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R v Samani [2024] SBHC 75; HCSI-CRC 21 of 2018 (5 July 2024)

HIGH COURT OF SOLOMON ISLANDS


Case name:
R v Samani


Citation:


Date of decision:
5 July 2024


Parties:
Rex v Robinson Samani


Date of hearing:
8 May 2024


Court file number(s):
21 of 2018


Jurisdiction:
Criminal


Place of delivery:



Judge(s):
Keniapisia; PJ


On appeal from:


Order:
I find Samani guilty of involuntary manslaughter. Samani’s fight with Greg was the secondary cause for Greg’s death. At sentencing submissions, I will determine the appropriate sentence to give for the conviction of involuntary manslaughter. I did indicate above that I allocate 20 percent responsibility to Samani for being the secondary cause of Greg’s death. I also say that in the 20 percent Greg was the one who started the fight (provocation).


Representation:
Mr, Vaike for the Crown
Mr Kwalai for the Defendant


Catchwords:



Words and phrases:


Legislation cited:
Penal Code [cap 26] S 199


Cases cited:
R v Benson [2022] SBCA 22, Royall v The Queen [1991], HCA 27

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION


Criminal


REX


V


ROBINSON SAMANI


Date of Hearing: 8 May 2024
Date of Judgment: 5 July 2024


Counsel: Mr Vaike for the Crown
Counsel: Mr Kwalai for the Defendant

JUDGMENT

  1. After midnight of 26th May 2017, Mr Samani had a fight with Greg Animauiri, at Bahai area, next to Guso point market stall, along the main Kukum High Way (“KHW”). As a result of the fight, Greg fell onto the outer lane of the main KHW and got hit by an oncoming bus. Greg died instantly. Samani is charged for manslaughter for the alleged unlawful killing of Greg.

Issue for trial

  1. The sole issue I must determine is – “Whether or not Samani caused Greg’s death?”

Adjournment refused

  1. This is a 2018 matter. The incident occurred in 2017. Trial is still outstanding 6 years later. On 9/7/2018, the matter was ready for trial and forwarded to the Listing Committee. Matter was allocated to me on or around 26/05/2022.
  2. On or around 4/6/2022, counsel Suifasia and Kwalai appeared. Defence was still looking into allocating the matter. On 13/11/2023, counsel Mono and Rusi appeared. I indicated to have trial early February 2024. On 27/11/2023, counsel Suifasia and Palmer appeared. I listed trial for March 2024 with a prior mention in February 2024. I listed mention before trial on 5/2/2024. Unfortunately, I was on compassionate leave. On 19/2/2024, counsel Mono and Kwalai appeared. Counsel Vaike and Alasia are the lawyers in carriage of this matter. Both appearing counsel indicated the month of May 2024, for the trial. Court listed trial from 6 – 17 May 2024. Court urged counsel Vaike and Alasia (appearing) to prepare for the trial. Counsel must inform the Court of any issues prior to the trial date. I emphasised that this 2018 matter must be tried in May 2024.
  3. Trial commenced on morning of 6/5/2024. Prosecutor requested adjournment to start in the afternoon. Counsel Rucy appeared for Alasia who was on annual leave. I was furious. This is a 2018 matter and is likely to adjourn further. I told counsel Rucy to inform her superiors that, trial will commence at 2 pm on 6/5/2024. And her superiors must attend.
  4. During adjournment counsel Kwalai emailed expressing concern about starting at 2 pm on 6/05/2024. It was very short notice to get replacement counsel. Counsel Kwalai asked for general adjournment. I refused general adjournment and replied by email correspondence giving defence until Wednesday (8/5/2024) to find a replacement lawyer. Court resumed at 2 pm on 6/5/2024. Mr Kwalai sent another email agreeing to start trial on Wednesday (8/5/2024). Counsel Kwalai requested Samani to go and see him on the afternoon of 6/5/2024. I adjourned and told Samani to go and see Mr Kwalai. I was grateful to counsel Kwalai for stepping in for Alasia at short notice.
  5. Trial resumed on 8/5/2024 at 9.30 am. I was impressed defence was ready to start trial at short notice following my insistence on Monday (6/5/2024). At 9.30 am on 8/05/2024, court started without the prosecutor. Defence counsel was ready. For 15 minutes I waited in court. I enquired with defence counsel, which rule can allow dismissal of the matter when Crown fails to turn up at trial. Defence counsel said there is no rule permitting such action to be taken. I was furious. I was contemplating to dismiss the matter because there has been unreasonable delay for 6 years.
  6. Then the prosecutor walked in. I was furious. I spoke at the top of my voice, enquiring why he was late. Counsel told me he was still sorting out witnesses. Anyway, trial commenced around 10:00 am, 30 minutes late. I arraigned Samani. He entered a not guilty plea. Crown opened its case and called its first witness, Ms Katie Piko. At 11:00 am, Ms Katie finished giving evidence. Crown was to call its second witness. The witness was not ready. Prosecutor asked to adjourn to the afternoon. I was again furious. I adjourn and made it clear that Crown must call its second witness at 2 pm or close its case.
  7. At 2 pm prosecutor requested another adjournment to get witnesses. I refused and asked the prosecutor to close his case. Prosecutor wanted to speak with his superiors. I sat in Court and allowed prosecutor to make a phone call. Prosecutor agreed to close his case, due to unavailability of witnesses. Crown’s case closed with the calling of just one 1 witness out of the 5 intended witnesses.
  8. Defence called Samani to give evidence under oath. Defence counsel did this by referring Samani to his Record of Interview (“ROI”) made with the police on 21/06/2017, at 11:00 am. Counsel Kwalai took Samani to confirm the contents of the ROI and narrowed him down to the evidence contained in the ROI at Questions and Answers (“QA”) - QA 32, QA 43 and QA 45.
  9. The evidence coming out from QA 32, QA 43 and QA 45 in the ROI are briefly re-stated as follows: -
  10. Counsel Kwalai then admitted the ROI as Defence Exhibit 1 (“DE 1”) - evidence in support of Samani’s defence. I will return to analyse the contents of the ROI when I consider Samani’s defence. First, I will start with Crown’s evidence.

Crown’s case - Evidence
PW1 – Katie Piko

  1. On the night of 26/5/2017, Katie was at their house down by the seaside at Guso point, next to late Dr Kure’s clinic. Katie said she sat down with her cousin telling stories when she heard shouts and swearing coming from the main KHW (towards Bahai – opposite to Barrack sportsman pub). She thought her cousin brothers drinking beer up there were shouting. She run up to their market stall at Guso point by the side of the main KHW.
  2. Katie arrived at the market stall. She saw a neighbour whom she recognised as Samani; his nickname is Shaggy. Katie said Shaggy was harassing Greg. By harassing Katie meant Shaggy was running after, punching and kicking Greg. Then Katie saw her cousin brothers at the market stall stopped Shaggy from chasing Greg.
  3. That provided a breathing space. Katie went over, grabbed Greg’s hand and wanted to escape with him down to the seaside (their house) to hide him from Shaggy. Katie said Greg pushed her hand and ran away. Katie suspected Greg must have doubted his safety with her because she was a female. Shaggy run after Greg and caught up with him on the walkway further down the Guso market stall, towards the fish and chips restaurant. Shaggy punched Greg. Greg fell to the ground. Greg stood up and tried to defend himself. At the same time attempting to escape from Samani. Samani and Greg were tussling with each other back and forth along the footpath (walkway) of the main KHW going up easterly direction.
  4. In the course of tussling or fighting or kicking and punching each other back and forth, Greg fell onto the outer lane of the main KHW. Greg was hit by an oncoming bus on the outer lane going up to King George or Naha/Vura destination. Greg was trapped underneath the running white bus. The bus dragged Greg and left his dead body further up close to Guso market stall. Katie said she cried because she knew Greg died. Samani escaped from the scene. Katie said she saw clearly what happened. She stood about 6/7 meters away. And there was enough light coming from the passing vehicles on the main KHW.
  5. In essence Katie’s evidence was Samani chased after Greg. Samani kicked and punched Greg. Greg fell to the ground. Greg got up and tried to defend himself. Greg tussled with Samani back and forth on the walkway next to the outer lane of the main KHW easterly direction. In the course of their tussle Greg tried to escape from Samani. Greg fell onto the outer lane and was hit by a white bus travelling easterly direction going up to King George or Naha/Vura destinations.

Defence evidence - ROI

  1. Samani’s ROI in DE1 contain the following evidences: -

Analysis of the evidence

  1. For the complete story of what happened that night, the only evidence I can rely on is Samani’s, partly supported by Katie’s. Crown submitted that Samani is not a credible witness because he changed his story in the ROI. However, Samani was in the process of giving his interview and was entitled to clarify or change his story at any time during the interview. It is a normal practice that during interview the interviewing police officer will give opportunity to the suspect (Samani) to clarify or change or read back to the suspect. Suspect must be satisfied with what is recorded because what is recorded can be used against the suspect in court as evidence. Once the suspect is satisfied, he/she can then counter sign the contents of the ROI. Changing the story was part of the interviewing process.

Similarity in evidences

  1. Katie’s evidence said she was at their Guzo point house when she heard shouting and swearing and ran up towards their market stall. When Katie arrived at the market stall, she saw Shaggy harassing Greg – running after, punching and kicking Greg. This confirmed Samani’s evidence that he ran after and had a fight with Greg. Katie and Samani’s evidence also corroborated, where Katie said his cousin brothers tried to stop Shaggy, but he escaped from them. Samani also said his sister Nanai (and them) tried to stop him but he ignored her and them – meaning he ignored Nanai and the boys and kept chasing Greg.
  2. Samani’s evidence and Katie’s are also similar or corroborated where she said she saw Samani ran after, kicked and punched Greg and Greg fell to the ground, stood up and they tussled back and forth near the tarmac on the walkway. Samani did not deny running after Greg or kicking Greg or tussling with Greg or fighting with Greg. Samani said he ran after Greg. He was angry because Greg hit his mouth/nose/face and his nose was bleeding.
  3. From the prosecution and defence evidences, I conclude that Samani and Greg had a fight. Samani chased after and had a tussle with Greg. Katie said they were tussling with each other back and forth. At the same time, Greg tried to defend himself and to escape from Samani. Greg escaped or ran onto the outer lane and got hit by the on-coming bus.

Differences in evidences

  1. Prosecution and defence evidences however pulled apart around the critical moment when the bus ran over or hit Greg. Prosecution’s Katie’s evidence said Samani and Greg tussled with each other on the walkway and Greg fell over onto the outer lane tarmac of the main KHW and was hit by the bus. Greg got stuck under the running bus. The bus dragged Greg and left his dead body next to the market stall at Guso point.
  2. On the other hand, Samani’s evidence is that he was tussling with Greg. Greg punched him on the left side of his mouth, after he caught up with him and pulled him back. Then Samani fell to the ground. It was when Samani was on the ground that Greg ran away and got hit by the oncoming bus.
  3. At the point where the evidence differs, I should have corroborated evidence from the prosecution. The onus is on the prosecution throughout the trial. Failing that, I am left to wonder, how or what actually caused Greg’s death. Did Greg died from the tussling and falling over onto the tarmac of the outer lane or did Greg died after he hit Samani and Samani fell to the ground. And whilst Samani was on the ground Greg escaped and ran onto the outer lane and got hit by the bus.
  4. The divergence in the evidence is fatal to the Crown’s case. I do not know what actually caused Greg to be hit by the oncoming bus. I can understand that there was a fight between Samani and Greg. The fight started on the middle island. Samani and Greg ran towards the Guso point side of the main KHW. They were exchanging punches, kicks and were tussling with each other back and forth and in the course of the tussling, Greg tried to escape but got hit by the bus.
  5. Samani’s evidence was complete from the start to the finish on what transpired that night. On the other hand, Katie’s evidence whilst was credible only covered half-way story of what occurred that night. Katie’s story only commenced from when Katie saw Shaggy run after Greg at the middle island of the main KHW to where her cousin brothers tried to stop Shaggy. And then the fighting or tussling took place between Samani and Greg. Then Katie unsuccessfully tried to assist Greg by escaping with him. And the two were tussling back and forward causing Greg to fall over onto the outer lane and got hit by the bus.
  6. The complete evidence from Shaggy presented logic to me. The two of them were fighting each other and running across the road and tussling on the walkway. And in the course of the fighting, Greg tried to run away and got hit by the bus. Samani did not see when the bus hit Greg, because he was on the ground. And so, he logically panicked, because he did not expect Greg to die from their fight. They were only fighting each other. And Greg started it, when he hit Samani on the nose/face at the middle of the island.
  7. During cross examination, Samani was not defending any particular position. He was merely conveying what happened between him and Greg that night. He was basically answering all questions from the prosecutor affirming, all the prepositions put to him. He was not evasive. He was cool in the witness box. He was not hiding anything. I observed his demeanour. He admitted fighting with Greg. But did not expect the worst to happen. And so, he naturally panicked when the bus hit Greg. He told a lady (Janet) about what happened before he run away (QA 51, DE1). That running away and his state of panic were because the unexpected had happened. Samani did not envisage the worst would happen.

What caused Greg’s death from the evidence? – Two possibilities - Causation

  1. Two possible explanations are before the court in terms of how Greg fell onto the outer lane and got hit by the bus. Possibility 1 – repeat paragraph 23 in italics. Possibility 2 – repeat paragraph 24 in italics. I am more inclined to believe Samani. It means I have doubt about the prosecution’s single preposition in possibility 1 as the only cause for the death. I am inclined to go with possibility 2, as well.
  2. In possibility 2, Greg died because he tried to escape after he hit Samani and Samani fell to the ground. Whilst Samani was on the ground Greg run onto the outer lane and got hit by the oncoming bus. Having knowledge of how bus drivers in Honiara drive on a free high way (and this was at night – free highway), I can say the driver was going at a very high speed and hit Greg causing his death.
  3. In terms of what caused Greg’s death, I found on the evidence that there are 2 possible causes. The primary cause is the running bus that hit Greg that night. The secondary cause was the fight that Samani had with Greg that night. For the primary cause I will apportion 80 percent. The bus hit Greg. Greg was trapped under the bus. The bus dragged him some distance before dropping him. And he died instantly. For the secondary cause, I will allocate 20 percent. In terms of the 20 percent allocation, I noted from the evidence that Greg started the fight when he hit Samani on the nose. And Samani run after Greg and a fight broke out between them leading directly to the primary cause for the death.

Autopsy report needed to establish cause of death?

  1. Defence counsel insisted that there should be an autopsy report to enable the Court to determine the cause of the death. Without such report Crown cannot prove what caused Greg to die. I prefer Crown’s submission. Despite of no autopsy report from a doctor professionally confirming the cause of the death, I can still apply common sense to the facts to determine what acts substantially or significantly contributed to cause Greg’s death from the evidence. That it is not a philosophical or scientific exercise to determine the cause of the death. Rather it is a factual test, to be determined by the juries or judges, applying common sense to the facts as they find them, while appreciating that the purpose is to attribute legal responsibility in a criminal matter[1]. I found above that there are two possible causes – (i) primary cause - hit by the bus and (ii) secondary cause - fight between Mr Samani and Greg. The other way to put it is this – But for the bus collision and the fight that night Greg would not have died. In other words, the bus was the substantial primary factor that caused Greg’s death. And the contributing secondary factor causing Greg’s death was the fight.

Law on manslaughter

  1. Turning now to the law on manslaughter - Section 199 of the Penal Code Act (Cap 26) provides: -
  2. The recent Court of Appeal case of Bension[2] discussed 2 classifications of manslaughter. Court of Appeal relevantly stated, and I quote: -
  3. Bension also discussed 2 further sub-classifications of involuntary manslaughter at common law: (i) manslaughter by an unlawful and dangerous act carrying with it an appreciable risk of serious injury and (ii) manslaughter by criminal negligence. Involuntary manslaughter is so called because, unlike murder, it involves neither intent to cause death or grievous bodily harm to the victim nor the other mental elements necessary for murder.
  4. Bension furthermore discussed the legal definition of the 2 classes of manslaughter, citing from Blackstone’s Criminal Practice, where the learned author states: -

Conclusion and Order

  1. On the evidence before me, I find that this is a case of involuntary manslaughter, especially the gross negligent or the reckless killing type, because Samani, in my considered view, did not intent to cause the death or grievous bodily harm to Greg. Samani gave a chase after Greg to have a fight with him, because Greg hit him at the first place. I found above that Samani got panicked because the unexpected had happened from his actions of having a fight with Greg.
  2. One may argue that intention to cause death or grievous bodily harm can be inferred because Samani ought to know that having a fight so close to the main KHW may lead to a fatal accident as what happened in here. In my considered view that will still amount to criminal negligence or gross negligence or reckless killing – because of lack of clear evidence on intent to cause death or grievous bodily harm from the prosecution’s evidence.
  3. In the final analysis, I find Samani guilty of involuntary manslaughter. Samani’s fight with Greg was the secondary cause for Greg’s death. At sentencing submissions, I will determine the appropriate sentence to give for the conviction of involuntary manslaughter. I did indicate above that I allocate 20 percent responsibility to Samani for being the secondary cause of Greg’s death. I also say that in the 20 percent Greg was the one who started the fight (provocation).

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

[1] Royall v The Queen [1991] HCA 27.
[2] R v Benson [2022] SBCA 22; SICOA-CRAC 15 OF 2022.

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