R v Sulumae [2023] SBHC 33; HCSI-CRC 378 of 2021 (26 April 2023)

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Case name:	R v Sulumae

Citation:

Date of decision:	26 April 2023

Parties:	Rex v Atii Sulumae, Robert Kamanisi Masikiri

Date of hearing:	18-21 April 2023

Court file number(s):	378 of 2021

Jurisdiction:	Criminal

Place of delivery:

Judge(s):	Maina; PJ

On appeal from:

Order:	1. Defendant Atii Sulumae is guilty and convicted on the charge of murder, and sentenced to life imprisonment. 2. Defendant Atii Sulumae is liable for parole upon serving 15 years 3. Defendant Robert Mamanisi Masikiri is acquitted on the charge of murder 4. Defendant Robert Mamanisi Masikiri is to be released at the rising of the court. 5. No further orders

Representation:	Zoze JW & Vaike S for the Crown Limeniala O for the defence –both Defendants

Catchwords:

Words and phrases:

Legislation cited:	Penal Code S 200, S 204 (a) and S 205 (b), S 21 (b),

Cases cited:	Regina v Martin Talu [2005] SBHC 87, R v Webb [1977] 16 SASR 309, Loumia v Director of the Prosecutions [1985/1986] SILR 158

The Defendants Atii Sulumae and Robert Mamanisi Masikiri were charged for murder contrary to section 200 of the Penal Code.

The Defendants were accused of killing the deceased Nicholas Kwako on the 9^th September 2020 at Sisikwae Village, West Kwarae, Malaita Province.

The Defendants and the deceased are all from Sisikwae Village West Kwarae, Malaita Province.

In the evening of the 9^th September 2020 at Sisikwae Village, the Defendants Atii Sulumae cut the deceased Nicholas Kwako’s left hand with a bush knife. The deceased died some minutes after the cut to his left hand. He was accompanied by the Second Defendant Robert Mamanisi Masikiri.

The deceased died as a result of the cut or slash wound to his left elbow region.

At the eve of 9^th September 2020 after the burial of the deceased’s wife, the deceased Nicholas Kwako and his son Mostyn Mae followed up a confession made by his wife to him before she died that she had previous sexual affair with the accused Atii Sulumae.

The deceased and his son went defendant’s house and asked for him. He came out from the house to meet them but the deceased and his son assaulted him, which resulted to him falling down and unconscious.

When the defendant recovered, he stood up ran into his house and took a bush knife. He ran to the deceased who was running up the hill and he cut the deceased at his left hand.

With the charge of murder under section 200 of the Penal Code, the Crown must prove beyond reasonable doubt these five elements:-

The Crown witnesses’ evidences stated and in particular Dorothy Meskiri (PW1) and Gabriel Tagini (PW3) that when the Defendant Atii regain his consciousness, he ran to his house, took a bush knife and chased the deceased up to the hill. When the defendant Atii reached the deceased at the side of Talise’s house at the side of the hill, he cut the deceased at his left hand with the bush knife. The deceased fell down and within few minutes of loss the blood and he died.

First Defendant Atii Sulumae in his evidences on oath admitted that he cut the deceased Nicholas Kwako at his left hand with a bush knife at outside Talise’s house.

The autopsy report by Dr Roy Maraka confirmed that deceased died from the loss of the blood from wound at his left hand.

With Atii Sulumae’s charge of murder these evidence proves the elements. the person defendant Atii Sulumae caused the death of the deceased Nicholas Kwako by unlawful act of cutting the deceased with a bush knife. Defendant chased or ran behind the deceased up to the hill and when he catch up or reached the deceased, the defendant cut the him at his left hand with the bush knife. Thereafter or within few minutes with the loss of blood, the deceased died.

On the intention element (malice aforethought), that the Defendant intended to cause the death or injury to the deceased by his actions when he took the bush knife and ran after the deceased up to the hill and the actual cut the deceased at his right hand.

From the facts and evidences from the Crown witnesses and the admission of Defendant Atii Sulumae there is evidences on the charge of murder against him.

The defence raised a defence of provocation that the defendant had done or cut the deceased because he had provoked him with the punches on him. The deceased had punched him with his hand and his son Mostyn punched with small Solomon Blue taiyo tin on his head. The punches had made him unconscious. When he recovered, he chased the deceased and then cut him with the bush knife.

Defendant was afraid that the deceased would come back and “kilim hem” or injured him.

With this defence of provocation, the Defence counsel submits that if there are evidences against his client on the charge of murder, his client should be convicted on lesser of offence as manslaughter. Defence counsel refers to the Penal Code in sections 204 (a) and (b) and 205.

Defendant Atii in his evidences on oath admitted that he cut the deceased with a knife. However, he did this to him because the deceased came with his son Mostyn to his house and assaulted him. His son assaulted him with a small Solomon blue taiyo tin. The assaults were on his head that made him unconscious.

Defendant Atii stated that he was afraid of the deceased and his son otherwise, they would come back and “Kilim hem” or kill him. Typical the pidgin English or broken English language with the phrase, “Kilim hem” can mean to kill to death but usual refers to assault or cause injury to a person. From the facts and the circumstances in this case, it is the later.

Defendant Atii further stated that when he was unconscious, his wife poured water on him and he regained his conscious. After that, he ran to the veranda at his house and took the knife came out and when he saw the deceased was up the hill, he ran or chased the deceased. He reached the deceased at Talisa’s house at the side a coconut tree when the defendant fell and swept the knife that he was holding and cut the deceased at his left hand.

Defendant Atii claimed that the attacked by the deceased and his son made him unconscious. It was when he recovered that his mind was not clear and they had done provoked him to do this attack to the deceased. He was also afraid of them that they would come back and injure him.

The Defendant Atii admitted that he cut the deceased with a bush knife but the defence counsel raise the defence of provocation under and he refers sections 204 (a) and 205 of the Penal Code.

I note the provisions and the test for the provocation is set or fix on a reasonable man. It is then for the prosecution to discount the act of provocation, the loss of self-control actual and reasonable; and a retaliation proportionate to the provocation.

Counsels for Crown submits that it was there from the fact and evidences that the defendant was provoked when the deceased slapped him and his son knocked the small tin taiyo on his head.

However, it is submitted that there was an interval of time and it was when defendant had said that to be unconscious, the period he recovered and when he went to his house and took the bush knife. The time he chased the deceased until the defendant cut the deceased.

Crown submits that there was enough time during the period to cool off and consider reaction to the provocation. These periods had benefit of time to make the right decision than pursuing the defendant’s reaction to what he had done to the deceased. Regrettably, the Defendant did not take advantage of the cool off to his reaction.

Further, the Crown submits that the assault by the deceased to the defendant was just by his bare hand with one punch, and another single punch by his son with the small tin taiyo. However, the Crown argued that the unconscious cannot to the extreme provocation in the meaning of section 205 of the Penal Code.

It was not capable to cause a reasonable person in a community to be deprived of his self–control and act the way the Defendant did in stabbing the deceased with a bush knife.

The test for reasonable man and power of self-control by provocation is settled in this jurisdiction. The leading case is as quoted by Palmer CJ in the case in Regina v Martin Talu [2005] SBHC 87-HCSI-CRC 402 of 2004, to the test for provocation is an objective and he referred to numerous cases coming before the court and the Court of Appeal in Loumia v Director of the Prosecutions [1985/1986] SILR 158.

With the Court of Appeal in Loumia case on the provocation is an objective, his Lordship Palmer CJ in the Regina v Martin Talu hence added the substantive consideration in provoke so as to lose the self-control of a person, when he stated:

And in that Talu case his Lordship Palmer CJ further set out the test when he said:

The actions of the accused must be unreasonable and disproportionate to any form and the test of the effect of provocation is upon the ordinary person. It is to be taken into account in the objective consideration that the response must not exceed what would have been the reaction of reasonable man. R v Webb [1977] 16 SASR 309 at 314,

Defence counsel submitted that for the first test of substantive consideration it demands the court to consider the Defendant Atii’s personal temperament or character at the time of the incident. He was having a quiet time with his family when the deceased and his son came and called out for him at his house. He went to them and suddenly they attacked him resulting to losing his consciousness and such circumstances had made or caused his client to get angry.

Defence counsel further submitted that the objective consideration of a reasonable man in a position of the Accused and it should be considered on a reasonable West Kwara’ae man of the same age etc. of the defendant. For this situation or circumstance it is submitted that the court should consider a West Kwara’ae men or a Malaita men of the Defendant’s age would have done or reacted to it. He said for this, any West Kwara’ae men or from around Malaita would have reacted to the same way the defendant did on 9^th September 2020.

I noted the submissions by the defence counsel and to suggestion and how to react on such circumstance of the defendant or if happened to West Kwara’ae man. However, the submission by the Defence just state that the Kwara’ae men or from around Malaita would have reacted to the same way the defendant did to the deceased. This does not specify the facts and would fall short for the requirements of the substantive and objective considerations not even for an ordinary Solomon Islander as stated in the cases laws referred to earlier.

The facts and evidences concede that the deceased had assaulted defendant with his hand and his son Mostyn assaulted him with small Solomon taiyo tin that made the defendant unconscious and then the deceased ran away to the hill.

It is noted that the deceased and his went to the Defendant Atii’s house was to follow up the confession of the deceased wife before she died. The defendant was aware with the story of him had the sexual affairs with the deceased’s wife.

However, it is also concede that when the Defendant recovered he went to his house, took a bush knife and at that time or when the deceased had already ran away up to the hill. When the Defendant came out from his house, he saw the deceased up the hill. Defendant took off and ran behind the deceased to the hill and when the Defendant reached the deceased, he cut him with the bush knife.

On the issue of self-control and cool off by the Defendant, it was from the period he recovered, went to his house, took the bush knife and the chased or running up the hill until he cut to the deceased with the knife. I am satisfy that the periods was enough for the defendant to cool off anger to the deceased. I note from the undisputed facts that the defendant was aware of what the deceased and his son came for him or with story of the sexual affairs by the defendant and deceased wife and confession before her death.

Taking into account the actions of the defendant in response to what the deceased had done to him, the Defendant must be unreasonable and disproportionate. It is on the fact that the defendant had period to cool off but he did not take or accept it. Defendant responded with a bush knife and actual cut the deceased, which resulted to his death.

I am satisfy that the reaction by the defendant with the bush knife and he cut the deceased had which resulted to his death had exceeded what would have been the reaction of reasonable man in the context of any ordinary person in Solomon Islands.

I find the defendant Atii Sulumae guilty, convict him on the charge of murder, and accordingly sentence him to life imprisonment.

Defendant Robert Mamanisi Masikiri was charge together with defendant Atii Sulumae of the charge of murder contrary to section 200 of the Penal Code.

The Crown alleged that Defendant Masikiri had enabled or aided the defendant Atii Sulumae when he cut the Nicholas Kwako’s left and resulted to his death.

Crown relied under section 21 (b) of the Penal Code for the prosecuting of this Defendant.

For the criminal offence, the onus is on the Crown and standard of proof is beyond reasonable doubts.

The witnesses’ evidences for the case were given at the trail for both defendant Atii Sulumae and defendant Robert Mamanisi Masikiri.

Two witness gave evidence against or relate to the Second defendant Robert Mamanisi Masikiri.

The first Crown witness is Betty Olu stated in her evidences that at the time of the incident, she was at their house and she heard a shout.

Defendant Atii and Robert Mamanisi Masikiri were running after the deceased Nicholas Kwako. She stated that Defendant Atii was holding a knife and Robert was holding two stones.

She saw Robert was about 5 metres away or apart from defendant Atii and Deceased Nicholas Kwako. She heard from them shouting “kilem hem” and after that, they cut the deceased.

The second witness is Gabriel Tagini. He stated that he was at his house and ready to eat with his family when he heard the people shouting that Defendant Atii was going to kill Nicholas Kwako.

He stood up and ran to where the shout came from. At the road near Elison Talise’s house, he saw Defendant Atii and Robert running behind the deceased Nicholas Kwako.

Defendant Atii was at the front to the deceased and Robert was behind about 5 metres away. As they ran, he suddenly saw Robert turned to Talise’s house and ran to the bottom of the hill.

Tagini stated that Robert turning to Talise’s house at the bottom of the hill might be to block Defendant Atii and deceased Kwako as they came down the hill.

Witness Tagini said he went and met Robert with the Defendant Atii where they cut the deceased.

This witness stated there was a short cut road from the hill that meet at the bottom near Talise’s house.

The evidences is that Second Defendant Robert Mamanisi Masikiri was seen at the time and place of the incident.

Witness Betty Olu relies on the shout “kilem hem” but did not see the person who actual cut the deceased with the knife. This is confirm when she said that it was there that they cut the deceased.

This Witness mentioned that Robert Mamanisi Masikiri was holding the stones and he and Defendant Atii were running after the deceased Nicholas Kwako. She did not mention what the defendant did with the stones.

The second witness Gabriel Tagini is based on what he heard from the people’s shouting that Defendant Atii was going to kill Nicholas Kwako.

He came out and saw Defendant Atii and Defendant Robert at the road near Elison Talise’s house. They were running behind the deceased.

As they ran, Defendant Robert turned to Talise’s house to the bottom of the hill. This witness was not sure, why Defendant Robert had turned but he that may be to block Defendant Atii and the deceased.

Defendant Atii in his evidence stated that after he cut the deceased left hand, he looked up and saw Robert Mamanisi Masikiri was standing at the place.

For Robert Mamanisi Masikiri to be an aider he must do what he does with full appreciation of Defendant Atii had done and an intention to assist. Any act of the aider must show in the evidence even it was not consensus.

Generally, it cannot be an aiding under section 21 of the Penal Code if a person was merely standing and does do with commission of the crime. The same can be said that seeing a person at the scene of the crime or at the time of another committing an offence but you do not know the purpose or cannot explain the intended purposes.

With Defendant Robert Mamanisi Masikiri, he was at the place of the incident but evidences of his acts or behaviors at the place does not amount or to proof his act in the incident.

There is no sufficient evidences of aiding of Defendant Atii Sulumae to commit murder by Defendant Robert Mamanisi Masikiri.

The Crown has not proof it case against Defendant Robert Mamanisi Masikiri beyond reasonable doubt and he is therefore acquitted on the charge of murder.

High Court of Solomon Islands

R v Sulumae [2023] SBHC 33; HCSI-CRC 378 of 2021 (26 April 2023)