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Thugea v Reginam [2016] SBCA 23; SICOA-CRAC 10 of 2016 (14 October 2016)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

Introduction

1. Members of Dudula Village, Tasimboko suspected that Godfrey Bosa had used black magic to kill achild from their village. Mr Bosa was part of a group of family and friends who went to attend a traditional reconciliation ceremony at the village on 1 March 2011.
   
2. Not long after Mr Bosa’s group arrived at Dudula, Mr Bosa was killed. Five men from Dudula including the appellant, Mr Thugea, were charged with Mr Bosa’s murder. Four were acquitted at trial. The fifth, Mr Thugea, who said he had acted in self-defence when he killed Mr Bosa, was convicted of murder. Mr Thugea said at trial that he had struck Mr Bosa with a bushknife when Mr Bosa was about to attack him.
   
3. Mr. Thugea accepted he had killed Mr. Bosa. The only issue at trial was therefore whether the prosecution had disproved self-defence.
   
4. The Judge at trial rejected the appellant’s evidence that he was acting in self-defence. He accepted the evidence of the other witnesses that Mr Thugea had been the aggressor that day.
   

The Appeal Grounds

5. The appellants’ case is that the trial judge:
   
   • (a) Failed to adequately consider the evidence of Roselyn Kaoni, whose evidence supported Mr Thugea’s claim that he was acting in self-defence (ground 1).
     
   • (b) Wrongly accepted the evidence of the eye witnesses who said Mr Thugea was the aggressor, given the inconsistencies in the witnesses’ evidence relating to Mr Bosa’s killing. (grounds 2 and 3)
     

Background Facts

6. The facts leading up to just before the blow which killed Mr Bosa are not essentially in dispute.
   
7. When Mr Bosa, his wife and others arrived at Dudula, there was a large crowd waiting for them. Three of the men in the crowd including Mr Thugea were related to the young boy who had died. Shortly after Mr Bosa’s arrival, one of the men from Dudula made threatening remarks about killing Mr Bosa.
   
8. The Crown case was that Mr Thugea approached Mr Bosa with a long bushknife. Mr Bosa ran off with Mr Thugea chasing him. Mr Bosa’s retreat was halted when he was tripped by another man. Mr Thugea then caught Mr Bosa and slashed him with his bushknife causing very serious injuries. Other men from Dudula then assaulted Mr Bosa. Shortly afterwards, he died. Other members of Mr Bosa’s group ran off frightened they would suffer the same fate as Mr Bosa.
   
9. Mr Thugea’s version of events, given by an unsworn statement, was that when Mr Bosa first arrived at Dudula, he had said he had come to Dudula for compensation for being accused of using black magic. Mr Bosa had then angrily driven a bushknife into the ground.
   
10. Mr Thugea had reacted to this insult by chasing Mr Bosa with his knife. Mr Bosa ran off and so Mr Thugea turned and walked back toward the village. Mr Thugea then heard someone shout that he would die. He turned to see Mr Bosa immediately behind him with a raised knife. Mr Thugea said he thought Mr Bosa was going to strike him with the knife so he swung his knifestriking Mr Bosa on the left side of his abdomen.
    

The High Court Judgment

11. The Judge identified the self-defence issue as primarily one of fact. He rejected the claim by Mr Thugea that Mr Bosa was the aggressor.

The Judge said that he considered the prosecution witness who were at Dudula that day gave evidence about the killing which was “clear, consistent and uncontradicted”.Their evidence satisfied him that Mr Thugea was not acting in self-defence when he killed Mr Bosa. He therefore convicted Mr. Thugea of murder.

Discussion

12. Counsel accepted that the Judge was correct to approach the issue of self-defence as dependent on an analysis of the facts together with the obligation on the Crown to disprove self- defence beyond reasonable doubt. We agree. If the unsworn statement was accepted by the Judge as truthful then the Prosecution would not have disproved self-defence and Mr Thugea would have been entitled to an acquittal.
    
13. If, however, Mr Thugea’s statement was rejected as untrue and the evidence of the prosecution witnesses who described Mr Thugea as the aggressor was accepted as truthful, then the prosecution would have disproved self-defence.
    
14. The appeal is therefore based on two propositions. First, the evidence of a prosecution witness who supported Mr Thugea’s version of events should have been accepted. And, as a consequence, Mr Thugea’s evidence should have created a reasonable doubt about self-defence.
    
15. Secondly, the prosecution witnesses who identified Mr Thugea as the aggressor were unreliable witnesses and their evidence on the question of self-defence should have been rejected. Without their evidence, the Crown could not disprove self-defence.
    
16. As to the first proposition, Roselyn Kano was Mr Bosa’s wife. She was with him at Dudula that day. In her evidence in chief, she described Mr Thugea as the aggressor and how he had struck Mr Bosa. She made no mention of Mr Bosa having a bush knife. In cross-examination, however, Mrs Kaoni agreed that during the conflict, Mr Thugea turned and saw Mr Bosa running toward him with a bush knife and at this stage, Mr Thugea cut Mr Bosa.
    
17. This evidence did support Mr Thugea’s statement. However, in re-examination, Mrs Kaoni said when Mr Bosa approached Mr Thugea, Mr Bosa was not carrying a knife. This is consistent with her evidence in chief but inconsistent with her evidence in cross-examination.
    
18. The Judge in his judgment did not specifically deal with Mrs Kaoni’s evidence nor with these inconsistencies.
    
19. The Judge said he found the evidence of prosecution witnesses were as we have noted “clear, consistent and un-contradicted”.
    
20. Given the inconsistencies in Mrs Kaoni’s evidence were about what happened when Mr Bosa was struck by Mr Thugeawe consider the appropriate course is to set aside Mrs Kaoni’s evidence on this pivotal point.
    
21. Counsel for Mr Thugea invited us to conclude that the Trial Judge should have relied upon that part of Mrs Kaoni’s evidence in cross-examination which supported Mr Thugea. This approach was said to be giving Mr Thugea the benefit of the doubt.
    
22. Given the inconsistencies in Mrs Kaoni’s evidence on self-defence, it would not have been appropriate for the Judge to choose one or other of the versions given by Mrs Kaoni. The only proper course in the circumstance was to reject Mrs Kaoni’s evidence on the self-defence issue. We note that Counsel for Mr Thugea’s final submissions at trial, invited the Judge to disregard her evidence as unreliable.
    
23. We therefore agree with the Judge that there was no evidence to support Mr Thugea’s version of events that Mr Bosa was the aggressor.
    
24. We are satisfied the Judge was entitled to conclude that Mr Thugea’s claim Mr Bosa was the aggressor was “incredible and improbable,” and to reject Mr Thugea’s statement.
    
25. The second ground of appeal is based on the proposition that the evidence of four other witnesses of the attack by Mr Thugea on Mr Bosa were so inconsistent, contradictory and therefore unreliable that they should be rejected. Without that evidence, Counsel submits the prosecution could not disprove self-defence.
    
26. There were three aspects to the evidence which was said to give rise to inconsistencies or contradictions.
    
27. First, Counsel submitted, that when each of the prosecution witnesses gave evidence, they said Mr Bosa was lying or crouching down when he was struck by Mr Thugea. However, in their statements to the police, they had said he was standing when he was hit. These inconsistencies or contradictions showed he submitted their evidence was not reliable.
    
28. Secondly, the prosecution witnesses claimed that either before or immediately after, Mr Thugea’s strike, another man had stabbed Mr Bosa. The Appellant’s Counsel submitted that there was no post mortem evidence to support this stabbing. This showed the witnesses’ unreliability.
    
29. Thirdly, the witnesses gave evidence that just before Mr Bosa was struck, another man, Mr Saea had tripped or blocked Mr Bosa thereby preventing him from getting away from Mr Thugea. Their descriptions of exactly what Mr Saea did varied considerably. Counsel submitted these variations showed the witnesses’ unreliability.
    
30. There were some differences between witnesses’ police statements and their evidence as there were differences between witnesses who saw what happened when Mr Bosa was killed. This is to be expected in the circumstances. Mr Bosa and his family had come to the village for a reconciliation ceremony when they were suddenly faced with a violent attack. All in the group would have feared for their lives. They were intent on escaping. The events occurred over a short time. The group were faced with a terrible attack on Mr Bosa.
    
31. Given these circumstances, it is hardly surprising, memories were different and on some events, uncertain. But on the pivotal point, that it was Mr Thugea who attacked Mr Bosa, the four witnesses were all agreed.
    
32. In those circumstances, the Judge was entitled to conclude those witnesses’ evidence on the issue of self-defence was reliable and truthful. We therefore reject the second and third grounds of appeal.
    

Result

33. The appeal against conviction will therefore be dismissed.

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Goldsbrough P

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Lunabek JA

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Young JA