Regina v Tua [2018] SBHC 36; HCSI-CRC 115 of 2015 (8 March 2018)

REGINA

-V-

JOHNSON TUA

IN THE HIGH COURT OF SOLOMON ISLANDS
Criminal Jurisdiction
(Maina J)

Criminal Case No. 115 of 2015

Date of Hearing: 6^th and 7^th March 2018
Date of Judgment: 8^th March 2018

(Sitting at Auki, Malaita Province)

Ms Ramosaea S for the Crown
Mr. N. Galo and Ms Vanibule (trainee) for the Defendant

JUDGMENT

Maina PJ:
Introduction
Johnson Tua (“the accused”) is tried on the Information of one count of murder contrary to Section 200 of the Penal Code Cap. 26. The particular is that on 12^th of January 2015 did murder Frank Ora (“Deceased”). The accused pleaded not guilty to the charge on the charge of murder. And deceased pleaded that he acted in self defence.

Preliminary Matter

I wish to thank the Prosecution and Counsel for the defence for the written closing submissions. It assists a lot and the court delivered the verdict in the case at the time or duration of the circuit.

Facts of the case
On the morning of 12^th January 2015 at about 08.30hrs the deceased Frank Ora came to PW2 Joseph Tua’s house and asked for the nails. Deceased went into the kitchen and sat down on a bench. In the kitchen were PW 1 Mercy Nelly (Joseph Tua’s wife), old woman (accused, deceased and Joseph Tua’s mother), Fred and small boy William. Accused Johnson Tua came into the Kitchen with bush knife (22 inches). He went to the deceased Frank Ora and with his bush knife cut and the knife landed at the left side neck and mouth or body of the deceased. Deceased then fell down on the floor. Accused pulled the deceased out from the kitchen and left him near a small coconut tree in front of the road.

Accused came back to the house, clean the blood of the deceased in the kitchen and on his body. He then left the village to the road and went down to Auki Police Station.

Prosecution called two witnesses and by consent tenders other witness statements, medical report and exhibits.

Defence did not called any witness and only accused Johnson Tua gave unsworn evidence from the dock. Accused stated that he struggled with the late Frank Ora in the kitchen and while he was defending himself it was when the bush knife cut the deceased. He did not realize that Frank Ora had died from their struggle until his brother PW 2 Joseph Tua informed him later that Frank had died from their struggle in the kitchen.

Issue of the case

1. Whether the deceased died from the cuts with the bush knife by the accused?
   
2. that caused wounds and bleeding on the deceased’s body?
   
3. If so, whether the act the accused Johnson Tua by cutting late Frank Ora with a bush knife was self defence?
   

Facts not in dispute

• The accused struck or cut the deceased with a bush knife at the kitchen,
  
• The deceased received wounds from the struck or cut from the bush knife,
  
• The deceased fell down and later died,
  
• Accused pulled out the deceased from kitchen and put him near a small coconut tree,
  
• And upon what the accused had done to the deceased, he went and gave himself up to the Police at Auki Police Station; and
  
• The medical report confirms that the deceased died from severe bleedings of the knife wounds.
  

The Law

Section 200 of the Penal Code defines murder as:

“any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder and shall be sentenced to imprisonment for life.”

This Section 200 requires two elements to be established to constitute the offence of murder or before a person is criminally responsible for committing the offence of murder. They are the physical unlawful act or omission and the mental state of the person or offender. The element of prohibited action must be accompanied with the prohibited mind to constitute guilt in murder charges.

It is further defines in Section 202 of the Penal Code that the state of mind (malice aforethought) which must be proved by evidence, preceding or co-existing with the act or omission. And two states of mind is in subsection (a) and (b), either of which if proved would establish malice aforethought.

With that provision, the court to must look objectively at both the evidences of the prosecution and accused in considering the issue of knowledge. And it is on the basis of what has been established by evidence of ordinary reasonable person, Faukona J in REGINA -V-(1) TAEALAMO MAELONGA (2). PETER SUTAFANABO (3). WILLIE MAELONGA - Criminal Case Numbers: 247 of 2010, 467 of 2010 and 171 of 2011.

Issue 1
The deceased had died and was after or at the incident occurred at Ofenga Village, Central Kware’e, Malaita Province. The deceased received wounds on his body from the cuts of the bush knife by the accused.

The accused gave unsworn evidence from the dock and stated that he struggled with the deceased and as result cut the deceased with his bush knife he was holding in his hands. At that time he was looking for knife pile in the kitchen as he was intending to go to the garden. Deceased attacked from the back and he was defending himself from the deceased.

Counsel for the defence submitted that the accused was acting on the defence as the deceased attacked him. Deceased was muscular man and had attacked the family members and destroyed the properties.

Counsel for the defence also argued that the fact of this case similar to the Regina v Soma Criminal Appeal no.o3 of 2004 and principles set for that case should apply here and his client should be acquitted on the charge of murder.

The defence seemingly relies on the self defence issue, a subject matter for the next issue. And should to be discussed, if the court finds evidence against the accused or caused the deceased death was from the cut or bleeding from the wounds.

The Court

The evidence from PWI Mercy Nelly who was in the kitchen with her mother-in-law (old woman), Fred and small boy William is that they were there when the deceased Frank Ora came in the kitchen and sat down on the bench. He asked for nails to his brother Joseph Tua (PW 1’s husband). The accused, then came in the kitchen and struck the bush knife on the deceased and cut his left side neck and mouth. The deceased shouted at his high voice and fell down on the ground and he died.

PW 2, Joseph Tua gave evidence and stated that at that morning, deceased Frank Ora came to his house and went to the kitchen. Accused Johnson Tua was with him at the big house. Deceased Frank shouted to him for nails. At that moment accused went from the big house to the kitchen and PW 2 followed the accused to take the key from accused as he holds the key for the nails. Before the PW 2 reached the kitchen he heard the deceased shouted. He went and looked in the kitchen and saw deceased sitting on the floor. He saw the strikes of the knife at the left side of the deceased’s neck.

He said he saw accused struggling with deceased and deceased was trying to block the knife from him. Deceased Frank was sitting on the floor and accused was standing about a foot away from the deceased. This witness he stood about two metres away from them and he told accused to stop the acts he was doing to the deceased. He said to the accused as he described it “enough nao”. But accused did not say in response to him.

After the witness talked to the accused he wanted to go in the kitchen but he was holding the baby and his wife (PW1) pulled him away.

While there was evidence to support the past violent acts of the deceased to the families and properties, there is no evidence to state that the deceased was muscular man, but only a violent character person.

The medical report by Nurse Connie Sala of Busurata Rural Health clinic confirmed that the deceased died due to severe bleeding from multiple knife wounds. She described the wounds on the deceased as:

• Knife wounds at the deceased’s left throat down to his left chest 115cm long and deep. The knife also cut off the deceased wind pipe and other tubes along the throat.
  
• Knife wounds at the deceased’s left chin and part of his left lower lip about 6cm long and deep-next above his cheeks.
  
• The largest wound was on the deceased right thigh about 20cm long and 8cm deep.
  

The Police record of interview with the accused Johnson Tua on 14^th January 2015, (tendered by consent) he frankly said to Police in the answer to Q 24, at the last two sentences of his answers:

“That day ia hem parava gud long me and me no save holem cross blong me nao – so me killim nao. Hem no more story blong me.”

That statement can be interpreted as: At that day it was a very good for me. I was unable to hold my anger and I killed. That is all for my story.

Besides that, the accused told the Police of his reason or for the deceased mistreating the accused, his father, brothers, sisters and communities, accused confirmed his intention to do what he did to the deceased.

In all, the act of the accused by cutting the deceased with a bush knife caused wounds with severe bleedings, an act the deceased knew or he acted knowing the consequences of what he did to the deceased. After the incident, accused pulled the deceased out from the kitchen to a nearby coconut tree and left him there. He came to the house, clean up himself and went down to Auki Police Station. And that is clear evidence that the acts of the accused was accompanied or tied in with his mind and in that constitutes the guilt.

With Soma case, the trail judge ended the case at the closed of Prosecution cases and basis of lack and inconsistency of evidences. And the COA dealt and determined the matter or circumstances the trail judge undertook to end of the case.

Trial Judge concluded at the closed of Prosecution case

I am satisfied beyond any reasonable doubt the deceased Frank Ora died from the severe bleeding of the wounds from the cut of bush knife by the accused Johnson Tua.

Issue 2

The defence submitted that accused acted in self-defence from the actions of the deceased, stating that the deceased was a muscular and well-built person compared to the defendant.

There was a struggle between the deceased and accused, a fight that ensures between them. The deceased was trying to remove the knife from the accused and the deceased did not attempt to escape but attempt to the knife from the accused.

Defence further submitted that there is high possibility that he was going to use the knife against the accused given the propensity evidences that the deceased is a violent person.

There is no evidence from the defence to support the claim from the submission but seemly inference of the defence from the PW1 and PW 2 evidences.

It is only the accused’s unsworn evidences from the dock.

PW 1 did not stated in evidence that the deceased was muscular and well-built person than to say that he was involved to the incidents referred to about the deceased.

And PW2 in his evidence said the deceased on the floor was trying to block the knife with the accused from him.

The question is whether the act of the accused is self-defence or act reasonably necessary to preserve accused from death or grievous bodily harm?

There are two situations which the Defence claims for his act as self defence in this case. First is the deceased was a violent person and allegedly caused violent in the past incidents i.e. cutting his father with a knife, the burning/damaging of the rest /stranger house and various violent attitudes to his family and the community.

Second situation is at the time of the incident in the kitchen the accused was defending himself from the struggle between him and deceased. He said that he was defending himself from the attack of the deceased as he knew that the deceased was a violent man.

The Common Law on Self Defence

The common law principle on self defence is setout in the Court of Appeal case Michael Waidia -V- Regina Criminal Appeal Case No. 16 of 2014.

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In R v Murv Muratovic [1967] Qd. R. 15, sets out that that thet the pers person using the force in self defence is entitled or allowed to use any force which is reasonably necessary to preserve him from death or grievous bodily harm. With that if:

1. the nature of assault or act is such as to cause reasonable apprehension of death or grievous bodily harm and,
   
2. the person using the force by way of self defence believes that if he do not act with that force he will die or receive grievous bodily harm.
   

With this common law principle, the prosecution bears the burden of disproving self defence where evidence discloses that as defence or to adduce evidence to satisfy the court beyond reasonable doubt that the defendant was not acting to defend him/her or another.

Prosecution case on self defence

Prosecution witness (PW 1) Mercy Nelly gave evidences and stated that deceased came to his house brother’s house (her husband) and asked for nails. Deceased went in the kitchen and sat down on a bench. There were this witness and some people. The deceased did not hold anything in his hand. The Defendant came in the kitchen and struck the knife on the left side neck of the deceased. The deceased fell on the ground.

Prosecution witness Joseph Tua, (the brother of the accused and deceased) who was at their big house and followed the accused to the kitchen said he came in and saw accused on the floor and said he told the accused to stop acts he was doing to the deceased. Then he was pulled away by his wife PW1 from the kitchen away up to Michael’s house.

Again the record of interview of the accused by the Police, accused stated his intention of when he said was unable to hold my anger and he killed the deceased. And he referred to the deceased’s mistreating in the past times of the accused, his father, brothers, sisters or family and the community.

The court

The accused was not confronted at the particular time of any act or was such as to cause reasonable apprehension of death or grievous bodily harm to him.
The fact that the deceased did not hold anything in his hands or acted violently in the kitchen deserves no force by way of self defence or to require the accused to believe that if he do not act with that force he will die or receive grievous bodily harm.

There is none in order to entitle accused and what he claimed as prevent him from any harm.

The reminder or advice of the Court of Appeal in Michael Waidia’, case when it quote the words of Lord Morris in Palmer v R [1970] UKPC 2; [1971] AC 814, when assessing whether the force used was reasonable:

"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 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 ..."

Honesty and reasonably necessary is an issue for consideration in this case as I am in the view or not satisfied on the above two conditions or no cause to suggest at the time of incident of reasonable apprehension of death or grievous bodily harm. And so it is unnecessary to decide on the honest and reasonable beliefs that the force was in fact used were necessary for defence.

The fear of death or grievous bodily harm of the past incidents or occasions does not provide a defence as it is or the essence of self-defence is that violence is presently being offered or confronted. In this case the accused himself came in the kitchen and created the scene by striking the knife on the sitting and harmless deceased. The accused’s creation of the scenery cannot favour anything and his action cannot be as pre-emptive cause.

The defence of self-defence is dismissed.

Decision

I have ruled that the deceased Frank Ora died from the severe bleeding of the wounds from the cut of bush knife by the accused Johnson Tua.

And I am satisfied beyond any reasonable doubt the deceased Frank Ora died from the severe bleeding of the wounds with the cut of bush knife by the accused and therefore I find the accused guilty on the charge of murder and convict him of the murder.

The Defendant has a right of appeal to the Court of Appeal if aggrieved by the decision of the Court.

Orders of the Court:

1. Find the Defendant guilty of the murder of Frank Ora and convicted accordingly,
   
2. A mandatory sentence of life imprisonment is hereby impose for the accused accordingly.
   

THE COURT

......................................................
Justice Leonard R Maina
Puisne Judge