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Regina v Motui [1998] SBHC 95; HCSI-CRC 20 of 1997 (11 June 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 20 of 1997

REGINA

-v-

WARRAN GODFREY MOTUI

HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)
Criminal Case No. 20 of 1997

Hearing: 26-29 May, 2 June, 1998
Judgment: 11 June, 1998

J. FAGA FOR THE CROWN
M. SAMUELS (MRS) FOR THE ACCUSED

PALMER J.: The Accused, Warran Godfrey Motui has been charged with the murder of Wilson Rarovia (the “Deceased”) contrary to section 193 of the Penal Code. The offence was alleged to have been committed at Noro, Western Province, on the evening of 30th January 1997.

THE ALLEGATION OF PROSECUTION:

Prosecution alleges that the Accused intended to cause the death of or grievous bodily harm to the deceased, when he struck him a fatal blow to the side of his head with a two by two piece of timber, two feet in length. In the alternative, that he knew that the act of striking with the piece of timber will probably cause the death of or grievous bodily harm to the Deceased.

THE DEFENCE:

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:

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.

FACTS NOT IN DISPUTE:

That in the afternoon of the 30th, January, 1997, which was a Thursday, the Accused and two others, Alfred Hilly and Samson Manekewu, bought some beers. They had some beers at the side of the road before going to the house of Alfred Hilly where they had some more beers. The Accused then went down to the Kitano Wharf where the Deceased’s ship, Tokyo Maru NO.5 was berthed beside another ship, Ryoku Maru No.1. In order to get to the Kitano Wharf, the Accused had to go past a Cold Storage Building. Three prosecution witnesses, PW6, PW7 and PW8 all saw the Accused going past. He was then followed by PW8. The Accused climbed on board the Tokyo Maru No.5, picked up a piece of timber at the back of the ship and then assaulted the Deceased as he was climbing up the ladder from the deck.

The unlawful act has not been disputed. All this was seen by PW8, whose evidence had been virtually undisputed. I accept his evidence that it was this Accused who had struck the fatal blow on the side of the head of the Deceased as he was climbing up the ladder and from which the Deceased never recovered from. The Deceased died the next day. After assaulting the Deceased, the Accused made his way back to Hilly’s house. He was again seen by PW6 and PW7 as he went past them. The identification of the Accused by these three witnesses has not been seriously challenged. I accept their evidence on the identification of the Accused as the same person who had gone past them to and from the ship and assaulted the Deceased.

The murder weapon used has also not been disputed. It is a two by two timber about two feet in length. Some issue was raised in cross-examination by learned Counsel for the Accused that possibly the timber exhibited in Court was not the murder weapon. No evidence to the contrary however has been adduced to support that suggestion. I am satisfied the timber exhibited in court, (Exhibit 1) was the murder weapon.

The medical report dated 6th February, 1997 has also not been disputed. According to the Medical Report prepared by Dr Pana, the Deceased suffered from “a severe head injury with accumulation of blood clot pressing directly on the brain”. Cause of death was as a direct result of the severe blow to the head.

FACTS IN DISPUTE:

A number of facts raised in the evidence of Prosecution Witnesses had been disputed and so I will address these next.

WAS THERE A FIGHT ON THE NIGHT OF 25TH JANUARY, 1997?

According to Prosecution Witnesses, there was a fight which took place on the night of the 25th January, 1997 between the Accused and the Deceased over a tape recorder. Prosecution witnesses PW3, PW4, and PW5, all described how the fight broke out when the Deceased grabbed the tape recorder and walked out with it. He was immediately followed by the Accused outside and a fight broke out. PW3 described the Accused coming up behind the Deceased and punching him at his back. PW4 and PW5 confirmed that a fight broke out when the Accused followed the Deceased outside and fought him there. All confirmed in evidence that the Accused was cross with the Deceased for what he did. All admitted in cross-examination that the fight did not last long and that no one was injured, but could not be shaken about their evidence that a fight took place in which the Accused and the Deceased were involved in. I find their evidence, concise, clear, consistent and credible. I accept their evidence.

Their evidence was confirmed and supported by that of PW1 and PW2. The evidence of these two witnesses related to events which occurred after the fight (these are addressed in detail below), on the 25th and 26th January. These are consistent with the evidence of PW3, PW4 and PW5 and can only support their evidence about the occurrence of a fight on the night of the 25th January. Otherwise their evidence would not make sense.

I reject the Accused’s denials on the other hand, regarding the fight. I do not believe him when he said in chief and under cross-examination that there was no fight and that he was not cross. This is pitched against the formidable and unshakeable evidence of three witnesses whose credibility had never ever been seriously attacked together with the supporting evidence of PW1 and PW2.

THE EVENTS AFTER THE FIGHT ON 25TH JANUARY, 1997.

I also accept the evidence of Prosecution Witnesses concerning the events which occurred after the fight. PWl, PW3, PW4 and PW5 were all together at the residence of PW1 immediately after the fight that night. PW3, PW4 and PW5 had gone over to PWl’s house after the fight when the Accused and his group arrived at the said house sometime after. PW1, PW3, and PW4 all described the Accused as being very cross on arrival and holding a big stick. His intention was to whip or strike the Deceased with it. PW1 described how she cried on seeing this and pleaded with the Accused not to do it. She managed to calm him down and took him outside.

All four (PWl, PW3, PW4, and PW5) confirmed hearing the Accused saying words to the effect that he won’t forget the incident or the fight. I find no reason whatsoever not to accept their evidence as correct and true. PW1 for instance a mature and responsible person and I find would have no reason and no purpose to serve, by lying about what she saw and heard that night. Her evidence was spontaneous, consistent with that of the other witnesses, clear and credible. If anything, it would only be because she was mistaken and not deliberately lying. I accept her evidence and that of the other three witnesses as correct and true concerning the events at PWl’s house after the fight.

I reject the Accused’s evidence regarding the events after the fight on the other hand. In chief, the Accused denied knowledge of what occurred after the fight. Under cross-examination however he appeared caught out by his own answer when he said that he could only remember returning to his place. When asked to explain how he could recall returning to his house but not reaching PW1’s house, he could not provide an explanation. I find his evidence on this clearly evasive and vague. I do not believe his denial of the events which occurred at PWl’s house. Some suggestion was made that he may have not recalled what took place in that he was drunk. I do not accept this however in that it is inconsistent with what he said that he could only remember returning to the house but could not remember reaching the house of PW1. I find that nothing more than being evasive. If he was so drunk and blacked out, how come it was for only that short period of time?

THE EVENTS OF THE 26TH JANUARY, 1997.

Prosecution witnesses also described events which occurred on the following day, Sunday 26th January, 1997 which the Accused denies. The first of these related to what was said in the presence of PW2 at the house where the Accused and others were staying at the Labourline Quarters. PW3 was also present at the said time. PW2 had decided to go over and see the Accused and his group after what PW3 had told him occurred the previous night (25th January, 1997). This witness stated how he felt obliged to assist in settling the row or fight as a responsible person in his community at Noro. I find PW2 to be a very responsible and mature person and a leader amongst his community at Noro. This has not been seriously challenged. I find no reason why he should ever lie about what he heard the Accused said that time. Both PW2 and PW3 confirmed hearing the Accused said words to the effect that he was not interested in joining or taking part in any reconciliation measures that may be arranged. PW2 was attempting to get the parties in the fight have the matter settled peacefully in custom or some acceptable means, including payment of compensation. I accept their evidence that the Accused said words to that effect.

The Accused on the other hand could only say in examination in chief regarding the events of the 26th January, 1997 that he could not remember anything. I find that to be nothing more than an evasive answer; a flimsy attempt to evade the issue. In cross-examination he gave the impression that he was uncertain about the events that occurred when PW2 and PW3 arrived at the Labourline Quarters, but when it came to the question whether he recalled saying words to the effect that he did not wish to take part in reconciliation arrangements, he flatly denied this. He then later conceded that PW2 had gone over to try and settle the row between them, but denied that there was any row to be sorted out. I find this to be inconsistent with what he had said in chief that he could not remember the events of the 26th. I reject his evidence on this particular matter.

The next event denied by the Accused was what occurred in the presence of PW4 and PW5 in the morning of the 26th. Both witnesses described the Accused coming in to the house where they were carrying a “pinch bar” (piece of iron) and asking for the Deceased and PW3. Both described his appearance as cross.

PW4 stated that the Accused told them that he had gone to the Deceased’s ship to look for him but could not find him. Under cross-examination he remained firm and unshaken.

PW5 also stated that the Accused kicked him at the same time. Under cross-examination, I note this witness at a certain point in time during cross-examination appeared lost for words and did not answer the questions put to him about that incident. But then little by little, when he was pressed for the answers and the questions repeated a number of times by Mrs. Samuels, he maintained his story that the Accused arrived with a pinch bar and kicked him. It appears to me that for a while this witness under cross-examination by Mrs. Samuels may have gotten confused. His demeanour in the witness box in my respectful view reflected this more than anything else. It was only sometime when his mind (part of the problem I perceived was that he appeared to be a bit slow in understanding the questions put to him) eventually began to understand the thrust of the questions being put to him that he was able to start answering the questions. It is clear that he did not contradict himself on the main issues raised in his evidence. For instance, when it was put to him that the Accused did not reach the house that morning, he answered that he did reach the house. When it was put to him that the Accused did not look for the Deceased and PW3, he replied that he went looking for them. And when it was put to him that it was not true that he was kicked, he replied that it was true.

In chief, the Accused states he could not recall anything that occurred on the 26th. Under cross-examination by Mr. Faga, he denied knowledge of having asked after the Deceased. He then later said that what was said by PW4 and PW5 not true. I find this to be inconsistent with what he said in chief. I also find his evidence vague and evasive. Some suggestion was also made that he might still have been suffering from a hangover and still drunk. I do not accept this however. The incident occurred on the following day. Any effects from drink would have been minimised or reduced by then. I find this suggestion amounting to nothing more than being evasive about that Issue.

Again I find the evidence of PW4 and PW5 on this issue consistent, clear and credible. I accept their evidence as correct and true. On the other hand, I do not believe the Accused and reject his evidence.

THE EVENTS OF THE 30TH JANUARY, 1997.

It is not in dispute that the Accused, Alfred Hilly and PW13 bought some beers at Chachabule Store. PW13 bought 7 beers. He thought the Accused and Hilly bought half a carton between them. The Accused in his evidence disputes this. He says in evidence under oath that he bought 13 cans of beer. On their way back to their Quarters, they made a stop and had some beers. PW13 says he drank 3 cans and thought the Accused drank about 4 or 5 cans. The Accused confirms this in his evidence. He says he had 5 cans. They then went to Baru to borrow a tape recorder to listen to some music and returned to the Base. The Accused says he had a beer on their way to Baru. On arrival at Hilly’s house he claims he had about 7 or 8 more cans. PW13 thought he had only about 5 or 6 cans, because he thought there were about 2 cans of beer still left.

The Accused then excused himself to go somewhere. When asked, he told PW13 that he wanted to go to the toilet. It is clear from evidence however that he did not go to the toilet. He went down to the wharf instead and assaulted the Deceased. This was when he was seen by PW6, PW7 and PW8 going past the Cold Storage where they were having coffee and then returning the same way he had come.

THE LAW.

The offence of murder is committed when a person with malice aforethought causes the death of another person by an unlawful act or omission (section 193 of the Penal Code). The unlawful act in this case, that of striking the head of the Deceased with a piece of timber is not disputed. The only issue in contention is that of malice aforethought. Malice aforethought is defined in Section 195 of the Penal Code as follows:

“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 of 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.”

The Crown relies primarily on the first ground; that of an intention to cause the death of or grievous bodily harm to the Deceased. Again I remind myself at this point that the Crown bears the burden of proving beyond reasonable doubt that the Accused did form the intent to kill or cause grievous bodily harm to the Deceased. In this case where intoxication is pleaded as a defence under section 13(2) of the Penal Code, Prosecution still bears the burden of proving beyond reasonable doubt that taking into account the evidence surrounding the drink the Accused had taken, he had the intent to kill or cause grievous bodily harm to the Deceased. In the alternative, he knew that his actions will probably cause the death of or grievous bodily harm to the Deceased.

IS THERE EVIDENCE OF AN INTENT TO KILL?

On the evidence adduced and accepted by this Court, this question must be answered in the affirmative. There is evidence from PW1, PW3, PW4 and PW5, that on the night of the 25th January, 1997 at PWl’s house, after being prevented by PW1 from striking or attacking the Deceased with a big stick he had in his hand, the Accused had made a vow in anger, that he won’t forget that fight or incident; implying it seems that he must do something to satisfy his mind, or, will do something before his mind will be satisfied.

There is also evidence from PW2 and PW3, when they attempted a reconciliation on the next day, Sunday 26th January, that the Accused had refused to be part of any reconciliation that PW2 was proposing to do. Further attempts to have a reconciliation later that afternoon failed to materialise at the house of Puhi, by the non-attendance of the Accused and his group.

There is also evidence from PW4 and PW5, that on Sunday morning, the 26th, the Accused had arrived at the house they were staying in armed with a “pinch bar” and looking for the Deceased and PW3. The Accused told them that he had been to the ship of the Deceased to look for him but did not find him. The inference to be drawn from this was that had he found him, he would have done something to him that time.

It is clear from the evidence of Prosecution witnesses that the Accused had been extremely offended by the fight which occurred on the night of the 25th, and that he intended to do something to the Deceased.

This was evident from his words and his conduct. All Prosecution witnesses who were with the Accused at those respective times confirmed, if not, did not deny, that the Accused was cross at the said times.

The next question I feel I should also address is whether that intent had been removed in the circumstances of this case by virtue of “lapse of time”. It is not in dispute that the fatal attack on the Deceased occurred on the night of Thursday 30th January, 1997, some five days after the fight on Saturday 25th January. It has been suggested that there is no evidence of an intent to cause the death of or grievous bodily harm to the Deceased at the time the Accused went to the ship of the Deceased and struck him with the timber he had in his hand. From Monday to Thursday, it is argued there was no evidence to show that the Accused was planning to attack the Deceased or that he was still cross about the fight which occurred over the week-end.

Obviously we cannot look into the mind of the Accused to find out if he had the necessary intent at that point of time. We can only look at his actions and words, done and said at the said time, and those immediately preceding that occasion and after. To suggest that the events of the week-end were too remote and separate to form part of what happened on Thursday 30th January, in my respectful view is not entirely correct. It may or it may not be so. There are certain things which are not in dispute. One of these is that from Monday 27th to Thursday 30th, all prosecution witnesses confirmed that no reconciliation took place between the Accused and the Deceased. All the attempts for reconciliation were done on Sunday 26th. It appears everybody was busy with work when Monday came around that no further thought or attempts were made thereafter.

It is also pertinent to note what the Accused said in his defence on this issue. When this Accused was asked by his Counsel why he whipped or struck the Deceased with a piece of timber, he offered no explanation. When further asked if he had any anger or resentment against the Deceased, he expressly denied this. He also denied that there had been a row or an argument over the week-end and as a result a fight (note he denied that there was a fight). When this crucial evidence provided by himself under oath, as an explanation as to what his mind was, or his mental perception of the events of that week-end are taken into account and contrasted with his actions on the 30th January, 1997, it truly boggles the mind if one were to try and explain it. Why did he walk all the way from Hilly’s house down to the Kitano Wharf, then specifically to the Deceased’s ship, Tokyo Maru No.5, pick up a timber and without any warning attack a defenceless, unsuspecting, and according to his evidence on oath, an innocent man? He has simply provided no satisfactory explanation of his actions apart from his claim that he was so overcome with drink to realise what he was doing. I will address the issue of intoxication in detail later. That aside, there is no reasonable, even logical explanation. But, if we are to take into account, and there is no reason, (impediment, legal or otherwise) the events of that week-end, the pieces fall into place. There is reason or cause for him to do what he did. His anger had not disappeared or subsided, merely simmered under the surface and reared its ugly head that night when he was having some beers with PW13. From that perspective, his actions on the 30th were totally consistent with what he had said and his behaviour over the week-end.

I find there is clear evidence which showed conclusively an intent to cause the death of, and in the least, grievous bodily harm to the Deceased.

THE DEFENCE OF INTOXICATION

Having so found, 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.

It is not in dispute that the Accused had some beers before going down to the ship where the Deceased was. In his evidence, the Accused claims he drank about 13 cans of beer that night. That would mean he drank all the beers he had bought from the shop. PW13 thought he had about 9-11 beers and added that there were about 2-3 cans left over.

The Accused claims he was so affected by drink that night he did not know what he did when he left the house. He also claims he did not know right from wrong when he left the house.

Prosecution witnesses evidence on the Accused’s demeanour and conduct however do not support the Accused’s claim. First, the crucial evidence of PW13. This witness was with the Accused throughout the evening of the 30th. He was with him before he had consumed any drinks that afternoon, when he was normal. They then had some beers at the side of the road, and some more when they arrived at Hilly’s house. This witnesses evidence of the demeanour and mannerisms of the Accused that night is crucial. He observed that they were telling stories, making fun, (jokes) laughing and listening to the music that evening. It appeared there was a relaxed atmosphere at the house. He observed it was the Accused who was making fun as if nothing would happen.

His observations of the effect of beer (drink) on the Accused was that he did not think he was very drunk (the word used was “full spark”). He described his body (by this I take it he meant his mannerisms or body movements) as active but normal. His gait he described as straight and steady; unlike that of a person who was drunk and unsteady on his feet.

Under cross-examination this witness disputed the suggestion put to him that the Accused was very drunk and explained that it was because he thought the Accused’s body still “looked strong for drinking”; implying that the Accused could easily handle some more drinks. When asked later in cross-examination to say how drunk the Accused was, he maintained his view that although the Accused was drunk, with eyes red, his body still looked “good”. With regards to his manner of speech, he observed the Accused was still making fun and telling stories properly that night.

The evidence of PW13 is crucial to the defence of intoxication. At no time even when it was suggested to him during cross-examination that the Accused was very drunk did he ever concede this. The most he acceded to was that yes, the Accused was drunk, but still maintained his composure. To even suggest to this witness that the Accused was dead drunk was completely out of the question. According to the observations of this witness of the demeanour and behaviour of the Accused prior to and up to the time he left the house that night, there was no inkling or suggestions of any sort, that the Accused might not have been in possession or command of his mental faculties. There was no suggestion for instance that the Accused was babbling and making incoherent sounds or statements as he went out of the house, or even was staggering and needed to be helped, or was in a drunken stupor. The evidence adduced, in fact, was that the Accused lied about where he was going. If he could tell a deliberate lie to PW13, then he must surely be in possession of his mental faculties.

There is also vital evidence from PW6, PW7 and PW8 concerning the approach and departure of the Accused from the scene of the murder which is also inconsistent with that of a person completely overborne by drink such that he cannot be held responsible for his actions.

PW6 described the Accused’s approach as, “He looked as if he was rushing”.PW7 described his approach as”... walking past in the manner that he meant to do something.” Under cross-examination he explained he formed the above view from the way the Accused was walking and from observing his face which he described as “looking cross”. PW8 described the Accused as walking fast when he went past. Under cross-examination he described the manner in which the Accused walked as not normal. He was however not asked to explain further what this meant. All three described the Accused as walking when he approached the ship. On his return however, all three observed the Accused running.

The evidence of these three witnesses has been virtually unchallenged. I find their evidence consistent and clear. They remained unshaken during cross-examination and remained firm and sure of what they saw. I accept their evidence.

At no time was it suggested that the Accused’s approach or departure was like that of a man heavily under the influence of drink; for instance staggering along, or weaving from side to side, or even stumbling as he walked along or when he ran away from the scene. To the contrary, their observations are more consistent with that of a person who goes along with a purpose or plan in mind to execute, and having achieved that, makes good his escape by running away.

The observations of PW13 of the Accused on his return to the house is also crucial to the defence of intoxication. I will refer to this in detail therefore. It must be borne in mind that PW13 did not know where the Accused had gone and just done. He had assumed·that the Accused had gone back to the Quarters of the Apprentices to relieve himself and then returned some thirty minutes later.

His immediate observations of the Accused were, (1), that he was sweating, and (2) that he was out of breath. This is entirely consistent with the evidence of PW6, PW7 and PW8 that the Accused was seen running from the scene. On arrival the Accused spoke with Hilly in Bugotu language, which this witness did not understand. He described appearance of the Accused on arrival as “looking like he was surprised”. Under cross-examination he added that the Accused did look worried as well as surprised. It was for this reason that those in the house wanted to find out from the Accused what had happened. They then left the house and walked down to the Security house. PW13 followed them. On reaching the Outboard Motor Workshop, he met the Accused returning. He was walking quite fast. After he had gone past him some distance, he called his name and so he returned to him. On reaching the Accused, he asked him what had happened. Instead the Accused replied “Lets go”. This witness repeated his question and the Accused replied: “eh mi nogud nao ia”, meaning he was in trouble. This witness described the appearance of the Accused at that time as “... if he was high about something, like someone had been chasing him.” They then followed the road and when they reached the spot opposite the SIEA, he said to the Accused that he thought he had gone to the toilet. The Accused replied that he did not want to tell them in case they had followed him to the man. Which man, he did not say, but it could only have been a reference to the Deceased. When Hilly reached them, the Accused suggested they go back and see “the man”, but PW13 persuaded them not to. They then went to Baru where they met the Accused’s girl friend and left them there whilst PW13 and Hilly returned to the Base.

The events after the assault when the Accused returned to the house described by PW13 have been given spontaneously, in very fine detail and consistent all the way. I accept them as accurate, correct and true. Again these are crucial to the defence of the Accused that he was so drunk he lost control of himself. I find the evidence of PW13 respectfully, to be contrary to the claims of drunkenness of the Accused. In fact apart from the amount of drink taken, whether 10 cans or 13 cans that night, there is no evidence whatsoever in support of the Accused’s claim that he was so overcome with drink that night.

The only evidence from this Accused about his drunkenness was that he could not recall anything after he left the house to the time he returned to the house after the crime had been committed. Initially in chief, he states it was when he reached the house that his “mind” (sense or understanding) returned, and that was when he became worried. He then told the others with him to go and help the Deceased. Later in chief however, he explained that it was when the Deceased had fallen down (obviously after he had struck him) that he realised what he did was wrong. Under cross-examination when he was asked to explain why he could not recall what happened from the time he left the house to the time he returned, the Accused could offer no explanation.

With respect, if it was true what was claimed by this Accused, that he completely lost control of himself in that short period of about thirty minutes, that is, he had a black-out, then how on earth could he recall that he had done something wrong as soon as he arrived at the house and start becoming worried? Note in his own words in chief, the Accused had stated that it was when the Deceased had fallen down that he realised what he did was wrong. If he was too drunk and had a black-out, therefore could not recall and did not know what he was doing, how is it that he could realise as claimed by him straight after he had struck the Deceased, that what he did was wrong? Unless of-course his mind was functioning clearly all along and he was aware of what he was doing. If his “mind came back” as he claims, when he arrived at the house, or after he had struck the Deceased, where did it go in the first place? Respectfully, it was with him all along. It was with him when he went to the ship, assaulted the Deceased and ran off back to the house. It saw everything, heard everything, felt everything and knew everything. It was because he had done what he had intended to do (his mind went with him). He knew what he was doing, and having done that, his conscience smote him on arrival at the house. That would have been the reason why on arrival he looked worried, (as described by PW13), then cried and insisted that they go and see if they could do something to help the Deceased. The claim he makes that his “mind” only returned when he arrived at the house is nothing more than his guilty conscience pricking him about what he had intended to do and had done and knew.

If, as he claims in his evidence under oath, that he had had no row or argument with the Deceased, and that he held no anger or any ill-feeling against him whatsoever, (and thereby indirectly say that he had no intention to cause the death of or grievous bodily harm to the Deceased) the question which this Accused had not satisfactorily explained is, if so, why him. If as he claims he could not control himself because he was too drunk, why walk all the way to the ship of the Deceased, and attack him but anyone else. There were two or three others in the house closest to him than the Deceased; why not anyone of them? He lost his mind, he lost his self-control, he did not know right from wrong, so why the Deceased, why not those others a few feet away from him? Why not anyone of those sitting outside the cold storage? The reason for this attack is clear from the beginning and I do not need to repeat it here.

I do not believe the evidence of the Accused that he was too drunk and so did not know what he was doing or right from wrong. I am satisfied so that I am sure, that although the Accused had had some beers, and even if it had been 10 or 13 cans, the clear evidence before me is that this Accused was still in possession of his faculties, he was aware of what was going on, he knew what he was doing and that he intended to do what he did. He even lied about that fact so that he would not be followed by the others at the house to carry out his purpose. I am satisfied Prosecution had discharged the onus of proof required of them; that of proof beyond reasonable doubt.

The case of Regina v Wiseley Shem Tuita CRC 1 of 1985 judgment delivered on 11 March 1985, was referred to by Mrs. Samuels. Apart from the principle of law mentioned in that case, which I do not disagree with; that the question which the Court must consider is whether the accused did in fact form the intent to kill or cause grievous bodily harm, the facts in that case are very different from this case. The learned Judge, Wood C.J., accepted Defence’s evidence that the accused in that case was “dead drunk”. The facts as adduced in court did support that suggestion; that the accused was so drunk he had to be carried into the bus, two persons did this; secondly, that he slept all the way on the floor of the bus over what was a rough and pot-holed road. When the facts in that case are compared to the facts in this case, they do not come even close to each other.

On the alternative ground raised by learned Counsel for the Prosecution, I do not find that necessary to consider in view of the findings of this Court.

I find the Accused guilty and convict him of the murder of Wilson Rarovia on or about the 30th of January 1997. There being only one sentence he is sentenced to life imprisonment. ORDER ACCORDINGLY MADE. SENTENCE TO TAKE EFFECT FROM DATE TAKEN INTO CUSTODY (31ST JANUARY, 1997).

ALBERT R. PALMER
THE COURT.