HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Criminal Case No. 136 of 2009

REGINA

v.

DEROL HAVIMANA

Dates of Hearing: 22-26 November 2010, 6 December 2010; 21-24 and 31 March 2011; 11 and 20 May 2011

Date of Judgment: 6 July 2011

H Kausimae for the Prosecution
M Holara and S Valenitabua for Derol Havimana

JUDGMENT

Mwanesalua J:

1.	Facts

Mr Derol Havimana (Derol) was a former school teacher at Visena Community High School. On 16 December 2008, he left the School to his home village of Gnulahahe for a holiday. He consumed alcohol during the afternoon of that day, and shared the remaining cans of beer with neighbours including Linton Arimana (Linton), McPherson Leadi (McPherson), Adrian Havimana (Adrian) and Plesston Kuasa (Plesston) before dinner. After that, he walked to Winfield Arimana's (Winfield) house in which his daughter, Carolyn Gaseforu (Carolyn) and her husband, Japhet Tofa (Japhet) were also staying. He went to that house to resolve an incident by Japhet showing a knife to Linton while under the influence of liquor. Upon his arrival at the house, he entered and punched Carolyn because Japhet was not there. Carolyn was injured, so was assisted to her grandfather's house by Plesston. Her grandfather was Allen Suanogo (Allen), the father of Winfield, her father. Derol claims that when Carolyn came out from Winfield's house to go to Allen's house, she uttered words to him, which implied that Allen and Winfield were practising sorcery. He was angry with these two men and said that he was going to hit and kick them. He then walked to Allen's house and saw Allen and Winfield there. He entered the house and assaulted them. Both men sustained injuries. Allen sustained very serious injuries on his body that he died before 12 o 'clock midnight that day.

2.	The Charges Against Derol

2.1	Derol is charged with one count of murder, two counts of assault causing actual bodily harm and one count of common assault, contrary to Sections 200, 245 and 244 of the Penal Code ("the Code"). The Prosecution case is that Derol murdered Allen, caused actual bodily harm to Carolyn and Winfield, and unlawfully assaulted Annette Kidiseu (Annette), on 16 December 2008, at Ngulahahe Village, West Maringe, in the Isabel Province.

2.2	 The Prosecution alleges that Derol intended to cause the death of or grievous bodily harm to Allen when he punched, kicked and trampled on Allen that fatal night. On the alternative, the Prosecution alleges that Derol knew that the acts of punching, kicking and trampling on Allen will probably cause the death of or grievous bodily harm to Allen. In relation to the other three charges laid against Derol, the Prosecution says that Derol had intentionally and wilfully committed the offences upon his victims without any lawful excuse and justification.

2.3	 Derol has pleaded not guilty to all the charges laid against him in the Information, as set in paragraph 2.1 above. Derol claims that the Prosecution has failed to prove the essential elements of murder and relies upon the defence of mistake of fact. He claims that he could merely be convicted of manslaughter as he was intoxicated and was extremely provoked by words from Carolyn which caused him to lose his self-control to attack Allen that night.

2.4	In relation to the offences of common assault and assault causing actual bodily harm, the Defence did not make any specific submissions, but merely relies on the decision of the Court for Allen's liability on the basis of the evidence before the Court.

3	Prosecution Evidence on charges against Derol

3.1 Assault causing actual bodily harm on Carolyn. 

Derol is charged under Section 245 of the Code which states:

"245.	Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour, and shall be liable to imprisonment for five years."

3.2	Carolyn's evidence is that in the evening of 16 December 2008, she and her husband, Japhet, were in Winfield's house, in which they were residing. The lighting in that house was derived from a single bulb connected to a battery. Linton and McPherson came to the house and called Japhet to see them outside, to talk about the incident of Japhet showing a knife to Linton earlier on. Japhet went out and told them that he did that because he was drunk. While Japhet, Linton and McPherson were still talking outside, Derol appeared and assaulted Japhet. This assault was corroborated by both Linton and McPherson. Linton's evidence is that Derol jumped and punched Japhet. Japhet was scared of Derol so he escaped and did not return to the house. McPherson's evidence is that Derol punched Japhet which caused Japhet to run away. Derol, Linton and Adrian then entered the house. Derol punched her on her right cheek with his right fist, and she fell down with her baby. She felt pain on her right cheek and teeth, and had bleeding from her nose and mouth. On 17 December 2008, she was admitted at Buala Hospital in respect of the injuries she sustained from the assault. She had gum and teeth injuries, and a swollen low mandible and internal bleeding of the cheeks. (See Medical Report – Exhibit P6).

3.3	 Derol admitted that he assaulted Carolyn but raised the defence of mistake. His evidence is that he followed Linton into the house. He said he was angry with Linton because Japhet was not present when he arrived at the house. He thus delivered a punch with his right hand at Linton who ducked down to avoid it, and that his fist had mistakenly landed on Carolyn's right cheek. His evidence is corroborated by both Linton and McPherson. The Court rejects this evidence because the earlier evidence of Linton and McPherson established that they and Japhet were all present outside the house talking about the exhibition of knife incident. The Accused saw Japhet there and then assaulted him which caused Japhet to escape for his own safety.

3.4	 Ini Kopuria (Ini) was also in the house with Derol, Linton, and McPherson. Ini's evidence is that he was about two metres from Carolyn when Derol walked passed Carolyn telling her not to be afraid of him, but then, took two steps back and punched Carolyn on her right cheek. I accept the evidence of Ini rather than that of the Defence which suggests that Derol's hand landed on Carolyn's cheek by mistake. I find that Derol deliberately punched Carolyn which struck her on her right cheek, from which she sustained injuries.

4	 Assault Causing Actual Bodily Harm to Winfield 

4.1		Winfield's evidence is that he was at Allen's house (his father) on the evening of 16 December 2008. He and Allen were sitting in the sitting room close to the front door and ladder facing the road. Derol approached the house quietly and then quickly ascended the ladder, and punched his forehead with his right fist and kicked him on his back.

4.2 Zedial Chegra (Zedial), Annette, Anika Kaemana (Anika) and Carolyn were at Allen's house when this assaulted occurred. Zedial's evidence is that she saw Derol went up the ladder and punched Winfield on the head who fell to the floor. Annette's evidence is that she saw Derol going up the ladder and punched Winfield on the forehead and kicked his body. Carolyn's evidence is that she saw Derol kicked Winfield with his leg. Anika's evidence is that she saw Derol hit Winfield.

4.3 Derol admitted hitting and kicking Winfield at Allen's house.

4.4 Winfield attended Buala Hospital for medical treatment on 17 December 2008. His Medical Report (Exhibit P7) shows that he had a cut on his left forehead and chest pain. However, he left the hospital after he received an injection to prevent complication in his left chest.

5.	Common Assault on Annette

Section 244 of the Code states:

"244. Any person who unlawfully assaults another is guilty of a misdemeanour, and, if the assault is not committed in circumstances for which a greater punishment is provided in this Code, shall be liable to imprisonment for one year."

5.1 Annette's evidence is that she went to Allen's house when she heard a baby crying. She was at the house when Derol assaulted her as described in paragraph in 6.2 below. Anika's evidence corroborated Annette's evidence on this assault.

6.	The Murder Charge against Derol

The Law in relation to murder is set out in these Sections of the Code:

"200.	Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder and shall be sentenced to life imprisonment."

"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."

"4.	"Grievous harm" means any harm which amounts to a dangerous harm, or seriously or permanently injures health or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, membrane or sense."

6.1 The eye witnesses in relation to this charge are, again, Zedial, Annette, Anika and Carolyn. Zedial saw Derol hit Allen on the forehead who fell to the floor. While Allen was lying on the floor, she saw Derol kicked Allen three times on his sides, and trampled on him many times. She left the house with her children and when she returned she saw Allen lying on the ground near the ladder with blood coming out from his nose and mouth, and was weak and breathless. The house was lit by kerosene lamps when Allen was attacked.

6.2 Annette's evidence is that Derol punched Allen's forehead with his right hand who fell to the floor. While Allen was lying on the floor, she saw Derol kicked and trampled on Allen's ribs, face and back many times. She tried to stop Derol from attacking Allen, by approaching Derol and saying 'enough' but she did not succeed. Instead, Derol turned on her and punched her on her back, causing her severe pain. She left Allen's house and walked to the main village to get help. On her return, she saw blood coming out from Allen's nose, mouth, and face. Allen was breathless, looked weak and was crying.

6.3	 Anika's evidence is that Allen was her father and she lived in the same house as him. On the evening of 16 December 2008, she was with Allen, Winfield (her brother), Zedial with her children and herself with her children at the house. She saw Derol came into the house, and punched Allen who fell to the floor. Then she saw Derol kicking Allen with his right leg while Allen was lying on the floor. She was sorry for her father and went to Derol and said "enough now, you stop it now, this is too much". But Derol kept silent and continued to attack Allen. Anika saw blood coming out from Allen's nose and mouth, and that he was short of breath.

6.4	Carolyn's evidence is that she was assisted to Allen's house by Plesston. While she was there, she saw Derol punched Allen. Derol ran away after assaulting Winfield and Allen.

6.5	 Lionel Puhimana (Lionel) saw Allen at about 8pm on 16 December 2008 after he was attacked by Derol. At that time, he saw Allen sitting and leaning his back to the wall of the house, groaning. Allen was complaining about the pain at his chest, ribs and backside. Lionel is a relative of Allen, so he and other relatives carried Allen to Buala Hospital. However, they did not get to Buala as Allen died on the way there and his body was carried back to Gnulahahe Village for burial.

7.	Post Mortem on Allen

Dr. Pikacha examined Allen's body at Gnulahahe Village on 18 December 2008. He subsequently made his Medical Report.

That Report relevantly shows:

External Examination.

(1)	There was obvious bruising on the whole of the left flank from the left subcostal margin to the groin – measured 25 centimetres.

(2)	There were superficial rugged lacerations on the left ear pinna anteriorly and behind the left ear over the mastoid bone, measured 13mm and 15m respectively.

(3)	Clinically, there was a palpable fracture of the ninth, tenth and eleventh ribs on the left subcostal region.

Internal Examination

(1)	The abdomen was opened and there was free blood within the peritoneum maximum over the left upper quadrant around the spleen. The spleen was macerated on the upper pole. The left chest cavity was opened. There was extensive bruising visible on the left internal chest wall. From inside it was confirmed that the left ninth, tenth and eleventh ribs were fractured over the spleen.

Opinion

(1)	The external observations of the bruising on the left flank, fractured 9th, 10th, 11th ribs on the left and the presence of bruising on the left chest wall internally are consistent with blunt object injuries to the left lower chest wall.

(2)	The superficial rugged edge lacerations on the left ear pinna and behind the left ear over the mastoid bone are also consistent with blunt object injuries.

(3)	The presence of free blood in the peritoneum maximum over the injured spleen are consistent with internal bleeding from an injured spleen from a blunt object injury like a punch or a kick to the left chest wall laterally.

In summary, the external and internal post-mortem findings are consistent with a blunt object injury to the left lower chest wall overlying the spleen. The blunt force applied to Allen Suanogo's left lower chest wall is strong enough to fracture the 9th, 10th and 11th ribs and injured the underlying spleen. Allen Suanogo bled from the ruptured spleen and died as a result of the blood loss.

8.	The Defence Evidence

8.1	Derol's evidence is that, he was a secondary school teacher at Visena Community High School in 2008. On 16 December of that year, he went to his home village of Gnulahahe for his holiday. He was accompanied by his wife. He took alcohol between his journey from Buala to Poporo beach and at his village.

8.2 He said, on an unknown date before his departure to the village, the School Chaplain, Fr. Ezekiel Vilasa, told him a story which Fr. Vilasa heard from a person from Gnulahahe village at Buala. The story was to the effect that "it was confirmed by a clearance and healing mission by the Members of the MBH at Gnulahahe village, that Derol's late father, Rev. Ambrose Havimana was killed by Allen Suanogo by sorcery". The opinion of this Court is that this evidence is hearsay evidence and is inadmissible. It is second hand. Fr. Vilasa did not disclose his informant who was not called as a witness.

8.3	Upon his arrival in the village, he shared some more beer with his young male relatives at his family residence. Linton told him that Japhet showed him a knife when Japhet was under alcohol. He told Linton to forget that incident and enjoy the beer because he had just arrived to be with the family. But Adrian's evidence is that Derol, Linton and McPherson planned to see Japhet later that evening to resolve that problem. That was corroborated by Linton and McPherson. It is obvious that Derol, Linton and McPherson were not happy with that incident. Linton and McPherson left first and Derol following them to Carolyn's house to resolve the issue with Japhet that night. This led Derol to assault Carolyn and Japhet as established by the evidence of Linton, McPherson and Carolyn herself.

8.4	Derol alleged that Carolyn's words to him before she was taken to Allen's house after he assaulted her, triggered his mind to the practice of sorcery by Allen, through which Allen killed his father, Rev. Ambrose Havimana. 

9	Voice Identification

9.1	Voice identification evidence is provided for under Section 86 of the Evidence Act 2009 of Solomon Islands. The Section states:

"86.	Voice identification evidence offered by the prosecution in a criminal proceeding is inadmissible unless the prosecution proves on the balance of probabilities that circumstances in which the identification was made were likely to have produced a reliable identification."

Section 190 of the Code:

"190	Any person who – 

(a)	Performs any magic ritual in respect of which there is a general belief among any class of persons that harm may be caused to any person; or;

(b)	Has in his possession, without lawful excuse, any article commonly associated by any class of persons with harmful magic is guilty of a misdemeanour, and shall be liable to imprisonment for two months or to a fine of forty dollars."

9.2	McPherson, Br. Zephaniah Leamana (Br. Zephaniah) and Ashley Lokumana (Ashley) gave voice identification evidence of the alleged sorcerer for the Defence.

9.3 McPherson's evidence is that Br. Zephaniah conducted clearance and healing on his father, Eldon Kari (Eldon) at Gnulahahe Village in August 2008. Eldon was sick with a swollen stomach and inability to walk. The clearance was attended by McPherson himself, his brother, his sister and mother. Eldon sat on a mat near Br. Zephaniah, who used holy water, holy oil and prayer during his clearance and healing. He touched Eldon on the forehead and Eldon fell back on the mat into a deep sleep. According to the evidence of McPherson, when Br. Zephaniah asked Eldon what his name was (meaning the Sorcerer's name), the response was "Allen Suanogo". And when Br. Zephaniah asked whether he, Allen Suanogo, has killed anyone at Gnulahahe Village? The response was "Priest Ambrose Havimana" and "Selwyn Gaza". Eldon's lips were moving when the voices were heard. Br. Zephaniah said a deliverance prayer for Eldon. When Eldon was woken up, he was totally unaware of the conversation made through him between Br. Zephaniah and the alleged sorcerer during the clearance.

9.4 In his evidence, Br. Zephaniah confirmed conducting clearance and healing on Eldon. However, he said that the person talking through Eldon only mentioned that his name was "Allen". The voice of the person who spoke merely said that he killed "Father Ambrose and Selwyn". The voice did not mention surnames.

9.5	In his evidence, Ashley said that his wife Veronica Lestro was cleared and healed by Br. Justin in August 2008 at Gnulahahe Village using holy water, holy oil and prayer. When Br. Justin touched Veronica's forehead, she fell back on the mat she sat on and went to sleep. The tone of the voice of the sorcerer who spoke through Veronica was that of "Allen Suanogo", who poisoned food and gave it to Veronica. Veronica was unaware of the voice that emanated through her mouth when she was woken up.

9.6	After this clearance and healing events, Br. Zephaniah asked Allen whether he had any ginger and other items associated with sorcery. Allen denied being in possession of such items or being involved in the practice of sorcery.

9.7	Eldon was the medium through which Allen was identified as the sorcerer who allegedly killed Fr. Ambrose. Eldon was not called as a witness if he is still at Gnulahahe. But this is a matter for the Defence. In his evidence, Br. Zephaniah said that the voice he heard through Eldon merely mentioned Allen, and the surname Suagnogo was never mentioned. Br. Zephaniah also said that the voice, was low, as if it was from an old man. It was Ashley who suggested that the voice, was that of Allen Suanogo. I consider that Ashley was a bias witness, because he implied in his evidence it was time that Allen Suanogo had died, because of the bad things he did. Allen denied being a sorcerer or practising sorcery or harmful magic. 

9.8	Section 86 of the Evidence Act quoted in paragraph 9.1 above, merely applies to the Prosecution. In view of: the conflict of identification of the sorcerer's voice as merely of Allen or Allen Suanogo; the suggestion by Ashley that the low voice heard was that of Allen Suanogo; the absence of Eldon; Veronica; Br. Justin, as witness; and bias evidence of Ashley; led me to the view that this mode of getting voice identification would be unlikely to produce a reliable identification. I exercise my discretion to exclude the evidence of voice identification of Allen by McPherson and Ashley.

10.	Assessment of Evidence on the Murder Charge 

10.1	The Prosecution evidence established that the Derol attacked Allen with his fist and foot. Dr. Pikacha's external and internal post-mortem findings are consistent with a blunt object injury like a punch or a kick to the low left chest wall overlying the spleen. The blunt force applied to Allen's lower left chest wall fractured the 9th, 10th and 11th ribs and injured the underlying spleen. Allen bled from the ruptured spleen and died as a result of blood loss.

10.2	There is evidence that Derol has committed the offence in the first count of this case. This offence is Murder committed under S. 202(b) of the Code. The evidence proving murder is relevantly set out in paragraphs 6.1 to 6.5 above. Derol knew that his kicks and attack would cause grievous harm to Allen. He knew that those kicks were unlawful or one of them will probably cause the death of or grievous bodily harm to Allen. He returned to his house after his mission to punch and kick Allen and Winfield.

11.	Mistake of Fact – 

The Law is provided under Section of the Code. This Section is set out below.

S.10	A person who does or omit to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any instant than if the real state of things had been such as he believed to exist.

The operation of this rule may be excluded by express or implied provisions relating to the subject."

Derol did not give any evidence to lay the foundation to raise this defence. He bears the burden to do that so that the Prosecution can see the basis it was raised and to disprove the defence beyond reasonable doubt. It is not adequate that it was merely raised by Defence during the closing submissions.

12.	Intoxication - Law.

The relevant part of the Code dealing with this defence is set out below.

"S. 13(4) 	Intoxication shall be taken into account for the purposes of determining whether the person charged has formed any intention or otherwise, in the absences of which he would not be guilty of the offence."

12.1	Derol claims that he was very drunk at the time he assaulted Allen, but in his evidence in chief, he said, he remembered the following events: that Adrian told him that Linton and McPherson went to Carolyn's house to see Japhet; he leaving his house to Carolyn's house to resolve the knife incident between Linton, McPherson and Japhet; meeting Linton and McPherson outside Carolyn's house; following Linton into Carolyn's house; his own punch landed on Carolyn's face; Ini grabbing him after the punch landed on Carolyn's face; Ini advising him not to engage in such behaviour; Fotina Midi arriving and assisting Carolyn out of the house; walking to Allen's house; seeing Allen and Winfield sitting at Allen's house close to the ladder in front of the house; and hitting and kicking Allen.

12.2	Further, he showed no signs of visible intoxication before and during his attack on Allen; for instance, difficulty in remembering, difficulty in standing up, bumping into things, impaired balance, foul language, vomiting, swaying uncontrollably, lack of coordination, falling asleep, staggering, stumbling and so on. It is therefore clear that he was not so drunk at all when he went to the Allen's house and assaulted him. Derol knew that the manner of his assault would cause grievous harm to Allen even though he had taken alcohol.

13.	Provocation 

The relevant Law applicable to this defence are Sections 204 and 205 of the Code set out below.

"204.	Where a person by an intentional and unlawful act causes the death of another person the offence committed shall not be of murder but only manslaughter if any of the following matters of extenuation are proved on his behalf, namely –

(a)	 That he was deprived of the power of self-control by such extreme provocation given by the person killed as mentioned in next succeeding Section; or

"205.	Where on a charge of murder, there is evidence on which the Court can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man to do as he did, shall be determined by the Court; and in determining that question, there shall be taken into account everything both done and said according to the effect which it would have on a reasonable man."

Carolyn's words

"I will tell my father and my grandfather about the things you did to me – yes, the things that you boys did to us."

The Defence has not put these words to Carolyn during her evidence. That should have been done as she would be expected to know something about them. However, if they were uttered by Carolyn, this Court does not consider them to be provocative at all. They could not indirectly imply the practice of sorcery by Allen. They merely refer to the way in which Derol confronted Carolyn, Japhet and their child that evening. It is then not possible for this Court to accept that the words could trigger Derol's mind to news he received on how his father was allegedly killed. In any case, the news he received was hearsay evidence.

Without expert evidence on the effect of alcohol on the body, I would not accept that alcohol triggered Derol to assault Allen, especially when alcohol is a downer that reduces activity in the central nervous system and slows down the mental process of a person; and having found evidence to infer that Derol was not so drunk, and that he knew the nature of his assault and consequences that would follow.

14.	Verdict

Derol Havimana is guilty of common assault, assault occasioning bodily harm and murder as charged. He is accordingly convicted of them. There is only one sentence for murder. This is life imprisonment.

15.	Sentence

Count 1: Murder – Life imprisonment to begin from 20 December, 2008.

Count 2: Assault, causing actual bodily harm – 6 months imprisonment.

Count 3: Assault, causing actual bodily harm – 6 months imprisonment.

Count 4: Common assault – 6 months imprisonment.

Counts 2, 3 and 4 to be served concurrently with Count 1.

Dated this 6th day of July 2011

THE COURT 

(Mwanesalua J)