R v Dona [2019] SBMC 26; Criminal Case 45 of 2018 (13 September 2019)

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

Criminal Case: 45 of 2018

REGINA
-v-

Dates of trial: August 29st 29^th, 2019 – August 30^th, 2019
Date of Judgment: September 13^th, 2019

Ms. Patricia Tabepuda for the Crown
Mr. Clifton Meleu Ruele for the Defendant

JUDGMENT

1. On the Saturday night of 10^th March, 2018, the victim, Selwyn Lopu, was unlawfully wounded by a person at the Tolavaena sea breeze pub, Lambete Station in Munda, Western Province. The wound appeared to be inflicted by a sharp object. He was extremely intoxicated that he did not sense any pain until he was informed by one of his friends. The incident happened while the victim was casually enjoying his night out with friends.
   
2. It was alleged that a person by the name of Neiden Dona (Defendant) inflicted the wound on the victim. There was an argument outside Tolavaena sea breeze pub between the security guards (gate keepers) and the Defendant, this was because the Defendant entered without paying the entrance fee. He later paid for the entrance fee. Thereafter, the victim went and talked with the Defendant. While he was talking with the Defendant, two other unknown persons were standing next to the Defendant. It was after he returned into the pub that he was informed by a friend of the bleeding from his chest.
   
3. The tendered photographs of the victim show he suffered an open wound on his right upper chest or below his collarbone. He was taken to Helena Goldie Hospital and was admitted there for 6 days.
   
4. An investigation ensued and the defendant was arrested and charged for a count of grievous harm contrary to section 226 of the Penal Code. During the preliminary stages of the proceeding the crown later made an application for the substitution of the charge to a lesser charge of Unlawful Wounding.
   
5. Crown called 2 witnesses; victim (PW 1) and Peter Maelagi (PW 2) and tendered 3 exhibits by consent. The Photograph of crime scene (PE 1), Statement of David Vuli (PE 2) and Statement of Sergeant Seralyn Gnagnafu & Photographs numbers – 1 & 2 (PE 3).
   
6. The Defence does not dispute his presence at the Tolavaena sea breeze pub on the night of offence. As apparent on the defence propositions, he met and talked with the victim but denied inflicting the wound on the victim’s chest. He shifted the blame on the other two persons standing with him.
   

Evidence concerning the infliction of wound on the victim’s chest

7. PW 1 (victim) gave evidence that he went to the defendant after he saw an argument involving the defendant with another person. This was at the area close to the bar and dart area. He did not recognize who the defendant argued with but said he went to calm the Defendant because he knows him as a friend. He further said that when he tries to calm the defendant, the defendant replied and told him not to talk to him.
   
8. He gave evidence that he thought the defendant tapped him on his right-side chest, not until PW 2 went and informed him that he was bleeding that they later assisted him to the Police station, unfortunately, no one was there so they waited at the road between police station and Forestry Office. Later a Hilux vehicle came and assisted them. Just before they went to Hospital the police vehicle came, so they shifted to the police vehicle from Hilux.
   
9. During cross-examination, he agrees to the defence proposition that he did not see anything in the defendant’s hand but only felt the tap on his chest. He further agrees that he was extremely drunk, since he was drinking non-stop from Friday through to the next day until the night of incident or Saturday night.
   
10. PW 2 also gave a similar account as PW 1. His evidence is more detailed that he said he went and gave the change of $100 to the defendant and walked back, as he was 3 steps away of approximately 3 to 4 meters in distance, he turned and went back to get the victim after which he heard the defendant said words in pidgin to the effect “Time me cross you no talk nogud you karakil, nogud razor kasem you”. He further said that when he was about to reach the victim, he saw the defendant unzip his little sack and got hold of a small sized scissors and stabbed the victim’s right-side chest.
    
11. He also further said that after the Defendant stabbed the victim, he could clearly identify the weapon on the Defendant hand to be a small sized scissors.
    
12. During cross-examination, he maintains his version of events. When put to him that the Defendant did not stab but only tap on the victim’s chest, he strongly disagrees and affirms that he saw the stabbing.
    
13. Again, he strongly denies the defence proposition that it could be the other two persons standing next to the Defendant who is responsible for the stabbing but strongly maintains that it was the Defendant scissors that wounded the victim’s right-side chest.
    
14. These evidences support the crown’s case that the Defendant stabbed the victim on his right-side chest with a small sized scissors.
    

Evidence of lighting at the vicinity /place of incident

15. PW 1 gave evidence that the lighting at the vicinity was bright as it came from the entrance of the dart house/area. He said he could clearly saw what happened, and that is limited to say the Defendant tapped his right-side chest.
    
16. During cross-examination, he agrees to the defence proposition that the lighting wasn’t too bright and that he had been drinking since Friday or day before the incident.
    
17. PW 2, gave evidence that the lighting came from the entrance of dart house/area and that it was very bright that he could clearly saw what had unfolded and who all were involved.
    
18. During cross-examination, he agrees to the defence proposition that the light wasn’t bright. His evidence in pidgin was – “hem lelebet dark”.
    
19. In re-examination, he clarified that the lighting was bright that one can see what other people were holding.
    
20. These evidences go to support the crown’s case that the lighting at the vicinity on the night of incident was bright enough and that one can easily identify people there and what they were doing. In this case, the defendant and what he allegedly did to the victim.
    

PE 2 – Statement of David Vuli

21. PE 2, is but limited to the events leading up to the argument and what happened to the victim afterwards. Mr. Vuli did not see the alleged stabbing. He was only told about the incident.
    

Inconsistencies/ Discrepancies within the crown witnesses’ evidences

22. There are some slight inconsistences within the evidences adduced from crown witnesses. PW 1 version of conversations with the Defendant is different from what PW 2 said he heard.
    
23. Furthermore, the version of the stabbing is different from what PW 1 experienced at that time. PW 1 said the Defendant tapped him on his right-side chest and nothing further. He did not see anything. PW 2, on the other hand, strongly maintains throughout his evidence that he saw the Defendant got a small sized scissors from his sack and stabbed the victim (PW 1) with it.
    
24. Moreover, PW 1 did not mention PW 2 coming to his rescue after the stabbing. He said he walked back and it was at the dart area that PW 2 told him about the blood and escorted him outside to seek medical assistance.
    
25. The record of proceedings reveals that PW 1 was later assisted into the dart area by PW 2 and thereby informed of his bleeding chest. I agree that such difficulties to recollect the precise and exact happenings are possible because of the lapse of time after the alleged incident, being early 2018.
    
26. While I might agree with the inconsistencies, it is my view that these inconsistencies do not penetrate doubt into whole of the crown’s evidence. It is the crown’s case that PW 2 saw what had happened and who inflicted the wound on the victim.
    
27. As apparent, PW 2’s evidence is unchallenged and supported by PW 1 evidence that he met and talked with victim (PW 1) that same night. Although some minor inconsistencies, I accept that such inconsistencies’ alone are not grave so as to warrant any total rejection of their evidences.
    

Credibility and reliability of both PW 1 and PW 2

28. Obviously, PW 1’s evidence is impaired by his high intoxication of alcohol during the date of offence, this is undisputed from the evidence adduced. This has caused him not to feel the pain when he was stabbed. I accept his evidence that he met and talked to calm the Defendant that night. He was intoxicated that he did not know what had happened to him until he was informed by PW 2. Nonetheless, most of what PW 1 stated were undisputed facts gleaning from the defence propositions.
    
29. PW 2, was sober all throughout the night of incident. He gave evidence that he went to Tolavaena sea breeze pub to play dart and nothing more. His demeanor in court is firm and unquestionable. I accept that PW 2 is not an evasive or shifty witness but a credible and reliable one. He has given straight forward, clear and concise accounts during examination in-chief and cross-examination. The inconsistencies are surely minor ones and does not affect the heart of the case. His evidences were unchallenged; hence, I accept it in its entirety to prove the charge against the Defendant.
    
30. For reason that I have now placed weight on the entire evidence of PW 2 to support or go in line with the victim’s (PW1) account. The part of PW 1 evidence that he met and talked to calm the defendant after which he was tapped on the chest is accepted. I agree the evidences of PW 2 along with the undisputed evidence of PW 1 has bolstered the crown’s case.
    
31. I accept that the lighting on the night of incident was bright enough to easily identify the Defendant and the weapon he was holding (scissors) plus his action to stab the victim (PW 1).
    
32. The wound on the victim’s (PW 1) chest is undisputed and the photographs tendered confirmed it to be an open wound penetrating into his skin on his upper right-side chest. He lost some good amount of blood that night and had to be admitted at the Helena Goldie Hospital for 6 days. This is undisputed.
    

Motivation of complaint to fabricate account in full or in part

33. I do not see any reason why PW 1 and PW 2 would intend to fabricate account to place the blame on the Defendant. The incident at the gate regarding an entrance fee is but a life of a night club’s gate-keeper, hence, there should be some clear proposition by the defence on the crown witnesses to support such an assertion. It is unfounded and I wish not to entertain it now.
    

HELD

34. Having carefully and thoroughly considered the evidences relies on by crown pertaining to charge of Unlawful Wounding, I am satisfied that the crown has proven its case on the required standard, that is “Beyond Reasonable Doubt” that the Defendant on the night of incident stabbed the victim (PW 1) with a small sized scissors after the victim went to calm him down from an argument.
    
35. Accordingly, I find the Defendant, Mr. Neiden Dona guilty of the charge of Unlawful Wounding and henceforth, convict him.
    

Orders

1. Find the Defendant guilty of the Charge of Unlawful Wounding contrary to section 229 of the Penal Code.
2. Convict Defendant on charge of Unlawful wounding.
3. Right of Appeal applies after date of sentence.
4. Order accordingly.
   

THE COURT

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MR. LEONARD. B. CHITE

Principal Magistrate