R v Kwainia [2020] SBHC 39; HCSI-CRC 134 of 2017 (3 June 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Kwainia
Citation:
Date of decision:	3 June 2020
Parties:	Regina v Peter Kwainia
Date of hearing:	1, 5, 9-12, 15-18 July, 2019; 9, 13 March 2020
Court file number(s):	134 of 2017
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Palmer CJ
On appeal from:
Order:	Find the defendant, Peter Kwainia not guilty of the charge of murder Direct that he acquitted herewith and order that he be released at the rinsing of the Court
Representation:	Mr. A E. Kelesi and Mr. A Meioko for the Crown Mr. George Gray and Mr. Fagani for the Defence
Catchwords:
Words and phrases:
Legislation cited:	Penal Code, s200 [26], s 17 [cap 26]
Cases cited:	Palmer v The Queen [1970] UKPC 2; [1971] AC 814, R v Somae [2005] SBCA 18, Zecevic v Director of Public Prosecution [1987] HCA 26, The Sate v Li Jun, R v Conlon [1993] 69 A

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 134 of 2017

REGINA

V

PETER KWAINIA

Date of Hearing: 1, 5, 9-12, 15-18 July, 2019; 9, 13 March 2020
Date of Judgment: 3 June 2020

For the Crown: Mr. A E. Kelesi and Mr. A Meioko
For Defence: Mr. George Gray and Mr. M. Fagani

Palmer CJ.

1. The defendant Peter Kwainia (“the Defendant”) is charged with the murder of Alick Saverio (“the Deceased”) that on the 18^th June 2016 at Koivo village, North East Guadalcanal, killed the said Alick Saverio with malice aforethought.

Brief background to the case.

2. The parties, Deceased and Defendant are known to each other, they reside together in the same village at Koivo and knew each other well. They are married to two sisters, Emma Rose Thurua and Cecilia Paeni.
3. On the day of the incident, both men had been to town, had some beers and travelled back to their village in the same truck. They both dropped off at Roroni road at a junction situated at the western end of Binu village. After this they boarded another truck and headed back to their village.
4. It is not in dispute the incident occurred at night. It is also not in dispute that the Deceased died at the hands of the Defendant. What is in dispute is whether the killing was done with malice aforethought or whether it was in self-defence.
5. The Defendant submits that the killing was done in self-defence and therefore did not amount to murder, contrary to section 200 of the Penal Code [CAP. 26].

The Crown’s case.

6. The Crown’s case is summarised in its opening address. On the 18^th June 2016, both men had travelled back to their village in the same truck. Prosecution alleges that on arrival at their village there was some disagreement between them. The Deceased was not happy, he alleges that the Defendant had accused him of being a “peeping Tom”.
7. At about 8 or 9 pm that evening, the Defendant arrived at Kaoni’s place and accused the Deceased of shooting his leg with a stone. He then got a knife from Kaoni’s place and went back to his house. The distance estimated in court from Kaoni’s place to the Defendant’ house is like from here to the Hot Bread Kitchen at Point Cruz.
8. Shortly after this, it is alleged the Deceased was seen walking in the direction to the Defendant’s place. He went there to ask for compensation for the accusation of being a “peeping Tom”. After taking the compensation he walked back to Kaoni’s place. Moments later, the Defendant’s sons came to Kaoni’s house and uttered some words to the Deceased. At some stage, the Deceased left Kaoni’s place. As the incident unfolded, the Defendant armed with a knife was seen running after the Deceased.
9. Crown alleges that the Defendant struck the Deceased multiple times with the knife with intention to cause the death of or grievous bodily harm to the Deceased or, knew that when he did this that it would cause the death of or grievous bodily harm to the Deceased. Crown alleges that there was no lawful excuse for him to attack the Deceased.

The Defence case.

10. The defence argue on the other hand, that the Deceased was the aggressor when he went to the Defendant’s house to ask for compensation, demanding that the Defendant change his Saratoga beers and threatening to kill him if he did not. They say that the Deceased had attacked the Defendant with a knife he had and that the Defendant had acted in self-defence when he killed the Deceased.

Facts not in dispute.

11. The post mortem report (Exhibit P5) of Dr. Roy Maraka, is not in dispute. He identified a total of seven slash wounds, four were serious deep wounds, one on the neck and upper chest area, the second one on the abdominal wall with right ribs, the third on the left side of the back, and the fourth on the head. He concluded, the Deceased died from severe blood loss as a result of multiple slash wounds on the body, the one on the neck being more fatal than the others.
12. It is not in dispute that the wounds were inflicted by the Defendant with his knife. That knife is marked as Exhibit P7.

Findings of fact on the evidence.

13. In addition I make the following findings of fact. That on his way home after dropping off at the bus stop, the Deceased had thrown a stone at him. That he ran away and stopped over at Kaoni’s house on the way and got a knife from him.
14. I find that sometime in the evening the Deceased came to Michael Parole’s house and asked for Finle (PW3), but he was already asleep. From there he went to the Defendant’s house.

Issues for determination.

15. There are a number of issues that arise for determination based on the Crown’s opening address as to the Crown’s case that the Defendant murdered the Deceased. These relate to issues of fact and whether these had been proven to the requisite standard by the Crown.
16. The first issue for determination is whether the Deceased returned to Kaoni’s place after going to the Defendant’s house to demand compensation and collect Saratoga beers from the Defendant for accusing him of being a “peeping Tom”.
17. The second issue is whether he was then attacked by the Defendant as he left Kaoni’s house.
18. The third issue is that of self-defence, whether there was a fight and the Defendant had killed the Deceased in self-defence.

Is there evidence that the Deceased returned to Kaoni’s house from the Defendant’s house?

19. I have had the opportunity to carefully consider all the evidence adduced by Prosecution but find nothing to suggest from the witnesses called except one (Johnson Vogithia), that the Deceased came back to Kaoni’s place after. This setting is crucial to the Crown’s case of an intentional attack on an unarmed man who was walking away from the house when attacked.
20. Vogithia told the court that he was at Kaoni’s place earlier that evening, when the Defendant arrived, got a knife and left for his house. In cross examination, he confirmed that the Defendant had asked for a knife and told them that the Deceased had shot him with a stone.
21. The only evidence of the Deceased returning to Kaoni’s place, was given by Vogithia during examination in chief. He told the court that after the Defendant left for his house the Deceased came back to Kaoni’s place. He says this was after the Deceased had been given 12 cans of Saratoga beer by the Defendant’s wife.
22. The Deceased then went back to his house. One of the sons of the Defendant then shouted saying words to the effect to go and get your gun. The Defendant and one of his son then ran back to their house. The Deceased then came running back carrying a stick in his hand. That was when he was attacked and cut by the Deceased. He says he was standing at the garden when this happened.
23. In cross examination, he contradicted himself and told the court that he followed after the Defendant to his place and was at Stewart’s place when the Deceased arrived at the Defendant’s house. This contradiction is relevant because he could not be in two places at the same time to witness the same happening, bearing in mind the distances between the houses of the Defendant and Kaoni’s house and also the Deceased’s house.
24. Stewart is one of the sons of the Defendant and his house is next to the Defendant’s house, about 9 metres apart. He says he was at Stewart’s place and heard when the cans of beer were given to the Deceased. He did not say any anything however, about the Deceased going back to Kaoni’s place.
25. When asked if the Deceased was shouting loudly and aggressively when he arrived, he agreed. When it was put to him that he ran away after this and did not stand to watch what was happening, he also agreed. In the circumstances, he could not be standing in the garden to watch what was happening. And even if he was standing at the garden the likelihood of him being able to see what was happening is remote bearing in mind that the incident happened at night time. But even if that were so, his earlier evidence in chief describes the Deceased running back with a stick in his hand and then being attacked, which at the most would describe a fight.
26. I find however, the evidence of Vogithia to be ambiguous, vague and confused. The sequence of movements of the Deceased including his own, as described were not clear and contradictory. He seemed to be saying at one stage that he was at Kaoni’s place when the Deceased returned from the Defendant’s house with the 12 cans of beer, and saw him walking back to his house before returning when he heard the Defendant and one of his sons shouting. He says he then saw the Deceased running back with a stick in his hand. If that were so then he could not be at Stewart’ place at the same time.
27. I do not find him to be a credible and reliable witness. I find his responses in court to be very vague and ambiguous. He would hesitate a lot and took a lot of time before answering questions. At times he did not even answer a simple question put to him; on occasions a simple question had to be repeated.
28. I find his evidence in chief that he was at Kaoni’s place when the Deceased returned from the Defendant’s place before walking back to his house and then returning and being attacked to have been sufficiently discredited during cross examination and should be discounted.
29. Both Finle and Michael Parole said nothing about seeing the Deceased returning from the Defendant’s house and going to Kaoni’s house before being attacked. The only prosecution witness who said something about the Deceased coming to their house and “going down”, being the exact words used in court, was Salome Tete (PW4). Her evidence however is confined to the earlier part of the events that night. She confirmed that the Deceased came to their house and asked for her husband, Finle but told him that he was asleep. He then told them that he was “going down”, but did not mention where. It is not in dispute that he went to the Defendant’s house from there.
30. She confirmed that the Deceased was drunk when he came to their house. Not long after this, she heard the Deceased calling out that he was dying. The Defendant appeared at their house shortly after, with a knife and telling them that he had killed the Deceased.
31. In essence, I find insufficient evidence to support the Crown’s case that the Deceased returned to Kaoni’s place before being attacked by the Defendant. I find accordingly Crown had failed to prove this issue beyond reasonable doubt.

The second issue is whether the Deceased was attacked by the Defendant as he left Kaoni’s house.

32. Again, I find no credible evidence adduced by prosecution that the Deceased returned to Kaoni’s house before being attacked by the Defendant.
33. The result of the failure by prosecution to prove beyond reasonable doubt that the Deceased was attacked as alleged, leaves the issue of self-defence as the final outstanding issue for determination. Having raised the defence, it is for the Crown as well to disprove that the Defendant acted in self-defence when he killed the Deceased with the knife he had.

Whether there was a fight and the Defendant had acted in self-defence when he killed the Deceased?

34. The defence case is that after dropping off at the bus stop at Kumakana, near Mberande, while on his way home, at some stage the Deceased threw a stone at him. On his way home, he stopped at Kaoni’s place and asked for a knife to take with him. He states that he took a knife for his own safety and security. This was confirmed by Vogithia, who was at Kaoni’s place earlier that evening and saw the Defendant taking a knife with him.
35. What transpired after that and in particular, at the vicinity of the Defendant’s house is confined almost entirely to what the defence alleges took place, for the reason that there was no one else around apart from Vogithia and the family members of the Defendant.
36. While their evidence varies in some places and even appear to contradict each other, there are some consistent and immovable facts which remain and have not been discredited by the prosecution.
37. In terms of Vogithia’s evidence, it is relevant in that he did confirm certain events which occurred in the earlier stages from the arrival of the Deceased at the Defendant’s house and before he too decided to run away out of fear, bearing in mind that he was only a young boy at fifteen years of age. His evidence that he was at the Defendant’s house before the fight meant he could not be at Kaoni’s house during that time and his earlier evidence that the Deceased was seen coming back to Kaoni’s place should be discounted.
38. His evidence supports the defence case that the Deceased was shouting loudly and aggressively when he arrived. He was also able to confirm that cans of beer (he says 12) were given to the Deceased. Shortly after this, he ran away. The other sons of the Defendant also ran away when they heard the Deceased arriving. The only people who were around at that particular time were the Deceased, the Defendant, and Cecilia Paeni, wife of the Defendant.
39. I find that when the Deceased came to the Defendant’s house, he was shouting loudly and aggressively. A prosecution witness, Sale Sio also confirmed hearing him shouting loudly although he and Vogithia denied hearing any swearing or threatening words. In the circumstances which prevailed that night, it is possible that he may also be swearing and using threatening words as alleged by the defence. Their version however has not been discredited.
40. The Defendant, his son Peter Jnr., and Cecilia, all confirmed that when the Deceased arrived he was not only shouting but also threatened to kill the Defendant if he did not change his beers and pay him compensation of $200.00.
41. Cecilia confirmed the payment of $200.00 as compensation. She did not see what happened after that as she had returned to her room to see her twin babies she had delivered earlier that day. In cross examination however, she told the court that she saw the Deceased whip the backside of the Defendant and heard him say that they will try and sort it out. She then returned to her room and did not see what transpired thereafter.
42. It has been suggested by Mr. Kelesi that her evidence should be disregarded as being inconsistent and therefore unreliable. It is pertinent to note however, that even if that were so, the un-contradicted fact remains of an attack on the Defendant that evening. That evidence by the defence has not been discredited by the prosecution for it was the only credible evidence available as to what transpired at that time, that on being attacked, he had to defend himself by cutting the Deceased with the knife he had. He says that after cutting the Deceased he lost control of himself and did not know what he did afterwards but accepts that all the cuts on the body of the Deceased were caused by him.
43. In his submissions on behalf of the Defendant, Mr. Gray submits that the actions of the Defendant in defending himself cannot be weighed to a nicety bearing in mind the circumstances of the case. He also submitted that the failure to retreat cannot be taken as evidence against the Defendant when he was being attacked by an aggressive man in the vicinity of his home.

The law on self-defence.

44. The law on self-defence in Solomon Islands is to be determined according to English common law principles (see section 17 of the Penal Code [cap. 26]. In Palmer v. The Queen^[1], Lord Morris of Borth-y-Gest stated:
    • “It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances .... It may in some cases be only sensible and clearly possible to take some avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation....” (Emphasis added).
45. According to the account of the Defendant, the attack against him was serious and dangerous. That cannot be denied and has not been discredited. The particular facts and circumstances prevailing at that time gave him little option but to respond in the way he did, for it was either him or the Deceased.
46. In raising self-defence and in considering whether the actions of the Defendant were reasonably necessary in the circumstances, the backdrop of the particular facts and circumstances before him should be taken into account. This is a subjective test and in defending himself, he may not be able to weigh to a nicety the exact measure of his defensive action^[2].
47. In R. v. Somae^[3], the Court of Appeal held:
    • “However, in a case of murder, the prosecution must also establish beyond reasonable doubt that the act of the accused was not done in self-defence. It is quite wrong to speak of this as a “defence”, just as it is wrong to speak of accident as a “defence”, although it is conventional to do so. In each case it is incumbent on the prosecution to prove both that the act causing death was intentional and that it was not committed in self-defence.”
48. The onus of proof lies with the prosecution, that what the Defendant did was both intentional and did not amount to self-defence.

Analysis on the evidence of self-defence.

49. I find on the facts that the Deceased was the aggressor and initiated or provoked the tense situation on the ground between him and the Defendant that day. He had earlier thrown a stone at the Defendant, which has not been denied or discredited. The Defendant however, did not retaliate, instead he went back home.
50. Later that evening, the Deceased went to the Defendant’s house, which would be some distance away, according to what witnesses had estimated, some 100 – 150 metres away, and demanded that he return his beers and pay him compensation in the sum of $200.00. Again this has not been denied or discredited. It is also not denied that the Deceased was drunk at that time.
51. These are some of the “immovable facts” referred by Mr. Gray in his submissions that the incident occurred at the vicinity of the Defendant’s house and not at Kaoni’s place or anywhere else. Any suggestions therefore that the Deceased may have been at or near Kaoni’s place has not been substantiated on the evidence and should be discounted.
52. Further, when he went to the house of the Defendant, he did not go quietly or peacefully, but was shouting loudly and aggressively. These were the prevailing facts and circumstances leading to the attack and or the fight. It was obvious alcohol also played a part in the tragic events that transpired that night. The element of self-control and self-restraint would also have been affected.
53. The Defendant and his wife, Cecilia also say that he had threatened the Defendant, that if he did not give him the beers and money, that he was going to kill him. This has also not been denied or discredited and so to say that the situation was tense and explosive waiting for something to happen would not be an overstatement.
54. I am unable to find on the evidence, that the Deceased was not armed with a knife; prosecution has not established beyond a reasonable doubt that the Deceased was not armed. I find rather the defence version, that the Deceased was armed more credible on the evidence. The Defendant in evidence repeatedly referred the Court to the photograph of a knife in pages 11 and 12 of the Album of Photographs marked as Exhibit P3, as the knife belonging to the Deceased. He denied that it belonged to him or to Kaoni. I note that that knife has not been produced in evidence in Court as an Exhibit although it was present at the scene of the crime and collected by Police Officers attending. Why it has not been produced has not been satisfactorily accounted for. It should have been one of the more obvious items retrieved at the scene of the crime and secured as a court exhibit. The fact that has not been done is something which needs to be looked into to ensure that it is not repeated. It would have avoided a lot of unnecessary questions being asked about such item if it had been produced in court.
55. It is also pertinent to note that it was located within the vicinity of the Defendant’s area, some 15 metres from his house. As well, it is relevant to note that it appears that where the body was found by virtue of the presence of a lot of blood was also close to the house of the Defendant some 10 metres away. This would seem to be more consistent with what transpired according to the defence version that night.
56. According to the sketch plan and measurements taken at the crime scene (Exhibit P2), the nearest house to the body of the Deceased would have been located not less than 24 metres away. As a matter of fact, there is nothing to suggest that it was closer to Kaoni’s house, Parole’s house or the Deceased’s house. I find the defence version in the circumstances to be more credible as opposed to prosecution’s version.
57. I am not satisfied therefore that Crown had disproved the version of the defence that the Defendant had acted in self-defence after he had been attacked by the Deceased with a knife.
58. In his evidence in court, the Defendant repeatedly denied that the unidentified knife was not the same knife that he had taken from Kaoni. He told the court he had left that knife in the house and taken his own knife. That has not been discredited. His evidence that the knife in the photograph was the knife the Deceased had used to attack him with has not been discredited.
59. In Zecevic v Director of Public Prosecutions [1987] HCA 26, the joint judgments of Wilson, Dawson and Toohey JJ, following the Privy Council’s decision in Palmer at 831-832, said:
    • “The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal.”
60. I am satisfied the evidence adduced by the defence is consistent with self-defence, that on being attacked by the Deceased the Defendant jumped out of his way before cutting at the Deceased with this knife.
61. In The State v Li Jun^[4], the Court held that the test in Zecevic (ibid) was not wholly objective but is based on the belief of the accused based on the circumstances as he perceives them to be and responded accordingly. In this instance, it has not been disproved that his response to the attack had been unreasonable. He had been attacked by an aggressive, loud and drunken man armed with a dangerous weapon, a knife, at his home and had he not defended himself, he would have been killed instead. That is one undeniable fact which prosecution had not disproved. It could be said he was lucky he was not killed when the Deceased attacked him with his knife. It was a serious and dangerous attack, and he had no other choice but to attack him in self-defence and in so doing killed him.
62. As to the numerous wounds inflicted on the Deceased, in R. v. Conlon^[5], Hunt CJ ruled:
    • “[A] person defending himself from a threatened attack and who has to react instantly to imminent danger cannot be expected to weigh precisely the exact measure of self-defensive action which is required.”
63. According to the uncontroverted evidence of the Defendant, it was not the case where there was the threat of an imminent attack, but rather an immediate attack and which he had to react instantly to. After taking the beers and money demanded, the Deceased whipped at his back with his knife, and causing him to jump away. The Deceased then cut at him with his knife but he jumped and moved into the grass where the attack continued. He says when the Deceased cut at him, he swung under his hand before cutting him at his head. He told the court that after this his head went dark, he became confused and lost control of himself. He says he could not think clearly thereafter and did not recall what he did. It is important to note that he did not throw the knife away or attempt to hide it, but kept it instead and surrendered it to the police when arrested.

Conclusion.

64. The upshot of all these is that while the injuries sustained by the Deceased may have appeared to be excessive and inconsistent with what may reasonably be expected to be done in self-defence, the burden of proof does not shift but remains with prosecution throughout to disprove beyond reasonable doubt, that his actions at that time were intentional, unwarranted and inappropriate, and that the attack was on a defenceless man, walking away from his house, being the prosecution’s case. That unequivocally, has not been discharged and so the doubt raised remains, that there was a fight, with the Defendant being attacked by an armed Deceased and causing thereby the Defendant to react in the way he did, losing control after striking the first blow and inflicting additional grievous injuries on the Deceased.
65. I am satisfied prosecution has failed to prove its case beyond a reasonable doubt against the Defendant of murder and find him not guilty. He is entitled to be acquitted herewith and to be released at the rising of the court.
66. Orders of the Court:
    • (1) Find the defendant, Peter Kwainia not guilty of the charge of murder.
    • (2) Direct that he be acquitted herewith and order that he be released at the rising of the Court.

The Court.

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^[1] [1970] UKPC 2; [1971] AC 814 at 831-832.
^[2] Ibid at page 814.
^[3] [2005] SBCA 18
^[4] CAV oo17 of 2007 at [46]
^[5] [1993] 69 A Crim R 92