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Savugi v R [2024] SBCA 19; SICOA-CRAC 32 of 2023 (30 October 2024)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. By an Amended Information filed in the High Court on 30 May 2022 the appellant was charged with manslaughter contrary to s 99 of the Penal Code. The offence was particularized as follows –
   • That Janet SAVUGI of Tanakona Village, Savo Islands, Central Province, at Island Pub, Henderson, Guadalcanal Province, on the 16^th day of February 2020, unlawfully caused the death of ALVA GALO (ALVA GALOLEKE) by punching him on the right eye.
2. On 4 August 2023 she was found guilty of the offence and on 1 November 2023 she was sentenced to six (6) years imprisonment, with time spent in custody to be deducted from the sentence.
3. She appealed against the conviction and the sentence.

APPEAL AGAINST CONVICTION
The issue in the appeal

4. The contentious issue at trial and on appeal was whether the trial court could be satisfied beyond reasonable doubt that the appellant’s conduct was a substantial and operative cause of Alva Galo’s death.^[1] Given the way the offence was particularized in the Amended Information, the issue must be whether the court could be satisfied to that standard of proof that the appellant’s conduct in punching Galo on the right eye was a substantial and operative cause of his death.

The Appeal Book

5. This court has considered the appeal on the material in the Appeal Book for the appeal against conviction. That Appeal Book does not contain a complete record of the evidence before the trial judge. Because the recording of the oral evidence was affected by power outages, not all of the evidence of at least two witnesses, Rachel Taka and John Laio, was recorded. Some photographs were put to lay witnesses, but they have not been reproduced in the Appeal Book. Some of the questions put to witnesses and their answers were in Pidgin. The transcript contains English translations of some of the Pidgin exchanges, but not all of them.

The incident

6. The deceased and the appellant lived together as husband and wife. They had one child.
7. Late on Saturday 15 February 2020 the accused, together with two other women and one man, went to the Island Pub night club where they drank beer and played cards. The deceased arrived separately. Sometime after midnight the appellant became angry when she observed the deceased dancing and talking with a girl. She assaulted him and he fell on to a concrete floor outside the women’s toilets. Security officers carried him outside, and the appellant took him home by taxi.
8. At about 7 pm on Monday 17 February 2020 the deceased was admitted to the National Referral Hospital. He died there that night.
9. In determining whether there was the necessary nexus between the assault and the deceased’s death, this court must consider the evidence of what occurred in the incident at the night club and the evidence of the deceased’s condition between the incident and his death, as well as the autopsy report and oral evidence of the pathologist, Dr RR Maraka.

The incident

10. The appellant did not give evidence at the trial. On her instructions relayed to the court by her counsel and put to witnesses in cross-examination, she hit the defendant on the left side of his face. That was inconsistent with what she said when interviewed by police. On page 6 of the record of interview she said that she punched his right eye, and he fell to the floor.
11. The Crown called evidence from people who were at the night club when the incident occurred – Griena Max, Rachel Taka, John Laio (or Laiyo), and John Mark Talika (or John Mark).
12. Griena Max, the appellant’s cousin, was living with the appellant and the deceased at the time of the incident, and she was a short distance from the dancing area when the appellant saw the deceased dancing with a girl. She said that the appellant became angry, and –
    • So she came over and pushed Alpha Galo and then she hit him and he fell down outside or fell outside.
    • He fell down on outside in front of the girl’s toilet and he banged his head.

Later she said that the appellant hit the deceased on the right side of his head, and that he fell down hitting his head and losing consciousness.

13. The evidence of Rachel Taka that is in the Appeal Book does not include evidence of the assault. At page 126 of the Appeal Book there is a notation in the transcript to the effect that 10 minutes of her evidence was not recorded because of a power outage.
14. The next page of the Appeal Book contains the beginning of the examination-in-chief of another witness J Laio through an interpreter. It is not clear how many of the following pages contain Mr Laio’s evidence because on page 134 there is a question addressed to Ms Taka and on page 141 recording of the cross-examination of Mr Laio was interrupted by a power outage.
15. Mr Laio’s evidence was that the appellant punched the deceased on both the left and right sides of his face. He said she pushed the deceased and he fell on the cement. She kicked him in the ribs and punched him twice - on the right side and on the left side of the head.
16. John Mark Talika said that the appellant pushed the deceased who fell down on his knees. She kicked his arse and he fell on his face. She kicked him twice on his chest.

Between the incident and the deceased’s death

17. Griena Max said that the deceased was asleep when she arrived at the couple’s home on the Sunday morning. Later she went out and bought bread and then made tea. She and the appellant woke the deceased and she served him two slices of bread. He did not finish the bread and went back to sleep. Although they cooked dinner that night, the deceased did not come out and eat with them. The next day she served the appellant and the deceased banana and cabbage she had cooked. He ate very little and went back to sleep. Later that afternoon she went out. While she was out, she received a phone call from the appellant telling her to come back because she did not know what was happening to the deceased. When she arrived she saw the appellant struggling to lift the deceased out of the door. They put him in a taxi and took him to the hospital.
18. The deceased was admitted to the Surgical Ward at the hospital. He was taken to the theatre where investigative surgery revealed gross swelling of the brain, but no obvious bleeding/haemotoma on the brain. The surgical intervention was terminated and the deceased died at about 11 pm.

Dr Maraka’s evidence

19. Dr Maraka performed an autopsy, and prepared a report that included the following table -

20. The only injuries Dr Maraka found on external examination of the deceased’s body were –
    • (i) bruise of the right eye, 50 x 55 mm, with haemorrhage of the conjunctiva (white part of the eye), and
    • (ii) abrasions, 3 x 3 mm, on the right elbow.
21. Internal examination revealed haemorrhages below the scalp on the surgical wound sites and bur holes on the left and right temporal bones that had been made by the surgeon. There were no fractures of the skull. The brain was swollen. There was a left intracerebral haemorrhage and severe atherosclerosis of the cerebral arteries.
22. Brain tissue and cerebral arteries were sent to Royal Brisbane and Women’s Hospital, Australia. Microscopic examination of tissues performed there confirmed the presence of severe atherosclerosis of the major cerebral arteries and a left intracerebral haemorrhage.
23. Dr Maraka explained the significance of the severe atherosclerosis and haemorrhage inside the brain. The accumulation of fatty deposits over many years had caused the arteries in the deceased’s brain to harden and become brittle. One of those arteries had ruptured resulting in the intracerebral haemorrhage. An artery in the brain could rupture as the result of trauma to the head or it could occur without trauma – for example, as the result of high blood pressure. Further, he said in his autopsy report –
    • The common type of intracranial haemorrhages sustained when hit on the head or fall on the head from standing position, in my experiences, were haemorrhages present on the brain (subdural, extradural, and sub arachnoid haemorrhages) and not within the brain. Intracerebral haemorrhages, in my experience, were seen in more severe head traumas such as penetrating head injuries and motor vehicle accidents.
    • I could not determine the severity or level of the force applied to the deceased’s head or face in this case. The bruise on the right eye was consistent with a blunt trauma. It could be caused by a hit or kick on the eye. I could not determine how many times he was hit on the eye, but it could also be once only.
24. Dr Maraka said he was ‘not 100% certain’ that blunt trauma to the head had caused the artery to rupture, and that was why he had used the word ‘probable’ in describing the immediate cause of death in the table reproduced above.

The required standard of proof

25. The appellant should not have been convicted unless the court could have been satisfied beyond reasonable doubt that the punch to the deceased’s right eye was a substantial and operative cause of his death. That is a very high standard of proof, but it does not require scientific accuracy.^[2]
26. The bruising to the deceased’s right eye was consistent with the appellant having punched him on the right side of the face. That said, there was no evidence of the severity of the punching beyond the fact that it caused a black eye. The deceased was unwell the morning after the incident and his condition deteriorated until he was admitted to hospital. Thus there was proximity in time between the incident and his death. On the other hand, because of his pre-existing condition, severe cerebral atherosclerosis, his intracerebral arteries were in a weakened state. The artery that ruptured could have done so without trauma to the head. Further, brain haemorrhages resulting from being hit on the head or falling on the head from a standing position usually occur on the brain, not inside the brain. Haemorrhages inside the brain caused by trauma are less common and usually require more severe head injuries.
27. In short, there was a reasonable possibility that the rupture of the artery did not result from trauma to the deceased’s right eye. In other words, the court could not have been satisfied beyond reasonable doubt that the appellant’s conduct was a substantial and operative cause of the deceased’s death.

DISPOSITION

28. The appeal against conviction should be allowed.
29. The appeal against sentence should be allowed.

Muria P
Wilson JA
Gavara-Nanu JA

^[1] See R v Totoha [2016] SBHC 109 at [12] (Palmer CJ); R v Kuka [2009] NZCA 572 at [21]; Reynolds v Regina [2015] NSWCCA 29 at [41].

^[2] See R v Summers [1990] 1 QdR 92 at 94-5 (Macrossan CJ) and 98-9 (McPherson J).