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R v Bice [2024] SBHC 44; HCSI-CRC 34 of 2023 (30 May 2024)

HIGH COURT OF SOLOMON ISLANDS


Case name:
R v Bice


Citation:


Date of decision:
30 May 2024


Parties:
Rex v Ronnie Bice


Date of hearing:
Trial (8 -10 April 2024


Court file number(s):
34 of 2023


Jurisdiction:
Criminal


Place of delivery:



Judge(s):
Keniapisia; PJ


On appeal from:


Order:
Accordingly, I acquit RB of the charge of manslaughter. I will instead convict RB of a lesser offence of common assault. I note that the maximum imprisonment term or punishment for common assault in Section 244 is 1 year. I note that RB has been held in pre-trial detention for about 1 year or more than 1 year already. Hence I will release RB at the rising of the Court.


Representation:
Ms Naqu for the Crown
Mr Ifuto’o and Ms Rusi for the Defendant


Catchwords:



Words and phrases:


Legislation cited:
Penal Code [cap 26] S 199, S 244, Criminal Procedure Code [cap 7] S 159 (2)


Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION


Criminal Case No. 34 of 2023


REX


V


RONNIE BICE


Date of Hearing: Trial (8-10 April 2024)
Date of Judgment: 30 May 2024


Ms Naqu for the Crown
Mr Ifuto’o and Ms Rusi for the Defendant

JUDGMENT ON A CHARGE OF MANSLAUGHTER

  1. By information filed 17/03/2023, Mr Ronnie Bice (“RB”) was charged for the offence of manslaughter contrary to Section 199 of the Penal Code Act (Cap 26). Particulars of offence alleged that Mr RB, of Nemba village, Nende District, Santan Cruz, Temotu Province, at Honiara, in Guadalcanal Province, on the 23/9/2022, did unlawfully caused the death of Mr Samuel Nofo Tutai (deceased).
  2. Accused was arraigned. He pleaded not guilty. Trial proceeded from 8th - 10th April 2024. Brief agreed facts filed on 5/5/2023, showed that the deceased is one named Samuel Nofo Tutai, who comes from Tikopia in Temotu Province. Deceased was 40 years old. Accused is RB, of Nemba village, Santa Cruz, Temotu Province. The accused was 22 years old at the time of offending. The alleged offending took place at Rove Seafront Pub (“RSP”) compound, on the night of 23/09/2022.

Issue

  1. The issue for trial in this matter is: “Whether or not RB caused the death of the deceased?” This would mean element (iii) of the offence (see paragraph 4 (iii) below), is contested. Element (i) is not contested (RB is the defendant). Element (ii) is also contested because RB is denying he committed any unlawful act. Second issue will be: “Whether or not RB committed an unlawful act?”

Elements of the offence

  1. Section 199 of Penal Code Act (Cap 26) states: “Any person who by an unlawful act or omission causes the death of another person is guilty of the felony of manslaughter. An unlawful omission is an omission amounting to culpable negligence to discharge a duty tending to the preservation of life or health whether such omission is or is not accompanied by an intention to cause death or bodily harm”. There are three elements of the offence of manslaughter that the prosecution must prove on the evidence beyond reasonable doubt. The three elements are: -

Prosecution’s case and the evidence

  1. Prosecution tendered a number of exhibits and statements of Crown witnesses to be admitted as evidence by consent. The tendered exhibits and statements were identified as Prosecution Evidence (PE) and marked as follows: -

First category of evidence

  1. Prosecution produced oral evidence from 5 main witnesses – PW1 (Lazarus Meo); PW2 (Sanin Lapir), PW3 (Bartholomew Aiyee), PW4 (Franklyn Omakau) and PW5 (Dr Roy Roger Maraka). Prosecution in my considered view produced three main categories of evidences. The first category is the statements tendered by consent (PE2 - PE5 above). These are witnesses (people) who did not see how, when, where and/or who actually stabbed the deceased. In other words, they were not direct eye witnesses to the stabbing of the deceased that night. Most of them merely talked about seeing the deceased sing on the stage or seeing the deceased lying on the ground, next to the entrance gate on the drive way into RSP and was left there the whole night or seeing the deceased being assisted to regain breath or were involved in helping the deceased regain his breath. I found no real probative evidential value in terms of what actually caused the death of the deceased from the first category of evidence. I will therefore pay less attention to the first category of evidence.
  2. The oral evidence by PW3 and PW4 would also fall under the first category. PW3 did not see what happened inside the RSP compound. He only saw a fight that took place outside of the RSP compound. The fight outside went all the way down to Rove Goodview area. He did not see the problem that happened inside the RSP compound (referring to the stabbing of the deceased inside the RSP fenced area). He saw Rangi being hit and falling to the ground, outside the compound and heard Rangi shouting that his wantok (relative) was stabbed to death inside the RSP area. So, in terms of probative value evidence on what caused the death of the deceased, there is no assistance to the Court from PW3. The same applies to the oral evidence from PW4. PW4 was with Rangi (both Correctional Officers, going out socialising the night of incident). PW4 saw deceased singing on the stage. PW4 heard Rangi shouted that his brother, the deceased was stabbed. PW4 went over to the deceased next to the entrance gate. Rangi followed after him. Others too gathered around the deceased. PW4 saw the deceased lying down facing upwards. He and the others placed him in a position where he could breathe. Then they carried him to the table (see photo 26), placed him there and they left him without medical intervention, for long hours into the night and into the next morning. The stabbing must have occurred between 10 pm to 12 midnight.

Second category of evidence

  1. This leads me to the second category of evidence. These are witnesses or people who saw how, when, where and who actually stabbed the deceased that night. There are only two witnesses falling under this category. They are PW1, Mr Lazarus Meo and PW2, Mr Sanin Lapir. I found some assistance from these 2 witnesses because their oral evidence shows that RB punched the deceased that night. I will pay full attention to the oral evidence of these two primary witnesses.

PW1 – Lazarus Meo

  1. This is the most important sole witness for the prosecution. This witness knew RB very well, as they come from the same Nemba village, Santa Cruz, Temotu Province. He described the accused as his wantok, referring to RB and the other boys who were together with him at RSP compound, at the material time of offending. The other boys include – Francis, Willy, Smith, Harold, Leon, Dominic and RB. They went to RSP because there was a fundraising happening there.
  2. They sat together on the brick wall at around 9 – 10 pm on the night of offending (23/9/2022) drinking beers and telling stories. You can see the brick wall and where they sat in photo 28 of PE1. They sat next to the third iron post from the entrance gate, marked as X and R1 in black ink in photo 28. This is not far from the spot where RB punched the deceased and the deceased fell backwards and landed on his back, his face facing upwards to the sky (see photos 26 - 28 of PE1) for the spot of the crime scene. PW 1 said from where they sat on the brick wall to where RB punched the deceased and he fell backwards onto the ground, landing on his back, was about 5 meters in distance (PW2 say 6 meters). And he could see clearly because there were lights – street light behind where they sat on the brick wall and another light (electrical bulb light) at the corner of the building (the pub) next to the entrance gate and the crime scene (see photo 26, PE1).
  3. PW1’s evidence was that RB got angry because the deceased was swearing as he and Rangi approached them at the entrance gate coming from the pub, facing the sea side. PW1 said he did not know why RB was angry. PW1 suspected RB got angry at the deceased for swearing at them. So, RB stood up from the brick wall, went over and punched the deceased.
  4. The location where RB punched the deceased and he fell backwards is marked as “48” in a small yellow box in photo 26 – PE1. Deceased fell backwards and landed on his back with his face facing upwards. He landed on the driveway (road) going towards the entrance gate into the RSP area. You can also see the same location marked “48” in a small yellow box in photos 26, 27 and 28, PE1.
  5. This is what I considered crucial from PW1’s evidence – that RB closed his palm (closed fist) and threw a punch that landed on the deceased’s face between his ear and jaw on the left side of his face/head. Then the deceased fell backwards and landed heavily on his back on the driveway’s hard surface, his face facing upwards into the sky. And he was left unconscious. So PW1 and the other by-standers (many people were around that night because there was a fundraising event), went over and poured water and shook the deceased’s body. PW1 said they managed to get him to regain consciousness. They carried him and laid him on the table where they were playing card (see photo 26, PE1 – the table is placed on a concrete slab adjacent to the pub building). Then RB escaped when PW1 and other by-standers were attempting to resuscitate the deceased.
  6. From PW1’s evidence, I was not entirely sure how serious the punch and the fall was. I mean what injuries did the deceased sustained from the punch and the fall? PW1 only said they poured water, shook the deceased’s body and he came back to life. I took it that the deceased was unconscious. I took it that it was a severe blow or punch landing on the left jaw.
  7. The crux of PW1’s evidence is – RB punched the deceased with his closed fist. RB’s closed fist landed on the deceased’s face between his left ear and left jaw. And the deceased fell backwards onto the ground, landing heavily on his backside and on the back of his head on the hard surface of the driveway, causing him to go unconscious.

PW2 – Sanin Lapir

  1. The next crucial witness for the prosecution is, PW2, Mr Sanin Lapir. Mr Sanin was another wantok who was in the company of RB, PW1 and the other wantok boys that night. PW2 knew RB very well as they come from the same village. PW2 was sitting down at the brick wall together with RB, PW1 (Lazarus), Lionel, Smith and Leon drinking beer and telling stories. As they sat there, he saw two Tikopian men (deceased – short guy and another Tikopian, tall guy - Mr Rangi) come from the sea side of the pub walking towards the entrance gate. The 2 Tikopian men were shouting and swearing. This witness thought, the 2 were just uttering bad words generally, not specifically swearing at them.
  2. Sanin Lapir said, he saw RB stood up and went to find out about the swearing. RB went to the deceased (though he said Rangi was the one swearing). Rangi and the deceased were walking towards the entrance gate next to where PW2 and the wantok boys sat on the brick wall. Sanin said he saw RB give a hand (meaning RB punched the deceased). But PW2 did not see where exactly RB’s hand landed on the deceased’s body, because he said RB’s hand swung so swiftly. What he saw was the deceased fell backwards and landed on the hard gravelled surface on the driveway, just like what PW1 also said in his evidence (corroborated fact). Deceased fell backwards landed on his backside and on the back of his head on the driveway, his face facing upwards to the sky.
  3. It is worth noting that whilst PW1 and PW2 talked about the deceased and Rangi coming towards them, when RB went and punched the deceased, Mr Rangi in his admitted statement did not actually see what happened to the deceased. Rangi said he met the deceased after RSP was closed and they planned to go up to AJ City mall, Lungga. Deceased went ahead. Rangi followed from behind. Then he heard someone shouted - “Soa down nao”. That the deceased fell to the ground. Rangi went up and saw the deceased lying on the ground next to the cement wall adjoining the entrance gate. Then he got angry. He saw PW4 and others washing the deceased’s body with water and tried to assist him. Rangi went outside and someone hit him. He fell unconscious. Next thing he knew was when he woke up, he saw his son leading him to Bulk shop area. And was taken back to his house and slept till the next morning.
  4. Like PW1, I am not sure how serious or what injuries (if any) the deceased sustained from the punch or the fall. PW2, however like PW1 did say people ran to give help to the fallen deceased. After they (people) gave the deceased help, they left and went outside. There was another fight outside, as other people were coming inside to see the fallen deceased. PW2 said someone hit him outside. He fell to the ground and stood up. And went down to the red India shop further down, where the police arrived and took them for questioning.
  5. PW1 and PW2’s combined evidence assisted me to form the conclusion that RB punched the deceased on the left jaw. The deceased fell backwards and landed on his backside against the hard surface on the driveway just before the entrance gate. How serious the punch and how serious the fall, I was not entirely sure from their combined evidence, except that from their combined evidence, I could deduce that the deceased was unconscious on the ground and had to be assisted to regain consciousness, although he was not able to speak according to PW1. PW1 said the deceased was not able to speak only saying “umumumum...mmmm...umumm”. This means the deceased was hit severely by someone or was severely hit with something (hard objects).
  6. PW1 and PW2’s combined evidence however leaves me to wonder in some important areas. First their evidences did not tell me about any injuries the deceased sustained from the punch or from the fall, causing the black-off. Second their combined evidences did not tell me about the gravity of any injuries seen on the deceased’s face or the back of his head or on his backside. There is no evidence from these two crucial witnesses, neither from all of the prosecution’s witnesses, about injuries observed on the body of the deceased or bleeding or the gravity of any bleeding. This is a material omission in their combined evidence, in relation to the doctor’s evidence. I will now turn to look at the third category of evidence (professional opinion from a doctor on the cause of the death). And the doctor’s evidence shows that the deceased died from serious injuries on the head. The serious injury on the head the doctor mentioned can be seen in photo 23, PE1. That photo shows that the right-side skull of the deceased’s head was fractured. Yet there is no explanation from the evidence of the 2 crucial witnesses that the deceased was hit on the right skull of his head with any hard objects. I will return to discuss this in detail later.

Third category of evidence
Doctor’s evidence

  1. Third category of evidence is professional opinion from a doctor. Doctor Roger Maraka made an autopsy report on the deceased having carried out post mortem examination on the deceased. Doctor examined the deceased on the external (outside the body) and internal (cut open parts of the body, especially on the head). Doctor noted injuries both on the external and internal body parts of the deceased.
  2. The external and internal injuries were confined to the upper part of the deceased’s body – from the chest right up to the head. But the more serious injuries were seen inside the head.

External injuries

  1. Doctor observed the following injuries or lacerations or bruises on the external part of the deceased’s body; at pages 3 - 4 of his report: -
  2. Court noted with keen interest that there were abrasions/bruises/cuts to the right arm (1), right elbow (3), right elbow region, right hand (4) and another bruise on the right hand (see injuries doctor noted at injuries 12 - 16 of page 4 of this report). These injuries are of particular interest to me because there was the major internal injury to the head on the right side – i.e. the fractured right-side skull on the head. I am inclined to think that the deceased was battered so severely with blunt objects on his upper right side of his body. Yet there is no iota of evidence that the deceased was bashed as such. In other words, I do not know who or what caused the serious external injuries. PW1 and PW2’s combined evidence shows that RB punched the deceased on the left jaw only.

Internal injuries

  1. The external injuries were confined to the upper part of the deceased’s body mostly right side and are not really serious bodily injuries (just abrasions, lacerations and bruises). The more serious bodily injuries were noted on the internal parts of the deceased’s body, most especially inside his head. The doctor cut open the head and noted the injuries as follows (photos 16 – 25, PE1):

Fatal injury is inside the head

  1. The more worrying and fatal injury seen inside the head was the fractured skull on the right side of the deceased’s head. The doctor noted on page 4 of his report under internal examination that the right temporal bone of the skull was fractured. It was a linear fracture horizontally, which measured 80 mm in length. As I understood from the doctor’s evidence this injury caused bleeding and haematoma (pool of blood clot) inside the head. A clear picture of the “fractured temporal bone of the skull on the right”, is at photo 23 (the horizontally fractured temporal bone). Doctor explained that they had to clean the blood clot before they could see the fractured skull.
  2. That fracture on the skull or head caused bleeding (blood) and haematoma inside the head. That bleeding is serious the doctor said, because there were 3 types of haematoma (pool of clot blood or thick blood were seen on 3 parts of the head). You can see these pool of blood clots in photos 17 – 22, of PE1.
  3. Various haematoma was seen inside the skull/head/brain. An understanding of the “fractured skull” and the consequential “bleeding” or “haemorrhages” or “haematoma” seen inside, around and below the fractured bone/skull in the head is very important to the doctor’s main finding on the cause of death, at page 2, where the doctor said “the condition leading directly to death is intracranial haemorrhages caused as a result of blunt trauma to the head”. In other words, the doctor said the main cause of the death was found inside the head. This is what the doctor said in oral evidence, at the top of page 24, day 3 of transcript: -

What is the cause of the injuries on the head?

  1. Court will pay close attention to the main findings on the main cause of the death. I will relevantly ask, “What caused the injuries to the head?” I will ask this question and try to connect the doctor’s evidence to the evidence of the 2 primary eye witnesses (PW1 and PW2). I discussed above the crux of PW1’s evidence in paragraph 15. That PW1 saw RB hit/punch the deceased on the left side of his face, between the ear and jaw. Deceased then fell backwards and landed heavily on his back and on the back of his head on the ground/driveway’s hard gravel surface. Deceased then became unconscious.
  2. Next is PW2, Sanin Lapir. PW 2 did see RB hit/punch the deceased but could not say which part of the deceased’s body RB’s hand has landed, because the hand swung swiftly. PW2’s evidence supports PW1 in how the deceased fell after RB punched him. That the deceased fell backwards and landed heavily against his back and the back of his head on the hard gravel surface driveway.
  3. Court was thinking that the deceased falling backwards and hitting the back of his head heavily against the hard surface on the driveway would cause the serious injuries the doctor noted inside the head. However, the doctor ruled this out as a possible explanation for the head injuries. As I alluded to above it is very surprising that no injuries at all were seen on the back of the deceased’s body or on the back of his head or on the back of his buttock. Yet these are parts of the body that the deceased fell and landed heavily on. So, I can see the logic in the doctor’s opinion. When I think about the fractured skull on the right side of the deceased’s head. When I see the fractured skull in photo 23, PE1 it is indeed a very serious or fatal injury. It is 80 mm in length and located horizontally on the deceased’s head/skull. It was the cause of the bleeding and pool of blood clot found in the head and the defendant was left in that condition for most part of the night of 23/09/2022 until the next morning of 24/09/2022. When I think about the doctor saying that the serious head injury (fractured skull) was caused by a blunt trauma, I could reason with the doctor’s ruling out of the head injury being caused from the falling backwards and landing heavily on the back of his head. The doctor said the probable cause of the fractured skull on the right side of his head was a blunt trauma or objects like a stone, cement, iron, timber or brick was hit/applied with severe force against his head/right side skull.
  4. However, the evidence from the 2 primary eye witnesses did not tell me that the deceased was hit with a blunt trauma or objects like a timber, stone, cement, iron, concrete slab or brick. I referred the doctor to photo 26 (spot where deceased was punched, fell backwards and landed heavily on the back of his head). Doctor repeated and ruled out any suggestion or possibility that the head injury was caused as a result of landing with the back of his head on the gravelled hard surface of the driveway because the driveway had a flat surface. And also, if the deceased fell that direction, he could have shielded his right skull against any injury using his right shoulder or right arm. Looking at photo 26, the doctor saw a concrete slab, table, corner of a timber walling house, iron post (erected advertising board), corrugated iron-gate and brick wall. Doctor’s opinion was that these blunt objects must have hit against the deceased’s head so hard or so severely that his skull got fractured. Doctor said it was possible that if the deceased was punched with a severe force on his left side, he could have fallen over to his right side and hit it against one of the hard objects seen in photo 26 and that could cause the fractured skull on the right side of the deceased’s head.
  5. The problem with that theory though is there is no direct evidence from PW1 and PW2 that RB punched the deceased on his left side face/jaw and he fell heavily to his right side and hit his right-side head (skull) against any of the hard/blunt objects seen/mentioned in photo 26. Similarly, there is no evidence from PW1 and PW2 that the deceased was hit directly by a blunt object on the right skull of his head. Prosecution should have produced direct evidence from PW1 and PW2 to support the doctor’s findings, that the injury to the right skull was caused as a result of a blunt object applied severely on that part of the head – like for instance a timber or a stone was hit directly against his head or a stone or timber was thrown directly on his head or that the right side of his head (skull) was hit severely because of some severe force applied on his left side jaw causing him to fall over to the right side of his head, and landed severely against any of the blunt objects seen in photo 26.
  6. Because of these serious doubts due to the missing link between the evidence of the prosecution coming from the doctor and the 2 primary eye witnesses, I have serious doubts that the punch that RB threw on the deceased’s face (between left ear and left jaw) was the substantial cause for the deceased’s death. The substantial cause of the death was the fractured skull bone on the right side of his head and the associated bleeding and haematoma (blood clot in the head). I do not know on the evidence, what caused the fractured skull on the deceased’s right side of the head. I do not know on the evidence, if it was caused by a blunt object thrown at the deceased by RB or as a consequence of RB’s punch on the deceased’s left jaw. In other words, I do not know on the evidence, if RB’s conduct was the substantial cause for the deceased’s death. What I do know is the deceased with that serious injury on his head was left unattended for the whole night from around 12 midnight. There was no quick medical intervention. He was taken to the hospital the next morning and died around 11 am. Could this delay have contributed as a cause for the death?

Application of the law

  1. Two cases the prosecution cited are authorities on the proper test for causation. I will relevantly quote as follows from prosecution’s submission: -
“The proper test for causation in a case such as the present was whether the accused’s conduct was a substantial or significant cause of the death and that it was doubtful as to whether there is any marked distinction between the words significant and substantial”[1]. (My underlining)
“It has not been shown for a certainty that the bunch to the face of the deceased was more than a de minimis cause, or a substantial and operative cause of death. The most that can be said is it may have contributed if certain conditions were met. I am satisfied the evidence adduced falls short of that standard necessary to bridge that crucial gap to the death of the deceased and accordingly the benefit of the doubt must go in favour of the defendant and he is entitled to be acquitted as well on the charge of manslaughter”[2]. (My underlining)
  1. Ultimately, I am obliged by law to conclude that the prosecution did not prove its case beyond reasonable doubt. I am left doubting that RB’s punch on the left jaw was the substantial cause for the fractured skull on the right side of the skull, eventually leading to the cause of the death. Whenever a doubt exists in my mind, though small it may be, I must give the benefit of the doubt to the accused and acquit him. This is the law clearly stated in a binding decision in Manai[3], from which I will relevantly quote: -
  2. In view of the foregoing analysis on the inconsistency of the evidence the Crown produced through the doctor and the 2 primary witnesses, I will agree with the law cited by defence counsel in Ofea[4] where the Court relevantly stated: -

Convict for a lesser offence, Conclusion and Orders

  1. In all that I say, I have serious doubts in my mind about the inconsistent evidence the Crown produced, especially on the issue of causation or the cause of the death. I doubt that RB’s “closed fist punch” landing on the left jaw of the deceased’s face was the substantial or operative cause for the fractured skull on the right-side of the deceased’s head. This is not a safe environment to give a justified guilty verdict for manslaughter, in terms of element (iii), of the offence mentioned in paragraph 4 (iii) above. It means prosecution failed to prove element (iii) of the offence. Even on element (ii), I also doubted that RB’s closed fist and his blow or punch on the left jaw, was the unlawful act that caused the death of the deceased. When one element is not proved the entire charge collapsed. Hence, I find the accused not guilty as charged. I will however convict the accused of a lesser offence contrary to Section 244 of the Penal Code Act (Cap 26) – “common assault”, as submitted by the Crown and not opposed by defence counsel. I did say that there was evidence that RB punched the deceased on the left jaw from PW1. Crown at paragraphs 49 and 50 of the written submissions, submit that I can convict the accused of a lesser offence, if facts are proved, which reduced it to a lesser offence, although he was not charged with it. This is permissible under Section 159 (2) of the Criminal Procedure Code Act (Cap 7) read in conjunction with Section 244 of the Penal Code Act (Cap 26). Just punching a person on the body is common assault contrary to Section 244 of the Penal Code Act (Cap 26). I am satisfied beyond reasonable doubt that RB assaulted the deceased, when he punched the deceased on the left jaw.
  2. Accordingly, I acquit RB of the charge of manslaughter. I will instead convict RB of a lesser offence of common assault. I note that the maximum imprisonment term or punishment for common assault in Section 244 is 1 year. I note that RB has been held in pre-trial detention for about 1 year or more than 1 year already. Hence I will release RB at the rising of the Court.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

[1] Ofea v R [2019] SBCA 9; SICOA-CRAC 22 of 2019 (18 October 2019).
[2] Reynolds v Regina [2015] NSWCCA 29.
[3] Manai v R [2019] SBCA 8; SICOA-CRAC 4 of 2019 (18 October 2019).
[4] R v Totoha [2016] SBHC 109; HCSI-CRC 144 of 2016 (14 June 2016).

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