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Regina v Pongi [2000] SBHC 64; HCSI-CRC 40 of 1999 (11 February 2000)

CRC, 40, 99.HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 40 of 1999

REGINA

-v-

DUDLEY PONGI

High Court of Solomon Islands
(Muria, CJ.)
Criminal Case No. 40 of 1999

Hearing: 10, 11, 14, Jan; 1, 3 & 4 Feb 2000
Judgment: 11 February 2000

DPP to Prosecution
A. Nori for Accused

MURIA CJ: The accused Dudley Pongi had been charged with murder contrary to section 200 of the Penal Code. It was alleged that on 13 September 1998, the accused murdered the deceased Maelyn Ledi llifau at Upper Ngossi, Honiara. The accused pleaded not guilty to the charge.

I remind myself that the onus is on the prosecution to prove the guilt of the accused beyond reasonable doubt on the evidence presented to the Court. If there is doubt as to his Guilt, slight though it may be, the accused must be given the benefit of that doubt and he must be acquitted. The accused need not prove anything, in particular, he is never required to prove his innocence.

Factual circumstances as found by the Court.

The prosecution called 15 witnesses and the defence called two witnesses including the accused himself. At the end of the evidence, both for the prosecution and the defence, the Court has found the following facts established. In fact, there appeared to be no dispute to those facts. Those facts are that in the late afternoon toward evening on 12 September 1998, the accused and four other boys namely, Mostyn Bea, Raddclyffe Freeman, Akao Sasali and Smith Panda boarded a taxi at Naha. After picking up a computer box at the accused's house at Naha 4, they proceeded to Town. The four boys were dropped off outside Freeway Night Club. The accused took the taxi and continued on to Chris Tepaika's house at Ngossi where they dropped off the computer box. Chris Tepaika (PW3) welcomed the accused who is related to him and taxi driver and he gave them something to eat. After that the accused and the taxi driver left for Club Freeway where the accused was dropped off.

The accused and his friends went into the Club where they had drinks. They remained in the Club until it closed at about 2.00 am early morning of 13 September 1998. After the Club closed, the accused and his friends namely, Smith Panda, Akao Sasali, Michael Etei (Accused's brother) and Jack came out of the Club and stopped a taxi. They all boarded the taxi and after stopping briefly at a nearby 24 hours shop, they preceded eastward bound for Naha.

On the way they dropped off Jack at Vura, then dropped Smith Panda and Akao Sasali at Naha junction and the taxi proceeded on to Naha 4 where Michael Etei was dropped off. The taxi .turned around, with the accused inside at the front seat sleeping, and proceeded to Ngossi to drop the accused at PW3's house. The taxi proceeded westward through the town and up Ngossi. It did not stop at PW3's house. It stopped at Upper Ngossi which was some distance further up from PW3's house. By then it was already after 2.30 am. The taxi parked at the left side of the road.

There were noises of fighting and struggling coming from the place where the taxi stopped. Sam Iro (PW2), Steve Ratu (PW14) and Lionel Toata (PW15) heard the noises which included the sound of voices from an aggressor and a cry for help from the victim. There were marks of struggles from the grasses around the area near the place where the taxi parked.

The accused was the only person seen walking out from behind the parked taxi at the. He walked up the road and then came back to the taxi and tried to push the taxi backward. He was unable to do so. He then walked down the road.

PW2, PW14 and PW15 identified the accused as the person whom they saw emerging from the scene of the incident that night. There were bright security lights coming from the nearby houses and the accused was clearly identified under those lights.

After the accused left the scene, PW2, PW14 and LW15 came to where the taxi was parked and there they found the deceased lying faced downward behind the taxi on the ground. His left hand stretched out while his right hand bent across his back. He was dead. The police having been called, arrived and took the deceased body to the hospital and the taxi was driven to the Police Station. The accused was arrested that night at PW3's house.

Prosecution Case.

The case for the prosecution is that the accused, after dropping his other friends that night, told the taxi driver (deceased) to take him up to Ngossi. Instead of dropping him at PW3's house, told the taxi driver to proceed all the way up to Upper Ngossi where the tax stopped. It was there that the accused attacked the deceased. There were struggles between the two and eventually the accused killed the deceased.

The prosecution submitted that there was only the accused who was with the deceased that night after dropping off the others and that it was only himself seen at the scene of murder. His clothes bore the marks of struggles with dirt and mud stains on them indicating that the accused and deceased fell onto the ground in the course of the fight and struggling.

As to the injuries, the prosecution said that they were caused by the accused using his safety boots to kick the deceased with. The prosecution said that the fatal blow to the back of the neck was inflicted by the deceased consistent with kicks delivered with safety boots worn by the accused.

The Defence Case

The case for the defence is that the accused, although he was the only person left with the taxi driver(deceased) after dropping his other friends, was sleeping all along in the front seat of the taxi because he was "heavily drunk." As a result, he did not know when he and taxi driver came passed PW3's house. When the taxi stopped at Upper Ngossi, he did not know that. When he woke up he saw bright lights coming from a nearby house. He got out of the taxi and when he walked toward the back of the taxi, he tripped on something lying on the ground. He fell down, struggled to get up and kicked the object and then stood up and walked out from the rear of the taxi. He then walked up the road and then walked back down the road to PW3's house where he slept until the Police arrested him. He did not know nor remember anything concerning the death of the deceased.

Circumstantial evidence.

The prosecution case is substantially based on circumstantial evidence. As such the Court must be very cautious when considering the case as presented against the accused. It is the duty of the Court in such a case to consider all the evidence together at the conclusion of the case, ensuring that it can only draw an inference of guilt from the totality of the facts which are proved beyond reasonable doubt (see Reg- -v- Van Beelen (1973) 4 S.A.S.R 353 and Chamberlain -v- The queen (No.2) (1983-1984) 153CLR521).

The prosecution in this case sought to rely on a number of facts as presented to the Court. I deal first with those facts which are not disputed. There is the evidence that after all his other friends and his brother were dropped off at Vura and Naha it was only the accused himself and the deceased who turned around and proceeded to Ngossi in the taxi driven by the deceased. The accused was identified by PW2, PW14 and PW15 as the only person emerging from the scene of the crime. The only other person found at.the scene was the deceased.

The noise of fighting came from the scene of the crime and voices identified by PW2, PW14 and PW15 were made by two people, one was the aggressor and the other by the victim. PW14 and PW15 did not see the accused alighting from the front seat of the parked taxi but rather they saw him emerging from around the back of the taxi. The accused himself confirmed that, although he said he got up after tripping and falling on the object on the ground at the back of the taxi.

Another important piece of evidence also is the clothes belonging to the accused. The shirt and trousers found on the accused were the same ones he wore when he went into the Club Freeway earlier on that night. They were not stained with mud and dirt then. However, the clothes had extensive stains of mud and dirt when it was found on the accused when he was arrested, not long after he left the scene of the crime. The accused was arrested at PW3's house and the clothes were removed from his body upon arrival at the police station. A pair of safety boots which were also dirtied with muddy ground were removed from the accused.

There is also the evidence that there were clearly signs of struggles at the scene of the crime. The grass around the scene were disturbed. Photographs "A" and "D" of Exh. 1 B clearly show this.

This above set of factual circumstances were clearly, on the undisputed evidence, established beyond any reasonable doubt whatsoever and the Court is entitled to draw whatever inferences or inferences it could from those proven facts. Of course, the Court is not entitled to draw an inference from an alleged fact which had not been established beyond reasonable doubt. See Chamberlain -v- The Queen (No.2) (supra).

Is there any other fact, disputed but found by the Court, to be established? I feel there are also a number of facts which the Court found to have been established on the evidence before the Court. One of those fact was that the accused spoke to PW2 in response to PW2's question as to what was going on. To that the accused answered pidgin "Car ia hem no gud." (meaning that something was wrong with the car). This was after the accused left the taxi, walked up the road and then came back and walked down the road, passing just few meters away from PW2. The accused said that he did not remember talking to anyone. However, I am satisfied beyond reasonable doubt that PW2 spoke to the accused, asking him what was going on and that the accused replied to PW2 in the words mentioned by PW2. Both PW14 and PW15 stated in evidence that they saw the accused appeared to be talking to PW2 on his way down the road after unsuccessfully trying to push the taxi. This confirmed PW2's evidence and I am satisfied of the fact of the short conversation between PW2 and the accused that night or more correctly, early morning.

There is the evidence that a fight and struggle occurred prior to the death of the deceased. The accused could not recall having any fight with the deceased. He said all the time he was sleeping at the front seat of the taxi. PW2, PW14 and PW15 had all stated in evidence that they heard the noises of fighting, aggressive talking and a pleading voice for help. This was in the still hours of the night and noises at such time travel clearly through the air. PW2's house was closest to the scene. He heard clearly that a fight was going on. He even heard sounds of kicking. He recounted:

"I could make out the sound that someone was fighting. There was one person talking loudly in an aggressive manner.

This was opposite my house, though not directly.

...............

One was an aggressor and the other was a victim.

From my house to the scene of the incident would be about 20 - 25

metres.

There was no other noises except the noises of fighting, aggression and kicking.

I went to the bathroom to look out. From the bathroom I went to the room closest to the scene and there I had a far better view of what was happening.

.................

The noises went on for a long time. After that I did not hear the voice of the victim. But the sound of thumping went on"

The other two witnesses, PW14 and PW15, heard noises of two people fighting, one being aggressive and the other crying for help. Those evidence clearly established that there was fighting at the scene of the incident and that the deceased died following that fight. The question as to who was involved in the fighting, I will deal with that later. At this stage, I need only say that I am satisfied beyond reasonable doubt that there was a fight that night at the scene of the incident and following that fight, the deceased died.

There is a further aspect of the case. The taxi was parked at the left side of the road facing up the Upper Ngossi. The fight took place at the left side of the taxi. The deceased was found lying on the ground toward the back of the taxi and on the left side of the road. The most reasonable conclusion from that scenario is that the deceased came out from his side of the car and went around to the left side of the vehicle. Whether he was forceably moved or did so on his own accord nobody knows or at least the Court is not told. I. am however, satisfied so that I am sure that the deceased was not at the driver's side of the car when he was killed but rather he was at the left side of the vehicle.

Inferences sought to be drawn

In the light of the undisputed factual circumstances and those which the Court have found to be established, it is not surprising that the prosecution strongly submitted that it was the accused who was responsible for the death of the deceased. There was nobody else there except the accused and the deceased. The voices heard by the witnesses were of two people, one being the aggressor and the other being the victim. The fight was between the accused and deceased. The mud and dirt stains and tears on the clothes of the accused were from the fight and struggling between them.

There were greenish dirt on the clothes, indicating a struggle on the ground and on the grass beside the taxi. The accused was the only person who got up from where the deceased was lying, stood up and walked out from behind the taxi and he was clearly identified by PW2, PW14 and PW15.

In those circumstances, it was submitted that the only reasonable and rational inference is that the accused was the person responsible for t

The counter argument.

Against the prosecution contention, the defence raised a number of hypotheses.

Firstly it was submitted that as the accused was heavily intoxicated he was no-matched for the deceased who was a well-built, stalky and sober man. It would be out-of-the ordinary to say that in such an intoxicated state the accused could kill the deceased. Counsel for the accused qualified that proposition, saying that, not that it was impossible but it was unreasonable.

Again, the defence contended that if it was the accused who had a fight with the deceased, it would mean that the accused would have to get out of his seat, walked around of the car to the deceased's side, pulled the deceased out and around to the left side of the car. That argued counsel would not be rational since a sober person like the drive would sense something sinister was happening and would take the sensible step of simply speeding off from the accused and escape. Even any suggestion that the accused assaulted the deceased while sitting in the car would not be reasonable submitted Council.

It was contended by the defence that there was a possibility of a person or persons other than the accused whom the deceased might have picked up on the:, way from Naha to Ngossi and who might have killed the deceased while, the accused was sleeping in the front seat of the car. Having killed the deceased they could have escaped. There was ample time for such assailants to escape before PW2, PW14 and PW15 had the opportunity to observe the scene of the incident.

As to the mud and other dirt stains on the accused's clothes, it was contended for the defence that those were caused when the accused fell down beside the taxi upon tripping over the object beside the car as well as from falling down on a number of times while walking down to PW3's house. As to the mud on the boots, that was said to be from the mud from the place where the accused and others were drinking at Naha.

Reasons for rejecting the Defence Hypotheses.

I bear heavily at the forefront of my mind that the defence bears no onus of proof. It is not for the accused to prove the truth of the hypotheses put forward on his behalf in order to show his innocence. On the other hand if the prosecution, on the evidence, proved that the suggestions by the defence, could not be sustained, then the prosecution's hypothesis remains firm and alone before the Court.

The incapacity status of the accused through intoxication had to be assessed not after he arrived at PW3’s house or at the cell but at the time when he and deceased arrived at the place of the incident. If there were only the two people at the scene, that is, the accused and deceased, then the voices of aggresion and pleading for help could only have come from the two of them, one of them being the aggressor and the other being the victim in need of help.

The emergence of the accused from the scene in the manner described by PW2 and who had "a far better view of what was happening" is suggestive of a person having taken alcohol but not dead drunk to be incapacitated. PW2 described the accused as coming out from the place of the fight, walked up the road and then turned and walked fast down the road past him (PW2). In his evidence PW14 said that he saw the accused "ran out” from behind the taxi at the place where the fight took place. PW15 also saw the accused emerged from behind the taxi. Both PW14 and PW15 described how the accused tried to push the taxi and then walked past them.

When one put together the evidence of PW2, PW14, PW15 and the acused’s evidence in cross-examination, the picture suggested by the defence of an incapacitated intoxicated man cannot stand. Certainly not on the evidence before the Court. The prosecution have discharged the onus of showing that the accused was not incapacitated with alcohol at the time he emerged from the scene of the crime.

Perhaps it will remain a mystery as to why and how the deceased left his driving seat ended up at the place where he was found lying dead. However there can be no doubt that he was killed following a fight and struggle which took place at the left side of the car.

The accused explained how the mud and dirt stains got onto his shirt, trousers and boots. However, the mud and dirt on the clothes were not there when the accused left Club Freeway. Throughout the time between the boarding of the taxi at Club Freeway and when the taxi stopped at Upper Ngossi on the night in question, the accused was in the taxi. Could those dirt got onto his clothes from falling down while on the way down to PW3's house? Observing the road from Exh. 1 B from the scene of the incident to PW3's house, that part of the road was tar sealed. Falling down while walking on a tar-sealed road would be unlikely to cause such extensive stains of mud and dirt on the accused's clothes. Even if he fell on the side of the road on the way to PW3's house, it could not have produced such extensive dirt marks all over his clothes.

There was also a tear on the left leg of the long trousers. Even if one accepts that tears on trousers can be considered as part of the young people's fashion these days, it remains to be a fact that the dirt around the tear were not there when the accused left the Club Freeway.

Again observing the Exh. 1 B (Photographs of the scene of the Murder) the place where the taxi was parked was a dirt road. One can see the dirt surface and grass at the area of the scene. Photograph "A" "B" and "D" of Exhibit 1 B clearly show this. In all likelihood, the evidence adduced by the prosecution points to this area at the scene of the incident as the place where the dirt got onto the accused's clothes. The greenish dirt on the clothes can only mean that they came from rubbing against or rolling on the ground and grass.

The theory of some other person or persons being picked up on the way from Naha to Ngossi and being the killer while the accused was fast asleep in the taxi might be a possibility. However, not only that it was a remote possibility but it was possibility that has found no support on the evidence before the Court. It is not for the accused to convince the Court of his innocence. It is for the prosecution to exclude such possibility as that raised by the defence. When one considers the total effect of the evidence of PW2, PW14 and PW15, as well as those of the accused and his brother, the prosecution hypothesis remains unassailable. There can be no suggestion of another person at the scene.

Who were present at the Commission of the crime?

This now leads me to the next question. Who were present at the time the deceased was killed? The prosecution case here is built on the evidence of PW2, PW14 and PW15. In addition the evidence of PW1 and the accused's brother were also said to add strength to the prosecution theory that the accused was the only person present with the driver at the time the deceased was killed. PW2 in his evidence in chief appeared to have the impression that he could have heard three voices at the scene.

However he went on to describe that he heard only two people talking, the aggressor and the other the victim. Apart from that, he clearly saw only the accused emerging from the scene. The other person found at the scene was the deceased.

PW14 and PW15 stated that the only person they saw walking out from the area behind the taxi was the accused. PW1 stated that he and Akao were dropped off at the Naha junction leaving only the accused and his brother in the taxi. Michael Etei stated that he got off the taxi at their house at Naha 4. He woke the accused up but the accused said that he was going to Ngossi. Michael Etei saw the taxi driver and the accused drove off.

There was no evidence to support the theory of another person being picked up on the way to Ngossi. When that theory is discarded, the inevitable conclusion is that the accused was the only person present at the commission of the crime apart from the deceased. This conclusion is clearly tenable when one puts together the evidence of the witnesses I have mentioned earlier.

The evidence here is largely circumstantial. But having considered all the evidence and the weight to be given to the combined effect of all the circumstances put together, the only rational inference to be drawn therefrom is that the accused was the only person present with the deceased when he (deceased) was killed.

Medical evidence.

Before considering the question as to who actually killed the deceased, it is here that I come to consider the medical evidence. The medical evidence showed that the deceased sustained a number of injuries to the head, chest, abdomen, upper limb and lower limbs. The injuries were described as follows:

"Head - Unclotted Blood oozing through the mouth and nostrils.

- Grossly unstable cervical spine

Chest - Superficial neat and clean cut over the right shoulder. Haematoma over left shoulder about 5 mm deep.

Superficial bruises right lower chest.

Superficial bruises over the right chest at the back.

Superficial bruises marks left shoulder and neck.

Abdomen - Superficial skin contusion left upper abdomen.

Superficial oblique skin cut about 10 cm long at right lower flank.

Upper Limb - Seven (7) superficial cuts at the back of right forearm.

Lower Limbs - Superficial contusion medial aspect of the right thigh.

Superficial cut about 2 cm long right shin."

The evidence revealed that the deceased suffered massive haematoma over the left shoulder and areas at the back of the neck which suggestive of the use of blunt instruments to the shoulders, neck and head. The neck was found to be very loose and mobile. The conclusion of the doctor was that the deceased died of head injury. The injury to the neck and the base of the skull would result in cardio-respiratory arrest and death.

According to the doctor some of the injuries were .caused by sharp instruments. But it was the fracture to the base of the neck that led to immediate death.

In his evidence the doctor also stated that the injuries to the shoulder and neck base were consistent with the use of blunt instruments, such as boots, clubs or stones. Kicking with boots and thumping could cause the injuries to the shoulder and neck. However, a mere fall on the ground would not cause such injuries. Ask in cross-examination as to what his conclusion would be, the doctor replied:

"My conclusion is that the injuries were caused by multiple application of blunt objects to the base of the head and they were caused by the same object.”

Ask which injuries were fatal, the doctor replied that it was the injuries to the back of the head which injuries caused the cervical spine to be unstable. When asked if kicks to the body would cause such injury, the doctor replied, "yes"

The evidence demonstrates clearly that the fatal- injuries suffered by the deceased were caused by the repeated application of a blunt object such a stone or, a club or boots to the body. The assailant in this case could have used any of those objects. The other injuries were caused by sharp instruments such as a knife.

Who killed the deceased?

It now remains for the Court to consider this vital question: Who killed the deceased? Did the deceased meet his death elsewhere but later dumped at the scene? This is highly unlikely since he drove the accused to the place of the scene. Was there another person picked up on the way from Naha and that it was that person who was responsible for the death of the deceased? That was possible but there is no evidential support for that proposition. As such no rational inference can be drawn from such alleged facts. As pointed in Reg. -v- Van Beelen that it is

"an obvious proposition in logic, that you cannot be satisfied beyond reasonable doubt of the truth of an inference drawn from facts about the existence of which you are in doubt."

Were there other people beside the accused at the scene when the crime' was committed? PW2 who said that from the bathroom of his house, he went to another room closest to the scene and from there he said, "I had a far better view of what was happening." He did not see anyone else coming out from the place of the fight except the accused. PW14 and PW15 were firm in their evidence that they saw only the accused emerging from the scene of the incident. So the suggestion of someone else apart from the accused present at the scene is difficult to accept.

That leaves us with the accused as the only person who was with the deceased at the time of his death. Was the accused responsible for the death of the deceased? There was nobody else there at the material time except the accused and the deceased. The evidence clearly showed that only two people were fighting at the scene. Those two people could not be anybody else except the accused and the deceased. The evidence demonstrated that the fighting and struggling between them occurred outside to the left of the taxi. The disturbances on the ground and grass shown in Exh. 1B confirmed that to be so. It cannot therefore be accepted the suggestion that the accused was fast sleeping in the taxi while the fighting was going on at his side of the car. If he was not the one having a fight and struggling with the deceased, then how could he get so much dirt and greenish stains on his shirt and trousers? The dirt stains on the accused's were extensive, covering the front and back of both of the shirt and trousers. The greenish dirt demonstrated that the fighting and struggling took place not only while standing but while on the ground as well. The extensive dirt marks all over the clothes of the accused were consistent with him fighting and struggling with the deceased and rolling on the ground. On close look at the dirt marks allover the shirt and trousers, one can see that there were blackish, greenish, brownish dirt marks on the clothes. I also observe what appeared to be dried blood stains on the front left leg of the long trousers. That can only be confirmed by appropriate test. But whether it was blood stain or not it does not matter. It was all part of the dirt marks which could only have got onto the accused's clothes as a result of the fight and struggling between him and the deceased.

The suggestion that it would not be reasonable to expect a drunken man in the size of the accused to match the man in the size of the deceased in a fight cannot be accepted. The suggestion may sound good but it is not always true. A small or weaker person can in some circumstances also kill a person who is muscular and stalky. For even a mouse can also also kill an elephant just by entering its trunk. A vital blow delivered by a small person to the body of a well-built person could be fatal.

In this case the vital blow to the deceased's body was that delivered to the back of the neck. The injuries were consistent with kickings with heavy boots applied to that area of the body possibly when the deceased was on the ground lying faced downward. However it is caused, it was done by the accused who was at the time wearing a pair of heavy safety boots. Injuries to the head, shoulder and neck were caused by blunt weapon. That weapon was the pair of safety boots worn by the accused who delivered the vital blows to the body the deceased causing death. He also inflicted the other cuts to the body of the deceased with a sharp instrument. It is not hard to imagine how easy it was for him to discard the sharp instrument after the fight.

I am satisfied beyond reasonable doubt that the nature of the injuries demonstrated that the accused delivered the blows with the intention of causing grievous bodily harm or really serious injury to the deceased. That is evidence of malice.

Conclusion

I bear in mind the principles referred to by Mr. Nori and stated in Barca (1975) 133CLR82 where at 104 - 105, Gibbs Stephen and Mason JJ said:

“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock [1911] HCA 66; (1911) 13 CLR 619 at 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp [1963] HCA 44; (1963) 110 CLR 234 at 252; see also Thomas [1960] HCA 2; (1960) 102 CLR 584 at 605-606. However 'an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not present a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence': Peacock(1911) 13 CLR at 661.”

The case for the prosecution in the present case rest substantially upon circumstantial evidence. As such the jury (in our case, the judge) must be satisfied beyond reasonable doubt that the circumstances as found to exist are not consistent with any reasonable hypothesis other than guilt of the accused. In other word, the guilt of the accused must be the only rational inference open to the Court to find in the light of the evidence.

Having considered all the evidence most anxiously, I am satisfied beyond reasonable doubt that the only rational inference to be drawn from the established facts in this case is that the accused caused the death of the deceased in the circumstances amounting to murder. Consequently I found the accused guilty of the crime of murder and I convict him.

Verdict: Guilty of Murder.

(Sir John Muria)
CHIEF JUSTICE