R v Maepio [2019] SBMC 25; Criminal Case 33 of 2019 (22 August 2019)

IN THE WESTERN DISTRICT MAGISTRATE’S COURT )
OF SOLOMON ISLANDS AT SEGHE )
(Criminal Jurisdiction)

Criminal Case: 33 of 2019

BETWEEN: REGINA

AND: ALFRED MAEPIO

Accused

Dates of trial: August 20^th, 2019 – August 21^st, 2019
Date of Judgment: August 22^nd, 2019

Mr. Andrew Ega Kelesi for the Crown
Mr. Daniel. Kwalai for the Defendant

JUDGMENT AFTER TRIAL

Introduction

1. The trial for the Defendant, Alfred Maepio, commenced on 20^th of August 2019, until 21^st August 2019, after he pleaded not guilty to the charge of Grievous Harm contrary to section 226 of the Penal Code (Cap 26).
   
2. The charge arise out of an attack on a person namely; Fordy John Bale (aka Halford) who is the complainant in this matter. I find that on 18^th of May, 2018, there was a vicious and sustained attack on Fordy John Bale at Savele Customary Land, Marovo Lagoon, and Western Province.
   

Crown’s case

3. The Crown case is that the incident took place on 18^th of May, 2018, at Savele Customary Land, Marovo Lagoon, and Western Province. The Crown says that the Defendant, Alfred Maepio of Bareho village, Marovo, had an argument with his cousin brothers, including the complainant over alteration or changing of initials on the logs. The crown says that Layton Brian was the one who saw them changing the initials from KK to JB on the logs, thereafter, he went and told the defendant.
   
4. The crown says that when the defendant approached the others (cousins), he was armed with a long bush knife and was talking aggressively to them as well. As soon as he come close to them, he then started to argue with them and pointed his long sharp bush knife towards them. In the course of the argument, he then slaps Eddie T.K twice as he was the one who was replying to him during the argument. The defendant then tried to slap the complainant, but he avoided it. That made the defendant become angrier and aggressive. He then uses the long sharp bush knife he was holding in his right hand, swing it towards the complainant. Complainant avoided the strike and it landed on his temporal area (side of his forehead) and cause injury to it.
   
5. The defendant then attempt to strike the complainant again which then cut off his index finger completely. He then again attempting to strike the complainant’s neck, but he defended using his left hand and the knife landed on his upper end of extensor muscles to the left hand and was completely severed.
   
6. The Defendant was then chased and escaped to a camp site after the incident. The complainant was taken to Seghe Mini-Hospital and on the next day because of the seriousness of the injury, he was further referred to National Referral Hospital in Honiara for treatment and medication. He was admitted from 18^th May to 11^th September 2018. He went back for his review in March 2019. As iron rod is still attached to his extensor muscle and still finding it difficult for him to move it freely.
   
7. The Doctor’s report is clear which describe the extent of each injury suffered in the hands of the accused.
   
8. The Defendant was arrested, charged and brought to Court. He denied this allegation. Hence, the Crown called five (5) witnesses to prove their case against the defendant. The witnesses are, the complainant, Fordy John Bale (PW 1), T. K Eddie (PW 2), Brenton Brian (PW 3), Keri Bale (PW 4) and Layton Brian (PW 5).
   
9. A copy of the Letter dated 24^th May 2018 by Dr Pikacha was tendered by consent and marked as “PE 1”, the Complainant’s Medical Heath Record Book, marked as “PE 2” and the Agreed facts, marked as “PE 3”.
   

Defence case

10. The Defence does not dispute the date of offending, all that had transpired before the alleged Grievous bodily harm and his presence at the Savele customary land with a bush knife. His version of what transpired at Savele Customary Land between the five (5) cousin brothers and himself is what’s disputed.
    
11. The Defendant does not dispute the fact that he inflicts the injury to the complainant’s left hand upper end extensor muscle but said that this was done after the complainant cut his wrist using his knife.
    
12. He further conceded that his bush knife injured the complainant’s left temporal area (left-side of his head), but stated that it was the complainant who got himself on the knife after he and the others jumped towards the defendant when they attempted to attack him.
    
13. He denied having knowledge of severing the complainant’s right index finger and said that, that might have happened while they were slashing their knives against each other.
    
14. The Defence relied on self-defense to explain the defendant’s action for injuring the complainant’s left hand upper end extensor muscle and left temporal area (left-side head)
    

Burden of proof in criminal trial

15. The burden of proof in every criminal trial rest in the prosecution, that is to prove their case beyond reasonable doubt. Therefore, it is incumbent on the crown to provide evidence of such high degree which would put the court of a firm position to be sure and certain that the defendant was the one who committed the crime. Should there be any doubt, slight as it may, the defendant must be given the benefit and shall forthwith be acquitted of that charge.
    

Issues

16. The core issues that will determine the ultimate result are; whether the Defendant was responsible for severing the complainant’s right index finger?
17. Whether the injuries sustained on the complainant’s body falls within the ambit of “grievous harm” as defined under section 4, of the Penal Code?
18. Whether the defence of self-defense is an available one in such case or is it only applicable defence for offence of homicide? If yes,
19. Whether his actions which resulted in severely injuring the complainant are done out of an act of self-defense on his part?
    

Evidence concerning Defendant’s appearance at Savele Customary Land

20. Three Crown witnesses; PW1, PW 2, PW 4 all gave evidence that the defendant appeared with a bush knife and showed it out to them when he approached them at the Savele Customary Land.
    
21. It was unknown as to the conduct he showed the knife, that is to say, whether he gesticulated it angrily to them or was he merely showed it by pointing it to them. Nonetheless, I am guided by the unchallenged and undisputed evidence of prosecution witnesses that he went there after what his four cousins and complainant did, by changing the initials on the logs. As apparent, he was unhappy with what they did, hence, his attendance to Savele Customary Land.
    
22. These evidences go to prove the crown’s case that the defendant appeared at Savele Customary Land and waving his bush knife towards the crown witnesses in an angry manner.
    

Evidence pertaining to heated argument

23. PW 2, PW 3 and PW 5 all gave evidence regarding the argument between the defendant and PW 2. PW 5 gave evidence that only PW 1 and PW 2 were arguing with the defendant. The others were simply sitting and watching what had unfolded.
24. This supports the crown’s case that the defendant was enraged or fueled by what the crown witnesses (excluding PW 5) had did to the logs by changing the initials from “KK” to “JB”. Further, that only PW 1 and PW 2 attempted to fight the defendant after he slapped them.
    

Evidence concerning the injury on the Complainant’s left-side head

25. All the five (5) Crown witnesses gave evidence that the defendant used his bush knife and cut the complainant’s left-side head. There was nothing to suggest how he did it, the extent of their evidence was that he cut the complainant’s left-side head.
    
26. PW 5 evidence is more detailed compared to the others, he said that during the argument, the defendant proceeded and slapped both PW 1 and PW 2, this angered them and they reacted to fight him. He jumped back and raised his knife which hit the PW1 (complainant) left-side head.
    
27. They all maintained their version throughout the rigorous cross-examination by the defence and or firmly denies the defence propositions. They were adamant that the defendant merely reached out the knife, but strongly say that he applied it on the complainant’s left-side head.
    
28. These evidences support the crown’s case that the defendant applied the bush knife on the complainant’s left-side head at the heat of altercation.
    

Evidence concerning the cut to the complainant’s left arm upper end extensor muscle

29. All crown witnesses except for PW 5, gave similar accounts that the defendant cut the complainant’s left arm after injuring his left-side head. All except for PW 3’s evidence were very brief. PW 3 further explained that the defendant slashed the bush knife towards the complainant and he defended himself with his left arm, thus, he suffered a severed upper end extensor muscle on his left arm.
    
30. These evidences go to bolster the crown’s case that the defendant slashed the bush knife towards the complainant and thus severed the complainant’s left arm upper end extensor muscle.
    

Evidence concerning the amputation of complainant’s right index finger

31. All the crown witnesses merely stated that the defendant cut off the complainant’s right index finger straight after he slashed his left-side head. There is nothing to point to how and when it was severed. Overall, all the crown witnesses’ evidences in relation to the severed right index finger were all in very brief form.
    
32. During cross-examination, all the crown witnesses maintained their stance and denied the propositions put to them that the defendant did not amputate the complainant’s right index finger.
    
33. There was no direct evidence from all the crown witnesses to confirm when and how the complainant’s right index finger was cut off. Although, I might agree to some degree that they all mentioned it in their evidences, all their answers were very brief and vague. Hence, my intention to declare it a circumstantial one and to glean on supporting evidences with the circumstance in its totality.
    
34. As I can gather, I am supported with the evidence that, there was the defendant who was fighting with the PW 1 and PW 2. Quite strangely, PW 2 who stood next to PW 1 sustained no injury. On the other hand, PW 1, was so fortunate to be alive. How possible it would be for PW 2 to escape injuries? The rationality I can gather is, the defendant was in close confrontation with PW 1 that is why he and the Defendant suffered knife injuries on their body, because they were fighting against each other. I am not satisfied that the others joined in, because had they joined in, they would have sustained injury on their body, but this is not the case.
    
35. Hence, I am satisfied that PW 1 took a knife after he was cut on his left-side head. This would explain why he was so courageous to advance in front of a bush knife held by the defendant.
    
36. I am not satisfied that all the others were moving with force against him, had that the case, PW 2 or the others would have suffered some wound. But the strange thing is that only PW 1, sustained all the injuries.
    
37. I am convinced that he was clashing knife with the defendant’s bush knife.
    
38. Furthermore, now that it is established that it was both of them who were in close confrontation, it would be proper to suggest and or infer that, it was the defendant’s knife that unlawfully cut and severed the complainant’s right index finger. I am cornered to draw a conclusion that there is no other reasonable hypothesis to suggest otherwise. None of the other crown witnesses moved forward, because PW 1 and the defendant used dangerous weapon, bush knives. This was why the others sustained no injuries to their bodies.
    

Evidence concerning PW 1 (complainant) possession of a bush knife

39. PW 1 (complainant) said that he was not armed with any knife at the initial stage of argument. He agreed getting hold of a of a knife, but that was after his right index finger was severed.
    
40. PW 5, also gave evidence that PW 1 and PW 2 were without any knife during their heated argument. It was after the defendant slapped both of them that they advanced and attempted to fight him. Unfortunately, his evidence lasted until he saw the defendant applied the knife on the complainant’s left side head. His observation came to a sudden halt after he saw blood coming out from the complainant’s left side head, he said that was when he blanked out.
    
41. These evidences go to prove the crown’s case that the complainant was not in possession of a weapon when he was unlawfully wounded on his left-side head by the defendant.
    

Medical Report by Dr. Douglas Pikacha (PE 1)

42. The Dr. Report were summarized by Dr. Pikacha’s letter dated 24^th May 2018;
    1. Scalp. 10cm clean edge wound to the left temporal area, deep down to and injured the underlying scalp bone. Temporal artery severed. Wound cleaned and sutured.
    2. Right hand. The right index finger was completely amputated at the proximal phalanx level and was held only by a piece of skin. This finger was not viable therefore removed. There was a fracture and laceration of the middle finger. This was viable and was repaired. It is likely that he would lost sensation to the lateral aspect of this finger for life. There was also a partial degloving injury in first web space of the right hand. Small 2-3cm “L” – shaped laceration to palm. Laceration 4-5cm dorsum of the right hand and dorsum of middle finger (2cm). All skin lacerations debrided and sutured.
       
    3. Left hand. Posterior clean edge transverse laceration just over the olecranon and head of radius, completely cut through the olecranon, and through the upper ends of the upper radius. Upper end of extensor muscles to this hand were severed completely. No obvious nerve and blood vessel injuries noted. Wounds cleaned and sutured.
       

Evidence of DW 1 (Alfred Maepio)

43. He gave evidence that during the date of offending, he and two others were writing initials on the logs as “KK” to indicate the block of land which those logs came from. Later, he went away and the five (5) others who all were his cousins and crown witnesses; PW 1, PW 2, PW 3 and PW 4 came to where the logs were and changed the initials from “KK” to “JB”. PW 5 or Mr. Layton Brian, saw this, went and reported the matter to him.
    
44. He gave evidence that he was unhappy and questioned why they had to change it when he had already settled the matter with their uncle and father to one of the five (5) cousins.
    
45. He gave evidence that he went and questioned PW 2, as to why they changed the initials on the logs and PW 2 responded that those logs came from his mother’s block. He replied and told him that those logs came from his grandfather’s “Ngatulu” block.
    
46. He also gave evidence that, PW 2 swore at his grandfather when he tried to explain it to him. Hence, the defendant got angry and slapped PW 2 on his cheek.
    
47. He gave evidence that PW 2 moved back, pulled out a green handle kitchen knife and advanced towards him and attempted to stab him. He raised his hands and quickly jumped back in trying to avoid the knife. He said at that point in time, his bush knife was gripped parallel to his right arm with its sharp side facing outward. He said PW 1 then jumped forward in trying to fight him but landed his head onto the sharp edge of his bush knife.
    
48. Thereafter, he said that PW 1(Complainant) got hold of a knife and started to cut him with it because he was angry. There were clashing knives between PW 1 and himself. He said that at that time, all the others were moving towards him as well. Later, PW 1 could cut his wrist, this was during the clashing of knives.
    
49. Thereafter, all of them moved towards him with force, hence, he tried to defend himself whereby he intentionally cut PW 1 on his left arm elbow or left end upper extensor muscle.
    
50. That was when he escaped and went to Kurupetu camp where he was assisted to Bareho village and later to Seghe Hospital.
    

Inconsistencies within the evidence of Crown witnesses

41. With respect, all the crown witnesses except for PW 5, have interest in this case. They were the ones who changed the initials on the date of offence. They were the ones who chased the defendant after he injured the complainant.
    
42. I find some if not most of them as being unstable witnesses, their line of answers was brief and vague. Some if not all, of their answers does not merge well with each other. For instance, PW 3 and PW 5 mentioned the argument between PW 2 and the defendant, however, the evidence of PW 1 and PW 2 was silent.
    
43. I do understand that the time of offence being early 2018, can possibly affect their memory to recount on the exact and precise happenings. This is a possibility that can explain the answers given during examination in-chief and cross-examination.
    
44. Putting aside their courageous demeanors in court, their evidences are placed under extreme caution and will be used to support the evidence of PW 5. Their evidences are adopted under extreme caution and shall be used to support the independent evidence of PW 5. In the absence of PW 5 account, I will accept to adopt their evidences together with careful assessment on the totality of circumstance surrounding the offending.
    

Credibility and Reliability of crown witnesses

45. I accept that although there are some apparent inconsistencies within their evidences, it does not affect the crux of the crown’s case. Thus, do not blemish the whole of their evidences. For reason that such inconsistencies alone does not automatically lead to the rejection of evidence, I accept and place weight on their evidences to prove the crown’s case against the Defendant.
    

Whether the defence can plead self-defense in such case or is it only applicable in Homicide cases.

46. It is my considered view that the case of R v Waidia^[1] is very clear, when it stated at paragraph 12;

Self-defence is available as a 'defence' to crimes committed by use of force. The basic principles of self-defence are set out in Palmer v R [1970] UKPC 2; [1971] AC 814: approved in R v McInnes, 55 Cr App R 551:

"It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but only do, what is reasonably necessary."

47. While I agree with Mr. Kelesi that most of the self-defense case in Solomon Islands pertains to Homicide, section 17 of the Penal Code is not confined to Homicide nor does it restricted to be only read with section 204 of the Penal Code. I disagree that section 17 expressly states the self-defense is only available to homicide cases. Section 17 of the Penal Code states:

“Subject to any express provisions in this Code or any other law in operation in Solomon Islands, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English common law.”

48. As apparent, section 17 does not limit the application of self-defense to homicide cases, but stated that it shall be determined according to the principles of English common law. Therefore, it is a mistake to state that section 17 of the Penal Code only confines to homicide cases and or only read with section 204 of the Penal Code.
    
49. I am accordingly satisfied that, with the assistance of English case of Palmer v R [1970] UKPC 2; [1971] AC 814: approved in R v McInnes, 55 Cr App R 551, which was referred to in the Court of Appeal case of Waidia, Self-defence is an available 'defence' to crimes committed by use of force and not confined to Homicide cases.^[2]
    

Is self defence applicable in this case

50. The appropriate tests are outlined in the Solomon Islands Court of Appeal case of Waidia which were established in all English common cases cited therein the judgment.
    
51. The burden of proof remains with the prosecution when the defence of self-defense is raised.
    
52. During the trial, there were evidences to suggest that the defendant was unhappy and angry when he attended to the Savele Customary Land. He appeared with a bush knife of approx. 30cm to 40cm in length. They argued and he slapped PW 1 and PW 2. When a fight broke out, he later had his knife cut the complainant’s left-side head.
    
53. The medical reports (PE 1), (PE 2) and (DE 1) all demonstrated that there was a fight between PW 1 and the Defendant. This fight involves the use of bush knifes. Both sustained injuries to their bodies as reflected in the said reports. For reason, there were force used which resulted on the knife wounds on the Defendant’s body, I agree with some degree that self-defense is an available defence for him in such a case. Clearly, he cannot use the knife on his own body, hence, the rationality available is that PW 1 used a knife to cut him.
    
54. I am satisfied that the prosecution has adduce evidences to negate the defence of self-defense, that is to say, the defendant was not acting to defend himself but to use violence against PW 1 for what they did to the logs by changing the initials.
    
55. I noted that he has all the opportunity to retreat when being confronted by PW 1 and PW 2, but he remained. I shall accept to consider as a factor.
    

Medical Report of the Defendant (DE 1)

56. It has become apparent in the Defendant’s medical report that he suffered knife wounds to his Left wrist, right hand, lower lips and right posterior ear. To be frank, this is not some mere argument as stated by all the crown witnesses, the Doctor’s report had revealed that these are wounds from knife. I am satisfied that his wounds were from complainant’s knife and that both the complainant (PW 1) and the defendant had entered knives clashing commotion, thus the defendant sustained those injuries.
    
    57. I accepted the evidence of PW 1 (Complainant) that he got the knife after he was cut on his left-side head. This version of event falls well with PW 5 account when he said that PW 1 was unarmed when the Defendant’s knife injured his left-side head.
        

Was the force necessary in the circumstances?

58. The defendant conceded that he cut the complainant’s elbow or severed the left upper end extensor muscle, but said he did this after the defendant cut his wrist and during the course of self-defense while they were slashing knives on each other.
    
59. For reason that I had already drawn a conclusion that the defendant was responsible to sever the complainant’s right index finger, I also consider these matters to assess whether the force used was reasonable.
    
60. It is important to bear in mind when assessing whether the force used was reasonable, the words of Lord Morris in Palmer v R [1970] UKPC 2; [1971] AC 814

    "If there has been an attack so that self-defense is reasonably necessaryssary, it , it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken ..."^[3]

    HELD

    
    
    61. Having assessed the totality of the evidences before me during trial, canvassing both the evidences on oath and documents tendered in by consent from both crown and defence, I am satisfied that the defendant first applied the knife on the complainant’s (PW 1) left-side head, this got PW 1 to get hold of a knife and they involved in a knife fighting commotion.
        
    62. The injuries sustained by the defendant and PW 1 as apparent on the medical reports proves^[4] that they were fighting with knives. While I appreciate that the wounds, i.e. injury to left upper-end extensor muscle and severed right index finger, are far worse to that sustained by the defendant, I accept that his actions were of someone defending himself from harm, hence, cannot weigh to a nicety the exact measure of his defensive action. Had not for his defensive action, he would have suffered serious injuries as well and risk to losing his life.
        
    63. Apart from the severed right index-finger and severed left end upper extensor muscle, it is my view that the cut or wound to PW 1 left-side head injury was done during argument between PW 1 and PW 2 with the Defendant. I am satisfied that the evidence of PW 5 with the assistance of (PE 1) explains the wound on his left-side head was done with some force and could not have been possible if said the complainant jumped forward and sustained injury on his head. There is some force and it could only be drawn that the defendant was the one who applied it on the complainant (PW1) left-side head.
        
    64. I find that the Defendant (Maepio) is not a credible witness. His explanation that PW 1 jumped on his bush knife and thereby suffered injury on his left-side head is clearly unsupported and contrary to what is stated in (PE 1). With respect, (PE 1) clearly stated that the wound to the left temporal area, entered deep down to and injured the underlying scalp bone plus the Temporal artery severed. Someone who simply jumped on a knife would not have sustained such result. This is a clear result of a person who used force against the other.
        
    65. Having thoroughly and carefully considered the evidences the crown relies on pertaining to the Charge of Grievous Harm, I am satisfied that the wounds on the complainant (PW1) body were inflicted by the defendant, however, cornered and convinced that the injuries to the upper end extensor muscle and severed right index finger were done during course of self-defense and or act of self-defense by the defendant.
        
    66. However, since, it is unchallenged during trial and overwhelming evidence to point to the Defendant being responsible to inflict the injury on the complainant’s left-side head during argument and before any fighting, supporting with the complainant’s medical report letter (PE 1)^[5], I am satisfied his action was not done in self-defense and is unlawful, thus, the facts and evidences have proven that the elements of offence of unlawful wounding have been proven. Accordingly, I invoke my discretion under section 159 (1) (2) of the Criminal Procedure Code and convict the defendant on the lesser charge of unlawful wounding.
        
    67. Section 159 (1) of the Criminal Procedure Code provides:

    (1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a lesser offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the lesser offence although he was not charged with it.

    (2) ...

    
    

    Orders

    1. Find the Defendant Not Guilty of the Charged of Grievous Harm.
    2. By discretion under section 159 (1) of Criminal Procedure Code – hereby convict the defendant of unlawful wounding.
    3. Right of appeal applies 14 days after date of sentence.
    4. Order accordingly.
       

    THE COURT

    
    

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    MR. LEONARD. B. CHITE

    Principal Magistrate

    
    

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    ^[1] Waidia v Regina [2015] SBCA 12
    ^[2] Palmer v R [1971] AC 814
    ^[3] Palmer v R [1971] AC 814
    ^{[4] (PE 1) and (DE 1)
    [B5">[5]} Scalp. 10cm clean edge wound to the left temporal area, deep down to and injured the underlying scalp bone. Temporal artery severed. Wound cleaned and sutured.