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Regina v Viu [1993] SBHC 32; HC-CRC 015 of 1993 (13 December 1993)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 15 of 1993

REGINA

-v-

JIMMY VIU

High Court of Solomon Islands
(Muria CJ.)

RECORDS OF PROCEEDINGS

DPP for Prosecution
C. Tagaraniana for Accused.

Plea: Not Guilty
Chris: That's in accordance with my instruction.

DPP: Annie Kovera deceased left Jerico Vge South Guadalcanal on 14 Dec. 1992.

At about 11 pm that night she left her house and went to the stream. She was absent for sometime and her brother including the accused went to look for her.

Accused became worry cross and promised to kill her if she returned to the house.

Deceased returned and went to James Tuguvera's house.

When accused learned of that, he became angry and started trowing his knife around. The deceased was afraid and returned to the bush.

At about 1.00 am in the morning of 15/12/93 the deceased was heard crying in the bush. James Tuguverana and others went carried the deceased home.

When they were carrying her home, accused ran to the deceased and kicked the deceased at her left and right rib cages.

She suffered severe pains around her ribs cages and her chest.

She was taken to Babanakira clinic at 6 am that morning. She died at 8 am.

Accused is now charged for the murder of Anne Kovera.

PW1.Stephen Matagu (Sworn)

I come from Manauta Vge, South Guad.

On 14/12/9 I was at my Vge.

Jerico is far from my Vge. It is like from H/Court house to Chinatown.

My two brothers James Tuguvera and Peter Kou and my mother were at my Vge at the time.

I know Quluvoa Vge. It is far from Jerico. It is the same distance from Jerico to Manaura but in the opposite direction.

At the time I was at Quluvoa Vge, making copra. I cooked my copra in a hotair dryer.

On evening of 14/12/92 I left Quluvoa and went to Jerico. I came to see my brother James Tuguvera.

I met my brother and I told him to follow me to go and cook copra.

James said he had a headache and said he could not follow me.

I returned to Quluvoa myself.

I knew Anne Kovera. I met her in Jerico Vge that evening. She met me and asked me what I was doing. I said I came to call my brother.

She wanted me to have conversation with her. I suggested we moved further away from the house to a nearby bush.

Peter Kobu and other boys saw us together so I ran away to Quluvoa. This was about 11 pm. The place where Annie and I were telling story was far out from the Vge. It was just near her house.

Anne did not say anything when those boys found us out.

When I went to quluvoa, I met Anne's mother. She asked me if I was going to Quluvoa and I said 'yeas'. She said, Goodnight and I said Good night.

Anne's brothers are Leonard Goko and Jimmy Viu (accused).

Jimmy Viu is now in Court today. (Witness pointed to the accused).

Anne was my relative. We were of the same line.

We were friends. We were friends even before 14/12/92. Her brothers did not know.

I returned to Quluvoa and later one boy named Pero came to me.

At about 3 am I went back to my Vge, Manaura.

xxm by C. Taga: No Ques.

Re-xm: No Ques.
Ct: No Ques.

PW2: James Tuguvera(Sworn)

I come from Jerico Vge, South Guad.

On 14/12/92 I was at my Vge.

I have a brother called Stephen Matagu who lives at Manaura Vge.

On evening of 14/12/92 Stephen came to see me to ask me to follow him to cook copra. I told him I was sick so he went too cook copra by himself.

I was with my mother and my wife when Stephen came to see me.

After Stephen left, I went to the single men's house. Peter Kopu, Kelivele, learned Goko, Joseph Vatutoro. Michael Gorani was there too. We were telling stories and I slept there also.

At that night, I heard the deceased opened the door to her house and followed the road leading to the water. I noticed she was away for a long time.

I and other boys followed Anne and we came across her standing up with a boy beside a small house. We chased the boy.

Jimmy (accused) was not with us when we chased the boy.

Anne's mother shouted and we followed the boy who ran away. We came to Paradise Vge. and we were told by Anne's mother that it was my brother Stephen Matagu.

I said Stephen was wrong and that we would straighten it up.

Jimmy Viu was angry and he took a bush knife and went after Stephen Matagu.

Jimmy then returned to Jerico. On the way he was shouting angrily.

When Jimmy Viu came into the Vge, he threw the bush knife toward Peter Kopu. Peter bent down and the knife hit a paw paw tree.

Jimmy was shouting telling us to bring out Anne so that be could kill her.

Jimmy was looking for another knife after he threw his bush knife.

I knew Jimmy was cross, so I hid Anne in my house.

Anne ran away and went to hide in the bush.

Jimmy came to the house where I hid the girl. When he found that the girl was gone, he wanted to fight us.

After that Jimmy left and went to Paradise Vge.

I went back to the single men's house.

Jimmy also swore at us. He said we were to fuck our mothers and sisters" if were to do such things again.

We were telling stories when we heard some thing like something fell. then we after that we heard crying.

I then suggested that we go and find out what happened.

Leonard refused to go. So Peter Kopu and I went.

We came to where the crying was and we saw Anne lying down.

I made her sat up. She sat up by herself. I did not hold her.

I asked her what's wrong. She said there was nothing wrong with her. She said she was just cross with her brother.

I noticed a small rope around her neck. I took the rope out. The rope was not tight. It was loosen.

She was breathing normally.

She was just afraid of her brother because her brother wanted to cut her.

We then helped her home. We took her to my house we carried her.

Jimmy Viu came back the second time. He had another knife with him. He shouted to take the girl out from there(my house).

this was about 1 am or 2 am.

He was swinging the knife again and almost hit my brother.

We tried to stop Viu. We struggled with View. We managed to hold Viu.

Jimmy Viu then shouted and said that if we held up and stopped him from killing Anne, then we were to "fuck our mothers and sisters."

The other boys still held Jimmy Viu.

As a result of the swearing, we let go off him. Jimmy then ran toward the girl.

He kicked the deceased's sides (both sides). He toed the sides of the deceased. the kicks were very powerful.

The girl cried out and we noticed her breathing was heavy.

then accused again took a stone and wanted to stone the deceased dead. Peter Kopu jumped at accused and took the stone out from him. They took the stone out and held the accused.

Alfred was one of the elders in the Vge. He came and told accused to stop. He said it was wrong in custom for a brother to get cross about his sister.

Alfred took Jimmy back to Paradise.

We carried the deceased to our kitchen. Her breathing was seriously affected. She found it hard to breathe.

She said that there was pain at the places where the accused kicked her.

We helped her until morning. I asked my two other brothers from Kologona to come. We made a bed and we carried the deceased to he Clinic near Marunina.

We came to the Clinic and we left her there. The Registered nurse there did not do anything.

But another person who knew how to hold injured bodies came and tried to help her.

I left them there and I went back.

It was not long after that, the girl died.

We then carried the body of the deceased back to Jerico.

Jimmy came and got cross with him mother and wanted to cut her with a bush knife because he said his mother did not teach her daughter well.

We called Alfred, and he came and we organised the burial. We buried her the evening of the same day.

The accused is related to me. He is my uncle.

xxm by C. Taga:

I come from Jerico.

We heard the bang after the boy was chased away.

I learned later that the boy was my brother.

When we came to where the girl was crying we noticed that she climbed the tree but not far up.

The first branch was at a height like that of the roof of this Court house.

There were no branches near the bottom of the tree.

We did not see any piece of the rope any where. We noticed she tried to climb but not climb up the tree . the branches were high.

We did not see the girl when she fell. We only saw her at the bottom of the tree.

We heard the bank after the girl ran away into the bush. This was after the accused came and was getting cross to everyone in the Vge.

It is true that accused threw the knife when he was cross and barely missed my brother and it hit a paw paw tree.

When we took the girl home that night, the accused again shouted angrily.

When Jimmy came back from Maonaura that he kicked the girl. She was lying on her side when we found her in the bush, lying between the roots of the tree.

I held her up and she sat up.

She said she was afraid of her brother. So we took her to the Vge.

She did not climb the tree to where the branches were.

Leonard is accused and deceased's real brother.

Leonard was also cross but he was angry with the accused.

What happened between Stephen and Anne was wrong in custom also.

Leonard was also cross about what happened between Stephen and Anne.

I do not believe that the girl's death was because of the fall. I believe her death was caused by the kicks from Jimmy Viu.

The rope we found around her neck was a small and short rope. It was not a strong rope and it was loosened when we found her. It could not have caused injuries to the girl.

Jimmy came back with another knife that night.

Re-xm:

The tree is locally called "taoa" It is a big tree and has no branches close to the ground. One cannot put his arms around the tree to climb it.

The deceased could not possibly have climbed the tree.

We heard the bang but we did not know where it came from.

x by Ct:

When we carried the girl back to the Vge, we had her sat on our hands which we joined together.

She sat up on our hands.

[No Ques arising]

PW3: Peter Kopu (Sworn)

I come from Jerico Vge. South Guad.

On 14/12/92 I was at my Vge.

I knew Anne Kovara.

Her brothers were Jimmy Viu (accused) & Leonard Goko.

In evening of 14/12/92, I was at Jerico.

That night we looked for Anne Kovera.

We found her standing behind the house with a man. I did not recognise the boy.

My brother James also saw the boy standing with Anne.

When we saw them the boy ran away. Anne came back to our house.

When she came back to the house, we went back to our single boys house to sleep.

A little later, we heard the accused's mother shouted at Paradise Vge. So I and Leonard went to Paradise.

Leonard asked his mother what she shouted because he heard noises.

Then Leonard's mother said that only Stephen Matagu just came past.

I and Leonard followed the road. We did not find anyone.

When we came back to Jerico, we met Jimmy Viu who asked us if we saw anyone . Leonard say only Stephen.

Jimmy went to Maonaura to see Stephen.

Jimmy came back and we heard him shouting angrily, asking for Anne Kovera.

While he was coming up to the house, the accused threw the knife and narrowly missed me.

He came and demanded to see the girl and to kill her.

The accused had an argument with James Tuguvera.

The girl ran away into the bush at the time.

We were still awake when we heard the girl cried.

James woke me up and I and Leonard went to where the girl cried.

When reached where a log was, Leonard stopped there. Only me and James went to see the girl.

I then came to call Richard Nata to come and help me and James carry Anne who fell down.

We carried Anne home.

When we arrived home, we still did not put her down yet, the accused kicked her.

The accused kicked the deceased at her sides.

We put her down and we were struggling with the accused.

The accused then gave another kick to the right side.

The accused then gave 3 kicks to the other side of the girl.

The deceased was lying down when the accused delivered the kicks to the deceased.

There was a stone there.

The accused took the stone and wanted to shot the deceased with. We struggled with the accused and the stone fell.

At the time the deceased was crying and was rolling from side to side in pain on the ground.

Alfred came and calmed the accused down and took him away.

We then prepared a tent or canvas and laid her down. We took water and tried to help her.

She complained of the pains from the place where the accused kicked her.

I went to Kilogona and called Patrick and Saiganagoko to come and help us carried Anne to the Clinic.

We arrived at the Clinic early morning almost 7 am.

When we arrived at the Clinic, we also called a woman who knows how to hold injured bodies. She came and held the deceased's body. she found the deceased's body was injured. The places where it was injured were all soft and broken.

Shortly after that, the deceased died.

I went to call Patrick and Saiganagoko again to come help carry the deceased body home.

We carried her home.

We buried her the same day.

xxm by C.Taga:

From the single men's house to where we found the girl would be about from the Court house to Central Police Station.

The accused threw the knife which almost hit me. this was when he was coming up the road to the house.

I was sitting on the root of a vasa tree when he threw the knife. There was a pawpaw tree there also.

It was James who held up Anne from where she was lying.

It was James who held up Anne from where she was lying.

It was not far from the Vge. She was lying at a bottom of a tree - "taoa" tree.

I saw a string around the girl's neck.

The tree is a little big. It is not very big. It has no branches close to the bottom. It only has branches far high up on the tree.

There were no other small trees there apart from the big 'taoa' tree.

Before that night she was normal girl.

We carried her from where she fall down.

We carried her because she fell down and hurt herself.

I, Richard and James carried her home.

We carried her on our hands. She was lying down on our hands when we carried her. She was not sitting down. She was lying down.

Around the area there were by the water. But where Anne laid down, there was no stones there.

Re-xm by DPP:

The tree was a big one, about the circumference of the size of the witness box.

It is difficult to hold around the tree if one is to climb it.

The branches of the tree were very far up higher than the height of the Court house.

There were bush ropes growing on the tree. There were signs that she climbed on the ropes.

I did not see her climb but I only think she climbed about 15 metres.

She cried when we found her. She did not say anything to us.

x by Ct:

We carried the deceased. James was at the head, Richard was in the middle and I was the legs.

[No Ques. arising]

PW4: Richard Nata (Sworn)

I come from Quluvoa Vge.

On 14/12/92 I came to Jerico Vge.

I saw Anne Kovera at Jerico that day.

On the night of 14/12/92. I slept at Paradise at single boys house.

I did not know about the search for somebody that night.

It was at that night, that Peter Kopu came to where Anne laid down.

Anne was lying down at the bottom of a taoa tree.

It is not so big but one cannot hold around it if one is to climb it.

There were only small trees around the tree.

There are some ropes on the tree but there were not types that anybody could hold onto if he wants to climb the tree. They were very few.

When I got to where we found Anne, she was laying down.

Where she was lying down was clear. There were no stones, or anything where she laid down.

There were signs of an attempted climb on the tree for about 15 metres.

[from the floor of the Court House to where the wall lights]

We carried her. She laid down faced up on our hands.

When we reached the Vge, accused wanted to kick but hit my hand.

We then put Anne down.

He then kicked her 2 times to one side and 2 times to the other side.

The other kick was toward the front of the deceased's left side.

James and Nata are also related to me.

But accused is more close to me.

xxm by C. Taga:

It I were to climb, I would not get to the top of the tree.

Anne was lying down when we carried her home. Not sitting up.

Re-xm by DPP: No Ques.

x by Ct:

There were 5 kicks but only 4 landed on the deceased.

One of those kicks hit my hand instead.

[No ques. arising]

Adj. to 1.30 pm.

CJ

2.30 PM
Ct: resumes.

PW5 Dr. S. Tovusia (Sworn).

I am posted to Central Hosp.

My qualification is DMS(Fiji). I have been practising since 1985.

On 20/12/92 I was called to go to Jerico, South Guad. to examined and reported on a dead body.

The body had been buried 6 days before my arrival.

The body was exhumed for examination.

I examined the body and compiled a Report which was given to Police.

[witness goes through his Report with demonstration with a skeleton present in Ct]

The magnitude of the force must be great to cause such fracture.

The fractures were consistent with the fact that there were several blows to the area of and around the chest.

Kicks severely delivered to the deceased's chest and sides were consistent to the injuries found.

xxm by C. Taga:

I started practicing since 1985.

I have conducted many post mortem in the past.

The injuries were severe and the force use must be of great magnitude.

The forces were of severe magnitude. There were multiple traumas.

The injuries were severe which were consistent with severe blows.

In the circumstances it was not possible to conclude that the injuries were caused by some other means other than the history given i.e. through severe kicks.

If in Honiara a deceased fell off a moving vehicle the extent of injuries would not be the same as that I found in this case.

The injuries were consistent with blows delivered laterally.

It would be unlikely for the injuries to be caused here from a fall.

If a person falls from a height would received at the point of impact and not other areas.

The internal findings would not make much difference even if the examination was done immediately or 6 days after.

The decomposition in this case was very slow.

There might be some difference only in the external part of the body but not much as was the case.

Rexm by DPP: No Ques.

Ct: No Ques.

The Medical Report will be "Exhibit 1"

PW6: James Delay Maeforu (Sworn) Sgt. No. 520.

I know Jimmy Viu (witness identified the accused)

I took statement from accused on 21/12/92 at CID Office Rove.

I cautioned the accused before the interview.

He agreed to give his statement. He gave his statement in Pidgin.

The interview was conducted by me and witnessed by Marehasi.

He signed the statement, I signed and the witness also signed.

C. Taga: I have no objection to the C/Statement.

PW6: (continued and read the C/Statement)

xxm by C.Taga: No Ques.
xby Ct: No Ques.

DPP: I tender the Photo album

C.Taga: No objection.
Ct: Exh. 3 - Photo Album.
DPP: That's the Prosecution's case.

Ct: Does the deft has any application at this stage?

C.Taga: No application
Ct: I find there is a prima facie case against the accused.

C. Taga: I have explained the election to my client and he has instructed that he would not be giving evidence.

I would not be calling any witness also.

DPP. Submission

DPP: The accused is charged with murder of the deceased.

On evening of 14/12/92 Anne Kovera was seeing a man. This angered the accused.

The accused threatened to kill the deceased.

Deceased was in James Tuguvera's house after seeing the man.

When the accused threaten to kill her, she escaped into the bush.

She was later assisted and taken back to the Vge by Peter, James and richard.

When she was brought him the accused assaulted her by kicking her at the ribs.

The kicking were described by the witnesses as severe.

The accused was very angry at the time.

It was Alfred who calmed the accused down.

The description of the accused's behaviour that night was obviously furious. He wanted to assault his sister.

Although prevented, the accused managed to give 5 severe blows to the deceased.

The number of kicks mentioned by James Tuguvera was consistent with what the accused told the police.

Immediately after that, the deceased complained of severe pains to her chest and body.

She was attended to by James and his family.

They took her to Clinic but she died shortly after arrival at the clinic.

She was buried the same day.

On 20/12/92, her body was exhumed and Dr. Tovusia carried out a post mortem examination on the body of the deceased.

The doctor's evidence shows the injuries were caused by multiple traumas.

The evidence as found by the doctor shows that the injuries were consistent with the history as given to the doctor.

The doctor's finding shows that the broken ribs could not be caused by fall, but that they were caused by blows delivered laterally to the body of the deceased.

We do not know what's in the accused mind, but by the force used and degree of force used, the accused intended to cause grievous bodily harm to the deceased.

The accused should have known that the kicks would have caused serious harm to the deceased.

If that is so, then he is guilty of murder.

C. Taga:

As the evidence given to the Court by prosecution witnesses, it appears that the whole blame is placed on the accused.

That is a matter for the Court.

However, James Tuguvera gave evidence that he heard a 'bang' and then a cry. He went to where the cry came from and saw the deceased lying.

Also the witnesses said they had to carry her from where she was lying to the Vge.

Peter Kopu, said that before the incident, the deceased was not physically affected. She was not lamed.

But that night the deceased had to be carried from the bush to the Vge. This was even before the accused came into the picture.

If the Court concluded that accused kicked the deceased, those kicks would not be severe enough to cause the injuries as found in the body of the deceased.

According to one of the witnesses, some of the kicks where prevented from landing on the deceased.

As far as "malice aforethought" is concerned, that could not be established here.

Had it not been for what happened in the bush, the deceased would not have died.

The doctor made an extensive report on his post mortem report.

As nature goes, I submit there would be some differences in view of the 6 days lapse.

Apart from that I do not have any other matter to further submit to the Court.

Ct: Adj. to a date to be fixed for judgement.

Counsel will be notified of the date of judgement.

(G.J.B. Muria)
CHIEF JUSTICE

13/12/93