to Meti and Meti’s response. Both also saw Accused punched Meti two times on the face or mouth. PW1 had recognised the accused and even tried to restrain him from assaulting the deceased. PW 2 did not recognised the accused but was able to describe him as having a big hair and wearing a black cut shirt. Both PW1 and PW2 confirmed that the spot they were sitting was at the spot marked “J1” on the sketch shown to her in court marked “Ex. J1.” Both witnesses said there was some light shining from the school and the police station and while it is not bright, you can see someone who is close. PW1 and PW2 evidences about how much light there was at the area was confirmed by the evidence of PW3 and PW4 who said they were able to see the deceased from a distance of 2 meters and 4 meters respectively when they came and saw the injured man (deceased). PW 3 said he saw the deceased when he was about 2 meters from him and described him as big muscular. He also saw two figures running away from the playing field. I believe the figures must be the two women, PW1 and PW2. This proved that there was some form of light shining onto the area. Having observed the demeanour of PW1 and PW2, I am satisfied that both PW1 and PW2 are credible witnesses, I accept their evidences about events at White River playing field on the night of 30^th April 2016.

PW3 is Richard Pautangata Jr. and PW4 is James Tepuke. Both were part of a group of boys drinking on the other side of the playing field. Both PW3 and PW4 said in their evidences that the accused, Mr. Joel Abia, was drinking with them when they heard an argument on the other side of the field at place known as the park, close to the main road (was marked ‘J1’ on sketch). Both witnesses also heard shouting. It was around that time that they said accused, Joel Abia, left the group. They did not know where he went. Then they heard the argument got bigger or louder so PW3 said to the boys, “let’s go and check, there must a fight.” They went toward where the argument was and saw two persons running away but not sure if they were men or women. When they arrived, he only saw the deceased standing by himself. He heard something like a person breathing behind him. He went and checked then realised that the noise was coming from the deceased backside, so he told his friend that the man must be seriously injured.

The evidences of PW 3 and PW4 support the evidences of PW1 and PW2 with regard to the lighting at the spot where the incident happened. PW1 was able to recognise the accused and identified him and saw him holding a knife. PW3 and PW4 were able to describe how the deceased looked from a distance of 2 and 4 metres respectively. PW3 saw the deceased from a distance of 2 meters and was able to describe him as a big muscular man, while PW4 said he saw the man from a distance of 4 meters and described him as bald and had a body and a bit stodgy, but did not recognise his face. I have seen the police photographs of the deceased tendered as evidence and the descriptions given by both PW 3 and PW4 of the deceased are quite accurate and match the photographs. This means that it must be true that there were some form of light shining on to the playing field and on the spot where the deceased was found to be standing. From my observation on the visit to the crime scene, it is possible some light could either be from the school buildings, the police station or a street light from the electric pole near the main road. Hence, while the defence submit that there was no light to make it possible for PW1 and PW2 to recognise the accused. I am satisfied there was sufficient light to make PW1 clearly identify the accused as the man who came to them that night and assaulted the deceased and who had a knife in his hand. When PW1 and PW2 said there was light at where they saw the accused, I do not think they mean there was light as one would get standing directly under a light bulb but rather that they were able to see things from rays of lights shining onto the spots on the playing field. The defence submitted that there was insufficient light on the playing field to allow witnesses to identify the accused but it was never part of the defence case that the accused was not the person seen by PW1 and PW2 assaulting the deceased or that he was anywhere near or in the playing field that night. I accept PW1’s evidence on the identification of the accused.

While the defence submitted that the PW1 and PW2 evidences were inconsistent, I considered if there were inconsistencies, they would be in relation to irrelevant facts and not in regard to the facts in issue relevant to prove the element of the offence or identification of the accused as the man who came to them and punched the deceased on the face twice. In fact, the evidence of PW3 and PW4 that the accused left the group when they heard the argument and shouting, support the evidence of PW1 and PW2 who said they saw the accused came to where they were sitting after the deceased was shouting and swearing. He was missing from the group of boys sitting at the spot marked “J2” and was seen by PW1 and PW2 at the spot marked “J1”. PW1 was able to identify him because he had seen him many times before and known him. She even known his name and had spoken to him on previous occasions. PW 3 and PW4 did not see the accused where they saw the deceased standing but PW4 said when he went back to the spot where they were drinking the accused was already there.

The accused exercised his right and gave no evidence or made any statement from the dock. That is his right and one cannot criticise him for exercising his right. However, it means that the court is left with only the prosecution version of facts. There was no direct evidence that the accused was the person who injured the deceased causing his death. However, there was evidence that he was close to the deceased that night holding a knife, there was also evidence that he approached the deceased after he heard him shouting and swearing. There was evidence that he left the group of boys he was drinking with when they heard the shouting and swearing.

There was also evidence that he came to the deceased and said to the deceased ‘you how?’ In pidgin that among others could mean, ‘what are you doing?’ asked in an aggry manner. I believe the accused was referring to the deceased shouting and swearing. There was evidence that he punched the deceased two times on the mouth or face. The evidence of PW1 and PW2 about the accused punching the deceased on the face was never challenged.

I remind myself that the evidence against the accused were all circumstantial but as stated in Blackstone’s Criminal Practice 2005 at page 2130 “Circumstantial evidence is evidence of relevant facts, facts from which the existence or nonexistence of facts may be inferred. It does not necessary follow that the weight attached to circumstantial evidence should be less than that to be attached to direct evidence.” I am also mindful of what the learned author stated at page 3131, he stated, “It is also necessary before drawing the inferences of the accused guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inferences. The learned author’s statement was consistent with the Court’s statements in Shepherd v. Queen [1990] HCA 56; (1990) 170 CLR 573 and Doney v The Queen (1990) 171 CLR 96 referred to by counsel for the defence.

In the present case, while there was no direct evidence that the accused caused the death of the deceased, the circumstantial evidences were such that reasonable inferences could be drawn from them that point to the accused and prove that he was the person who caused the death of the deceased. He was seen close to the deceased with a knife, he spoke to the deceased in an aggressive or angry manner, and he was seen punching the deceased two times on the face or mouth. He was the only person left with the deceased when PW1 and PW2 ran away from the playing field, and had a knife with him at that time. Having considered all the evidences before the court, I am satisfied that the prosecution has proved the accused guilt beyond reasonable doubt. I find him guilty as charge.

Mr. Abia stand up. There is only one sentence for murder is life imprisonment, I sentence you to life imprisonment and as recently approved by the Court of Appeal in Mostyn Ludawane-v- Regina SICOA CRAC No.37 of 2016, I order that no parole should be considered until you have served 20 years imprisonment.

Informed of right to appeal.

The Court

Emmanuel Kouhota

Puisne Judge