R v Iro [2020] SBMC 44; AMC-CRC 58 of 2020 (29 October 2020)

IN THE MALAITA DISTRICT MAGISTRATES’ COURT
OF SOLOMON ISLANDS

CRIMINAL JURISDICTION

AMC-CRC No. 58 of 2020

REGINA

V

MICHAEL IRO

Date of Committal Hearing: October 12, 2020
Date of Ruling (Reserved): October 29, 2020

Mr Zoze, J. for Prosecutions.
Mr Limeniala, O. for the Accused.

SHORT FORM PRELIMINARY INQUIRY RULING

1. Mr Michael Iro, the Accused, is charged with murder contrary to section 200 of the Penal Code and Killing of unborn child contrary to section 221(1) of the Penal Code. He was remanded in custody on 5^th May 2020 after he was arrested for the alleged offences.
   
2. On the 1^st October 2020, the Accused was arraigned and he pleaded not guilty to both of the charges. He then opted for Short Form Preliminary Inquiry (SFPI), through his Lawyer, Mr Limeniala.
   
3. On 8^th October 2020, the SFPI hearing was conducted. Mr Zoze for the Prosecutions handed up SFPI depositions to the court. It comprised of the following:
   
   1. Charge sheet
   2. Witness statements
      1. Siufiriko Nester dated 22^nd April 2020
      2. Nunufio Ruth dated 13^th May 2020
      3. Arengtana Aaron dated 14^th May 2020
      4. Abana John dated 14^th May 2020
      5. Ramo Nelly dated 14^th May 2020
      6. Likoniau Terry dated 22^nd April 2020
      7. Likoniau Terry (additional) dated 24^th April 2020
      8. Likoniau Terry (additional) dated 8^th May 2020
      9. Siato Ernest dated 22^nd April 2020
      10. Fioga Alfred 3^rd May 2020
      11. Kalu Betty dated 8^th May 2020
      12. Ruele Alfred dated 16^th May 2020
      13. Ruele Alfred undated
      14. Ruele Alfred undated
      15. Victor Hui dated 10th May 2020
      16. Victor Hui dated 9th August 2020
   100. Exhibits
        1. Record of Interview of Michael Iro dated 8^th May 2020
        2. Sketch plan of crime scene dated 23^rd April 2020
        3. Crime scene photos dated 24^th April 2020
        4. Autopsy photographs dated 24^th April 2020
        5. Autopsy Report dated 23^rd April 2020
           
4. The power for committal of a matter to the High court is provided in section 210 of the Criminal Procedure Code (CPC) where any Magistrate may commit a matter to the High Court.
   
5. Section 211(d) of the CPC provides that the Court shall consider on the sufficiency of evidence capable of proving the case beyond reasonable doubt before a case is committed to the High Court. According to Gitoa v Regina^[1], Chief Justice Palmer outlined the test of sufficiency of evidence for committal matters as:

“The standard of proof prosecution are required to satisfy at committal proceedings is very low, lower than that resting on a plaintiff in civil proceedings and commonly referred to as a 'prima facie case' or a 'case to answer'.”

6. From my reading of the law, sufficient evidence in a committal hearing means there is evidence to show the commission of offence, even if, the evidence is very weak, unless, of course, if an evidence is so weak that it is not capable to prove a case beyond reasonable doubt.
   
7. In going through the depositions, I find the crucial issue is whether the Accused killed the deceased mother and baby. From the depositions, I find most relevant are the witness statements from Siufiriko Nester, John Abana and Likoniau Teri. For the exhibits, it is the Record of Interview (ROI) of Mr Michael Iro and the autopsy report of the deceased mother and baby. The other part of the depositions are also relevant but may be used to support the evidence I have outlined.
   
8. I now go through the evidence. According to the ROI, on 21st April 2020, at Lolethalu village, North Malaita, the Accused stated that he was returning from the field. He went to have a wash at a water source and returned home. It was evening. Arriving home, his wife, Ms Jiulyn Ernest, the deceased mother told the Accused why he did not get some water for them. This made them argue which the Accused then kicked the deceased mother’s back. They stopped arguing. They then sat down and talked. At around 8 pm, the Accused went and lied down to sleep. At around 9pm, the Accused woke up to hear the deceased mother crying. He got up and asked the deceased mother but the deceased mother did not respond. She was struggling. He held her until she appeared to have died. He also saw a packet of medicine and a bottle water beside her. He left the deceased mother and ran to ask his mother, Mrs Nester Siufiriko, in the other house to assist him.
   
9. Mrs Nester Siufiriko is the mother of the Accused. She came back from the sea side, cooked and then slept. She was sleeping when the Accused woke her to go and see the deceased mother whom have drunk medicine. She went and saw the deceased mother breathing heavily. The deceased mother had saliva coming out from her mouth. Mrs Nester Siufiriko checked her body but saw no injury. Mrs Nester Siufiriko then came out of the house and shouted for people in the village that the deceased mother is dying. Then, she came to hold the deceased mother until the deceased mother passed away.
   
10. John Abana was sitting at his home when he heard Mrs Nester Siufiriko shout. It was around 8.30pm. He ran to the deceased mother’s house and saw Mrs Nester Siufiriko and the deceased mother. The deceased mother was lying down sideways. And she rolled here and there. The deceased mother was struggling to induce herself to vomit. He saw Mrs Nester Siufiriko asked the deceased mother if the Accused killed her and the deceased mother shook her head. Mrs Nester Siufiriko then asked again if the deceased mother had drunk medicine and the deceased mother nodded her head. John Abana then left.
    
11. Likoniau Teri was at his house when he heard Mrs Nester Siufiriko shout. It was around 8.30pm. He ran towards the deceased mother’s house and saw Mrs Nester Siufiriko and the deceased mother. Mrs Nester Siufiriko was shaking the deceased mother’s head and hands and calling the deceased mother. The deceased mother appeared to try to induce a vomit but could not. Mr Likoniau Teri also saw a packet of medicine and bottle of water there. He also saw saliva coming out of the deceased mother’s mouth. The deceased mother’s eye looked normal but that she did not talk.
    
12. According to the autopsy report, the cause of death of the deceased mother could not be determined. There was no evidence of medicine in the deceased mother’s body. It could not be confirmed of any overdose also. There was some injuries on her body but were not remarkable and could not have caused the death of the deceased mother. There was an abrasion present on the lower back of the deceased mother. A dead female baby of about 6 or 7 months was well developed and normal was in uterus of the deceased mother. The baby’s cause of death is lack of oxygen as result of the deceased mother’s death.
    
13. The important things I noted are:
    1. The Accused was with the deceased mother.
    2. The Accused and the deceased mother argued.
    100. The Accused kicked the deceased mother at her lower back.
    4. The Accused and deceased mother were alone and together at their house.
    5. The deceased mother then struggled to breathe.
    6. The Accused left the deceased mother and ran to get Mrs Suifiriko.
    7. Mrs Siufiriko came and saw the deceased mother struggling to breath.
    8. Mrs Siufiriko then shouted for people to hear.
    9. John Abana and Teri Likoniau came but to see the deceased struggling to breathe with saliva coming from her mouth and died shortly.
    10. There was a bottle of water and packet of medicine beside the deceased mother.
    11. The Autopsy report could not find any cause of death for the deceased mother.
    50. The Autopsy report found a dead 6 or 7 month old baby in the deceased mother’s uterus which has died because of lack of oxygen from because the deceased mother died.
    13. The Autopsy report could not find any overdose or death by medicine for the deceased mother.
        
14. Before assessing the evidence, I wish to point out that date, place and identification of Accused are not in issue. The relevant issue is whether or not the Accused killed the deceased mother and the 6 or 7 month old baby.
    
15. I remind myself that this is a committal ruling. I must not assume the duty of a Trial Judge. I must not consider discrepancies, inconsistencies, credibility but to consider the evidence for any prima facie case capable of proving beyond reasonable doubt that the Accused did commit the offences.
    
16. I also must remind myself not to delve into making up any circumstantial evidence but look at the evidences available and see if there is any circumstantial evidence available. I must look at the depositions as they are and assess them on the face.
    
17. This is a circumstantial case where there is no eyewitness to see how the deceased mother came to have suffered in breathing and later the deceased mother died. The death of the deceased mother resulted the death of the baby.
    
18. Medicine and water was at the scene but the autopsy did not confirm of any overdose as cause of death.
    
19. If the Prosecutions will rely on the ROI, then, it will only show that the Accused and deceased mother were arguing. The Accused then kicked the deceased mother. Immediately the argument stopped. The Accused and deceased mother then sat and talked. The Accused later went to bed at around 8pm. At around 9pm the Accused heard the deceased mother crying where he got and saw the deceased mother was in labouring to breathe.
    
20. The kick on the back of the deceased mother as stated by the Accused was consistent with the Autopsy report. The Autopsy report recorded an abrasion which could have been caused by a kick, however, it could not be the cause of death.
    
21. If Prosecutions will rely on any other circumstantial evidence to say that it was the Accused who strangled the deceased mother or did anything to the deceased mother to have her struggling to breath, there is nothing before me to suggest that there is.
    
22. Yes, it was only the Accused with the deceased mother at the material time when the deceased mother came to have suffered in the struggle to breathe. The Accused ran to call his mother, Mrs Nester Siufiriko about the deceased mother’s state and Mrs Nester Siufiriko attended to the deceased mother.
    
23. Prosecutions had invited the court to consider its submission that in assault related situations, pregnant women have higher risks to death than women who are not pregnant. I can say, it appears convincing but I will not use that argument as there is no evidence from the deposition to support that argument.
    
24. What is the evidence, weak as it may be, direct or circumstantial, to suggest that the Accused had caused the death of the deceased mother which later had caused the baby to have died? I find none.
    
25. Therefore, I make the following orders:
    
    1. There is insufficient evidence capable of proving the Prosecution’s case beyond reasonable doubt that the Accused Mr Michael Iro committed murder contrary to section 200 of the Penal Code and Killing of unborn child contrary to section 221(1) of the Penal Code.
       
    2. I invoke section 217 of the Criminal Procedure Code and have Mr Michael Iro be discharged forthwith of the charges murder contrary to section 200 of the Penal Code and Killing of unborn child contrary to section 221(1) of the Penal Code.
       
    100. Mr Michael Iro is released from custody at the rising of the court.
         
    4. Despite the discharge, Prosecutions is entitled to section 218 of the Criminal Procedure Code should they wish to directly commit the matter to the High court.
       
    5. Parties are at liberty to have this decision be reviewed at the High Court within 14 days.
       

THE COURT

Ishmael Kekou – First Class Magistrate

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^[1] [2011] SBHC 111.