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Manassah v R [2023] SBCA 13; SICOA-CRAC 36 of 2022 (28 April 2023)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. Both John Manassah and Sonny Bakua were convicted after trial of the murder of Irene Orifanabata. They have each appealed the conviction entered against them. This decision extends to consideration of both of those appeals.
2. Irene Orifanabata died on 19 November 2019 following a row which erupted around the Afeala’a market along the Kwaibaita River, East Kwaio, Malaita. John Manassah is from East Kwaio, and Sonny Bakua from West Kwaio.
3. On the morning of 19 November, two groups began a fight. There had been previous tension between these two groups, and that morning advice had been offered that they should not allow the tension to escalate. The two Appellants were part of one group, and the deceased was part of the other. The fighting started as a fistfight but soon escalated to the extent that bush knives were used, with a member from the group comprising the deceased injuring John Manasseh and a son of Sonny Bakua.
4. Knife wounds inflicted on the deceased caused her death. They were of sufficient force to break her femur. Dr Maraka recorded the cause of death as exsanguination. His report on the cause of death was admitted by consent, the defence having no questions on it.
5. John Manasseh ran the defence of self-defence during his trial. Sonny Bakua raised the defence of alibi. From this point forward, this decision will deal with the two appeals separately, beginning with that of John Manassah.
6. On his appeal, John Manassah raises five grounds.
   1. That the learned trial judge erred in her application of the defence of self-defence.
   2. The learned trial judge erred in rejecting the defence of self-defence by failing to consider the provisions of section 204 (b) of the Penal Code.
   3. The learned trial judge misdirected herself in finding that DW1 and DW2 were not credible witnesses but later accepted their evidence in holding the appellant guilty of murder.
   4. That the learned trial judge erred in applying the principle laid down in Ofea v R [2019] SBCA 9 with regard to consistency in the evidence for a party.
   5. That the verdict is unsafe and unreasonable having regard to the evidence for the prosecution.
7. The basis for the suggestion that the trial judge erred in her application of the defence of self-defence is that there was evidence before the trial judge that when the Appellant inflicted the fatal wound, he did so in response to an attack on him by the deceased. That evidence came from DW1 and DW2. That evidence could support the defence of self-defence. It was unsuccessful in doing so because the trial judge, for reasons she set out in her judgment, did not accept that evidence. She found the evidence of the two defence witnesses (in paragraph 38 of her decision) lacking credibility. She indicated that she was not prepared to rely upon their evidence.
8. Such a finding was open to the trial judge on the evidence before her. There is no error in her reasoning and finding on that matter.
9. Turning to ground 2, and in particular to the reference to section 204 (b) of the Penal Code as amended, we turn to the remark made by the trial judge in paragraph 39 of the judgment where she said; -
   • “Even on the contrary and if I am wrong in my opinion, the extreme force used by Mr Manassah in this case would not entitle him with the defence of self-defence”.
10. Section 204 (b) provides that where by an intentional and unlawful act a person causes the death of another person, the offence committed shall not be of murder but only manslaughter if it is proved that he was justified in causing some harm to the other person and in causing harm in excess of the harm which was justified he acted from such terror of immediate death as in fact deprived him for the time being of the power of self-control.
11. In paragraph 39, the trial judge found that, if her finding of the lack of self-defence was wrong, she concluded that the Appellant had not satisfied the requirements of section 204 (b), which might have reduced the charge from murder to manslaughter. She was not suggesting in that alternate scenario that she was unsure of her finding that the Appellant was not acting in self-defence.
12. It is, therefore, wrong to suggest that the trial judge failed to consider section 204 (b) provisions. To the extent that her primary finding was that self-defence did not apply, she was not required to consider the terms of that legislation. That she did so but to do so shows nothing but an acknowledgement that she might be found wrong in her finding, which might lead to that section becoming an issue.
13. In our view, she was not wrong in her finding that the Appellant was not acting in self-defence. Save for the evidence of DW1 and DW2, whose evidence was rejected, all the evidence shows that the immediate threat had receded when the fatal blows were inflicted.
14. Ground 3 of the appeal relies upon the notion that the trial judge made inconsistent findings concerning the evidence of DW1 and DW2. As set out earlier, she did not accept their evidence. The appeal ground focuses on later references where the trial judge considers evidence from DW1 and DW2 as showing that inconsistency.
15. Yet an analysis of that evidence shows that reliance was placed on such evidence from DW1 and DW2 only when evidence on the particular point also came from other witnesses. It cannot be successfully suggested that the trial judge erred in her assessment of the evidence, such as to allow this Court to interfere.
16. Grounds four and five are dealt with together in the same fashion as adopted by counsel for the Appellant in his submission.
17. This judgment clearly and with attention to detail set out the relevant evidence, where there were inconsistencies, and which evidence the trial court was prepared to accept and which evidence it was not prepared to rely upon. The assessment was careful and thorough. It cannot be said that the trial judge did not seek to deal with the inconsistencies or that she was not cautious when concluding that she was satisfied on the evidence that the charge of murder had been made out.
18. The appeal is accordingly dismissed, and the conviction upheld.
19. Sonny Bakua raised six grounds of appeal against conviction in his notice of appeal. Immediately before the hearing, he withdrew ground 2. The grounds of appeal are: -
    1. That the charge was not proven beyond reasonable doubt and/or the verdict is unsafe and against the evidence
    2. withdrawn
    3. That the trial judge erred in accepting part of the evidence of the two witnesses called by the Appellant when determining a fact in issue and rejects other parts of their evidence when determining the guilt of the Appellant
    4. That the trial judge erred when she was unable to determine with certainty facts in issue thus rendering the verdict unsafe
    5. That the learned trial judge erred in considering and applying the standard and onus of proof and
    6. A miscarriage of justice has ensued and the Appellant had been denied a fair trial according to law as a result of the cumulative effect of the above matters.
20. The first two witnesses called by the prosecution gave no evidence to support a finding that Sonny Bakua inflicted any wounds on the deceased. The defence called two witnesses who positively asserted that Sonny Bakua was not responsible for any injuries inflicted on the deceased. This lack of evidence from the first two prosecution witnesses and the positive evidence from the two defence witnesses is set out in support of Ground 1.
21. The trial judge made findings concerning the two defence witnesses. She found them lacking credibility and indicated that she was unprepared to rely upon their evidence. She gave her reasons for arriving at that conclusion. Although later in her judgment, she made a reference to accepting some of their evidence, on each occasion, when that was done, the evidence of other witnesses supported that evidence.
22. There was ample evidence which did go to show that Sonny Bakua did inflict injury on the deceased. That evidence can be found in the transcript and came from Rodney Wasi, Fred Nelson, Anneth Laga’ani, Fred Seda, and Nelson Rubea.
23. The trial judge faced contradictory evidence and was obliged to decide which evidence was to be accepted, which rejected and which not to be relied upon. It is not correct to suggest, as this ground of appeal does, that a conviction cannot follow where there is contradictory evidence. In this instance, the trial judge carefully and comprehensively set out the evidence and gave reasons why she accepted some of it and not other parts. In effect, this ground of appeal suggests that the finding of guilt was not available to the trial judge. That is quite different from saying that the decision to rely upon a particular piece of evidence was wrong.
24. The finding of guilt was available to the trial judge on the evidence put before the Court. This ground of appeal must fail.
25. As to the third ground of appeal, that also must fail. It is incorrect to suggest that the trial judge made inconsistent findings as regards DW1 and DW2. She found them lacking credibility and indicated that she would not rely upon their evidence. Later she set out where evidence of DW1 and DW2 was identical to other evidence from prosecution witnesses. That evidence was used in the decision, but reliance was not placed on the defence evidence but the same evidence from prosecution witnesses. Indeed, if the trial judge had decided to rely on any evidence from DW1 and DW2, she would have had before her evidence that the deceased was trying to run away when the fatal blows were inflicted on her.
26. Appeal grounds four and five were consolidated with ground three by counsel for the Appellant. Those grounds suggest that the trial judge was in error in her application of the criminal onus and standard of proof.
27. Sonny Bakua was not required to prove anything. There is no suggestion in the verdict that he was so required. The trial judge did undertake an assessment of all of the evidence given during the trial. That, with respect, is the proper function of a trial judge.
28. At this appeal, counsel for the Appellant, John Manasseh, concedes that his client was responsible for both fatal wounds. Whilst that concession accords with the evidence of DW1 and DW2, it was not made at or before the trial, nor does any such concession need to be adopted by the Court when made now.
29. That the prosecutor in the trial herself had doubts about the guilt of the Appellant Sonny Bakua is not a matter that this Court needs to entertain on appeal. It was open to the prosecutor to end the criminal charges against Sonny Bakua by exercising the power to enter a nolle prosequi. That was discussed, but the prosecutor decided not to enter a nolle prosequi. Only she could make that decision; it remained a matter solely for the prosecution. That she considered the question is not a bar to a subsequent conviction when the power is not exercised.
30. The trial judge needed to be sure of those facts which make up the elements of the offence charged. She did not need to be sure of facts which themselves did not form part of the charge. It is often the case that the whole picture is not explained or covered by witnesses, which is quite acceptable where there is sufficient evidence to base a conviction for the alleged offence. The whole truth may never be told, but the trial judge is entitled to consider and find credible parts of the evidence or reject all or part of the evidence.
31. Appeal ground six was not pursued as it encompassed no more than addressed in grounds 1, 3, 4, and 5.
32. The appeal against conviction brought by Sonny Bakua is dismissed.

Goldsbrough P
Hansen JA
Wilson JA