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Chapter 38: Homicidal Offences

Table Of Contents  

[38.0] Introduction 

This chapter will examine the offences of: 

·                     'Murder', as provided for by section 200 of the Penal Code (Ch. 26); 

·                     'Manslaughter', as provided for by section 199 of the Penal Code (Ch. 26); and 

·                     'Attempted Murder', as provided for by section 215 of the Penal Code (Ch. 26). 

When interpreting any section of the Penal Code (Ch. 26), section 3 must be considered. That section states: 

'This Code shall be interpreted in accordance with the Interpretation and General Provisions Act and the principles of legal interpretation obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context, and except as may be otherwise expressly provided, to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith.' (emphasis added) 

In that regard reference should be made to the Offences Against The Person Act (1861) (UK) and the Homicide Act 1957 (UK). 

As regards alternative convictions, see sections 161 to 165 of the Penal Code (Ch. 26).

[38.1] Murder

[38.1.1] Offence 

Section 200 of the Penal Code (Ch. 26) states: 

'Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder and shall be sentenced to imprisonment for life.' (emphasis added)

[38.1.2] Wording Of Charge 

'[Name of Defendant] at [Place] on [Date] did murder [specify the name of the deceased].'

[38.1.3] Elements 

A. Defendant 

B. Place 

C. Date 

D. Murder 

E. Victim

[38.1.4] Malice Aforethought

[A] Introduction 

Section 202 of the Penal Code (Ch. 26) states: 

'Malice aforethought may be expressed or implied and express malice shall be deemed to be established by evidence proving either of the following states of mind preceding or co-existing with the act or omission by which death is caused, and it may exist where that act is unpremeditated – 

(a) an intention to cause the death or grievous bodily harm to any person, whether such person is the person actually killed or not; or 

(b) knowledge that the act which caused death will probably cause the death of, or grievous bodily harm to, some person whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused.' (emphasis added) 

In R v Noel Ta'asi (Unrep. Criminal Case No. 32 of 1997) Palmer J at pages 1 – 8: 

'There are two crucial elements in the offence of murder […]. These also form the issues before this Court. First, is proof of the unlawful act in this case; that it was the Accused who stabbed the deceased; and secondly, that of malice aforethought. […] 

[…] 

According to our law, malice aforethought is established if either of the two elements in paragraphs (a) or (b) above are proven beyond reasonable doubt.' 

In R v Ellison Orinasikwa (Unrep. Criminal Case No. 18 of 1998) Muria CJ stated at page 6: 

'That section [, referring to section 202 of the Penal Code (Ch. 26),] clearly sets out the mens rea to be proved. There are two states of mind must be established under the section, as was pointed out in R v Jimmy Viu (1994) CRC15 of 1993 (HC) (Judgment given on 11 February 1994) which was upheld by the Court of Appeal in Jimmy Viu v R (1994) Cr App No 7 of 1994 (Judgment given on 17 June 1994). This Court stated in that case: 

"there are two states of mind either of which, if proved, would establish malice aforethought. The first of those states of mind is an intention to cause the death of or grievous bodily harm to a person. The second, is the knowledge that the act which causes the death will probably cause the death of or grievous bodily harm to a person whether such person is the person actually killed or not." 

The accused's state of mind must be established, of course, on the evidence before the Court and must be done so by the prosecution beyond a reasonable doubt. Such evidence would include what the witnesses, including, the accused, said happened at the time of the incident or immediately prior to or after the incident, so far as is relevant. The nature of the injuries are also a very important factor in determining the state of mind of the accused and the Court will also bear this in mind in this case.' (emphasis added) [words in brackets added] 

For the purpose of section 202 of the Penal Code (Ch. 26), the term 'grievous bodily harm' means 'really serious harm', see Director of Public Prosecutions v Smith (1960) 44 CrAppR 261 [[1960] 3 AllER 161; [1960] 3 WLR 546; [1961] AC 290] at page 291. 

See also: R v Paggett (1983) 76 CrAppR 279 at page 292 & R v Moloney [1985] AC 905; [1985] 2 WLR 648; [1985] 1 AllER 1025; (1985) 81 CrAppR 93; [1985] CrimLR 378. 

[B] Section 202(a) -- Penal Code 

Section 202(a) of the Penal Code (Ch. 26) states: 

'Malice aforethought may be expressed or implied and express malice shall be deemed to be established by evidence proving either of the following states of mind preceding or co-existing with the act or omission by which death is caused, and it may exist where that act is unpremeditated – 

(a) an intention to cause the death or grievous bodily harm to any person, whether such person is the person actually killed or not.' (emphasis added) 

In R v David Kwaoga (Unrep. Criminal Case No. 22 of 1998) Palmer J stated at page 11: 

'The crucial ingredient in the offence of murder is malice aforethought. Malice aforethought in the laws of Solomon Islands is in turn defined in section 202 of the Penal Code. Under paragraph 202(a) malice aforethought may be established if there is an intention to kill, or an intention or cause really serious harm and as a result of which the person injured dies.' 

'The crucial issue of proof on the part of the prosecution in this case therefore will lie in showing beyond reasonable doubt that there was an intention to cause the death of or grievous bodily harm to the deceased', see R v Joel Nanango (Unrep. Criminal Case No. 43 of 1996; Palmer J; at page 3). 

In R v Vickers [1957] 2 QB 664; [1957] 2 AllER 741 Lord Goddard CJ, delivering the judgment of the Court, stated at pages 670 & 743 respectively: 

'Murder is, of course, killing with malice aforethought, but "malice aforethought" is a term of art. It has always been defined in English law as either an express intention to kill, as could be inferred when a person, having uttered threats against another, produced a lethal weapon and used it on a victim, or implied where, by a voluntary act, the accused intended to cause grievous bodily harm to the victim, and the victim died as the result.' 

See also: R v Cunningham [1981] 3 WLR 223; [1981] 2 AllER 863; [1982] AC 566; (1981) 73 CrAppR 253; [1981] CrimLR 835 & R v Ward (1987) 85 CrAppR 71 at page 75. 

Intention which is a state of mind, can never be proved as a fact, it can only be inferred from other facts which are proved, see Sinnasamy Selvanayagam v R [1951] AC 83 at page 87, if there are no admissions. 

In Martin Sutarake v R (Unrep. Criminal Appeal No. 6 of 1994) the Court of Appeal held at page 7:

'Before he could be found guilty of the murder, it was necessary for the prosecution to show beyond reasonable doubt that there was on the evidence no reasonable hypothesis consistent with innocence. See DPP v Togiabae (CA 5 of 1986, March 30, 1987. White P, Connolly, Kapi JJA). To state it another way, there had to be no reasonable explanation of the evidence except that it was the appellant who killed the deceased in circumstances amounting to murder.' (emphasis added) 

See also: R v Alwin Paul & Pye Roberts (Unrep. Criminal Case No. 27 of 1997; Muria CJ); R v Dudley Pongi (Unrep. Criminal Case No. 40 of 1999); R v Berry [1986] CrimLR 394; (1986) 83 CrAppR 7 & Director of Public Prosecutions v Smith (1960) 44 CrAppR 261; [1960] 3 AllER 161; [1960] 3 WLR 546; [1961] AC 290. 

The law relating to 'Circumstantial Evidence' is examined commencing on page 183. 

Intentional or unintentional intoxication may be considered for the purpose of determining whether the defendant had the necessary 'intent' at the time of the commission of the offence, see section 13(4) of the Penal Code (Ch. 26). 

The defence of 'Intoxication' is examined commencing on pages 626 and 444.

[C] Section 202(b) – Penal Code 

Section 202(b) of the Penal Code (Ch. 26) states: 

'Malice aforethought may be expressed or implied and express malice shall be deemed to be established by evidence proving either of the following states of mind preceding or co-existing with the act or omission by which death is caused, and it may exist where that act is unpremeditated – 

(a) […]; or 

(b) knowledge that the act which caused death will probably cause the death of, or grievous bodily harm to, some person whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused.' (emphasis added) 

This is a 'subjective test', see Joel Aosi v R [1988 – 89] SILR 1 at page 3. 

In Daniel Samani v R (Unrep. Criminal Appeal No. 2 of 1995) Muria CJ, with whom Kapi and Williams JJA concurred, stated at page 5: 

'There is no doubt that the deceased had an unusually enlarged spleen. There is also no doubt that the appellant delivered two separate blows to the upper left quadrant of the deceased's abdomen. There is also no doubt on the evidence that the blows delivered by the appellant ruptured the deceased's spleen completely severing it into two halves. The force used by the appellant in this case was found by the trial judge to be of considerable magnitude. On the evidence before his Lordship I see no reason to disagree with that finding. 

There may well be cases where death may occur from a raptured spleen which is caused by a comparatively minor blow delivered without any intention to kill or cause grievous bodily harm. Such a death may occur because of the grossly enlarged spleen. In such a case the appropriate verdict would be of manslaughter. 

The appellant in the present case delivered two severe blows to the abdomen of the deceased with such a magnitude of force that the deceased's spleen was not only ruptured but split into two halves. The conclusion reached by the learned trial judge that the force used by the appellant when delivering the two blows to the deceased was such that he could not have failed to realise that it would probably cause grievous bodily harm was entirely correct and that conclusion justifies a verdict of murder. See Loel Aosi –v- R (1988/89) SILR 1. (emphasis added) 

In R v Joel Nanango (Unrep. Criminal Case No. 43 of 1996) Palmer J stated at pages 13 - 18: 

'The second crucial question for this court to consider is whether there is evidence proving the state of mind of the accused, that he knew, that the act which caused death (stabbing with a knife, and which caused severe internal injuries from which the deceased did not recover from) will probably cause death or grievous bodily harm. There is no doubt that the deceased did suffer grievous harm and that she died as a consequence […]. The vital question for this court to consider, is whether the accused realised that it was probable that the act of stabbing with the knife would cause grievous bodily harm. 

[…] 

The crucial question for this court to determine is whether he knew, that is, appreciated or realised, that the act of stabbing will probably cause the death of or grievous bodily harm to the deceased. The crucial element of proof is knowledge that the act of stabbing with a copra knife, will probably cause grievous bodily harm to the deceased. When the accused picked up the knife, and stabbed the deceased with it on her backside, was that a deliberate act? With respect, there no evidence to suggest that it may have been anything else. […] 

The issue however is whether he realised that the act of stabbing will probably cause grievous bodily harm to the deceased. The answer with respect must clearly be yes. I have already pointed out that a copra knife when used in a stabbing action is a very dangerous weapon indeed. Clearly, the accused cannot have failed to realise that when he plunged the knife into the backside of the deceased, that it would probably cause grievous bodily harm to the deceased. It is immaterial that the accused may have not desired or wished to kill the deceased or seriously injure her. What is crucial to note is that there is no way he would not have failed to realise what the probable consequences of his action. 

When the question of the probability of a consequence is further assessed in the light of the facts of this case, the probability that grievous bodily harm will be caused to the deceased when such a sturdy and sharp instrument is used is very high indeed; even as high as nine times out of ten. In fact, the probable consequences in the facts of this case is no more a probability but an almost certainty. The learned Author in Archbold Criminal Pleading Evidence & Practice, Forty – Third Edition, par. 17-13, refers to the "natural consequences of an act" in the ordinary course of events. At page 1339 the learned Author states: 

"… the greater the probability of a consequence the more likely it was that the consequence was foreseen and that if it was foreseen the greater the probability that it was also intended." 

If the act of stabbing with a copra knife, in the ordinary course of events will, as a natural consequence, (note it is no longer a "probable consequence", but a certain result or consequence) cause grievous bodily harm to the deceased, then most likely the consequence was foreseen, and if foreseen, then the accused cannot have failed to realise that such act will certainly cause grievous bodily harm. No evidence whatsoever has been produced by the accused to point to any suggestion or to raise any reasonable doubt that he did not have the requisite knowledge; that is, that he did not appreciate or realise that when he stabbed the deceased, it would probably cause grievous bodily harm.' (emphasis added) 

In R v William Erieri (Unrep. Criminal Case No. 3 of 1993) Palmer J commented at page 6: 

'It is common knowledge that the neck area is a very vulnerable and weak area, and it seems that even if what may, or can be described as reasonable force is applied with a hard object, such a stick, (depending on what sort of stick it is, whether a soft stick, or hard wood) it bound to cause some sort of injury.' 

Whilst a kick has been described as a very powerful way of inflicting injury, see R v Garunu [1986] SILR 192 at page 196, to properly determine the effect of such a blow 'the state of the evidence must be considered for some indication as to the amount of force used and the type of kick applied', see R v Lensley Kwaimani (Unrep. Criminal Case No. 3 of 1997; Palmer J; at page 4). 

See also: R v Rockson Konaga (Unrep. Criminal Case No. 32 of 1994; Palmer J); Hyam v Director of Public Prosecutions (1974) 59 CrAppR 91; [1975] AC 55; R v Barr & others (1989) 88 CrAppR 362; Frankland v R (1988) 86 CrAppR 116 at page 128; R v Nedrick (1986) 83 CrAppR 267; [1986] 3 AllER 1; R v Hancock & Shankland [1986] 2 WLR 357; [1986] 1 AllER 641; [1986] AC 455; (1986) 82 CrAppR 264; [1986] CrimLR 400; R v Williamson & Ellerton [1978] CrimLR 228; (1978) 67 CrAppR 63 & R v Ward (1956) 40 CrAppR 1.

[38.2] Manslaughter

[38.2.1] Offence 

Section 199 of the Penal Code (Ch. 26) states: 

'(1) Any person who by an unlawful act or omission causes the death of another person is guilty of the felony known as 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. 

(2) Any person who commits the felony of manslaughter shall be liable to imprisonment for life.' (emphasis added) 

In R v Buck & Buck (1960) 44 CrAppR 213 Edmund Davies J commented at page 219: 

'The offence of manslaughter is unlawful killing without malice aforethought. Russell on Crime, 11th ed, Vol. 1, p.662, says that it is a killing which the killer neither intended nor foresaw as likely to happen. It is an accident, albeit blameworthy and felonious killing.' 

See also: R v Church (1965) 49 CrAppR 206; [1965] 2 WLR 1220; [1966] 1 QB 59; [1965] 2 AllER 72.

[38.2.2] Wording Of Charge 

'[Name of Defendant] at [Place] on [Date] did unlawfully kill [specify the name of the deceased].'

[38.2.3] Elements 

A. Defendant 

B. Place 

C. Date 

D. Unlawfully 

E. Kill 

F. Victim

[38.2.4] Unlawfully 

The prosecution must prove that the death was caused by an 'unlawful act or omission'. 

The prosecution has the burden of proving the 'unlawfulness' of the defendant's actions, see R v Williams (1984) 78 CrAppR 276 [[1984] CrimLR 163] at page 281 & R v May (1912) 8 CrAppR 63; [1912] 3 KB 572, per Lord Alverstone CJ at page 575. 

Section 235 of the Penal Code (Ch. 26) states: 

'Any person authorised by law or by the consent of the person injured to use force is criminally responsible for any excess, according to the nature and quality of the act which constitutes the excess.' 

Section 236 of the Penal Code (Ch. 26) states: 

'Notwithstanding anything contained in section 235, consent by a person to the causing of his own death or his own maim does not affect the criminal responsibility of any person by whom such death or maim is caused.' (emphasis added) 

See also: section 234 of the Penal Code (Ch. 26) – 'Surgical Operations'. 

In R v Goodfellow (1986) 83 CrAppR 23 [[1986] CrimLR 468] Lord Lane CJ, delivering the judgment of the Court, held at page 26: 

'It seems to us that this was a case which was capable of falling within either or both types of manslaughter. On the Lawrence aspect [see R v Lawrence (1981) 73 CrAppR 1; [1982] AC 510; [1981] 2 WLR 524; [1981] 1 AllER 974; [1981] RTR 217; [1981] CrimLR 409], the jury might well have been satisfied that the appellant was acting in such a manner as to create an obvious and serious risk of causing physical injury to some person, and secondly that he, having recognised that there was some risk involved, had nevertheless gone on to take it. 

This was equally, in our view, a case for the "unlawful and dangerous act" direction. Where the defendant does an unlawful act of such a kind as all sober and reasonable people would inevitably recognise must subject another person to, at least, the risk of some harm resulting therefrom, albeit not serious harm and causes death thereby, he is guilty of manslaughter: Church (1965) 49 CrAppR 206; [1966] 1 QB 59. 

Lord Salmon in Director of Public Prosecutions v Newbury (1967) 62 CrAppR 291; [1976] 2 AllER 365 approved a dictum of Humphreys J in Larkin [1943] 1 AllER 217, 219: "Where the act which a person is engaged in performing is unlawful, then if at the same time it is a dangerous act, that is, an act which is likely to injure another person, and quite inadvertently he causes the death of that other person by that act, then he is guilty of manslaughter."' [words in brackets added] 

If a complainant in trying to escape from the defendant as a consequence of what he/she said and/or did suffers injuries amounting to death, then the defendant may be guilty of an offence under section 199 of the Penal Code (Ch. 26). 

In Director of Public Prosecutions v Daley [1979] 2 WLR 239 Lord Keith stated at pages 245 - 246: 

'The law regarding manslaughter of the species with which this appeal is concerned was considered by the Court of Appeal (Criminal Division) in Reg v. Mackie (1973) 57 CrAppR 453. It is unnecessary to recite the facts of the case or to quote any passages from the judgment of the court delivered by Stephenson LJ. It is sufficient to paraphrase what their Lordship's view were there held to constitute the essential ingredients of the prosecution's proof of a charge of manslaughter, laid upon the basis that a person has sustained fatal injuries while trying to escape from assault by the defendant. These are: (1) that the victim immediately before he sustained the injuries was in fear of being hurt physically; (2) that his fear was such that it caused him to try to escape; (3) that whilst he was trying to escape, and because he was trying to escape, he met his death; (4) that his fear of being hurt there and then was reasonable and was caused by the conduct of the defendant; (5) that the defendant's conduct which caused the fear was unlawful; and (6) that his conduct was such as any sober and reasonable person would recognise as likely to subject the victim to at least the risk of some harm resulting from it, albeit not serious harm. Their Lordships have to observe that it is unnecessary to prove the defendant's knowledge that his conduct was unlawful. 

See also: R v Dalby [1982] 1 WLR 621; [1982] 1 AllER 916; [1982] CrimLR 439; (1982) 74 CrAppR 348 at page 352; R v Russell & Russell (1987) 85 CrAppR 388; [1987] CrimLR 494; Kong Cheuk Kwan v R (1986) 82 CrAppR 18; R v Lane & Lane (1986) 82 CrAppR 5; [1985] CrimLR 89; R v Dawson, Nolan & Walmsley (1985) 81 CrAppR 150; R v Mitchell [1983] QB 741; [1983] 1 WLR 676; [1983] 2 AllER 427; (1983) 76 CrAppR 293 & R v Pagett (1983) 76 CrAppR 279 at page 292.

[38.3] Attempted Murder

[38.3.1] Offences 

Section 215 of the Penal Code (Ch. 26) states: 

'Any person who – 

(a) attempts unlawfully to cause the death of another; or 

(b) with intent unlawfully to cause the death of another does any act, or omits to do any act which it is his duty to do, such an act or omission being such a nature as to be likely to endanger human life, 

is guilty of a felony, and shall be liable to imprisonment for life.'

[38.3.2] Wording Of Charges

Section 215(a) 

'[Name of Defendant] at [Place] on [Date] did attempt unlawfully to cause the death of a person namely [specify the name of this person].'

Section 215(b) 

'[Name of Defendant] at [Place] on [Date] with intent to unlawfully cause the death of a person namely [specify the name of this person] did [do an act or omit to do an act] which was (his/her) duty to do being of such a nature as to be likely to endanger human life.'

[38.3.3] Elements 

Section 215(a) 

A. Defendant 

B. Place 

C. Date 

D. Attempt 

E. Unlawfully 

F. Cause Death Of Victim

Section 215(b) 

A. Defendant 

B. Place 

C. Date 

D. Intent To Unlawfully Cause Death Of Victim 

E.         [i] Did Do An Act; or 

[ii] Did Omit To Do An Act 

Which Was His/Her Duty To Do Being Of Such A Nature As To Be Likely To Endanger Human Life

[38.3.4] Test To Be Applied 

In R v Walker & Hayles (1990) 90 CrAppR 226 Lloyd LJ, delivering the judgment of the Court, stated at page 229: 

'Since the charge was attempted murder, the prosecution had to prove an intention to kill. Intention to cause really serious harm would not have been enough. […] 

[…] 

[…] If he desires serious harm, and death results from his action, he is guilty of murder. A simple direction suffices in such cases. The rare and exceptional case is where the defendant does not desire serious harm, or indeed any harm at all. But where a defendant is charged with attempted murder, he may well have desired serious harm, without desiring death. So the desire of serious harm does not provide the answer. It does not go hand in hand with the relevant intention, as it does in the great majority of murder cases, since in attempted murder the relevant intention must be an intention to kill.' (emphasis added)

In R v Whybrow (1951) 35 CrAppR 141 Lord Goddard CJ, delivering the judgment of the Court, stated at pages 146 – 147: 

'[I]f one person attacks another, inflicting a wound in such a way that an ordinary reasonable person must know that at least grievous bodily harm will result, and death results, there is the malice aforethought sufficient to support the charge of murder. But, if the charge is one of attempted murder, the intent becomes the principal ingredient of the crime. It may be said that the law, which is not always logical, is somewhat illogical in saying that, if one attacks a person intending to do grievous bodily harm and death results, that is murder; but if one attacks a person and only intends to do grievous bodily harm, and death does not result, it is not attempted murder, but wounding with intent to do grievous bodily harm. It is not really illogical because, in that particular case, the intent is the essence of the crime while, where the death of another is caused, the necessity is to prove malice aforethought, which is supplied in law by proving intent to do grievous bodily harm.' (emphasis added) 

See also: R v Grimwood (1962) 46 CrAppR 393 at page 397.

[38.3.5] Duties Relating To The Preservation Of Life & Health 

The 'Duties Relating To The Preservation Of Life And Heath' are provided for in sections 210 to 214 of the Penal Code (Ch. 26) inclusive. 

See: R v Stone; R v Dobinson [1977] 2 AllER 341; [1977] QB 354; [1977] 2 WLR 169; (1977) 64 CrAppR 186; [1977] CrimLR 166.

[38.4] Caused Death 

Section 207 of the Penal Code (Ch. 26) states: 

'A person is deemed to have caused the death of another person although his act is not the immediate or the whole cause of death in any of the following cases – 

(a) if he inflicts bodily harm on another person in consequence of which that other person undergoes surgical or medical treatment which causes death. In this case it is immaterial whether the treatment was proper or mistaken, if it was employed in good faith and with common knowledge and skill; but the person inflicting the injury is not deemed to have caused the death if the treatment which was its immediate cause was not employed in good faith or was so employed without common knowledge or skill; 

(b) if he inflicts bodily harm on another which would not have caused death if the injured person had submitted to proper surgical or medical treatment or had observed proper precautions as to his mode of living; 

(a)                if by actual or threatened violence he causes such other person to perform an act which causes the death of such person, such act being a means of avoiding such violence which in the circumstances would appear reasonable to the person whose death is so caused; 

(b)               if by any act or omission he hastened the death of a person suffering under any disease or injury which apart from such act or omission would have caused death; 

(c)                if his act or omission would not have caused death unless it had been accompanied by an act or omission of the person killed or of other persons.' 

In Jimmy Viu v R (Unrep. Criminal Appeal No. 7 of 1994) the Court of Appeal stated at page 7: 

'[W]e consider that the appellant cannot raise any form of defence from the fact that the deceased was already suffering from a serious injury before the appellant delivered the fatal kicks. He would be still liable under section 200(d) [now section 207(d)] of the Penal Code […]. 

It is clear that the deceased was suffering from some serious injury at the time the appellant delivered the fatal blows. The injuries to the chest and the sides simply hastened the death of the deceased. In the circumstances, he is deemed to have caused the death of the deceased.' [words in brackets added] 

It is not necessary to always have a body in order to prove the cause of death, see Attorney – General's Reference No. 6 of 1980 (1981) 73 CrAppR 40; [1981] 3 WLR 125; [1981] 2 AllER 1057; [1981] QB 715; [1981] CrimLR 533. 

See also: R v Watson (1989) 89 CrAppR 211; [1989] 2 AllER 865; [1989] 1 WLR 684; [1989] CrimLR 733; Malcherek & Steel v R [1981] 2 AllER 422; [1981] 1 WLR 690; (1981) 73 CrAppR 173; [1981] CrimLR 401; R v Blaue [1975] 1 WLR 1411; [1975] 3 AllER 446; (1975) 61 CrAppR 271 & R v Smith [1959] 2 WLR 623; [1959] 2 QB 35; [1959] 2 AllER 198; (1959) 43 CrAppR 121. 

[38.5] Limitation As To The Time Of Death 

Section 209 of the Penal Code (Ch. 26) states: 

'A person is not deemed to have killed another if the death of that person does not take place within a year and a day of the cause of death. 

Such period is reckoned inclusive of the day on which the last unlawful act contributing to the cause of death was done. 

When the cause of death is an omission to observe or perform a duty, the period is reckoned inclusive of the day on which the omission ceased. 

When the cause of death is in part an unlawful act, and in part an omission to observe or perform a duty, the period is reckoned inclusive of the day on which the last unlawful act was done or the day on which the omission ceased, whichever is the later.' (emphasis added) 

A doctor who has not seen the body may give evidence, based on the observations of witnesses who viewed the body as to whether the deceased died as a consequence of injuries, from natural causes or whether the injuries were self – inflicted, see R v Mason (1911) 7 CrAppR 67 at page 69. 

Refer also to the sections which examine: 

·                     'Opinion Evidence – Expert Witnesses' commencing on page 202; and 

·                     'Reports Of Medical Practitioners' commencing on page 235. 

Refer also to section 55 of the Interpretation & General Provisions Act (Ch. 85). 

As regards 'Duties Relating To The Preservation Of Life And Health', refer to sections 210 to 214 of the Penal Code (Ch. 26) inclusive.

[38.6] Child Deemed A Person 

Section 208 of the Penal Code (Ch. 26) states: 

'A child becomes a person capable of being killed when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, and whether it has an independent circulation or not, and whether the navel – string is severed or not.'

[38.7] Defences

[38.7.1] Introduction 

In R v Mc Pherson (1957) 41 CrAppR 213 Lord Goddard CJ, delivering the judgment of the Court, held at pages 216 – 217: 

'The case which I have just referred [, referring to R v Lobell (1957) 41 CrAppR 100; [1957] 1 QB 547; [1957] 1 AllER 734; [1957] 2 WLR 524,] shows that the position is where the defendant is setting up a plea of self – defence or provocation, but the jury must be reminded that the onus remains throughout on the prosecution, and therefore if they are left in doubt whether or not the facts show sufficient provocation to reduce the killing to manslaughter, that issue must be determined in favour of the prisoner.' (emphasis added) [words in brackets added] 

Refer also to the law relating to 'Proof Of Issues' which is examined commencing on page 68.

[38.7.2] Provocation

[A] Statutory Provisions 

Section 204 of the Penal Code (Ch. 26) states (in part): 

'Where a person by an intentional and unlawful act causes the death of another person the offence committed shall not be murder but only manslaughter if any of the following matters of extenuation are proved on his behalf, namely – 

(a) that he was deprived of the power of self – control by such extreme provocation given by the person killed as mentioned in the next succeeding section; or 

(b) that he was justified in causing some harm to the other person, and that, in causing him harm in excess of the harm which he was justified in causing, he acted from such terror or immediate death or grievous harm as in fact deprived him for the time being of the power of self – control;' (emphasis added) 

Section 205 of the Penal Code (Ch. 26) states:

'Where on a charge of murder there is evidence on which the court can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self – control, the question whether the provocation was enough to make a reasonable man do as he did shall be determined by the court; and in determining that question there shall be taken into account everything both done and said according to the effect which it would have on a reasonable man.' 

See: Homicide Act 1957 (UK), section 3.

[B] Tests To Be Applied 

In Phillips v R (1969) 53 CrAppR 132 Lord Diplock, delivering the judgment of the Court, stated at page 134: 

'The test of provocation in the law of homicide is two – fold. The first, which has always been a question of fact for the jury, assuming that there is any evidence upon which they can so find, is: "Was the defendant provoked into losing self – control?" The second, which is not of fact but of opinion, "Would a reasonable man have reacted to the same provocation in the same way as the defendant did?"' 

In R v Ellison Orinasikwa (Unrep. Criminal Case No. 18 of 1998) Muria CJ stated at pages 11 – 14: 

'The accused's case is clearly pivoted on his defence of provocation. The accused clearly intended to kill the deceased but relied on the defence that his intention to do so arose from a sudden passion involving loss of self-control by reason of provocation. In support of that proposition, Counsel for the defence relied on the cases of Lee Chun-Chuen v R [1963 1 ALL.E.R.73; R v Martindale [1966] 1 WLR 1564; Perera v AG for Ceylon [1953] 2 WLR 238 and Parker v The Queen [1962 – 1963] 111 CLR 665. I have considered those cases and they all appear to take the view that an intention to kill does not necessarily negative the defence of provocation which may nevertheless arise, even where a person intends to kill or cause grievous bodily harm provided his intention to do so arises from sudden passion which gives rise to loss of self-control due to the provocation. Such a position appears to be in conflict with Viscount Simon's dictum in Homes v DPP [1964] A.C. 588 where he said: 

"… where the provocation inspires an actual intention to kill … or to inflict grievous bodily harm, the doctrine that provocation may reduce murder to manslaughter seldom applies." 

However, that dictum did not receive the approval of the Court in Lee Chun-Chuen v The Queen where Lord Devlin reaffirmed the law as stated by Lord Goddard in Perera v AG for Ceylon when he said: 

"The defence of provocation may arise where a person, does intend to kill or inflict grievous bodily harm but his intention to do so arises from sudden passion involving loss of self-control by reason of provocation." 

The learned Law Lord then gave an illustration of a case involving a person finding his wife in the act of adultery and kills her. In such a situation, Lord Goddard pointed out: 

"… the law has always regarded that, although an intentional act, as amounting only to manslaughter by reason of the provocation received, although no doubt the accused person intended to cause death or grievous bodily harm." 

Thus the view taken by the Courts in such a situation is that if there were some material upon which the Court acting reasonably could find a case for manslaughter it could not be said that it would have found murder. It is for the prosecution to prove that the killing was not provoked. 

The position in law as stated by Lord Goddard in Perera and affirmed in Lee Chun-Chuen is, in my respectful view, the position also in Solomon Islands, so that the defence of provocation is still available to an accused person where he intends to kill or cause grievous bodily harm but his intention to do so is the result of sudden passion causing him to lose his self-control by reason of provocation. Both the legislative provisions and case law support the view which I have just expressed. See s.205 (formerly s.198) of the Penal Code and Loumia v DPP [1985 – 1986] SILR 158. 

The test of provocation is an objective one and the position in Solomon Islands is that stated in Loumia v DPP applying the test as set out in DPP v Camplin (1978) 67 Cr. App. R 14; [1978] A.C. 705 which stated: 

"The judge should state what the question is using the terms of the section. He should then explain to them the reasonable man referred to in the question is a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused's characteristics as they think would effect the gravity of the provocation to him; and that the question is not merely whether such a person would in like circumstances be provoked to lose his self-control but also would react to the provocation as the accused did." 

Applying that test, the Court of Appeal stated in Loumia in respect of the appellant who is an ordinary East Kwaio pagan villager: 

"Now the learned Acting Chief Justice did not use this formulation. What is complained is that his Lordship failed in terms to direct the assessors that they should consider whether the provocation was enough to make a reasonable East Kwaio pagan villager do as the appellant did and that in determining that question they should take into account everything according to the effect it would have on a reasonable East Kwaio pagan village. Now without in the slightest degree questioning the guidelines suggested by Lord Diplock, it may be noted that it is not expressed to be a formulation which must be adopted and on its face it is no more than a proper direction. Any other direction to the same effect will equally satisfy s. 198. His Lordship in this case did indeed state what the question was, using the terms of the section. He did not in so many words say that the reactions of the appellant should be assessed for the purposes of s. 198 in the light of his being an East Kwaio pan village but that fact was adverted to more than once." 

The Court of Appeal undoubtedly held that the standard of self-control which the law requires before provocation can justify a verdict of manslaughter in a murder case is still that of a reasonable person having regard to the entire factual situation including, the characteristics of the accused. Equally the statute law also reaffirms this in section 205 of Penal Code where the words used are "the Court shall take into account everything…" which require the Court, in determining whether a reasonable person in the position of the accused would lose his self-control in the circumstances, to take into considerations, the whole factual situation including the characteristics of the accused. 

It does not necessarily follow, however, that when the defence of provocation is raised the Court should consider it. There must be some evidence pointing to the defence which entitled the Court to consider it. It does not shift the burden. The prosecution still bears the burden of proving that the killing is unprovoked. All that the defence needs to do is to point to some evidence which could raise a reasonable doubt in the mind of the Court: Lee Chun-Chuen v The Queen see also Ben Tofola v Reginam Crim. App. Cas. 2 of 1993 (CA).' (emphasis added) 

In R v Brown (1972) 56 CrAppR 564 [[1972] 3 WLR 11; [1972] 2 QB 229; [1972] 2 AllER 1328; [1972] CrimLR 506] Talbot J, delivering the judgment of the Court, stated at pages 568 – 569: 

'In the view of this Court, when considering whether the provocation was enough to make a reasonable man do as the accused did, it is relevant for a jury to compare the words or acts or both of these things which are put forward as provocation with the nature of the act committed by the accused. It may be, for instance, that a jury might find that the accused's act was so disproportionate to the provocation alleged that no reasonable man would have so acted. We think, therefore, that a jury should be instructed to consider the relationship of the accused's acts to the provocation when asking themselves the question "Was it enough to make a reasonable man do as he did?" We feel that Lord Diplock's warning should be followed and that it would be better not to use the precise words of Viscount Simon LC unless it is made quite clear that it is not a rule of law which the jury have to follow. We think too that this view expresses the meaning of Lord Devlin's words in LEE CHUN – CHUEN v R [1963] AC 220 at p. 231 where he said: "Provocation in law consists mainly of three elements: the act of provocation, the loss of self – control, both actual and reasonable, and the retaliation proportionate to the provocation".' (emphasis added) 

'Provocation is some act or series of acts done or words spoken by the deceased to the accused which would cause in any reasonable person and actually causes in the accused, a sudden and temporary loss of self – control, rendering the accused so subject to passion as to make him for the moment not master of his mind', see R v Duffy [1949] 1 AllER 932, per Devlin J. 

The actions done or words spoken by a person other than the victim is admissible, see R v Davies (1975) 60 CrAppR 253; [1975] QB 691; [1975] 1 AllER 890; [1975] CrimLR 231. 

Refer also to the law relating to 'Res Gestae' which is examined commencing on page 179. 

See also: R v Joel Nanango (Unrep. Criminal Case No. 43 of 1996; Palmer J; pages 19 – 22), R v Rakaimua (Unrep. Criminal Case No. 24 of 1995; Muria CJ; at pages 12 – 17); R v John Waiwai (Unrep. Criminal Case No. 41 of 1994; Muria CJ; pages 2 – 3); R v Smith (Morgan) [2001] 1 CrAppR 31; [2000] 3 WLR 654; [2001] AC 146; [2000] 4 AllER 289; [2000] CrimLR 1004; R v Morhall [1995] 2 CrAppR 502; R v Richens [1993] 4 AllER 877; [1994] 98 CrAppR 43; R v Johnson (1989) 89 CrAppR 148; R v Gilbert (1978) 66 CrAppR 237; [1978] CrimLR 216; R v Martindale [1966] 3 AllER 305; [1966] 1 WLR 1564; [1966] CrimLR 621; (1966) 50 CrAppR 273; Bedder v Director of Public Prosecutions (1954) 38 CrAppR 133; R v Cunningham (1958) 43 CrAppR 79 & Holmes v Director of Public Prosecutions [1946] AC 588; (1946) 31 CrAppR 123.

[38.7.3] Self - Defence 

Section 4 of the Constitution states (in part): 

'(1) No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence under the law in force in Solomon Islands of which he has been convicted. 

(2) A person shall not be regarded as having been deprived of his life in contravention of this section if he dies as the result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably justifiable -- 

(a) for the defence of any person from violence or for the defence of property.' (emphasis added) 

Section 204 of the Penal Code (Ch. 26) states (in part):

'Where a person by an intentional and unlawful act causes the death of another person the offence committed shall not be murder but only manslaughter if any of the following matters of extenuation are proved on his behalf, namely –

(a) […] 

(b) that he was justified in causing some harm to the other person, and that, in causing him harm in excess of the harm which he was justified in causing, he acted from such terror or immediate death or grievous harm as in fact deprived him for the time being of the power of self – control;' (emphasis added) 

The law relating to 'Defence Of Person & Property' is examined commencing on page 451.

[38.7.4] Intoxication 

In R v Kennth Iro (Unrep. Criminal Case No. 66 of 1993) Muria CJ held at pages 2 – 3: 

'On the question of intoxication as a defence, I agree that intoxication is available as a defence, in cases of murder whether such intoxication is self – induced or not, that is to say, all forms of intoxication should be taken into account. […] 

[…] 

The question is whether the accused's mind was so affected by alcohol that he could not have formed the intention to do what he did or that his mind was so affected by alcohol that he did not know what he was doing at the time. This must be answered in the light of the accepted evidence now before the court.' 

In R v Warren Godfrey Motui (Unrep. Criminal Case No. 20 of 1997) Palmer J stated at pages 1 – 9: 

'The defence of the Accused essentially is that of intoxication. That he was too drunk and therefore did not know what he was doing or that it was wrong (section 13(2)(b) of the Penal Code). 

The onus of proof lies throughout with prosecution and in the case of intoxication, to proof beyond reasonable doubt that the Accused did know what he was doing or that it was wrong. 

[…] 

[…] I must acquit however if there is a reasonable doubt in my mind that the Accused did not form any intent to kill or cause any grievous bodily harm because of drink. Having raised the defence it is for Prosecution to prove beyond reasonable doubt that the Accused did know what he was doing or that it was wrong.' 

See also: R v Garlick (1981) 72 CrAppR 291; [1981] CrimLR 536. 

The law relating to the defence of 'Intoxication' is examined commencing on page 444.

[38.7.5] Diminished Responsibility 

Section 203 of the Penal Code (Ch. 26) states: 

'(1) Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing. 

(2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder. 

(3) A person who but for this section would be liable, whether as principal or as accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter. 

(4) The fact that one party to a killing is by virtue of this section not liable to be convicted of murder shall not affect the question whether the killing amounted to murder in the case of any other party to it.' (emphasis added) 

This section is the same as section 2(1) of the Homicide Act 1957 (UK) and section 3A of the Offences Against The Person Act 1868 (Barbados). 

In R v Tandy (1988) 87 CrAppR 45 [[1988] CrimLR 404] Watkins LJ, delivering the judgment of the Court, stated at page 50: 

'The authority of Byrne (1960) 44 CrAppR 246, 252 [1960] 2 QB 396, 403 established that the phrase "abnormality of mind" was wide enough to cover the mind's activities in all its aspects, including the ability to exercise will power to control physical acts in accordance with rational judgment. But "abnormality of mind" means a state of mind so different from that of ordinary human beings that a reasonable man would term it abnormal. 

The defence of diminished responsibility was derived from the law of Scotland, in which one of the colloquial names for the defence was "partial insanity". Normal human beings frequently drink to excess and when drunk do not suffer from abnormality of the mind, within the meaning of that phrase in section 2(1) of the Act of 1957. 

Whether an accused person was at the time of the act which results in the victim's death suffering from any abnormality of mind is a question for the jury; and as this Court stated in Byrne (supra), although medical evidence is important on this question, the jury are not bound to accept medical evidence if there is other material before them from which in their judgment a different conclusion may be drawn. 

The Court of Appeal in Gittens (1984) 79 CrAppR 272 said that it was a misdirection to invite the jury to decide whether it was inherent causes on the one hand or drink and pills on the other hand which were the main factor in causing the appellant in that case to act as he did. The correct direction in the case was to tell the jury that they had to decide whether the abnormality arising from the inherent causes substantially impaired the appellant's responsibility for his actions. 

Lord Lane CJ at p. 277 said: 

"Where alcohol or drugs are factors to be considered … the best approach is … approved by this Court in Fenton (supra) …. The jury should be directed to disregard what, in their view, the effect of alcohol or drugs upon the defendant was, since abnormality of mind induced by alcohol or drugs is not (generally speaking) due to inherent causes … Then the jury should consider whether the combined effect of the other matters which do fall within the section amounted to such abnormality of mind as substantially impaired the defendant's mental responsibility …"' 

In Walton v R (1978) 66 CrAppR 25 [[1978] 1 AllER 542; [1978] AC 788; [1977] 3 WLR 902; [1977] CrimLR 747] Lord Kieth, delivering the judgment of the Privy Council, held at page 30: 

'These cases make clear that upon an issue of diminished responsibility the jury are entitled and indeed bound to consider not only the medical evidence but the evidence upon the whole facts and circumstances of the case. These include the nature of the killing, the conduct of the accused before, at the time of and after it and any history of mental abnormality. It being recognised that the jury on occasion may properly refuse to accept medical evidence, it follows that they must be entitled to consider the quality and weight of that evidence. As was pointed out by Lord Parker CJ in BYRNE (1960) 44 CrAppR 246, 254; [1960] 2 QB 396, 404 

what the jury was essentially seeking to ascertain is whether at the time of the killing the accused was suffering from a state of mind bordering on but not amounting to insanity. That task is to be approached in a broad common sense way.' 

As a practical necessity a defendant relying on a defence of 'Diminished Responsibility' is expected to call medical evidence, see R v Dix (1982) 74 CrAppR 306; [1982] CrimLR 302; R v Tandy (1988) 87 CrAppR 45; [1988] CrimLR 404; R v Campbell (1987) 84 CrAppR 255; R v Bradshaw (1986) 82 CrAppR 79; [1985] CrimLR 733; R v Seers (1984) 79 CrAppR 261; [1985] CrimLR 315 & R v Gittens [1984] QB 698; [1984] 3 AllER 252; [1984] 3 WLR 327; [1984] CrimLR 553; (1984) 79 CrAppR 272. 

Refer also to the sections which examine: 

·                     'Opinion Evidence – Expert Witnesses' commencing on page 202; and 

·                     'Reports Of Medical Practitioners' commencing on page 235.

 As regards a defendant refusing to allow this defence to be raised, see R v Kooken (1982) 74 CrAppR 30.

[38.8] Sentencing 

The law relating to 'Sentencing' in respect of the specific offences examined in this Chapter is examined commencing on page 918.

[38.9] Related Offences 

The following offences are related to 'Homicidal Offences' as provided for in the Penal Code (Ch. 26): 

·                     'Infanticide', section 206 of the Penal Code (Ch. 26);

·                     'Accessory After The Fact To Murder', section 216 of the Penal Code (Ch. 26); 

·                     'Written Threats To Murder', section 217 of the Penal Code (Ch. 26); 

·                     'Conspiracy To Murder', section 218 of the Penal Code (Ch. 26); 

·                     'Complicity In Another's Suicide', section 219 of the Penal Code (Ch. 26); 

·                     'Concealing The Birth Of A Child', section 220 of the Penal Code (Ch. 26); and 

·                     'Killing An Unborn Child', section 221 of the Penal Code (Ch. 26).