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Maerata v Regina [2017] SBCA 22; SICOA-CRAC 32 of 2016 (13 October 2017)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. Following trial, the appellant was convicted of the murder of Isaiah Kenianohia in a verdict delivered by Kouhota PJ on 14 October 2016.
   
2. This matter was listed for hearing at the previous session of this Court. An application was made to adjourn the hearing because of problems with the record and transcript of the proceedings.
   
3. Counsel have now filed a joint memorandum concerning the notes of evidence. This document notes there is little issue taken with the notes recorded on the first day of the trial in the first two pages. There are also some agreed corrections, and there are other matters not agreed to. However, it was not suggested by counsel for the appellant that the appeal was not in a position to proceed and we are satisfied that, despite the shortcomings of the record, we have sufficient material before us to properly consider this appeal.
   
4. Before turning to the appeal, we reiterate what was said by this Court earlier in adjourning the appeal. While counsel have done their best to recreate the transcript, and have filed a joint memorandum, the responsibility for taking down the evidence remains that of the trial Judge. This is made clear from s 186 Criminal Procedure Code [Cap 7] as set out at page 2 of our decision of 5 May 2017. We appreciate this is a heavy onus on trial Judges, particularly when they are outside Honiara, where there is a proper transcription service, but that onus remains with the Judge, and trial Judges should be careful to ensure they abide by it.
   
5. The grounds of appeal are given as:
   
   1. That the Court made findings of fact that were contrary to the evidence; and
      
   2. That the Court, in making its findings, relied on evidence recited by the Court that was different from the actual evidence; and
      
   3. The Court, in making findings of fact, ignored credible evidence that at the very least raised a reasonable doubt about the reliability of PW1; and
      
   4. The Court failed to take into account forensic evidence that was inconsistent with the Crown case.
      
6. In essence, this is an appeal that the verdict is unsafe, unreasonable and against the weight of evidence.
   

Facts

7. The appellant was the son-in-law of the deceased and PW3. There were obviously matrimonial problems in the appellant’s marriage and in October 2012 the appellant’s wife travelled to her parents’ village. On 11 December that year, the appellant travelled some distance by banana boat to the village of the deceased. That boat was manned by PW1 and his nephew, PW2. PW2’s evidence is of no significant relevance for present purposes.
8. When they arrived at the village, the appellant requested PW1 to walk with him to the house of the deceased and his wife. PW1 did so, but remained outside standing in the dark. The appellant entered the premises by kicking down the plywood that covered the entrance.
   
9. At that time the deceased and his wife were on the veranda, having completed their evening meal. The appellant demanded to know where his wife was, and it appears this must have been conveyed in a somewhat threatening manner, as PW3 quickly left the veranda, frightened of him. Her evidence was that when she returned, only the deceased was on the veranda, and he was sitting in his chair, and had a stab wound to his abdomen. Due to the loss of blood from the stab wound that severed the tenth rib and cut the liver, the deceased died. No knife was found at the scene. The only issue at trial was who had caused that stab wound.
   

Submission and decision on the pathologist’s evidence

10. The pathologist was Dr Maraka. His evidence concluded that the wound was probably caused by a sharp knife. He described it as cutting through the tenth rib and cutting the liver. He accepted the tenth rib was a hard bone and is called a floating rib, which protects the organs beneath it. He also considered that a good deal of force would be required to cut through the tenth rib. He also accepted the wound must have been caused by more than one movement, to account for a nick on the side of the stab wound and a second cut to the liver.
    
11. The pathologist accepted that if the deceased had been sitting in a chair, the force of the blow could well have caused the chair to fall backwards if there was no support behind it. He also accepted that an adult falling on a knife held in his hand, with the tip facing his body, could have suffered this injury if the butt end of the handle of the knife struck the floor.
    
12. Further, it was accepted that the handle could have moved in the motion of getting back to the chair following this injury, which could account for the nick in the entry wound and the second cut to the liver.
    
13. The pathology report noted some scabs of injuries to the head and face were likely to have been caused at the time of the stab wound. He accepted these could have been caused by falling on the veranda floor. It is unclear to us how a scab wound would have formed post-mortem, although PW3 did confirm the deceased did not have the injuries when she left the veranda.
    
14. It was the defence case that there was no suggestion the appellant had caused the injuries to the face, and they must have occurred from the deceased falling on his face. It was the concessions by the pathologist that led to the defence theory of the case. That is, the deceased had a knife and fell over on to the point of it, with the butt striking the floor and causing the injury. It seems to be accepted by the parties the pathologist conceded that, even with such a serious stab wound, this elderly man, with the adrenalin of the event, could have resumed his seat.
    
15. The defence case that was put to the Crown witnesses is that the deceased had a skin disease and was scratching himself with the knife, which he ultimately fell on.
    
16. The difficulty with this theory is that no skin disease was noted in the pathologist report, and PW3 denied the deceased had any skin disease or that he used a knife to scratch his body. She also denied that he had a knife on the night in question. PW 4, the son of the deceased and PW 3 concurred in this.
    
17. The Judge, while noting that the defence theory was not impossible, found that it was unattractive and must be rejected. We would describe it as fanciful. There was no evidence whatsoever that the deceased had a knife with him at the time, or ever used a knife to scratch his body. There was no evidence he suffered from a skin disease. Furthermore, if he had fallen on the knife, even if he had been able to pull himself into the chair, there is simply no evidence of a knife being present after the event which would have undoubtedly been the case. The nick is readily explicable. The appellant could easily have caused what the pathologist observed by moving the knife in the wound. Given the absence of any evidence to support the defence theory we can infer that on the proven evidence.
    
18. While the pathologist made a general concession that the wound could have been caused by falling on a knife there is nothing in the rest of the evidence to support such a theory. It is no more than supposition. We are quite satisfied the Judge was correct to reject this theory.
    
19. We would also add that the reliance of the defence on the fact that the force required for the blow would have meant it was possible that a person in an unsupported chair would fall over backwards does not help the defence in any way at all. The photographs produced of the scene show that chairs on the veranda are both in positions close to a wall which would have prevented them falling backwards in any event.
    
20. That, of course, is not the end of the matter, because it is still for the Crown to prove their case beyond reasonable doubt.
    

Submissions and decision on the alleged inconsistencies in the evidence

21. Essentially, the defence at trial, and on this appeal, advanced the proposition that there were such inconsistencies between the evidence of PW1 and PW3 that the evidence of PW1 should be rejected and, therefore, there is no other direct evidence of who stabbed the deceased.
    
22. Before considering this, it is important to say that for a jury or for a judge of fact it is open to accept all the evidence of a witness, reject it all, or accept such part that satisfies the finder of fact to the requisite standard of proof. It is also open to the finder of fact to draw inferences from proven facts.
    
23. PW1 essentially gave eye-witness evidence. His evidence was that, as requested by the appellant, he accompanied him to the house. He said the appellant climbed up the ladder and kicked down some plywood covering the door. He said he had a good view, as he was standing in the darkness where he could see the relevant parts of the veranda, which was lit by a solar light. He said from there he saw the only occupants of the veranda were the appellant, the old man and the old woman. He said he heard the appellant yell in a loud voice “I will kill you” to the old man, who was sitting on a chair at the corner of the table in his house. (The photographs produced show this chair very close to the wall).He said that shortly after this he saw the appellant pull the knife away
    

with his hand, and that he saw the blade of the knife. He said the old man shouted or called to his wife in the AreAre dialect, saying the appellant had killed him. He went on to say that when the old man shouted, the appellant ran out of the house and went into the bush.

24. He said the old woman came out shouting and he did not know where she went. He said that when the appellant came out of the house, only the old man was sitting on the chair, dying. His evidence was that he saw the old woman came out of the house twice. He said he stood there waiting for people to come so he could explain how he got there.
    
25. The other villagers were obviously extremely angry with this witness for bringing the appellant to the island, leading to the death of the deceased, and as a consequence burnt his canoe and outboard motor.
    
26. In the defence’s closing submissions, it was put to the Judge that because of this event the witness had a motive to lie and put the blame on the appellant. This does not appear to have been put to the appellant in cross-examination, and such questions are not said to form part of any missing part of the record.
    
27. PW3, the wife of the deceased, gave evidence of the appellant arriving at their house after dinner. She said only her husband and she were present at the time. She said she was frightened when the appellant came into the house, because he had kicked the timber used to block the door, which it seems to be commonly accepted was the entrance to the house. She also said she only left and returned to the house once.
    
28. PW3 told the appellant his wife was not at the house, and said that when the appellant heard this, he turned to her husband. She said he did not look happy, but angry, so she went out of the house and called for help because she was afraid. She carried on to say she did not hear her husband call, because at the time she was screaming and crying. She said when she returned to her house her husband was in a bad state and said the words, “Mummy, I am dying”. It also appears that she may have said “I cannot live, Maerata killed me”, but then later, in cross-examination, said she did not hear this.
    
29. The inconsistencies particularly relied on in submissions on behalf of the appellant can be set out as follows:
    
    1. That PW1 said he heard the appellant say “I will kill you”, whereas PW3 said all she heard was “Where is my wife?”
       
    2. PW1 said the deceased had said “Maerata had killed him”, which was not confirmed by PW3.
       
    3. PW1 stated in his evidence that PW3 was on the veranda at the time of the stabbing, but she said there was no stabbing when she was on the veranda.
       
    4. It is said PW1 could not have seen anything after PW3 started to leave, as he himself left at that time.
       
    5. It is said the Judge ignored the change in the evidence of PW1, in that he eventually confirmed the appellant had done nothing to the deceased before PW3 left down the ladder, and claimed the stabbing happened after PW3 returned. This is to be contrasted
       

with the evidence of PW3, that when she returned, the deceased had already been stabbed.

6. PW3 had made it clear she was frightened because of what the appellant might do, but there were no threats from him and no action as described by PW1.
   
7. PW1 said that PW3 had left the house twice, while her evidence is she only left the house once.
   
8. It is also said that the son of the deceased and PW3, PW4, who lived next door, did not see PW1 outside the veranda where he claimed to be, and he only heard raised voices, rather than any particular words
   

30. We do not see these inconsistencies in the light the appellant’s counsel submits them to be. We are satisfied the Judge has adequately dealt with these particular inconsistencies.
    
31. First, PW1 was an eye-witness and. even allowing for the alleged inconsistencies, the Judge of fact was entitled to accept all or part of his evidence. He clearly did so. The Judge was entitled to accept that PW 1 was there throughout standing in the dark.
    
32. At page 4 of his decision, the Judge correctly set out that the critical question was whether the prosecution had proved the wound was inflicted by the accused. He noted the defence submission there were major conflicts between PW1 and other Crown witnesses, and the submission that if the evidence of PW3 is accepted, then essential evidence of PW1 must be false, leading to the accused’s acquittal.
    
33. The Judge noted he observed PW1 giving evidence. He goes on to say he is satisfied he has not made up the story and, importantly, continues:
    

If other parts of his evidence conflicts with other prosecution witnesses, that is understandable because of all the prosecution witnesses, he was the only eye witness to what Maerata did to the deceased. The evidence of Melody Maehaitao must be considered in light of the situation she was in when the accused arrived at her house. She said she was frightened and afraid as such her recollection of events may be affected and may not have observed everything or remembers everything that happened. That is not unusual for an old woman who found herself in such a situation. Her evidence about what her husband said, however, were consistent with the evidence of PW1.

34. We accept that last portion is not strictly correct, as PW1 said he heard some things which PW3 said she did not hear. However, the same reasoning used by the Judge in the passage set out above equally applies to such recollection.
    
35. Murders of this sort do not occur in some clinical vacuum. The situation was clearly frightening, where this old couple were confronted with an extremely angry, threatening and violent son-in-law. It is not surprising that those at the scene recollect things differently. One witnesses hears something, and another does not. Or witnesses hear things differently in a heated, dynamic situation as here.
    
36. We are satisfied the Judge was entitled to make the findings he did, which strike us as almost inevitable. Although the Judge said that P W 4’s evidence was not relevant the appellant uses it to submit that PW 4 did not see PW 1 at the scene. That is not surprising given PW 1’s evidence that he was standing in the dark. We are also satisfied that the Judge did not ignore credible evidence that raised a reasonable doubt about the

reliability of PW 1. The evidence was properly considered by the Judge in making his findings.

37. There is the further point that would have justified conviction. It is common ground that there was only the deceased, PW3 and the appellant on the veranda at any stage. There is no evidence at all to suggest the deceased had a knife or any other knife was present on the veranda. The appellant, angry because his wife had left him, travelled some distance to confront his wife. When he failed to find her, he angrily confronted her elderly parents. He left the scene and ran into the bush and the deceased was found on the veranda by PW 3 with the fatal stab wound. On the basis of the proven evidence that we have just noted, we are satisfied it would have been open to the Judge on that alone to infer that the appellant was responsible for the fatal wound in circumstances that were essentially domestic violence.
    
38. There is ample evidence accepted by the Judge, as he is entitled to do, to prove beyond reasonable doubt that the appellant was responsible for inflicting the fatal wound. The appeal against conviction is dismissed.
    
39. In this session we have decided the case of Ludawane^[1]. In that decision this Court decided that where a judge is required to impose a sentence of life imprisonment he is also obliged to impose a sentence that sets the non-parole period. i.e. the period a prisoner must serve before being eligible to apply for parole.
    

40. In Ludawane we also referred to available material that would assist a sentencing judge in setting the now mandatory non-parole period. Obviously no such period was set in this case. In this case we are satisfied we have sufficient material to carry out that obligation and we proceed to do so.

41. One of the most helpful documents to assist is the English Practice Note the relevant portion of which is set out in Ludawane. Of the categories set out there we are satisfied this case falls into the Especially Serious Cases category at N.13. That has a starting point of 15/16 years. In this case there are further aggravating factors that must be considered. The relevant factors here are that there was a degree of planning in that the appellant travelled considerable distance to confront his wife so some form of confrontation was pre-meditated. In her absence he confronted her parents. Second a weapon used. Finally, the deceased was elderly and vulnerable. Little can be said in mitigation except his previous clear record. In those circumstances we are satisfied the

appropriate non-parole period is 18 years. He has already been sentenced to life in prison. We sentence him to at least 18 years in prison before he can apply for parole.

42. The appeal is dismissed. The appellant is ordered to serve at least 18 years in prison before he is eligible to apply for parole.

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Goldsbrough P

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Ward JA

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Hansen JA

^[1] Ludawane v R SICOA 37/2016 ( decision 13 October 2017)