R v Baeta [2021] SBHC 173; HCSI-CRC 319 of 2020 (2 September 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Baeta
Citation:
Date of decision:	2 September 2021
Parties:	Regina v Misila Baeta
Date of hearing:	31 August, 1 September 2021
Court file number(s):	319 of 2020
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Palmer CJ
On appeal from:
Order:	1. Refuse application to exclude the evidence of Manasseh Maenuna, and statements of Jean Maenuna and Max Maenuna, as evidence of dying declaration of the Deceased, Leonard Maenuna and rule that they be admitted as evidence in this trial. 2. Uphold the submission of no case to answer in regards to the offence of murder and direct that the Defendant, Misila Baeta be acquitted herewith. 3. Find sufficient evidence to put the defendant
Representation:	Mr. J.W Zoze for the Crown Mr. H. Kausimae and O. Limeniala
Catchwords:
Words and phrases:
Legislation cited:	Evidence Act 2009 S 123, Criminal Procedure Code S 269 (1), S 159, Penal Code S 199 (1),
Cases cited:	Bosamate v Reginam [2013] SBCA 16, R v Tome [2004] SBCA 13, R v Somae [2005] SBCA 18,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 319 of 2020

REGINA

V

MISILA BAETA

Date of Hearing: 31 August, 1 September 2021
Date of Ruling: 2 September 2021

Mr. J.W. Zoze for the Crown
Mr. H. Kausimae and O. Limeniala

Palmer CJ.

1. There are two applications for determination before me. The first one relates to the question of admissibility of the oral evidence of Manasseh Maenuna (PW3), and the statements of Jean Maenuna dated 28 January 2020 ("Exhibit P11"), and statement of Max Maenuna dated 8^th February 2020 ("Exhibit P12"), as evidence of a dying declaration, which is an exception to the hearsay rule pursuant to section 123 of the Evidence Act 2009.
2. The second application relates to the application of a submission of no case to answer on the charge of murder pursuant to section 269(1) of the Criminal Procedure Code.

Application for admission of a dying declaration – exception to the Hearsay Rule.

3. I will deal first of all with the application for admission of evidence as a dying declaration. This application is made pursuant to section 123 of the Evidence Act 2009, which provides as follows:
   • “The hearsay rule does not apply to evidence of a representation made by a person that was a contemporaneous representation about the person’s health, feelings, sensations, intentions, knowledge or state of mind.”
4. A dying declaration is accepted as an exception to the hearsay rule as it relates to his statement about inter alia, his health, knowledge or state of mind before death. It is made when the person has a settled and hopeless expectation of death and must be relevant^[1]. It relates to the cause of the death at the trial for his (or her) murder or manslaughter provided he (or she) would have been a competent witness if called to give evidence at that time^[2].
5. There are five conditions which require to be satisfied for a statement to be admitted into evidence as a dying declaration^[3]. These are set out by Owen J. in his judgement^[4] as follows:
   • “First, the maker must be dead. Secondly, the trial must be for the declarant’s murder or manslaughter. Thirdly, the statement must relate to the cause of the declarant’s death. Fourthly, it must be established that the declarant would have been a competent witness. Finally, the declarant must have been under a settled hopeless expectation of death.”
6. Applying those conditions to the facts of this case, first, the maker in this case, Leonard Maenuna (" the Deceased") is now dead. Secondly, this trial is about his murder. Thirdly, it relates to the cause of his death. Fourthly, he would have been a competent witness. I am satisfied all those four conditions have been fulfilled in this case.
7. It is the fifth ground which elicits a challenge that his declarations were not made under a "settled hopeless expectation of death". They were made on or about the 26^th December 2019, when he passed away on the 5^th January 2020, some ten days later.
8. Mr. Kausimae for the Defendant submits they were made when he was fully conscious and not in a moment of immediate death.
9. The evidence however, of Manasseh Maenuna and the two doctors who gave evidence, Dr. Danitofea and Dr. Mickey, showed clearly that the condition of the Deceased did not improve on his admission and continued to deteriorate until his death. Manasseh, the son of the Deceased, told the court that the Deceased continued to repeat what he told them until his death.
10. Both learned Doctors who gave evidence in this court, reiterated that the injuries, consisting of fractures and dislocation to the lower neck area and resulting in total paralysis of the upper and lower body of the Deceased, were extremely serious in medical terms and with the state of health facilities and care available in Solomon Islands, such injuries would have been quite difficult to manage and control, and grave complications arising from the injuries were bound to occur. It was not surprising therefore that his condition did not improve and eventually succumbed to his injuries and passed away on the 5^th January 2020.
11. I am satisfied the statements were made when the Deceased was under a settled hopeless expectation of death. The Deceased must have known the seriousness of his condition when he made his comments.
12. I am satisfied therefore the application to dismiss the admission of those statements is refused. I am satisfied the evidence of Manasseh Maenuna and the statements of Jean Maenuna and Max Maenuna fall within the exception of a dying declaration and should be admitted pursuant to section 123 of the Evidence Act 2009.

The Submission of No Case to Answer.

13. At the close of prosecution case on 1^st September 2021, Mr. Kausimae, made a submission of no case to answer on the charge of murder contrary to section 200 of the Penal Code. He submits there is no evidence or insufficient evidence to put the defendant to his defence under section 269(1) of the Criminal Procedure Code.

The Law on the Submission of No Case.

14. Section 269(1) of the Criminal Procedure Code provides as follows:
    • “When the evidence of the witnesses for the prosecution has been concluded, ..., the court if it considers that there is no evidence that the accused or any one of several accused committed the offence, shall, after hearing, if necessary, any arguments which the public prosecutor or advocate for the prosecution or the defence may desire to submit, record a finding of not guilty.”
15. The test to be applied in a submission of no case to answer has been canvassed in detail by the Solomon Islands Court of Appeal in three cases, Bosamate v. Reginam^[5], R. v. Tome^[6] and R. v. Somae^[7].
16. In R. v. Tome, the test is described as:
    • “The test called for by section 269(1) is whether or not there is ‘no evidence that the accused committed the offence’. That must mean that if there is some evidence that the accused committed the offence the case must proceed to final determination by the tribunal of fact.” (Emphasis added)

It continued:

• “The test then is not whether the prosecution has proved its case beyond reasonable doubt but rather whether there is evidence capable of supporting a conclusion beyond reasonable doubt that the accused is guilty.” (Emphasis added).

The test was re-classified in R. v. Somae^[8] as:

• “But, in order to establish a case to answer, there must be some evidence capable of establishing, whether directly or inferentially, every element of the offence charged beyond reasonable doubt.” (Emphasis added).

In Bosamate v. Reginam^[9], the Court concluded that: “a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will sustain a verdict of not guilty.”

17. The key point to note in a submission of no case is that there must be credible evidence, that is, evidence capable of belief and of supporting a verdict of guilty at the close of prosecution’s case if that were the only evidence available. Any question of weight to be attached to such evidence is to be left to the judge of fact and law. Even if there is evidence but it is so weak or tenuous and which no reasonable tribunal would accept as capable of supporting a conviction, the case should be dismissed as providing no evidence or insufficient evidence in a submission of no case to answer.

The Elements of the Offence of Murder– Section 200 of the Penal Code.

18. The offence of murder is set out in section 200 of the Penal Code as follows:
    • "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."
19. The crucial element in murder is the element of "malice aforethought", which is defined in section 202 of the Penal Code as follows:
    • "Malice aforethought may be expressed or implied and express malice shall be deemed to be established by evidence proving either of the following states of mind preceding or co-existing with the act or omission by which death is caused, and it may exist where that act is unpremeditated-
    • (a) an intention to cause the death of or grievous bodily harm to any person, whether such person is the person actually killed or not; or
    • (b) knowledge that the act which caused death will probably cause the death of, or grievous bodily harm to, some person whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused."
20. In a charge of murder therefore, prosecution need only prove either of the two states of mind set out in section 202 of the Penal Code, being that there is an intention to cause the death of or grievous bodily harm, or as in this case, that the Defendant knew that what he did to the Deceased will probably cause the death of, or grievous bodily harm to the Deceased.

The Crown's case.

21. The Crown's case is based on the second limb that the Defendant knew that his actions in pushing the Deceased off the rails of the veranda of the house they were drinking at, would probably cause the death of or grievous bodily harm to the Deceased.
22. Is there evidence that the pushing was deliberate, intentional or purposeful? Is there evidence that it was of such a nature that he knew that really serious harm was a probable result? Was it done with the knowledge or realisation that death or really serious harm was a probable result?

Is there evidence of malice aforethought?

23. The evidence adduced is that there was an altercation between the Deceased and the Defendant arising from an argument between them. The Defendant became angry when the Deceased told him not to throw stones at a signboard located in front of his house.
24. This resulted in the Defendant attacking the Deceased, kicking him at his belly, followed by a struggle, each one holding onto the shoulders of each other and culminating in them both falling off the rails to the ground below. It wasn't the case where the Deceased was pushed off the rails by the Defendant and causing him to fall over.
25. Malice aforethought is proved if it is demonstrated on the evidence that the push applied was with such force so much so that the Defendant was bound to know that his actions would probably cause the death of or really serious harm to the Deceased.
26. Having considered the evidence adduced by prosecution, including the evidence admitted of the dying declaration of the Deceased, I am not satisfied there is sufficient evidence that the push was done with such force that he knew or realised that death or really serious harm was a probable result.
27. The evidence instead shows that there was an attack, followed by a struggle between the two of them, and resulting in both falling over the rails; the Deceased falling over backwards first and the Defendant falling on top of him.
28. There is no evidence or little evidence as to the type of force used whether it was a direct or deliberate push, or great force being used or expended in the push, and as a result the defendant knew that death or really serious harm was a probable result.
29. In the circumstances, I am not satisfied there is sufficient evidence to put the Defendant to his defence and he must be acquitted accordingly of the offence of murder.
30. Having so found, I am equally satisfied on the other hand there is sufficient evidence to put the Defendant on his defence on the lesser but equally serious charge of manslaughter, contrary to section 199 P(1) of the Penal Code. Section 159 of the Criminal Procedure Code permits the court to deal with a lesser offence even though from the outset the Defendant was not charged with it. Accordingly I direct that this case is to proceed herewith under the lesser charge of manslaughter.

Orders of the Court:

1. Refuse application to exclude the evidence of Manasseh Maenuna, and statements of Jean Maenuna and Max Maenuna, as evidence of dying declaration of the Deceased, Leonard Maenuna and rule that they be admitted as evidence in this trial.
2. Uphold the submission of no case to answer in regards to the offence of murder and direct that the Defendant, Misila Baeta be acquitted herewith.
3. Find sufficient evidence to put the defendant to his defence on the lesser charge of manslaughter.

The Court.

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^[1] Ross on Crime, Fifth Edition, page 568, para. 4.6100.
^[2] Cross on Evidence (4th Aust ed. 1974), paras. 33260 to 33310
^[3] R. v. Golightly [1997] 17 WAR 401 ( per Owen J.)
^[4] (ibid), paras. 408-409
^[5] [2013] SBCA 16
^[6] [2004] SBCA 13
^[7] [2005] SBCA 18
^[8] [2005] SBCA 18
^[9] [2013] SBCA 16, p. 6, para. [20]