R v Taro [2021] SBHC 102; HCSI-CRC 360 of 2016 (5 July 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Taro
Citation:
Date of decision:	5 July 2021
Parties:	Regina v Junior Taro
Date of hearing:	3-6, 17 November 2020
Court file number(s):	360 of 2016
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Palmer CJ
On appeal from:
Order:	1. Acquit the Defendant of the offence of murder. 2. Find him guilty of the offence of manslaughter contrary to section 199 of the Penal Code and convict him accordingly
Representation:	Mrs. M Suifa’asia and Francisca Luza (assisting Counsel) for the Crown Mr. S. Aupai for the Defence
Catchwords:
Words and phrases:
Legislation cited:	Penal Code S 199
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 360 of 2016

REGINA

V

JUNIOR TARO

Date of Hearing: 3-6, 17 November 2020
Date of Judgment: 5 July 2021

Mrs. M. Suifa’asia and Francisca Luza (assisting counsel) for the Crown
Mr. S Aupai for the Defence

Palmer CJ.

1. The defendant, Junior Taro (“the Defendant”) is charged with the murder of Casper Kimele (“the Deceased”), that on or about the 21^st May 2016, with malice aforethought, at GPPOL 2, Guadalcanal Province, killed the Deceased. He entered a not guilty plea and a trial has been held.

The Brief background of the case.

2. Crown alleges that the Deceased and others were drinking at the labour line area of the GPPOL 2 station at the said time. This was in front of Gwen Nawaneba’s (“Gwen”) house.
3. There was also another group drinking at Ben Penai’s house, located opposite where the Deceased and the group of boys were drinking. One of the boys in that other group was Terry.
4. There appears to be some initial confrontation between Terry and the Deceased. The Defendant at that time was at another house next to Gwen’s house and approached both the Deceased and Terry. He assisted in separating them and both the Deceased and Terry returned to their own groups.
5. Not long after, the Deceased decided to walk up the road again with the intention it seems to talk to Terry. Michael Seiroa (PW2) on seeing this, followed the Deceased to try and convince him to return back to their group.
6. At this point, the Defendant approached both the Deceased and PW2. He head butted PW2 and then attacked the Deceased. It is alleged that he kicked him three times, the first on the lower back, the second on both legs of the Deceased causing him to fall down in a sitting position, and the third one on the back of his head/ neck area. The Deceased fell down flat on the ground without moving. He was pronounced dead shortly after he was taken over to Gwen’s house and attempts made to have him revived failed.
7. Crown’s case is that the Defendant was angry with the Deceased for picking a fight with his friend Terry, resulting in him attacking the Deceased. His actions demonstrated an intention to kill or cause grievous bodily harm to the Deceased.

The Defence case.

8. The defence submit that the Defendant did not intend to kill or cause grievous harm to the Deceased. The defence version is that there were only two kicks to the legs and to the back shoulder. They say that when the Defendant kicked the legs of the Deceased he fell on his backside.
9. They deny that the Defendant had any intention to kill the Deceased and that he was not aware that his kick would cause injury and subsequent death.

The issue for determination.

10. The issue for determination is whether the Defendant intended to cause the death of or grievous bodily harm to the Deceased. When the Defendant assaulted the Deceased did he intend to cause death or grievous bodily harm to the Deceased? Is there evidence of intention to cause death or grievous harm?
11. The burden of proof lies with Prosecution who is required to prove beyond reasonable doubt that the Defendant intended to cause the death of or grievous bodily harm to the Deceased.

Findings of fact.

12. It is not disputed that there was a confrontation involving the Defendant and the Deceased, that there was an attack on the Deceased by the Defendant, and subsequent death of the Deceased.
13. It is not disputed that earlier on there was a confrontation between the Deceased and Terry. The Deceased was seen standing in the middle of the road and issuing a challenge to fight. Terry came out to confront him but the Defendant came between them and separated them.
14. Sometime after, the Deceased came out again with the intention it seems to issue a challenge for a fight. At this point of time PW2 came after the Deceased with the intention of taking him back. By then Terry had also come out but his mother intervened and took him back.
15. The Defendant also came out to the main road at this point of time, approached the Deceased and confronted him.
16. PW2 states that when the Defendant approached them, he swore at them. He heard swearing words to the effect as follows “fuckem you dat one ya bro blo mi ya, “While PW2 was not sure who the Defendant was swearing at, it can be assumed that he was swearing at both of them.

The assault.

17. It is not disputed that the Defendant assaulted the Deceased by kicking him. The Crown says there were three kicks, the defence say there were only two kicks.
18. On the evidence on the assault Crown called three witnesses, Michael Seiroa (PW2), Ben Penai (PW3), and Titus Tawopi (PW4). They also called Dr. Maraka who provided the post mortem report on the body of the Deceased.
19. PW2 and PW3, gave evidence of two kicks. PW2 saw him kick the Deceased at both legs causing the Deceased to fall down before kicking him again at the back of his neck. PW3 also confirmed that kick at the legs but described the second kick directed towards the right side of his head.
20. PW4 was the only one who saw three kicks, towards the backside, buttock area, the legs and the third one, towards the left neck area.
21. The defence on the other hand say that there were only two kicks at the legs and at the shoulder area. Their version is consistent with the majority evidence adduced by Crown.

The Autopsy Report.

22. The autopsy report^[1] provided by Dr. Roy Maraka described the cause of death as “bilateral subarachnoid haemorrhages” caused by “blunt trauma to the head/neck”.
23. He identified the following injuries on the body of the Deceased as follows:
    • (i) Laceration, 5 x 1mm, on the left side of the forehead.
    • (ii) Abrasion, 6 x 3mm, on the right side of the forehead.
    • (iii) Abrasion, 10 x 3mm, on the right side of the face.
    • (iv) There was bleeding from the left earlobe (from the pierced area for ring).
24. At page 4 of his report^[2], at the third paragraph, he described the internal examination conducted as follows:
    • “On internal examination, there was extensive subarachnoid haemorrhages on both sides of the brain, including the cerebellum (small brain). The haemorrhages were present below the covering of the brain, the arachnoid. The brain was swollen. There was no skull fracture.”
25. At paragraph 5, he formed the view as to the cause of death as follows:
    • “It is my opinion that he died from bilateral subarachnoid haemorrhages as a result of blunt trauma to the head and/or neck. The deceased was allegedly hit on the head and kicked on the neck. These blunt traumas resulted in the tearing of the blood vessels that supplied the brain, thus leading subarachnoid haemorrhages. An application of traumas on either or both the head and neck could result in the haemorrhages.”

Findings on the evidence as to the assault on the Deceased.

26. I find on the evidence that with respect to the assaults on the head of the Deceased only one prosecution witness PW3, gave evidence of a kick to the right side of the head of the Deceased, consistent with the injury described as an abrasion by the Doctor. The other two witnesses gave evidence of kicks to the neck area, one to the left and the other to back neck area. No evidence of any injury or trauma to those parts of the neck however were visible and detected by the Doctor.
27. PW2 told the court that he saw the Defendant kicking the Deceased at the back of his neck. PW4 said he saw him kicking the Deceased on the left side of his neck.
28. The Doctor did not find any injuries, including abrasions, bruises or scratches on the neck region. All injuries noted, including abrasions or lacerations were on the head area, on the right and left side, right face and the left ear lobe area.
29. I find on the evidence adduced by prosecution, an injury consistent with a kick to the right side of the head as contained in the report of Dr. Maraka. That report described the injury as an “abrasion, 6 x 3mm, on the right side of the forehead”. I am satisfied it is possible that this was caused by the kick of the Defendant.
30. As to whether that kick could have landed at his neck area as observed by the other two Crown witnesses however, I am not entirely sure that was correct. I would have expected some form of bruising, abrasion and or a laceration in the least at the neck area, left side, or the back, but there was none. Their evidence therefore did not support the Crown case as alleged.
31. On the other hand, I am not able to rule out the possibility that the Defendant kicked the Deceased at his shoulder even though there was no evidence of any injury, bruising, abrasion or lacerations at such spot. The defence evidence would be similar to the evidence of the other two prosecution witnesses as to the location or whereabouts such kick may have landed.
32. All prosecution witnesses, including the evidence from the Defendant, who testified of the kicks were all consistent about the kick to the feet, which caused the Deceased to fall down. Their observations however of the second or third kick differ from each other. While I cannot be entirely sure that the kick landed on the right side of his head, I am also unable to rule out the possibility that it may have landed on his neck area or shoulder area.
33. As to the suggestion put forward by defence that the Deceased may have hit his head on the ground, I am also not able to totally rule that possibility out. It is possible that may have happened during the altercation which occurred, especially when he was kicked on the legs and fell down.

Proof of malice aforethought.

34. It is for prosecution to prove that the Defendant intended to cause the death of or grievous bodily harm to the Deceased. The standard is proof beyond reasonable doubt.
35. Apart from the evidence of PW2 that he heard the Defendant swearing at them and that the Defendant appeared angry (cross), no one else gave any evidence that the Defendant was heard swearing or appeared angry when he went out towards the Deceased. There is evidence that he appeared to be drunk at the said time but this is not disputed.
36. There is evidence from the Defendant himself that the Deceased was swearing and issuing a challenge to him and Terry. The words used were “Fuckem arse blo iu tufala, iu tufala laek smart tumas.” He told the court that he then remonstrated with the Deceased and then attacked him by kicking him.
37. Having considered the evidence adduced, I am not satisfied prosecution has proven beyond reasonable doubt that the Defendant intended to cause the death of or grievous bodily harm to the Deceased.
38. There is no evidence that the kicks were delivered with any special skill, intensity or strength to reflect an intention to cause the death of or grievous bodily harm to the Deceased. Apart from PW2’s evidence, there is no other evidence from any other witness that they heard the Defendant shouting, swearing or behaving in an aggressive manner, which would be consistent with intentional behaviour. To the contrary, the evidence is that he was walking normally other than for the fact of being affected by alcohol at the said time.
39. In his evidence the Defendant told the court that he had approached the Deceased to calm him down and to tell him not to behave unruly. He told the court that he had no intention or did not intend to cause the death of or grievous harm to the Deceased. That has not been proven to the contrary beyond reasonable doubt by prosecution.
40. After the Deceased had fallen down there was no further attack. The Defendant walked back to where he was drinking with the other boys and went home.
41. I am satisfied the Defendant should be acquitted of murder.
42. On the other hand, I am satisfied, that the force applied was unlawful. The Deceased had fallen down after the initial kick and was helpless. There was no longer any need to apply any other force or kick, he was not under attack thereafter and should have left and walked off. He did not do so and gave another kick. That action was unlawful and I am satisfied that led to the subsequent death of the Deceased. Accordingly he should be convicted of the offence of manslaughter contrary to section 199 of the Penal Code.

Orders of the Court:

1. Acquit the Defendant of the offence of murder.
2. Find him guilty of the offence of manslaughter contrary to section 199 of the Penal Code and convict him accordingly.

The Court.

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^[1] The Autopsy Report is marked as “Exhibit P8”.
^[2] (ibid).