IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona J).

Criminal Case No.150 of 2011.

REGINA

V

NGUYEN VAN THANG.

Dates of Hearing: 9/5/2012, 16/5/2012, 18/5/2012, 22/5/2012, 25/5/2012, 31/5/2012, 
1/6/2012, 8/6/2012, 16/8/2012, 17/8/2012, 22/8/2012, 3/9/2012, 10/9/2012, 29/9/2012, 

Date of Judgment: 30th November, 2012.

Mr. J. Naigulevu and Mrs Walenenea for the Crown.
Mr D. O'shea for the Accused.

JUDGMENT

Faukona J: The accused Nguyen Van Thang was charged for two counts; Murder contrary to section 200 of the penal Code and unlawful wounding contrary to section 229 of the Penal Code. The two offences allege to have occurred on 2nd February, 2011, outside of Honiara wharf.

The Back ground facts:

2. The accused, the deceased and the victim are of Vietnamese origin. At the time of the incident they were working on the vessel FV Pacific Pride as crewmen. They have been working for two years.

3. The Pacific Pride is a fishing vessel jointly owned by an American and Taiwanese. Its joint ownership is reflected in its joint command structure. It had an American Master and a Chinese Fishing Master.

4. On the date of incident the ship was moored in Honiara harbour transferring fish to a mother ship. On that day the crewmen ceased work around midday and then cleaned up. That night they celebrated the Chinese New Year. Alcohol clearly played a major part in the celebrations.

The Crown Case:

5. The Crown's case is that on the evening of 2nd February 2011, the accused being in possession of a knife (Exhibit 1) stabbed the decease Nguyen Van Huong in their room and shortly after unlawfully wounded Nguyen Van Toan with the same knife. The two stabbings occurred within a short space of time in separate rooms on the same boat. At the time the stabbings took place there were eye witnesses who observed what occurred. The victims were both taken to Hospital. Huong died some times after; Toan survived after a successful operation.

6. When the accused stabbed the deceased and the victim that evening, he did so knowing fully well what he was doing at that time. He had the necessary intent to kill the deceased and unlawfully wounded the victim.

The Defence Case:

7. The defence case is that it conceded the evidence adduced in support of stabbing of the deceased which caused his death and the stabbing of the victim which inflicted the wound alleged. The contents of the autopsy and medical reports are also accepted.

8. The Court can find that the accused inflicted the fatal stab wound on the deceased and the stab wound on the victim. However because of the level of intoxication by the accused of the alcohol that he had consumed, he had no malice aforethought, that he was unable to form an intention specific or otherwise section 13 (4) of the Penal Code. That he did not know what he was doing and he was temporary insane section 13 (2) (b) of the Penal Code.

9. There is in the circumstance, absence of any evidence of motive. The only issue this Court ought to consider is the defence under section 13 of the Penal Code, that by reason of intoxication the accused was temporary insane at the time of the act, that he did not know such act was wrong or did not know what he was doing. In the absence of malice aforethought the accused should be guilty of manslaughter.

Murder Charge:

The Law:

10. Section 200 of the Penal Code sets out the offence of murder. One of the major elements of murder is intention. In law term malice aforethought is defined by section 202 of the Penal Code. Focus is specifically on this issue as contentious, hence, important to paraphrase the section.

11. Section 202 – Malice 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 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.

12. It is apparent the law refer to specific intention to kill or cause grievous bodily harm. It is not a compelling action by use of a knife to strike at the head region to inflict the kind of a lethal and fatal injury reported in Dr Maraka's autopsy report, an act the accused had control over it, or something that happened not independently of the accused's will. I will further reiterate on this when I deal with the defence of intoxication. 

13. The issue of malice aforethought has been considered widely in this jurisdiction. In R v Viu Sir John Muria CJ stated;

"There are two states of mind either of which, if proved would established malice aforethought. The first of those states of mind is an intention to cause the death of or grievous bodily harm to a person. The second is the knowledge that the act which causes the death will probably cause the death or grievous harm to a person whether such person is the person actually killed or not"

14. Having said that His Lordship continued in the case of R V Orinasikwa, which he said,

"The accused's state of mind must be established, of course, on the evidence before the Court and must be done so by the Crown beyond reasonable doubt. Such evidence would include what the witnesses, including the accused, said happened at the time of the incident or immediately prior to or after the incident, so far as is relevant. The nature of injuries is also a very important factor in determining the state of mind of the accused and the Court will also bear this in mind in this case".

15. The question raises in paragraph 12 above reiterates, has the accused intention to kill or cause grievous bodily harm to the deceased, or even unlawfully wounding the victim?

The onus of proving intoxication:

16. Where a defence of intoxication is raised, the onus still remains with the Crown. Subsection 13 (4) differs the situation in relation to intoxication of accused which is to be taken into account in deciding whether or not he had the intention to cause a specific result. Once there is cogent evidence either from the prosecution's case or the defendant's case that the defendant's intoxication may have prevented him from having the intention to cause a specific result, the onus is on the Crown to prove beyond reasonable doubt that the accused had that intention. Philip J pointed out in Dearnley V The King at P. 62.

"In a restricted sense an onus in relation to evidence of intoxication does not rest upon the accused. Since a jury may decide the question of intent only upon the evidence adduced, they cannot consider intoxication unless there be evidence of it. It is incumbent then, on the accused to have before the jury, either from the Crown witness or other sources such evidence of intoxication as may cause a reasonable man to have at least a doubt as to the existence of the intent alleged. It is only in this sense that any burden rests on the accused. If he adduces no proper evidence of drunkenness, then the jury will consider the question of intent without reference to drunkenness, but if proper evidence of drunkenness be adduced either from the Crown witness or (other source), the jury must consider that evidence, not separately, but together with all the other evidence, and if at the end of their consideration they be left in reasonable doubt whether the intent existed they must acquit. I have used the term "proper evidence" since I conceive it to be a matter of law whether the evidence of drunkenness is sufficiently cogent to be considered by the jury" 

The defence of intoxication:

17. The accused conceded to the evidence that he inflicted the fatal stab wound which caused the deceased's death. He also conceded on the evidence that he inflicted the stab wound on the victim. His reason is that he was so intoxicated by alcohol he had consumed that he did not know what he was doing and that he was temporary insane.

18. Section 13 sets out the defence of intoxication.

S. 13 (1) Save as provided in this section, intoxication shall not be a defence to any criminal charge .

(2). Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act was wrong or did not know what he was doing and:-

(a) the state of intoxication was caused without his consent by the malicious or negligent act of another person; or 

(b) the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission. 

(3). Where the defence under the preceding subsection is established, then a case falling under paragraph (a) thereof the accused shall be discharged and in a case falling under paragraph (b) the provisions of this code and of the Criminal Procedure Code relating to insanity shall apply.

(4). Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.

(5). For the purpose of this section "intoxication" shall be deemed to include a state produced by narcotics or drugs"

19. Subsection (1) lays down the general rule that intoxication is no defence to a criminal charge. It also reflects the common law situation. Subsection (2) qualifies that intoxication is a defence to any criminal charge in a circumstance where the accused did not know what he was doing was wrong or did not know what he was doing. Not knowing what was wrong or what he was doing, was by reason of intoxication to a state of temporary insane through voluntary consumption of alcohol, narcotics or drugs. Subsection 4 provides that an intention to commit a specific result must be proved by the Crown of the accused's intoxication, whether complete or partial, or whether intentional or not may be taken into account to ascertain whether the accused had the required intention.

20. There does not appear to have been any attempt to define intoxication in the context of section 13. However, in the Quebec Superior Court in Canada, Bienvenue J said in Desbiens V The King 

"If I had to formulate a definition of intoxication, here is how I should express myself in viewing the question in accordance with the spirit and letter of the law. Intoxication is the stupefied condition of a person who has imbibed alcoholic liquor in sufficient quantity to make him lose totally or partially the use of his mental or nervous faculties. To be intoxicated in the legal sense, it is not necessary to be dead drunk any more than to be ill it is necessary to be dying. It suffices that an individual be affected by alcohol to the point of no longer having his normal control, his judgment, or in a word that he no longer has the use of all his intellectual or physical faculties"

21. In my opinion intoxication use in the above means at least that and that those words mean a condition graver and more extreme than is conveyed by the words "drunk" or "under the influence of drink", or "very drunk".

22. In considering the phrase without intention on his part, Griffith CJ…, author of the Criminal Code (Queensland) described how defence of intoxication operated in R V Corbett, 

"Drunkenness is never a defence unless it amounts to unsoundness of mind. No one can escape liability merely because he is intoxicated. If you come to the conclusion that his mind was absolutely disordered, and he was deprived of capacity to understand what he was doing, or capacity to control his actions, or of capacity to know that he ought not to do the act with which he is charged, you may be able to find him not guilty on the ground of insanity"

23. If however, the accused indulge in self-induced intoxication, then under the common law whether he intended to or not, his intoxication cannot be used as a defence. Whether this approach would be followed in Solomon Islands is open to doubt for two reasons. One, it is more in keeping with the words of subsection 4 of section 13. Secondly it would avoid the problems of evidence that could arise if the Crown have to prove that the accused began drinking with the intention of becoming drunk.

24. The term specific result has the same meaning as the specific intention which the prosecution must prove the specific intent of the accused to commit those offences. The voluntary intoxication of the accused would have to be considered in deciding whether or not he had the specific intent. In the case of R V O' Regan Mack J said,

"I am of the opinion that S.28 Queensland (similar to section 13 (SI) Penal Code) was introduced to allow voluntary drunkenness to be regarded as a defence where the intent to cause a specific result is stated as an element of the charge or is an element of the charge as define by the code, e.g stealing"

25. Although Section 13 (2) generally expresses that the defence of intoxication is available to any criminal charge provided the level of intoxication is equated to insanity. Having said that the law propounded in O' Regan's case demarcated a boundary that defence of intoxication is available where intent to cause a specific result is stated as an element of the charge, or an element as define by the Code. Offences where intent to cause specific result is not an element cannot rely on the defence of intoxication. The prospect if raise must fall on its face. 

Evidence of motive:

26. The defence submits that there is no evidence of motive that will prompt the accused to do what he did. Motive comprises evidence or other acts of the accused indicating a desire or reason for committing the offence charged. The Crown do not have to prove motive but evidence of motive is always admissible in order to show that it is more probable that the accused committed the offence charged.

27. The defence submits that the accused, the deceased and the victim are from the same village in Vietnam. They knew each other before joining the Pacific Pride. The accused is a distant relative of the victim. Their families knew each other. They had been working on the pacific Pride as fellow crewmen for nearly two years. The defence refer to the evidence of the victim who said there was no much friction between the accused and him. It is because too much alcohol that resulted in the incident. The accused admits in evidence that he had minor quarrel with other crews and the deceased and the victim. PW3 says he was not aware of any dispute between accused, the deceased and the victim the months prior to the incident; they are staying peacefully. He says that night some row broke out down stairs of which he went down and settled the row. On the other hand the Crown argues that the quarrel was witnessed by PW6 and 7. This occurred at the mess hall. This can be considered in the light of what PW5 described as arguing and yelling. PW7 says he saw the accused and deceased arguing in the dining hall at about 9 o'clock. Then he heard the accused, the deceased and the victim argued. He also says in Court that few months ago he witnessed the accused and the deceased had a fight. 

28. From evidence it is not the picture the accused attempted to paint. The facts disclose there was already a certain amount of animosity between the accused, the deceased and the victim which culminated to what happened that night. I do not belief the accused's evidence and that of the victim that accused did what he did because of two much drinking. From the evidence there could have probable motive which prompted the accused to do what he did.

Amount of alcohol consumed:

29. There is no doubt certain amount of alcohol was drunk during the celebrations of the Chinese New year, on the boat the Pacific Pride. PW6 describe it that there were about twenty five of them in the mess hall and they received the same number of drinks. PW3, fishing master, says he gave each crew one can of beer and two cans of coke. PW8 though vary in evidence says the captain gave every one two bottles of beer. The witness further says he drank almost two cartons of beer. The Vietnamese crews have about more than one cartons each and four bottles of wine which were shared among them. PW2 says some Vietnamese crews have prepared some drinks, a number of dozens of beer. Mr Ben Maughan (American Captain) whose evidence is tendered by consent states that at 0200 am he inspected the ship and found out there were empty cans of beers lying on the deck. The accused says he purchased two cartons of beer that day, and some other crewmen brought two cartons of beer. There were bottles of Chinese wine. He drank beer and wine. He says he held one bottle wine and drank out of it.

30. The Crown argues that the amount of alcohol the accused claim he had consumed that night as sweet wine, four bottles of Korean wine and two cartons of beer was not true. Other Chinese crew members who testified did not mention or seen them on the table or floor nearby.

31. From the evidence there is no doubt that alcohol plays a part in the celebration of the Chinese new Year. Evidence revealed that there are four cartons consumed and four bottles of wine. And they were shared among about twenty five people in the mess hall below to start with. In addition the one can of beer shared to each crew member by PW3 the fishing master.

32. The evidence of PW7 on this point is quite doubtful. He was exaggerated beyond belief when he says he drunk almost two cartons and further states that Vietnamese crews drank about more than one carton each. There is no evidence to show extra cartons and where they came from. Evidence only reveal four cartons of beer and four bottles of wine which is also described as sweet wine. I could not also belief the accused when he said he got hold of one bottle wine and drank out of it. That is selfish and contrary to what PW7 says that the alcohol was shared among them.

33. If drinking started at 6pm, and having had consumed one can of beer given by PW3, the fishing master, then all twenty five of them must of course started drinking the four cartons of beer and wine. And when it was shared among them it was quite minimal to cause someone to be intoxicated to a state of insanity. The accused under oath states he started drinking alcohol when he was twelve years and still going at twenty seven years.

34. It is apparent that drinking started at 6pm in the evening and continued until 10 pm. Four hours of drinking for someone who started drinking at the age of twelve and continued until twenty seven years is impossible for him to drink to a state of insanity. Further impossibility culminated from the fact that the drinks were shared between about twenty five persons to start with. I would able to draw inference that drinking for four hours by a person who had been drinking alcohol for 15 years is normal and nothing sinister to render the accused had consumed alcohol excessively to a state of insanity, that prevents him from having malice aforethought, a specific intent to kill or cause grievous bodily harm, and that being succumbed to excessive drinking to a level of insanity that he was so intoxicated that h e did not know what he was doing and did not know what was wrong or right.

35. The Crown is right by submitting that the accused version of evidence that he could not remember anything that he did, even where he went to that evening. Indeed the accused did not say he did not know what he did, for one can know what one did but cannot remember, perhaps because of the passage of time. If he knows what he did and carried out those acts, but could not remember because it happened one and half year ago, then the accused must be held responsible for his actions.

36. The demarcation boundary has been drawn by the Canadian case that intoxication be to the point of no longer having control, judgment or that he no longer has the use of all his intellectual or physical faculties, a condition more graver and extreme than being drunk or under the influence of liquor. With the volume of alcohol consumed as reveal by evidence, would it render the accused intoxication to a state of insanity so as to fall within the definition? I do not think so. The volume of alcohol consumed was not excessive. The hours taken to consume such is not long either. However, the amount of alcohol available as reveal by evidence were shared among at least twenty five persons or lesser, could not possibly cause intoxication to a level of insanity.

37. Accused is a strong drinker himself who started at the age of twelve. Four hours of drinking is normal for someone like him. The description by PW1 and PW11, the two Police Officers as to the state of intoxication as smelt of alcohol, red eyes, talkative, walking unbalanced are normal state of a person in an intoxicated state or very drunk and under the influence of alcohol, but not to the state of insanity. 

38. The Crown submits that the accused has never claimed to be insane as a result of excessive taking of alcohol. But focussed on the fact that he could not remember what he did. Instead section 13 talks about knowledge or did not know. Whilst I agree with crown, it is not necessary to call medical evidence to affirm that finding. Suffice to say medical evidence would only be appropriate to ascertain that the accused is a person who because of taking excessive alcohol his state of mind and reasoning and faculty is equated with the level of insanity. This can be assessed by previous history. Nothing has been done in this case and the accused is a person with no history of consuming alcohol to a state of insanity.

Accused's act immediately before, during and after incident:

39. To further ascertain whether the accused was intoxicated to an elevation of insanity, that he did not knew what he was doing and did not know what was right or wrong or did not know the risk that by his act would probably cause.

40. On the night of the celebrations the arrangement was that officers (six in all) used the top mess hall and all the crews used the mess hall below. That night according to PW6 there were about twenty five of them in the crew's mess hall. Alcohol clearly was consumed. 

41. The evidence of PW6 and 7 states, by 9 o'clock at night there was an argument and quarrel. PW3 the fishing master describe it as an argument, whilst PW5 describe it as argument and yelling. PW7 says he saw the accused and the deceased argued in the dining hall at about 9 o'clock, that night. He also heard the accused and the victim argued. In fact he heard the accused, the deceased and the victim argued. The witness further states that about a month ago he did witness the accused and the deceased had a fight. This preclude what happened later in their room. Describing the altercation between the two, PW7 testifies and says when the deceased came into the room he heard the deceased and the accused gruelling and pushing each other. The witness heard them saying, "you want to fight", and this took about few minutes. When both men embraced each other they exchange punches and then he saw the deceased fell down and thereafter the accused went out of the room. 

42. These facts disclose that there was already a certain amount of animosity between the accused and the deceased which culminated in the spiteful stabbing by the accused. The evidence does not support the accused's version that difference between them has been resolved. That can be perceived as pre-existence motive for what transpired in the room.

43. At 10 o'clock that night the accused had no difficulty navigating the passage and finding his bed in the room near the end of the corridor. A person in a state of insanity as he claims would have had enormous difficulty to do so. He was never mistaken about his bed. Additionally the accused navigated himself out of his room and entered the room occupied by the victim with a knife in his hand. In a state he claims there would have been some difficulty. I accept the Crown submission that the accused remembered vividly that there had been some business that had to accomplish with the victim, hence, urgent visit to the victim's room and stabbed him.

44. The actual stabbing of the deceased was the whole cause of death. The evidence of PW7 of what happened in the room together with the report of Dr Maraka provided the basis of proof. The defence does not appear to have strongly contested the Dr's report and his findings and the evidence of PW7. PW7 gives evidence about the cause of the deceased fall to the flow and why he laid in the pool of blood. Undoubtedly, the accused had stabbed the deceased with the knife that was seen holding immediately after. PW7 describe what he saw by saying, "I did not see how the accused hold the knife until the deceased fell down. The knife was used in the room to cut fruits. "In answer to cross examination the witness says he saw the deceased fall down and the blood came out". The witness's account of the source of the blood he observed immediately after is significant in the light of the pathologist's finding. The witness recall, "I saw his face covered with blood but I do not know exactly where the blood comes from".

45. Dr Maraka's report, record his opinion as to cause of death, he died from head injuries sustained from the stab wound into the head through the left eyed. The stab wound into the eye fractured the bone behind the eye and entered into the left frontal region of the brain tissue. This damaged the brain and caused subarachnoid haemorrhage on both sides of the brain. There were also blood clots in the ventricle of the brain. 

46. I am satisfied and accepted that the knife must have been aimed at the head region and that a certain amount of force must have been applied to inflict that kind of fatal wound. From those findings I would draw inference, the accused must have intended to kill the deceased or at least cause grievous bodily harm. There is no difficulty either to draw inference that the accused have knowledge that by striking the knife at that region with such force would have caused death or at least grievous harm. The fatal wound was inflicted after gruelling, challenge for a fight, arguments, pushing each other and exchange of punches, which took few minutes. A person intoxicated to a level of insanity would not have acted the manner the accused did. The climax of his grievances and animosity began from the argument and yelling done in the mess hall earlier on. This can be perceived by a person who have full knowledge of events, and hence coordinated well his mind to accomplish his business. 

47. After stabbing the victim, PW7 testifies he confronted the accused and informed him of the deceased serious injuries. Upon hearing he cried. This suggest that only a person who understand the nature and consequences of his offending would have reacted that way and not a lightly intoxicated person at a stage of insanity claiming he could not remember. The accused was able to make connection between the injuries and what he did and felt responsible and sorry about it. 

48. Similarly, the accused was asked by PW7 to assist in lifting the deceased out of the room of which he obliged. Again, a person highly intoxicated as he claims would not have acted in a collected and co-ordinated way as this. He would have probably objected or simply walked away. PW7 would not have asked to help as he knew the accused was incapable of helping.

49. In cross examination PW7 states that when the accused was woken from his bed the next morning by Police and taken away, he did not protest or say anything. It seemed extremely odd when he was taken away by Police to the boat the accused did not at least ask why he was being so taken. The presence of Police meant something wrong had been done. He chooses to remain silent. The conclusion I could draw is that the accused knew that it was something to do with what he had done the previous night, something that would require Police attention. He did not protest because he knew and remembered what he did to the deceased and the victim.

50. There is evidence by PW8 that after the accused had stabbed the victim he tried to stop him. The accused then turned around and lunged at him with a knife. His action was of a person who sensed and recognized a challenging situation that needed to be addressed. A person in the intoxication state the accused claims to be was incapable of doing that. 

51. After all the drama had gone, the accused navigated himself to his bed and slept well until he was arrested the next day. A person claim to be intoxicated to the state of insane would not able to do that.

52. With the evidence related to the acts by the accused immediately before, during and after the incident has proved without doubt that the accused had full knowledge of what he did. On the evidence available and admitted at trial, and in the light of arguments, I am satisfied beyond reasonable doubt that the Crown has proved its case. The accused defence of insanity which he claims through intoxication does not negate any intention to act unlawfully. Therefore his defence must fail. There is one sentence for murder, and it is a mandatory one. The accused is therefore found guilty of murder and convicted accordingly and is sentenced to life imprisonment.

The Charge of unlawful wounding:

53. The alleged offence of unlawful wounding occurred within minutes of the offence of murder in the evening of 2nd February 2011, during celebration of Chinese New Year on fishing vessel Pacific Pride. There were witnesses to this offence which the accused did not contradict. The medical report in relation to the wounding is also accepted by the accused.

54. However, the accused denies the offence on the basis that at the time of stabbing he was of unsound mind. His unsound mind was a consequence of alcohol he consumed. He was too drunk to assess the likely consequence of his intoxicated behaviour. That the state of mind he was in, render him insane unable to form the specific intent. In other words, there is absence of malice afore thought. Simply, that he did not know what he did and did not know what he did was wrong. The accused relies on the defence of intoxication pursuant to Section 13 of the Penal Code. . 

55. However, Section 229 of the Penal Code provides for unlawful wounding but does not define intent as one of the elements of the charge to cause specific result. The Crown is left with the burden of proving the unlawfulness of the accused's action. Therefore, the defence of intoxication is not available to the accused. However in the absence of such, the only possible defences available to the accused are probably foreseeability or recklessness. None of the defences is raised by the accused. The importance of any of the legal defences will preclude whether the accused has considered the possibility that the victim might have been hurt by his actions. The accused says he does not remember what had happened. This is totally different from having knowledge of what he did and that what he did as he claims was in the absence of malice afore thought to cause a specific intent.

56. If because of excessive consumption of alcohol, effect of which is level to a state of insanity, that the accused could not reasonably had foreseen as a consequence of what he did, then my analysis of evidence of the possible motive in the charge of murder, and further analysis of evidence of the behaviour of the actions of the accused immediately, during and after the incident reflect in the murder charge, corresponds and applies similarly to this charge of unlawful wounding.

57. Having said that, I am satisfied beyond reasonable doubt on the evidence adduced to prove the charge of unlawful wounding. Therefore the accused is found guilty of the charge of unlawful wounding and a conviction therefore entered accordingly.

The Court.