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Regina v Tabukai [2008] SBHC 6; HCSI-CRC 46 of 2007 (12 February 2008)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case Number 46 of 2007

REGINA

V

MANASSEH TABUKAI

High Court of Solomon Islands
(Palmer CJ.)
Criminal Case Number 46 of 2007.

Date of Hearing: 19th November – 21st November 2007, 11th February,
Date of Judgment: 12th February 2008

R. B. Talasasa (Director of Public Prosecutions) and P. Rutledge for the Crown.
K. Averre (The Public Solicitor) and D. Hou for the defendant.

Palmer CJ.:

Manasseh Tabukai ("Tabukai") is charged with the murder of his de facto wife, Alice Caroline Ri’i ("the deceased").

The Prosecution alleges that at the time Tabukai beat the deceased he knew that his actions will probably kill her or inflict very serious injuries.

It is not in dispute the deceased died from the injuries received from that beating.

The factual background evidence to this tragic case is not so much in dispute. There had been a row or fight between the two on the evening of 10th December 2006. The exact time is not clear but it appears the fight occurred around 8 o’clock in the evening.

There is clear evidence from Osborne Cains ("Osborne"), Ken Kaemana ("Ken"), Anika Kaemana ("Anika") and Daisy Cains ("Daisy") of hearing sounds like someone being hit against the wall. The altercation which they heard went on for about five or so minutes. They heard sounds coming from the deceased and Tabukai and the deceased crying.

The next altercation occurred outside at the bathroom and at the water tap. Tabukai was seen dragging the deceased and when she fell down kicking her. They spent about thirty or so minutes at the bathroom before returning to their room. Thereafter nothing much was heard until sometime around midnight when Osborne heard a shout or scream followed by the sound of Tabukai crying, further shouting from Tabukai, then someone punching the wall and the sound of a bottle being smashed against the wall of the house. Osborne became concerned at that time and so woke his father up and told him to go and see their Manager about Tabukai. He was concerned that the deceased may have died at that point of time and that Tabukai may be trying to commit suicide.

From the evidence adduced it appears the deceased may have lost consciousness earlier, most likely shortly after she and Tabukai returned to their house from the bathroom. I make this conclusion on the basis of the evidence of all key prosecution witnesses who were all consistent about the events after Tabukai and the deceased returned to their house from the bathroom.

Osborne says that he did not hear any more noise coming from them.

Ken did not say anything further as well about what happened after they returned.

Daisy did not say she heard anything further as well.

Anika however gives some insight into what happened when they returned from the bathroom. I quote:

"Sometimes after, I could not hear Alice talking this time except Tabukai who was talking and crying but that, I do not hear what Tabukai actually mentioning. I heard the crying voice of Tabukai saying "come back" repeatedly but for who and what he means by saying this, I don’t know as Tabukai did not mention any name. This time I go and have my bath as so, my daughter and my son and after, we all back to our house and lot (sic) very long, I went to bed."

If the deceased did not die at that time then she may have been unconscious and died later, probably towards midnight when Osborne heard Tabukai crying.

The Issue:

The crucial issue in this case is whether the defendant knew that the act of beating the deceased on the head or face with his fist or banging her head against the wall would probably cause death or really serious injury. There is no issue that Tabukai did not intend to kill or cause grievous bodily harm to the deceased. Prosecution does not pursue that part of section 202 of the Penal Code. Prosecution however alleges that the second arm of section 202 is relevant.

The words in section 202 of the Penal Code read as follows:

" 202. Malice aforethought may be expressed or implied and express malice shall be deemed to be established by evidence proving either of the following states of mind preceding or co-existing with the act or omission by which death is caused, and it may exist where that act is unpremeditated—

(a) an intention to cause the death of or grievous bodily harm to any person, whether such person is the person actually killed or not; or

(b) knowledge that the act which caused death will probably cause the death of, or grievous bodily harm to, some person whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused."

The test throughout is a subjective one. Prosecution is required to prove beyond reasonable doubt that at the time Tabukai assaulted the deceased he knew that it would probably cause her death or grievous bodily harm.

The evidence of the Doctor.

The evidence of Dr. Pikacha who carried out a post mortem examination of the body of the deceased three days after the incident confirmed in very clear and plain terms that she died of violent injuries caused through the use of blunt force trauma applied to the head.

The learned Doctor described such injuries as being consistent with having been hit on the head or face repeatedly with a closed fist and or having the head bashed against the wall.

He ruled out the suggestion that she may have been hit on the head or face with a piece of iron or timber as the use of such weapon would have left impression marks on the face which could be detected or seen. There was none in this case. Accordingly I discount that piece of evidence as I am not satisfied it had been proven to the requisite standard.

The evidence of the Doctor is entirely consistent with the description by prosecution witnesses of the events which occurred that fateful evening, in particular what they heard, felt and observed. It is also consistent with what Tabukai said in his caution statement to Police that he bashed the deceased up with his fist on the head and face.

The injuries described by the Doctor confirmed that she died from the massive use of force applied to the head over a period of time. This is consistent with the evidence of prosecution witnesses of the timing of the altercation which they put at about five minutes. Tabukai also confirms this that they had a fight before going to the bathroom and on their return.

I am satisfied on the evidence before me that there was a combination of force which was applied to the head and face of the deceased. I am satisfied there is evidence of something being bashed or hit against the wall of their house which is consistent with the head of the deceased being bashed against the wall. But even if that were not the case, I am more than satisfied she had been punched or hit repeatedly on the face and head by Tabukai and that this caused her death. In medical terms, she died of an "acute subdural haematoma".

The fact she died not long after the bashing which occurred over a short period of time, about five minutes or so is indicative of the amount of force which must have been inflicted during that time to cause the acute subdural haematoma.

Evidence of knowledge.

The evidence relied on by prosecution to prove knowledge can be narrowed down to four witnesses; that of Osborne, Ken, Anika and Daisy. These were all members of the same family who lived next door to the house where Tabukai and the deceased lived. The statements of Osborne, Ken and Anika had been admitted without the need to have them cross examined. Only Daisy had been required to give evidence on oath.

Osborne confirmed that a fight took place between Tabukai and the deceased. He heard the sound of someone being bashed or hit against the wall of their house and he could feel its impact reverberating through to their house as the two houses were joined with a workshop shed in between.

He heard the deceased crying. He states he walked out of the house to try and observe what was going on but could not get any clear view. He could hear the deceased however saying "I love you" and Tabukai saying "I won’t trust you". He then decided to return to his house. He says they were still fighting at that point of time.

Shortly after he decided to walk out again and try and see what was happening after he heard from his mother and sister that Tabukai was still beating the deceased when they went to the bathroom. Again he did not see anything. He however over-heard Tabukai saying "You want me to kill you again". There was no response from the deceased at this point of time. He then heard someone being dragged on the ground and tap water being turned on. He also heard the deceased trying to breathe but with difficulty as if there was something like water or blood in her mouth. He then heard Tabukai saying words to the effect "Naf fo pretend nao". He says they spent about thirty or so minutes at the tap. He then left them and climbed back into his house.

Later on towards midnight he heard inter alia Tabukai crying and saying "you come back darling, if you love me, sit up please, bae mi suicide wea nao meresine". He also heard him punching the wall, the sound of a bottle being thrown against the wall and smashing and heard him saying "dis taem mi less for fren nao". It appears that the deceased had died by this time and that Tabukai was lamenting her death when Osborne heard him.

Ken also heard the fight towards the earlier part of the evening, confirming what Osborne heard. He also heard something banging against the wall and a woman (obviously) the deceased crying in pain. He also said this lasted for about five minutes.

He was in the house when his wife Anika and daughter Daisy went to their bathroom. He recalls being told by Daisy that Tabukai was kicking the deceased and that she had fallen down to the ground.

Anika also confirmed there was a fight and someone being hit against the wall. She heard the deceased saying "mi no save ia Tabukai" and was crying.

She saw Tabukai and the deceased walking to the bathroom. She could hear them talking and could only pick out the deceased saying "mi no save". On their way back she again heard them talking but could not make out what they were saying. She also saw Tabukai pushing the deceased on the back. Later on she heard only Tabukai talking and crying and saying "come back" repeatedly but did not hear any response from the deceased.

Daisy also confirmed the fight between the couple and hearing the deceased making denials. She also heard words to the effect "true to God" being said. This is often used in pidgin to denote that someone is telling the truth, like an oath.

She accompanied her mother to go to the bath room but Tabukai and the deceased were there or on their way so they stood and waited at the kitchen. She heard Tabukai telling the deceased to go with him but she refused. She saw him pulling her hand which caused her to fall down. He then kicked her while on the ground and then dragging her. Later she heard something like a piece of iron being used but she was not sure whether he had used it to hit her with it or not.

She also heard the deceased saying to Tabukai that she would go and tell her people and Tabukai responding that he could kill her so that she dies. In cross examination she was asked what the exact words in pidgin that were used, whether it was "mi save killim iu die nomoa" or "mi save killim iu die nomoa ia". Despite persistent cross examination, she maintained the latter words were used.

Assessment of the evidence and conclusions.

Knowledge can be inferred from words or actions. I find that for the following reasons the prosecution has proven beyond reasonable doubt that Tabukai did have the requisite knowledge of his actions that it would probably cause death or grievous bodily harm.

1. I find that the undisputed words "You want me to kill you again" spoken by Tabukai and over-heard by Osborne, infer knowledge that his actions could probably cause really serious injuries. Those words denote a threat, that "I have ’killed’ you (that is hurt or harmed you), and that I can "kill" you again. The context in which they were made must be borne in mind. They were made in the context of the fight between them and when the deceased was being hit by Tabukai. It is consistent with knowledge that he had harmed, hurt or injured her and that he could cause her really serious harm or injury if he persisted or repeated those actions. Whether it was a reference to previous incidents or preceding events immediately before he uttered those words, they are reflective of knowledge of what he had done or was doing at that moment and what he could do if he repeated those actions. By repeating those actions he cannot have failed to realise that he could probably cause her death or grievous bodily harm.

In his caution statement, Tabukai told Police he was drunk at the time he beat her. He says he was jealous and therefore very angry. He says he beat her in an attempt to get her to respect him, to teach her and to frighten her. The tragic thing about this beating was that he achieved none of those things. His wish that death or grievous bodily harm may not be caused is immaterial.

I am satisfied beyond reasonable doubt he cannot have failed to realise that what he was doing to her at that moment would probably cause her to die or cause her really serious injury.

2. I find also that knowledge can be inferred from the words "mi save killim iu die nomoa" or "mi save killim iu die nomoa ia" as overhead by Daisy. Mr Averre takes issue with the words used. However it is my respectful view that both phrases are capable of implying the same thing in terms of the imputation of knowledge on the part of Tabukai.

Those words were heard in the context of a response to a statement from the deceased that she would go and tell her people. It appears that during the beating the deceased threatened to tell her people about what he was doing to her in the hope it seems that he would stop beating her. Instead his response to that was "mi save killim iu die nomoa" or "mi save killim iu die nomoa ia". Those words can be interpreted as "I can kill you" or "I can kill you so that you die" or "I can beat you to death". It is my respectful view that they are capable of being construed as conferring knowledge on the part of Tabukai at that time, that he can kill her or do her really serious harm. When a person says "I can" or "mi save" it infers knowledge on his part that he can do or fulfil what he has stated. So when Tabukai was heard saying "mi save killim iu die nomoa" or "mi save killim iu die nomoa ia", he knew or cannot have failed to realise, that he can kill her or do her really serious harm by beating her up. He knew he had harmed or hurt her in previous occasions; there is no question about his past violent dealings or behaviour towards the deceased. He knew he was hurting her at that particular time by beating or hitting her and he cannot have failed to realise that he could probably kill her or cause her grievous bodily harm if he continued or persisted. Tragically that was exactly what he did. He did not stop but persisted in beating her up. When she continued to deny any allegations it seems of any wrongdoing, and this is consistent with what the witnesses heard she said ("I love you", "mi no save ia Tabukai", "mi no save", "true to God"), he simply continued to beat her.

The fact he was indifferent to whether death or grievous bodily harm was caused is immaterial. The fact he may have wished or thought she was only pretending after he had beaten her badly to the point it seems she may have lost consciousness before eventually expiring towards the later part of the evening, or a wish that death or grievous bodily may not be caused is immaterial.

Can it be said that he did not know that his actions would probably cause her death or really serious injury? Can it really be said that in his jealous rage he did not know that what he did would probably cause her death or really serious harm? I am satisfied so that I am sure, that he knew what he was doing. He knew what he was capable of doing. He knew that he can kill her or cause really serious injury by his actions. He is a big, strong and tough man. He is a mechanic and would have been used to handling tough, difficult and heavy work involving vehicles and other machinery. He cannot have failed to realise that by beating her on the head and face with his heavy fist and bashing her head against the wall of their house, that it would probably cause her death or really serious injury. He admitted in his own statement in his answer to question 106, that his punches were heavy.

Other Case Authorities.

A number of case authorities had been cited by Mr. Averre in support of his submissions that Tabukai did not have the necessary knowledge to impute malice aforethought to him. Those case authorities however can be distinguished either on their facts or on the issue of law being considered by the Court. Each case must be considered on its own facts and the same applies in this case. The issue in this case is whether prosecution had established on the evidence that Tabukai had the necessary knowledge that he knew that his actions would probably cause the death of or really serious injury to the deceased. That issue has to be considered on the facts that are before this court and not on the facts of other cases.

Past History

The past history of violence committed against the deceased simply shows that Tabukai had on previous occasions assaulted her. I accept however what Mr. Averre has said that irrespective of that past history, what happened on the night of 10th December 2006 must be considered on its own facts, for the element of malice aforethought, in this case knowledge, is what must be proved to the required standard by prosecution.

Decision

For the reasons given above, I am satisfied Prosecution has discharged the onus placed upon it and find Manasseh Tabukai guilty of the offence of murder. He is convicted accordingly.

Sentence

There is only one sentence imposed by law for murder and that is life imprisonment. Accordingly he is sentenced to life imprisonment.

Right of Appeal

You have a right of appeal if you disagree with the decision of the Court but must be filed within thirty days.

The Court.