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Bina v Regina [2006] SBCA 16; CA-CRAC 023 of 2006 (25 October 2006)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. This is an application for leave to appeal against the appellant’s conviction before the High Court on 8th of July 2005 of the Murder of his mother-in-law Dominita Mita at Madakacho Village, Weathercoast, Guadalcanal Province on 2nd of January 2004.

2. The facts can be stated briefly. During the afternoon of the 2nd of January the appellant became involved in a domestic argument with his wife and mother-in-law. During the argument the appellant punched the deceased in the face then kicked her in the lower abdomen area. The kick lacerated her spleen causing significant blood loss and death. Her spleen being overlarged was according to the pathologist more vulnerable to a blow. It was the pathologist’s opinion the bruising about the rib area had been caused by a blow of more than a small degree of force. The dead woman was aged about 50 of slight build weighing approximately 50-60kgs and about 160cm high. When interviewed by police the appellant admitted kicking Mrs. Mita to make her afraid and to stop her interfering between himself and his wife. He claimed he had had no intention of killing her and it was by accident he had kicked her whereby she died.

3. The Crown case at trial was in kicking the deceased as described, the appellant intended to do her serious harm and was accordingly guilty of murder in terms of section 202 of the Penal Code.

4. The appellant’s notice of appeal relied on 5 grounds but only two of these
Grounds were pursued before us. They were:

(1) The learned trial judge erred in law when he misdirected himself on the meaning of malice aforethought and the test to be applied by the Crown.

(2) The learned trial judge erred in finding that the appellant had the necessary malice aforethought to be convicted murder.

5. The appellant seeks orders:

(1) That the verdict of murder be set aside and a verdict of manslaughter be substituted;

(2) That this court sentence the appellant on the substituted verdict.

6. The Crown opposes the appeal.

7. Section 200 of the Penal Code provides: "Any person who with malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder and shall be sentenced to imprisonment for life."

Section 202 of the Code provides: "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 fact 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.

"Grievous harm" is defined by Section 4 of the Code to mean: "Any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, membrane or sense."

8. It is not disputed grievous harm was suffered by deceased from appellant’s kick or that her death was a consequence of the kick. Where therefore as here the Crown relies upon the second leg s.202 the Code specifically provides when malice aforethought is deemed to be established.

9. The Crown in this case was required to establish beyond a reasonable doubt that at the time appellant kicked his mother-in-law he knew such kick would probably cause her grievous bodily harm. Provided this was established it did not avail appellant if at the time of kick he was indifferent to the result or wished no grievous bodily harm to come to his mother-in-law.

10. Both counsel referred us to Joel Aosi v Regina [1988] SBCA 1; [1988-1989] SILR 1 and to the authorities referred to therein. Both accepted when on a charge of murder the Crown relied on the second limb of s.202 the question to be determined is the knowledge of the accused that the act upon which the Crown case relies on would cause the death of or grievous bodily harm to the victim.

11. It is Mr Evans submission an overall consideration of the trial judge’s judgment shows he applied an objective test to determine appellant’s knowledge of whether the death or grievous bodily injury would result from this kick and by doing so erred in law. He submits the trial judge wrongly considered and determined the appellant’s knowledge of the consequence of his kick having regard to what members of appellant’s general community would know instead of concentrating on and determining what appellant knew of the consequence of kick.

Mr Mirou submits an overall reading of the judgment does not support the appellant’s contention.

12. In his judgment the learned trial judge at pages 14 and 15 of his judgement said: "Knowledge of the consequences or indifference whether death or grievous bodily harm caused or not - To follow the punch with a kick exhibits to my mind, a callous indifference to whether or not harm is caused. When I look at the photographs of the dead woman it is clear she was but slightly built and not a young woman. It is more probable than not a kick would cause serious hurt to this person were the kick to be directed at her ribs. Whilst the resultant cannot be used to prove the case, a reasonable man in the village could be expected to realize that such a kick, landing on this woman’s ribs, would more likely than not, cause serious harm and pain. A consequence of a rib injury, pain, is common knowledge to whosoever has suffered a serious hurt to his ribs which carries a real risk of injury to the underlying vital organs of the body, including the spleen. Whether the spleen is enlarged or not, is immaterial when considering the actual possibility of injury which exists in the face of a kick of this type."

Knowledge that the kick will probably cause grievous bodily harm

"When I speak of the reasonable villager, I do so advisedly for the test is objective as to the knowledge" of an "intention to inflict grievous bodily harm may be inferred from the nature of the act which is done." That has been the law here since the code, and authority for the proposition is not needed. But what this court must be satisfied about, in this place and time is that a kick would ordinarily be seen, when involving an older woman of slight build, a real likelihood of really serious harm. There can be no doubt that an ordinary villager appreciates the importance of protection afforded by the ribs to the vital organs and consequently to attack the ribs is to risk that harm. For the use of a knife, for instance, to penetrate the ribs causing death would without further, be evidence sufficient, I suggest of the intent or knowledge that the grievous harm would result.

"Grievous harm" is defined to mean:-

"any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, membrane or sense."

This harm then clearly falls within the definition of harm- "which amounts to dangerous harm,"- for the spleen was damaged. Where inexplicable underlying injury and hurt is occasioned to the torso, a normal villager would understand vital or vital organs had been involved, even though not apparent, perhaps on the surface of the skin. Such understanding springs from the knowledge that risk of serious harm attaches to injury to vital organs about the torso so that serious injury to the ribs carries with it the associated risk to the organs. The various alternatives in the definition is wide ranging and cannot be precisely expressed beyond the wording itself and should not, for the circumstances of injury themselves are so wide-ranging as to deny better definition. I am satisfied, however that an ordinary villager on the Weathercoast would foresee a real risk of really serious harm were a woman of that age and stature to be kicked as described".

13. It is plain from this passage the Trial Judge in asking himself whether the requisite knowledge of the accused has been established has relied strongly on what he considers persons other than the appellant would have known or have appreciated were the consequences of the kick. He has failed to consider the questions on the basis of what had been established by the evidence appellant knew of consequences.

14. We do not overlook that at page 4 of his judgment the learned judge said:

"So to prove ‘malice aforethought’ the prosecution must show either the intention to cause the death or grievous bodily harm or knowledge that the act which caused the death will probably cause the death or grievous bodily harm."

And page 5 he said: "The Crown must still satisfy me however, of knowledge in this particular defendant that the act of kicking, "will probably cause the death of, or grievous bodily harm to such person 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."

15. These brief comments do not persuade us that the judge correctly approached the question of proof of appellant knowledge particularly having regard to the extensive remarks made when specifically dealing with this question.

16. It follows we uphold Mr Evans first submission. The conviction for murder will be set aside and a verdict of manslaughter substituted on the substituted verdict the appellant is sentence to 4 years imprisonment.

Lord Slynn of Hadley
President of the Court of Appeal

McPherson JA
Member of the Court of Appeal

Morris JA
Member of the Court of Appeal