R v Iroga [2019] SBHC 15; HCSI-CRC 515 of 2016 (31 January 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Iroga
Citation:
Date of decision:	31 January 2019
Parties:	Regina v James Oge Iroga
Date of hearing:	19-21, 23, 26 29 March 2018, 22, 24, 31 May 2018
Court file number(s):	CRC 515 of 2016
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Sir Palmer; CBE
On appeal from:
Order:	Find the defendant, James Oge Iroga guilty and convict him of the murder of Jessey Sale Bata
Representation:	Ms. M. Suifa’asia and Ms. F. Fakarii for the Crown Mr. H. Kausimae for the Defence
Catchwords:
Words and phrases:
Legislation cited:	Penal Code, s200
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case Number 515 of 2016

REGINA

V

JAMES OGE IROGA
Accused

Date of Hearing: 19-21, 23, 26 29 March 2018, 22, 24, 31 May 2018
Date of Judgment: 31 January 2019

Ms. M. Suifa’asia and Ms. F. Fakarii for the Crown
Mr. H. Kausimae for the Defence

JUDGMENT

1. The defendant, James Oge Iroga is charged with one count of murder, contrary to section 200 of the Penal Code, that on the 10^th June 2016 at the King George (“KG”) market area, with malice aforethought killed Jessey Sale Bata, (“the deceased”). He entered a not guilty plea to the charge and a trial was held therewith.

Brief facts.

2. On the night of the 10^th June 2016, the deceased and three other friends were returning from a fundraising activity late at night between 10.00 – 11.00 pm at Lunga School. They walked from Lunga to KG market area, stopped at a betel nut stall to chew betel nut, before crossing the road to take a short cut route to Burns Creek. That short cut goes past the KG Market area and a building owned by Yami Company.
3. On their way they met the defendant along that road. The defendant with others were sitting along the road and as they walked past one of the boys said good night to them.
4. A confrontation ensued followed by a fight between the deceased and the defendant, in which the deceased was stabbed with a knife on the head and died shortly thereafter.

The Prosecution case.

5. The Crown’s case is that at the time of the confrontation, the defendant was in possession of a knife with which he had threatened and intimidated the deceased with. A scuffle ensued during which the defendant called out to his friends for assistance. They joined in the attack and sometime during that attack, the defendant stabbed the deceased with the knife he had in his hand.

The defence case.

6. In his submissions to court, Mr. Kausimae, Counsel for the defendant points out that the defence in essence was to put the Crown to strict proof. He submitted that following the confrontation and fight with the deceased, when the defendant realised he had been knocked to the ground, he called for help and his friends came to assist him. It was during this altercation that the deceased was stabbed with the knife. Mr. Kausimae submits that there is doubt in the evidence as to who inflicted the stab wound. He submits there is possibility that it may have been inflicted by one of the associates who had come to his assistance and therefore the benefit of that doubt should be accorded to the defendant.

Facts not in dispute.

7. The following facts are not in dispute:
   • (i) During that time, the defendant was under the influence of drink having had “kwaso”, a local brew. During the daytime he had been drinking with one of his friends, Jeremy and into the night as well, of the 10^th June 2016 with some boys at the KG market area.
   • (ii) That he was in possession of a knife during that time when the altercation occurred.
   • (iii) That the same knife, which the defendant had was the murder weapon. No issue arises regarding the ownership and identity of that knife.
   • (iv) That there were some exchanges of words heard between the defendant and the deceased before the fight, including swearing words in custom used by the deceased against the defendant in an attempt to discourage or dissuade him from using the knife and to fight with his bare hands. I note one witness Waneben (PW14) did not hear this, but the others did.
   • (v) That the defendant threw down his bag and shirt before advancing to the deceased, following which a fight occurred between the two of them.
   • (vi) I am satisfied the fight initially involved only the two of them but when it became clear the deceased was getting the upper-hand in knocking or pinning the defendant to the ground, he called for help and his friends came to his assistance. There is varying evidence whether the accused was knocked down once or three times but after this, he was then heard to shout for help from his friends who came to his assistance and jointly attacked the deceased.
   • (vii) This combined attack turned the fight around and resulted in the deceased being knocked to the ground.
   • (viii) It was during this attack that he was stabbed with the same knife that the deceased was seen with earlier that night from which he died shortly thereafter from loss of blood.
   • (ix) The cause of death was the stab wound to the left temporal region of the head and resulting in exsanguination (excessive loss of blood), which he died from.

Issues in the case.

8. The crucial issues in the case is (i) the identity of the killer, person who inflicted the stab wound on the deceased, and (ii) whether it was done with malice aforethought.

Cause of death and murder weapon.

9. The cause of death is not disputed. Dr. Roy Maraka, the Pathologist who conducted the post-mortem report told the court that the cause leading to death was exsanguination, being severe blood loss due to the stab wound on the head of the deceased. In his report he described the direction of the stab wound as being in a downward direction. He further noted it was caused by a sharp object, such as a knife and was most likely applied once.
10. The description of the murder weapon was given by two witnesses, PW11, Benedict Waleka and PW8, Henry Bata the father of the deceased. PW11 is a cousin of the deceased. He saw the knife still stuck on the head of the deceased at the morgue and used a pliers he had in his pocket to pull the knife out and gave it to PW8.
11. That knife consisted of the steel blade, the handle had come off. That would explain why they could not pull the blade out without the use of a pliers.

Evidence of a knife at the scene of the crime.

12. There is clear evidence, which I accept as having been proven to the requisite standard that a knife was seen in the possession of the defendant at the scene of the crime. PW5, wife of the defendant described the defendant in the possession of a knife with an estimate length of about 20 cm with a wooden handle and dark brown in colour that day.
13. PW9, Jeremy Morobule told the court he saw the defendant with a knife, that evening of the incident, it had a handle which was held together with Sellotape.
14. Another witness, PW14, saw the defendant with a knife that evening immediately before the incident. He told the court that earlier that evening, while they were drinking, before the confrontation with the deceased and his friends, he had seen the defendant holding a knife in his hands.
15. I am satisfied prosecution had proven beyond reasonable doubt that the only person seen with a knife immediately before the confrontation was the defendant and no one else.

The evidence of a knife during the altercation.

16. There were three other witnesses, PW1, Lency Daufalu, PW2, Mathew Waki and PW3, Frank Suiga, who saw the defendant threatening the deceased with a knife in his hand that evening.
17. This evidence has been further supported and strengthened by PW4, Sam Rintu, one of the boys who was with the defendant that evening, who told the court that while he did not actually see the deceased with a knife in his hand, he heard him threatening to stab the deceased with a knife before the fight.
18. This crucial evidence of the defendant being in the possession of a knife immediately before the scuffle has not been contradicted and I am satisfied Prosecution have proven beyond reasonable doubt that the defendant had a knife in his possession during that scuffle or fight.

Did the defendant throw the knife down?

19. The next important question to consider is whether the defendant threw the knife down before the scuffle, and if so, was it picked it up by someone else? In other words, who stabbed the deceased with the knife?
20. The evidence led by prosecution and confirmed by witnesses was that, the deceased on being threatened with the knife, swore in custom, or used “swearing words in custom” with the intent that the defendant would throw his knife down or put the knife aside and fight the deceased without it.
21. This raises the question whether the defendant threw aside his knife? None of the prosecution witnesses called however, PW1, PW2, PW3 and PW 14, saw him putting aside or throwing down any knife.
22. PW1 saw him putting his bag down; PW 2 saw him putting his bag and his shirt down, which was confirmed by witness PW14, who told the court that he was the one who looked after the shirt and bag, but denied seeing any knife being put down, or given to him. In cross examination, he (PW14) remained firm that he did not see any knife being put down by the defendant.
23. PW3 also confirmed the same, that he saw him putting down his bag before attacking the deceased, but did not see any knife being put down.
24. PW14’s evidence goes a little further to describe what he saw. He told the court that he saw the defendant moving his hand, which he held the knife with, towards his side and assumed by this that he may have put his knife at his side; he denied however, seeing any knife being thrown down or put down on the ground. I am satisfied this piece of evidence further supports prosecution’s case, that the defendant had the knife in his possession throughout, when he attacked the deceased, whether it was still in his hand or it was by his side.
25. I am satisfied so that I am sure that prosecution have proven beyond reasonable doubt that not only did the defendant had a knife in his possession during the fight, but that he did not put it down at any time.

Who stabbed the deceased with the defendant’s knife?

26. There is no dispute in my view that the knife found on the head of the deceased and which had been pulled out by PW11 and given to PW8, belonged to the defendant.
27. The question for determination however, is who stabbed the deceased with that knife? Was it the defendant and if not, who?
28. The evidence adduced showed that it was during the fight the deceased was stabbed. While there was no direct eye witness account of the stabbing, the uncontested evidence is that throughout the attack, the defendant was involved from beginning to the end. According to the uncontested evidence of PW4, he told the court that he had to personally intervene to stop the defendant from continuing to kick the deceased when he had fallen down. By the time he checked the deceased thereafter, he noticed he was already dead and saw a knife stuck on the side of his head.
29. PW14 also told the court that while he was holding onto the shirt and bag of the defendant, one of the boys who was involved in the attack, Lester by name, ran towards him and told him to run away as the deceased had died. The accused then ran towards him grabbed his bag and ran off without saying anything to him.
30. I am satisfied on the evidence adduced, that one of the last person seen with the deceased was the defendant. PW3’s evidence is consistent with the train of events that occurred, for he saw the defendant with other boys kicking the deceased, which is consistent with the evidence of PW4 that he had to intervene to stop the defendant from continuing to attack the deceased.
31. I am satisfied as well, there is simply no evidence whatsoever that anyone else held any knife before and throughout the attack on the deceased. The evidence is crystal clear that the only person who held or had a knife was the defendant and it was the same knife which was found on the head of the deceased.
32. I am also satisfied and I accept that there is evidence of a confession or admission by the defendant overhead by two witnesses, PW6 and PW7. PW6, Alice Tafisi, is the mother in law of the defendant. She told the court that she was at her house with her elder son when the defendant arrived, asked for his basket and clothes and told them that he was going to run away to the Russell Islands as he had stabbed the deceased.
33. The son, PW7, Alick Taebo confirmed what his mother said. He told the court that when the defendant arrived at their house, he told them about the knife with a black rubber that he had and that he had used it to stab the deceased with. When he was told that the deceased had died, he seemed to have panicked and was moving around.
34. I am satisfied both their evidence is consistent with the prosecution’s case that the stabbing could not have been done by anyone else.

Conclusion.

35. The crucial issues in this case were that of the identity of the person who stabbed the deceased with the knife, and whether he had the necessary malice aforethought when he did that.
36. I am more than satisfied to the requisite standard that on the question as to the identity of the killer, prosecution had established this beyond reasonable doubt, that it could not have been anyone else other than the defendant. This has been more than an “educated guess”, for on the evidence adduced by prosecution and which I have accepted on the facts, the defendant had a knife with him in his possession before the fight and during the fight. I find he was involved heavily in the fight and that at some point, most likely towards the end, he stabbed the deceased with that knife. I do not need to repeat the evidence which has been adduced by prosecution as to the sequence of events as to what transpired that night as regards to the defendant and the knife which he had with him, from start to finish and when it was found stuck on the head of the deceased. There has been no evidence whatsoever that that knife was seen with anyone else, that it was dropped by the defendant, or, that it could have been given or passed to anyone else. I accept prosecution’s evidence and submission that no one else could have used that knife apart from the defendant. Even if the knife had been put at his side before the fight, it was still in his possession, easily accessible and which he could easily have taken out and use during the fight.
37. Further, his behaviour in panicking and actions afterwards, in running away, and what he told PW6 and PW7, are all consistent with the actions of a person with a guilty mind and conscience.
38. On the issue of proof of the necessary mens rea in this case, that of malice aforethought, I am also satisfied prosecution have adduced evidence which showed that the actions of the defendant were consistent with that of an intent to cause death of or grievous bodily harm of the deceased and or knowledge that his actions in stabbing the deceased with the knife would cause the death of or grievous bodily harm to the deceased.
39. The evidence adduced is consistent with malice aforethought for he was seen confronting the deceased with a knife from the outset. PW1 told the court that he saw the defendant putting the knife he was holding towards the throat of the deceased on two occasions before they fought. PW3 said it was on three occasions that he showed the knife towards the neck of the deceased. PW2 also confirmed the same action. PW4 told the court he heard the defendant threatening the deceased with the knife and that he tried to stop him but was unsuccessful and a fight occurred shortly thereafter.
40. PW14 also told the court of the defendant threatening to stab (the words used in pidgin were) “you likem me busham you witim this falla knife” and the deceased challenging him to fight with their hands.
41. I am also satisfied the evidence of PW14 is consistent and supports the element of intention or knowledge, in which he told the court that he had to intervene to tell the defendant to stop from continuing to kick the deceased after he had fallen down.
42. I am more than satisfied these are all material evidence of intention to cause death and or grievous bodily harm to the deceased, and or knowledge that his actions would probably cause the death of or grievous bodily harm to the deceased.
43. I am satisfied that the amount of force used to stab the deceased with is consistent with the element of malice aforethought, for it would have to be of such force to cause the knife to be embedded firmly in the head of the deceased. PW11, cousin of the deceased who attended at the morgue told the court he could not take out the knife with his hands and had to use a pair of pliers^[1] to pull the knife out.
44. I am satisfied prosecution have discharged the onus placed on them and I find the defendant guilty of the murder of the deceased and convict him of his murder.

ORDERS OF THE COURT:

(i) Find the defendant, James Oge Iroga guilty and convict him of the murder of Jessey Sale Bata.

The Court.
Sir Albert R. Palmer CBE

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^[1] PW11 told the court that he is a mechanic and had a pair of pliers in his pocket.