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Regina v Temoli [2012] SBHC 70; HCSI-CRC 435 of 2009 (10 July 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Criminal Case No. 435 of 2009

REGINA

–V-

JOSEPH TEMOLI

Date of Hearing: 23,24,25,26 April and 18 May 2012
Date of Judgment: 10 July 2012

H Kausimae for the Crown
L McSpedden for the Accused

JUDGMENT

MWANESALUA J:

[1] The brief facts. Mr Joseph Temoli ("the accused") and Late Caiaphas Mwaetakoli ("the Deceased") were blood brothers. In May 2009, they lived at Duelengibirpe Village, at Santa Cruz in the Temotu Province. That village is situated within the Noole Farm Site. In the early morning of 28 May 2009, the deceased was at his house in his garden near the Noole Main road, some distance away from the village. That morning, the accused left the village to visit his newly planted trees outside the village. He held his bush knife and his file. The accused saw that someone had destroyed his trees. The accused then went to see the deceased to find out if he had information about the person who damaged his trees. The accused said, the deceased then admitted to him that it was the deceased himself who had damaged the trees. The accused said he replied saying that he just wanted to find out that information. A quarrel then ensued between them during which, the accused inflicted wounds on the deceased's body with his bush knife. The deceased ran out onto the main road towards the village. The accused ran after the deceased and whipped his back side while they were running along the road. The deceased continued to run until he fell down. The deceased stood up but collapsed at the side of the road where he later died. The deceased was transported to Lata Hospital, where a doctor examined his wounds and the police took photographs of his body and wounds. The deceased was later taken back to the village by the same vehicle for burial. The police went to the village to carry out their investigation. They arrested the accused, collected his bush knife, file, and the accused's knife. The accused was remanded in custody and gave a caution statement to the police on 31 May 2009. The accused gave a statement from the dock and called no witness during the trial.

[2] The Charge. The accused is charged with the murder of the deceased on 28 May 2009, under Section 200 of the Penal Code (Cap. 26). The deceased pleaded not guilty to the charge upon his arraignment at the start of this trial. The burden of proving the guilt of the accused lies upon the prosecution. The standard of proof is beyond reasonable doubt.

[3] The Prosecution Case. The Prosecution's case is that the accused intended to cause the death of or grievous bodily harm to the deceased. The accused knew that he will probably cause the death of the deceased or cause the deceased grievous bodily harm when he cut the deceased with a very sharp knife several times.

[4] The Defence Case. The defence case is that the accused caused the death of the deceased in self-defence. The prosecution contends that the defence cannot rebut this defence in the absence of any eye witnesses to give evidence inculpating the accused. Further, the prosecution says that the absence of evidence as to the circumstances of the altercation other than from the accused, prevents a finding of guilt for murder against the accused.

[5] The Law. The accused is charged with murder under Section 200 of the Penal Code as stated in paragraph 2 above. The elements of the offence are set out in Section 202 of the Penal Code 202. 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.

[6] Circumstantial evidence. In R –v- Dudley Pongi^[1] where Muria CJ said: "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 proven beyond reasonable doubt (See Regina –v- Van Beelan (1973) 4SAS R353 and Chamberlain –v- The Queen (No.2) 1983 – 1984) 153 CLR521)."

[7] Self Defence. The prosecution must prove beyond reasonable doubt that the accused was not acting in self-defence. In R –v- Samae [2005] SBCI, the Court of Appeal said:

"In a case of murder, the prosecution must also establish beyond reasonable doubt that the act of the accused was not done in self-defence. It is quite wrong to speak of this as a "defence", just as it is wrong to speak of accident as a "defence", although it is conventional to do so. In each case, it is incumbent on the prosecution to prove both that the act causing death was intentional and that it was not held on reasonable grounds [Beckford –v- R[1987] 3 ALL ER 425].

[8] In this case, the defence submitted that self-defence cannot be negated. In Palmer –v- R [1971] AC 841, the Privy Council said:

"If there has been an attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the actual measure of defence action. If the Jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instructively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken..."

[9] Self-Defence. In R –v- Lobell^[2]. In that case the defendant was charged with wounding with intent to do grievous bodily harm. The defendant set up a defence of self-defence. There was evidence to support his defence. The crucial part of the judgment reads as follows:^[3]

"It must, however, be understood that maintaining the rule that the onus always remains on the prosecution does not mean that the Crown must give evidence in-chief to rebut a suggestion of self-defence before that issue is raised, or indeed need give any evidence on the subject at all. If an issue relating to self-defence is to be left to the Jury there must be some evidence from which a Jury would be entitled to find that issue in favour of the accuse, and ordinarily no doubt such evidence would be given by the defence. But there is a difference between leading evidence which would enable a jury to find an issue in favour of a defendant and putting the onus upon him. The truth is that the jury must come to a verdict on the whole of the evidence that has been laid before them. If on a consideration of all the evidence the jury is left in doubt whether the killing or wounding may not have been in self-defence, the proper verdict would be not guilty".

[10] The Wounds on the Deceased Body. The accused and the deceased were by themselves at the deceased's garden when they quarrelled and the accused inflicted slash wounds on the right and left forearms of the deceased with his bush knife. The knife penetrated the flexer/extenser muscles severing the major blood vessels. There was a superficial wound on the neck extending to the right shoulder down to the arm of the right upper limbs. All major wounds caused by the accused fall within the legal definition – of "grievous harm".

[11] Prosecution Witnesses. This is a case where the prosecution would substantially rely upon circumstantial evidence to prove the guilt of the accused for the charge of murder. They led evidence from the following witnesses: (Stephen Pepe is the nephew of the accused and the son of the deceased. His evidence is that at about 5pm on 27 May 2009, he saw the accused sharpening his bush knife with a file at his house. This was after he went to the deceased's house but had gone out. The accused asked Pepe if he knew any information about the person who damaged his newly planted betel nut trees. Pepe told the accused that he did not have such information. The accused then said words to the effect: "I will ask your father Koli (referring to the deceased) and if he says he is the one who damaged my betel tree nuts, I will kill him". At the time, the accused looked serious and angry.

[12] Margaret Inapwe the sister in law of the accused and the deceased. Her evidence is that on the morning of 28 May 2009, between 6 am and 7 am, she was sitting in her house when she looked over to the deceased's house and saw the accused sharpening his knife with a file at his house.

[13] In his Record of Interview with the police (Pidgin version^[4] admitted his prior animosity towards the deceased (the underlying root cause of which is the alleged ongoing destruction of his properties by the deceased) when he answered the following question.

"Q23. Iu cross long Caiaphas Mwetakoli too? (were you angry with Caiaphas Mwetakoli?)

"A23 Yea becos staka times hem save destroyem properties blong me but me love him. Mi garem love lo hem bicos of being brother. (Yes, because alot of times he destroyed my properties but I love him. I love him because he is my brother)".

[14] Prosecution Submission on implied and Express Malice by accused prior to infliction of wounds on the deceased which caused death to the deceased. The prosecution contended that the evidence in paragraphs 11, 12 and 13 above, prove that either on 27 May 2009 or earlier, the accused found out that his young betel nut trees in his garden had been damaged or destroyed by unknown person(s). The prosecution thus say, it is reasonably open from the evidence to draw the following inferences: "That upon seeing his damaged betel nut trees, the accused became very angry and wanted to find out who was responsible for damaging his betel nut trees. The accused strongly suspected the deceased as it was common knowledge to the locals that in the past the deceased usually had the habit of cutting down their family trees and crops when mentally affected. The accused became very angry and frustrated at the deceased and decided that the only way to stop the deceased from further damaging his crops and trees was to kill and get rid of the deceased. Therefore the accused had been sharpening his bush knife one day earlier and again in the early morning of the very next day and had planned to set out early to attack the deceased by surprise that same morning. When the deceased was expected to be at his house and would not be ready or prepared to defend himself. He could have carried out the attack upon the deceased on 27 May 2009 but the deceased was not at his house or Crime Scene A".

[15] On morning of 28 May 2009 Margaret Inapwe, saw the accused sharpening his knife. Later she heard shouting coming from the direction of the deceased's house. She ran along the road towards the direction of the shouting and saw the deceased running from his garden to the road towards her, and, the accused running after him with a bush knife in his hand. She saw the deceased's body covered with blood and the deceased said "Joseph cut me". She saw the deceased fell down on the side of the road. The accused caught up with the deceased and whipped the backside of the deceased with his bush knife. The deceased struggled to stand up, staggered towards the opposite side of the road and fell down for the second time. The accused was standing close to the deceased talking to the deceased. She asked the accused: "Are you looking for something to chop/cut?" The accused replied her saying: "Today I mean to kill him. You have no business".

[16] On the morning of 28 May 2009, Pepe saw his father lying on the road. He saw people fetching water to wash the deceased wounds. People were trying to help the deceased. He heard the accused said, "Don't take him. Leave him. I mean to kill him".

[17] John Menode took his two daughters to Fanacom Primary School in the morning of 28 May 2009. He saw blood on the road while people were there. He asked the accused if an accident had occurred there. But the accused replied saying, "I cut Koli. He is lying over there. I don't know whether he is alive or he is dead".

[18] Ishmael Me'ebio said he saw the deceased and the accused on the road. He saw Nelson Menale and Johnly Bade using a bucket to wash away blood from the deceased's wounds and body. The accused said to him, "Don't take him to hospital, I stop it. Leave him die there. I have every right over him because he is my brother and he had made a fool of me, I mean to murder him so I will "life time".

[19] Doreen Ilo is one of the deceased and accused's sisters. She saw the deceased lying on the road. She went to the accused asked him saying: why did you kill our brother" and the accused said words to the effect: "Me tired for hem spoilem trees blong me. I must kill him to death. I went to his house and saw him cooking bananas as I cut off his pawpaw tree and I killed him."

[20] The accused gave a caution statement to the police during an interview on 31 May 2009: Q36 and its Answer are these:

Q36: What was Caiaphas Mwetakoli's response?

ANS: He held a bush knife, a pot and said to me with an angry look, "I did uproot the trees, so why asking?" He advanced towards me with red eyes, swinging his bush knife and say "You leave". He moved closer to me. I chopped one pawpaw plant thinking that it will scare him of me. He picked one huge stone and dropped it again because of its weight. Our distance was close, during the time. I defended myself from his knife. He landed his knife on the blade of my knife. Two cuts on my knife from his. I pulled back my knife and there I sliced out both hands of Caiaphas Mwetakoli."

[21] The accused did not give evidence under oath during the trial, but gave a statement from the dock. Relevantly, he said:

"On 28 May 2009 at 7 am in the morning, I sharpened my knife ready to go into my forest land which my father had given me. I went to visit my land and saw some damage on my land near the boundary. My mahogany trees, bread fruit and betel nut trees were damaged. I left the boundary and came to the road so I went back to the house so I saw my brother at the side of the road at the settlement we stayed. So I went down there and wanted to ask my brother – I have heart for him. I saw his face and he gave me a serious look. So he answered like this, "You ask me for what. I was the one who cut down the trees. So I answered like this: "now that I know that you cut down the trees, that is all I wanted to know". So he held his knife and threatened me. He said to me," get out, you go"...... So he wanted to cut my leg so I jumped away. So he threatened me, so I wanted to scare him and I cut a pawpaw tree that stood outside his house. So he held his pot and his knife with both hands over his right shoulder in ready to cut motion. So I defended myself with my knife under his right hand. I slide my knife which cut his right hand, and when I drew back my hand the knife cut his other hand. After he bent down already injured and wanted to pick up a stone but it was heavy. So he wanted to cut my neck with his knife so I defended myself so his knife cut the side of my knife. He continued to hold his knife in his hand. So he wanted to cut my abdomen so I punched his knife fell down. So my brother ran out to the road. ......."

[22] Consideration of the Evidence. I have considered the evidence for the prosecution and the accused's statements from the dock which is not under oath and not tested by cross-examination. But I bear in mind that the prosecution must prove the guilt of the accused for murder beyond reasonable doubt before I convict him of murder.

[23] The Wounds and Cause of Death. There is evidence that the accused filed his bush knife on 27 and on the morning of 28 May 2009. Later that morning, the accused went to the deceased's garden and met the deceased there where a quarrel occurred between them. During that quarrel, the accused used his bush knife to inflict slash wounds on the forearms of the deceased's right and left hands. These wounds were deep, causing massive bleeding and shock which led to the deceased's death.

[24] The Accused's Defence. The defence's case is that the accused caused the death of the deceased in self-defence. The accused explained in his caution statement and his statement from the dock, parts of which are referred to in this judgment. There is then the burden on the prosecution to disprove this defence beyond reasonable doubt^[5]. It is clear from the accused's statement from the dock that the deceased attempted to cut his legs with his knife, he avoided that by jumping away, before he defended himself with his knife. The accused punched away the deceased's knife which fell to the ground. The police picked up that knife at the scene of quarrel.

[25] I have considered statements made by the accused to witnesses after the deceased died. Those statements were not made by the accused preceding or co-existing with the act which caused the death of the deceased. Because of that, the view of this Court on them is that, they can neither establish the implied or expressed malice of the accused for the offence of murder.

[26] The Court is therefore of the view that even though the accused had caused the death of the deceased, there is no evidence to negate defence of self-defence, and accordingly the accused is acquitted of murder as charged.

THE COURT

^[1] Regina –v- Pongi [2000] SBHC64; HCSI-CRC.40 of 1999 (11 February 2000)
^[2] [1957] QB547
^[3] At p.551
^[4] “Exhibit P6”.
^[5] R-v- Samae – see paragraph [7] above