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High Court of Solomon Islands |
HIGH COURT OF SOLOMON ISLANDS
Criminal Case No. 33 of 1996
ter">REGINA
-v- <
NELSON FUNIFAIKA & OTRS>
fore: Palmer lmer J
Hearing: 5/03/97 - 7/03/97, 1/05/97, 21/05/97, 30/05/97 - Judgment: 6/06/97
Counsel: R. B. Talasasa for the Prosecution; S. Manetoati for accused, Nelson lson Funifaka; L. Kwaiqa for accused, Max Sale Waitemane & Jimmy To'onia
PALMER J.:
The three accused have been charged with one count of attempted murder contrary to section 208(b) and one count of unlawful wounding contrary to section 222 of the Penal Code.
The offences related to an incident which occurred in the early morning hours of the 29th of April, 1996, at the residence where the two victims (Ishmael Olo Oge and Tiboni Billy Oge) were residing. Both victims were sleeping in adjacent rooms separated by a wall but which was open at the top when they were woken up by the intruders. Tiboni Billy Oge described how he had been woken up by the sound of his cassette player playing. Ishmael Oge was woken up by his wife who had seen someone using a torch-light in the next room and became suspicious. Both victims were injured in the struggle which ensued there-after. Ishmael Oge suffered the more serious injuries than his brother.
Prosecution called a total of eleven witnesses and submitted a number of exhibits, including the confessional statements of the three accused. The three accused on the other hand elected not to give evidence or to call any witnesses.
The basic facts are not in dispute. Both victims sustained injuries at the hands of the intruders. Ishmael Oge was attacked as soon as he came out of his room into the lounge or verandah area, whilst Tibon Oge received injuries when he struggled with the intruders in his room and out into the verandah area of the house. Both victims could not identify the intruders as they were masked, apart from some general descriptions as to their stature, direction of flight, and how many were involved. The intruders also left a number of items which were later recovered at the scene at daylight. The incident occurred somewhere between 3.00 am and 4.00 am.
The first crucial issue for this court to consider is that of identification. The prosecution evidence on this can be summed up as follows. First, we have the general descriptions of the intruders provided by the two victims, PW1 (Ishmael Oge) and PW3 (Tiboni Billy Oge). PW3 described how on waking up and seeing a man in the room, he pushed him away but was then attacked and cut with a knife. He states that there were two men that he struggled with and actually threw a piece of iron at close range (estimates 3-4 metres) at them but with no effect at all. The most he could describe those two persons were that they were like evil forces that accompanied real men. He said that those two men disappeared when they came out of the house. When he attempted to re-enter the house three men ran out and chased him so he ran out and went and stood beside a neighbours' house. He then saw the three men run past him and turn up at the house belonging to PW2 and climb up the hill towards PW4s' house. PW3 drew a sketch map of the area indicating where he stood and saw the three men run past. This has been submitted to the court to assist the court in its deliberations and forms part of the documents exhibited in court. This piece of evidence of PW3 is quite crucial as it provides the vital link to the eventual identification of these accused as the intruders at the Oges' residence.
PW1 also saw the three men run outside and along the main road away from the house. He did not follow them however. He described those men as short and rather small in stature.
PW1 also described how he had been cut with a knife on his head when he came out of the room. He then grabbed hold of the hand of his attacker and bit his hand. At the same time the other two intruders attacked. One cut his right hand and the other cut his left ear and back shoulder. This witness explained that the one who cut his ear, used something like a chisel. It is pertinent to note that a cold chisel was found at the scene the next day and formed part of the exhibits in this case.
Also a torch (silvery in colour), a blue cap and black hat were recovered at the scene the next day. The torch still had visible signs of blood on its glass.
In summary, PW1 and PW3 could clearly recall that at least a knife had been used in the attack against them and something like a chisel. One of the attackers clearly had an injury on his hand where he had been bitten by PW1. Both witnesses confirmed seeing three persons running away from the house and along the main road but only PW3 saw the three persons run up the house opposite PW2's, house.
The next witness, who gave vital evidence was PW2, James Kofana. This witness is a Prison Officer, and also from the same language area as these three accused. He stated that he had been woken up by very loud noises coming from the direction of the Oges' house so he came out and turned on one of the security lights in front of his house. At about the same time he spotted the three accused turning up at his house from the main road and running past right in front of followed them. He saw the three accused going towards PW4s' house and resting outside his area. He then returned to his house. He also stated that he saw two of them holding bush-knives. This witness stated that the three accused ran past him at a distance of some 4-5 metres only and so he was able to recognise them as people from the same language group that he belonged to. In court he recognised the three accused clearly by name. This witness also explained that because the three accused had to climb up the hill near his house, their pace was slowed down considerably and so there was ample opportunity for him to recognise them.
The next relevant evidence came from PW4 and PW6. Both witnesses stated how on the evening of the night the incident occurred, the three accused had called into their home and asked to be put up for the night so that they could catch the early morning flight to Malaita the following day. Both witnesses stated that the three accused spent the night in their house until the time they were woken up very early the next morning by some loud noises coming from the Oges' residence. PW4 stated that he got up and went out to check but found that the three accused were not in the house though their baskets were there. He then heard three men running past his house but he couldn't identify who they were.
PW6 was able to identify the torch produced as exhibit as the one she saw earlier that evening held by the accused, Funifaka. She also recognised the black hat produced in court as an exhibit, as belonging to her husband, PW4, and which she believed one of the accused took with them that night.
PW7 was the Police Officer who recovered the exhibits from the scene including the torch (Exhibit No.1) and the black hat (Exhibit No. 3).
From the crucial evidence adduced above, the vital question asked earlier as to the identification of the three intruders at the Oges' residence can now be answered with certainty. The three men who attacked PW1 and chased PW3 were the same men who ran down the road and took a short-cut beside PW2's house. PW1 saw them run out of the house and down the main road. PW3 couldn't have been mistaken either. They were hot on his heels and when he turned aside to take refuge beside the residence of Misuka, he saw the same three men run past him and turn up at the short-cut between PW2's house and Jimmy's house. I find no reason to doubt the observations of PW1 and PW3. I accept their observations as reliable.
The trail is picked up by PW2, when he came out of his house as a result of loud noises coming from the Oge's residence, to see three men running, turn up at his residence and run past him under clear lighting from his security lights. I am satisfied those three men were the same three men that PW3 saw turn up at his residence. The timing of events and the simple fact that there were three men running together at such an unusual hour makes it virtually impossible to conclude otherwise. There were no other persons around it seems at that time and could have been running. Also this witness stated that there about two of them who were holding knives at the said time when they ran past him. This is consistent with the descriptions of PW1 and PW3 that the persons who attacked them were armed with knives. In particular, PW1's descriptions of the attacks on him would be consistent with two of the three men being armed with knives, whilst the third man may have been armed with the cold chisel found at the scene. I am satisfied beyond reasonable doubt, the three men who ran past PW2 were the same men who had attacked PW1 at his residence and the same men which PW3 saw turn up at PW2's residence.
Those three men were none other than the three accused in this court. They have been positively identified by PW2 and I am satisfied I can rely on his identification of the three accused. I am satisfied he had ample time to identify the three accused when they ran past him as the place where they had to climb, to get to PW4's house was quite steep and that even if they were in a hurry they would have been slowed down considerably by that. This witness also stated that they were short of breath when they ran past him and climbed the hill to PW4's house. A locus in quo had been taken by the Court of the place and I am satisfied that the distance at which the three men ran past this witness at the most, would have been less than 6 metres. I am satisfied as well that there would have been more than sufficient lighting from the two security lights beside his house to enable him to get a good view of the three accused and make the positive identification. It is important to bear in mind that the three accused were previously known to this witness and were from the same language grouping and area to which he belonged. It was not his first time therefore to see those men that night.
Further, at about the same time, PW4 confirms that the same three accused who were supposed to be sleeping in his house at the said time were not where they were supposed to be. Only their baskets were there. This witness also stated that around the same time three men ran past his house, but he did not recognise them. PW2 stated in his evidence that he saw the three men running in the direction of PW4's house and saw them resting at his place before he returned to his house. In cross-examination, he stated that he saw the three accused going into PW4's house before returning. Whatever the truth is, and it is quite possible that PW4 may not have been speaking all the truth he knew under oath, I am satisfied that from the most he was prepared to disclose, the three men he saw running past his house, at around the same time could not have been anyone else than the same three accused seen by PW2.
In addition, there is also some incriminating evidence provided by PW6. This witness described seeing a silver torch on the early evening of the night of the incident in the hands of one of the accused she described as Nelson Funifaka. When shown the torch exhibited in court, she confirmed that it looked very much like the one which Nelson Funifaka held. Also when shown the black hat found at the scene, she identified it as the hat belonging to her husband, PW4. PW4 was at his house at the time of the incident. This is not in dispute. The only plausible conclusion which could be reached therefore, as to how the hat got to the scene that night was that it had been used or worn by one of the three accused.
I am more than satisfied beyond a reasonable doubt, that the three intruders at the Oges' residence were none other than these three accused, and this is even when their confessional statements have not been considered. When the confessional statements are taken into account as well, then the prosecution case as to the direct involvement of these three accused is insurmountable.
This now brings me to consider the individual offences under which these three accused have been charged and the elements therein. The first charge which they have been charged with is attempted murder contrary to section 208(b) of the Penal Code. That section reads:
" Any person who -
(a) -
(b) with intent unlawfully to cause the death of another does any act, or omits to do any act which it is his duty to do, such act or omission being of such a nature as to be likely to endanger human life, is guilty of felony, and shall be liable to imprisonment for life."
The crucial element in this offence in the circumstances of this case is that of intent; whether the accused had the necessary intent to cause the death of the victim, PW1 or not. This in essence is a question of fact and hence the evidence must be considered.
That PW1 suffered serious injuries to his body on the night of that incident from the hands of these three accused is clear beyond reasonable doubt. (See evidence of PW1, and the confessional statements of the three accused. Also see the medical reports of the Nurse on duty who attended the victim on admission at the Central Hospital, and the Doctor who saw him after he had been discharged from hospital, confirming the descriptions of the various stab wounds received by the victim.). I am satisfied the actions of the accused in attacking with bush-knives and a cold chisel were of such a nature as to be likely to endanger human life, thus fulfilling the second element of section 208(b). The crucial issue however remains, whether in inflicting those injuries the three accused had the necessary intent. Is there evidence before this Court of an intention to cause the death of PW1?
A number of texts and case authorities have been referred to by learned Counsels, but the one most appropriate to this case is that referred to by Mr Manetoali; the case of Whybrow (1951) 35 Cr.App.R. 141, quoted in the case of Grimwood [1962] 2 Q.B. 621 (see text Cases on the Criminal Code, 3rd Edition, by Eric J. .Edwards and Richard W. Harding). The case of the State of Papua New Guinea v. Mekeroa Nentepa & OTRS (1990) PNGLR, referred to by learned Counsel for Prosecution can be easily distinguished on the facts in that the accused in that case had actually been charged with murder, whilst in this case, the accused had only been charged with the offence of attempted murder. It is pertinent to point out that the test of intention in both cases is not necessarily the same as will become obvious in this judgment.
In Whybrow, at pages 146 and 147, Lord Goddard C.J. had this to say:
"Therefore, if one person attacks another, inflicting a wound in such a way that an ordinary, reasonable person must know that at least grievous bodily harm will result and death results, there is the malice aforethought sufficient to support the charge of murder. But if the charge is one of attempted murder, the intent becomes the principal ingredient of the crime. It may be said that the law, which is not always logical, is somewhat illogical in saying that, if one attacks a person intending to do grievous bodily harm and death results, that is murder, but that if one attacks a person and only intends to do grievous bodily harm, and death does not result, it is not attempted murder, but wounding with intent to do grievous bodily harm. It is not really illogical because, in that particular case, the intent is the essence of the crime while, where the death of another is caused, the necessity is to prove malice afterthought, which is supplied in law by proving intent to do grievous bodily harm. " [Emphasis added]
The evidence adduced in the facts of this case do not show any intention on the part of the three accused to cause the death of PW1. Learned Counsel for prosecution however seeks to submit that the court should look at the totality of the evidence and infer intention from the circumstances of the case. In particular, the fact that these three accused were armed with bush-knives and a cold chisel, and had their air fares prepaid to leave Honiara for Auki (Malaita), in the early morning flight. In the absence of any valid explanations, this Court should accept the submissions of Prosecution that these three accused had an intention to cause the death of PW1 and convict of attempted murder.
It should be pointed out clearly however, that the mere act of carrying weapons (bush-knives and a cold chisel), does not necessarily equate with an intention to kill. Whilst it may demonstrate a willingness to use the weapons if disturbed, attacked or to effect an escape, it does not necessarily demonstrate an intention to kill. They may equally be used merely to frighten or threaten someone with.
Similarly, the fact that their airfares had been pre-paid does not necessarily mean that these three accused had pre-planned to kill and then make their escape by plane the following morning. They may equally have intended to steal and then take off with the proceeds the following morning. Prosecution with respect has failed to show that in the circumstances prevailing before this Court, there is only one logical and reasonable conclusion which this Court can come to; that of an intention to kill. Learned Counsel, Mr Kwaiqa. did point out pertinently that if the accused had entered the Oges' residence with an intention to kill, that they could have killed PW3 while he was still sleeping, rather than touching first a tape recorder, a thing capable of being stolen, and which woke PW3 up. When all the evidence is balanced out, I am not satisfied that Prosecution had shown to the requisite standard, that the accused had an intention to kill when they attacked PW1.
Having said that, I must consider the alternative suggestion that despite the fact that the accused may have entered the said house with the intention to steal only, the fact that they were armed meant that if they were disturbed or attacked, that it can be foreseen that they would use the said weapons. And where the weapons are used, despite the fact that the intention in the circumstances may have been to effect an escape only, it could be foreseen that serious bodily harm or death was a likely result from their unlawful actions. In those circumstances, the court should also convict of attempted murder.
I have taken the time to peruse the references mentioned by Mr Talasasa in the Textbook on Criminal Law by Michael J Allen, paragraphs 3.2.1 to 3.2.3.3. in support of the Prosecution case. It is my respectful view however, that this case can be clearly distinguished from those class of cases which the learned Prosecutor seeks to suggest intention can be inferred or drawn from. In the same book referred to above, at page 218, the learned Author actually gave an example of a situation where intention may be inferred in a case of attempted murder. I quote:
"However, if a jury are satisfied that D's direct intent was to cause grievous bodily harm they may (but need not necessarily) convict of attempted murder if satisfied that D knew that death was virtually certain to ensue. For example, if D throws V off a hundred metre high cliff (V miraculously surviving by catching hold of a protruding ledge) and claims 'I only wanted to break his legs', a jury should acquit of attempted murder if they believe D. But if they are satisfied that D realised that death was virtually certain to ensue they could infer the intention to kill from that foresight and convict of attempted murder."
In the circumstances of this case, the question to be asked is whether the accused knew or realized, that their actions, in attacking PW1 with knives and a cold chisel, would cause the death of PW1. In other words, that death was virtually certain to ensue, although they may not have intended his death and that the attacks may have been effected with the view to escape. Did they foresee that death was a likely result from their unlawful actions? The test here is not whether death is more probable or highly probable, but a virtual certainty (save for some unforeseen intervention). (See Nedrick [1986] EWCA Crim 2; [1986] 1 WLR 1025, per judgment of Lord Lane CJ at page 1028; compare with Walker and Hayles (1990) 90 Cr.App.R. 226, where the term 'very highly probable' was used.).
The answer to the question asked, whether the accused knew or realized that their actions would cause the death of PW1, in all the circumstances of this case, in my respectful view, must be no. I am also not satisfied from the evidence adduced, that the accused knew or realized that their actions as described, in attacking PW1 with bush-knives and a cold chisel in the course of being apprehended and in seeking to escape, would cause the death of PW1 as a virtual certainty. Grievous bodily harm, yes; causing death however, a high probability, but not overwhelming, so that it can be said that death was inevitable in the circumstances. Accordingly, I must acquit of attempted murder, the element of specific intent having not been proven beyond reasonable doubt by Prosecution.
I am satisfied on the other hand beyond any reasonable doubt, that a lesser offence of unlawfully causing grievous harm contrary to section 219 of the Penal Code had been committed by the three accused in the circumstances of this case and therefore must be convicted pursuant to section 159 of the Criminal Procedure Code.
As to the second charge of unlawful wounding, it is clear on the evidence that the wounds were inflicted on PW3 by two persons who entered his room that night.
PW3 states that he was woken up by the sound of his tape playing and to his surprise found that there were two strange men in his room. He pushed one man aside, nearest to him, and then sought to run out of the room, but not before he had been cut by one of the men on the right side of his tummy. He incurred a further cut whilst outside of the room when he fought with the same two men. In the statement of Max Sale obtained under caution (exhibit 4), he states that Jimmy To'onia and himself went into the room where PW3 was sleeping. He states that it was Jimmy To'onia who had turned the tape on which woke PW3 up. PW3 then punched him in the face causing him to fall down before rushing out of the room.
The only discrepancy raised in the evidence of PW3 is that he thought those two men that he fought inside and outside the room as separate personalities from two of the three accused. However, it is clear from the evidence contained in the caution statements of the accused that they admitted that two of them entered the room of PW3 whilst one of them (Nelson Funifaka) waited outside, but still inside the house. The wounds incurred by PW3 therefore could not have been inflicted by anyone else other than the three accused.
Learned Counsel, Mr Kwaiga however seeks to submit that the wounds had been inflicted in self-defence. With respect I fail to see how the actions of the accused in retaliating can be justified in the circumstances. PW3 is entitled to defend himself and his property and to use such force as is necessary to apprehend the culprits or to chase them away. There is no evidence to suggest that excessive force or unreasonable force had been used by PW3 against the accused.
Rather, the actions of PW3 are consistent with those of a normal ordinary person waking up to find himself in such situation. The actions of the accused therefore in retaliating, through the use of bush-knives or whatever, in the circumstances, could not be equated with justifiable force done in self-defence. In the first instance, they had entered and remained in the house unlawfully and were on the verge of committing a further unlawful act when disturbed. They were also armed which demonstrates a willingness to use the weapons for unlawful purposes, or that their use was anticipated by the accused.
I am satisfied the submission of self-defence cannot be sustained and must be dismissed. Prosecution has proven beyond reasonable doubt that the accused did unlawfully wound PW3 and must also be convicted pursuant to section 22 of the Penal Code.
THE COURT
------------------------- ~ ----------------------------
SENTENCE:
6th June, 1997
Much has been said for and against the offences committed by these accused. Whilst it may be easy on one hand to pick up and point out all the good or bad points and things about these accused and the offences committed, it is not as easy on the other hand to try and balance out justice and to impose the right sentence in the circumstances of this case or any other case. I do bear in mind though that I should not be overly influenced by the eloquent and articulate speeches that have been made by learned Counsels in seeking to persuade me as to the appropriate sentence to be imposed.
The offences of grievous harm and unlawful wounding are very serious offences; the former carrying a maximum sentence of 14 years and the latter, 5 years.
The features which aggravate this case and which can be mitigated upon with little success are the following:
(1) That the offences were committed at night in the very early hours of the morning (between 3.00 am and 4.00 am). It indicates to some extent that these accused knew when was the best time to carry out their unlawful purpose; at a time when most people would be expected to be soundly asleep in their beds.
(2) That these accused entered the said house with a motive to steal and in so doing had to break and enter the maid house. I do note in their favour however that they had not been charged with the offence of burglary which is a very serious offence as well.
(3) That these three accused were armed. This indicates in some way that they anticipated the use of these weapons. In the facts of this case, the weapons were actually used with very serious consequences for PW1. Fortunately, the victim had made a remarkable recovery. It could easily have been otherwise. Had the accused not carried any weapons, all that might have resulted against them, apart from a charge for burglary, might only have been common assault or some other lesser offence. The circumstances definitely would not have been as serious or aggravated.
(4) The accused went as a group to commit the offence. They took courage from each other to carry out their unlawful schemes. There are also indications that the offences were preplanned. The accused knew all along that very early that morning they would be flying out of Honiara to Auki (Malaita) where it is presumed their capture or arrest would become even more difficult even if their identity was known.
(5) Finally, there were severe injuries incurred by the victim. The medical reports submitted to court without dispute confirmed that the victim had been very lucky to recover fully from the injuries. It could as easily have turned out the other way for him.
In those circumstances, I am satisfied an immediate custodial sentence must he expected and imposed. The message must be made clear and plain that those who venture out at night, armed and break into peoples' homes and attack people in their homes must expect to be sent to prison. People are entitled to feel safe and secure in their homes (whether they have a fence around and good locks on their doors or not), and to have a good nights sleep and rest without being disturbed. It is plain common sense that a person's house is out of bounds to anyone whether in custom, the law or whatever religious beliefs that one might have. (In English law, an Englishman's home is known as his castle, a place of refuge and safety). It is the same here, and the courts have a duty to protect society from such persons with criminal minds. The element of deterrence therefore must he borne in mind and applied so that at least persons who are minded to do such things can at least think twice or again before venturing out in such activities knowing fun wen what they might face if brought to the courts.
I take note of the submission of learned Counsel for Prosecution in the circumstances of what he described as a trend developing in Honiara of people taking the liberty to break into peoples' homes, that the Courts must send out a clear and distinct sound to the Public on such matters. However, I do not need to repeat what in my view had been a consistent approach taken by this Court and the lower courts, on such matters. I am not aware that the lower courts may have been taking a less serious view of such offences. Rather, it is my understanding that the courts have continued to apply a firm hand on such offences and if there is any indication that this may not be the case, then let it now he dispelled that the courts must and will continue to take a firm hand on such offences.
Having said all that, this sentence would not be complete without taking into account the mitigating factors also ably and aptly raised by learned Counsels for the Defence. Of some significance is the fact that compensation had been paid by the accused's relatives to the victims and their people in custom.
The significance of compensation in custom however should not he over-emphasized. It does have its part to play in the community where the parties reside, in particular it makes way or allows the accused to re-enter society without fear of reprisals from the victims relatives. Also it should curb any ill-feelings that any other members of their families might have against them or even between the two communities to which the parties come from. The payment of compensation or settlements in custom do not extinguish or obliterate the offence. They only go to mitigation. The accused still must he punished and expiate their crime. I do give credit however for this.
Credit is given for the fact that these accused have no previous convictions, that is are first offenders, and also for their age.
I do take note of the submissions by Mr Kwaiga that hardships are bound to be experienced by other members of their families, their spouses for those married, and for their parents. While the court empathises with these natural human emotive feelings and considerations, there is little that this court can do. Those are matters which the accused should have taken into consideration, thought about, before embarking on their unlawful activities.
The appropriate sentence to be imposed for the offence of grievous harm is one of 7 years. However, in balancing the elements of justice and the mitigating factors raised, in particular the age of the offenders and the fact that they are first offenders, I am satisfied that this can be further reduced to a period of five (5) years as the more appropriate sentence. This should be long enough and yet maintain a ray of hope without destroying their will to live and do good for themselves and the society they live in when they come out of prison.
On the second count, the sentence imposed is for two (2) years, but to be made concurrent.
The three accused are convicted of both offences and sentenced accordingly. The period spent in custody whilst awaiting trial is to be taken into account and deducted accordingly.
THE COURT.
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