HIGH OCURT OF SOLOMON ISLANDS
(Faukona J).

REGINA

-V-

BEN PENAI

Criminal Case No. 248 of 2009. 

Hearing Dates: 27/2-28/2/2012, 2/3/2012, 5/3 – 6/3/2012, 8/3/2012, 23/3/2012.
Date of Judgment: 4th May, 2012.

Mr R. Iomea for the Crown.
Mr. E. Cade for the Accused.

JUDGMENT

Faukona J: The Accused Mr Ben Penai is charged for murder contrary to section 200 of the Penal Code, for killing Mr. John Loki of Baenga village, Santa Cruz, Temotu Province, on 4th October 2008. 

Some background facts.

2. The accused in this case is the son in law of the deceased. The accused was
married to the daughter of the deceased by the name of Mrs Anna Nienu. Both the accused and the deceased and their families lived together in the same village, Baenga village. Their houses were opposite to each other and were divided by the main public road. The accused's house was located near the beach and the deceased's house was located on the bush side.

The crown case:

3. On the afternoon of 4th October, 2008, the accused Ben Penai had an argument with his wife Mrs Anna Nienu who was the daughter of the deceased, Mr John Loki. Mrs Nienu at that time was heavily pregnant.

4. The argument escalated to a point where the accused chased his wife with a piece of timber. On seeing that the deceased intervened to protect his daughter. The accused, who was already in the mood of anger, turned his anger to the deceased and a fight and a struggle between the two men ensued.

5. During the course of the fight and struggle the deceased received a blow to the side of his right head with a piece of wood or timer. This was the fatal blow that caused the death of the deceased.

6. There were medical reports as to the cause of the deceased's death.

The Defence case:

7. On the afternoon of 4th October 2008, the accused and his wife had an argument on their way home from their bush garden. They were arguing about some domestic issues. At home the argument escalated to a point where the accused was chasing his wife who was heavily pregnant.

8. At the time the accused was in possession of a piece of timber 4" x 4" and without any nail. As he progressed on chasing he dropped off the piece of timber. On passing the deceased who was digging a post for his newly constructed house, the deceased stood up and gripped the accused at the back collar of his shirt. The accused struggled and eventually freed himself. At the same time the deceased lost balance and fell down. The accused then stood up and left.

Fundamental principles:

9. I have noted the usual fundamental principles in any criminal proceedings; that is fair trial, verdict premise on evidence, the burden of proof, the standard of proof, the elements to proof, the presumption of innocence, acts must be proved and to be accompanied by guilty mind which can be inferred from all the facts available, should there be doubt the accused should have the benefit of acquittal.

The elements of murder:

10. (a).	That the accused cause the death of the deceased by an unlawful act.

(b). That the accused intended to cause the death of or grievous bodily harm to the deceased, or

(с). That the accused has knowledge that the act which caused the death will probably cause the death of or grievous bodily harm to the deceased.

11. Grievous bodily harm means bodily injury of a real serious kind, DPP v Smith

12. There are two crucial elements in the offence of murder. In any given case they form the issues before the Court. First, is the proof of the unlawful act; that it was the accused that killed the deceased; secondly, that of, malice aforethought, or the knowledge that the act which caused the death will probably cause the death of or grievous bodily harm. See R v Noel Ta'asi.

13. As legally required the Crown has to establish that there existed a physical unlawful act or omission on the part of the accused. And that overt act was accompanied by one of the mental state. In order for the crime of murder is committed the element of forbidden action must be accompanied with the forbidden mind, which means the act does not constitute guilt unless the mind is guilt. A criminal act can only amount to crime punishable under law when it is accompanied by appropriate intention, without which may be a perfect innocent.

14. On general criminal responsibility today is attached to moral blameworthiness and according to deeply rooted beliefs. The law can only punish people who are blameworthy, for instance in the case of absolute defence or qualify defence. Blameworthiness does not depend on what a man does, or the result of action caused, but depends on his knowledge and intention when he acted.

15. Then of course the accused's state of mind must be established by evidence from the Crown on the required standard. Section 202 of the Penal Code defines the state of mind (malice aforethought) which must be proved by evidence preceding or co-existing with the act. There are two states of mind expressed in subsection (a) and (b), either of which if proved would establish malice aforethought.

In R v Viu Sir John Muria, CJ, stated;

"There are two states of mind of which, if proved, would establish 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 cause the death of or grievous harm to a person whether such person is the person actually killed or not".

16. In the case of R v Orinasikwa, Sir Muria CJ, stated;

"The accused's state of mind must be established, of course, on the evidence before the Court and must be done by the Crown beyond reasonable doubt. Such evidence would include what the witnesses, including the accused said happened the time of incident or immediately prior to or after the incident, so far as is relevant. The nature of the 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".

Analysis of evidence:

17. The Crown case pivoted on the evidence of PW1, master Selwyn Loki. His evidence is the only direct evidence in this case. Without his evidence there is insufficient or no evidence to convict the accused Ben Penai.

18. Master Loki in evidence says he is now 11 years old. At the time of his father's death he was 8 years old. In cross examination he said he started school in 2010, an age most of the children started school when they were about six. There is some doubt as to the exact age of master Loki at the time of incident. However, 8 years of age is taken as absolute maximum, however, he featured as someone younger, quite probably a year or two at that time. In this Court he is giving evidence of an event occurred 3 1/2 years ago.

19. Master Loki was examined before he gave sworn evidence as to his capacity to give truthful evidence and the consequence to be lied. It was accepted that he did have the capacity and subsequently was sworn before he gave evidence.

20. Master Loki gave a number of accounts of what transpired on 4th October, 2008. He said before the incident the accused and wife had an argument in their village. The argument escalated to a point where the accused chased his wife with a piece of timber. The wife was running to her father, the deceased. The deceased then told the accused not to chase or bash his wife because she was sick (heavily pregnant). Master Loki said he heard those words when he was at a close distance. After the deceased said those words the accused turned to him and hit him with a piece of timber.

21. In cross examination Master Loki stated that when the accused and the deceased started to fight he was standing near a tree in front of the deceased's house. And then he ran to the road, and stood in a position above letter "N" in the sketch plan (Exhibit P5). From that position to the spot where the fight took place is more than 15 meters looking at the measurements in the sketch plan. That is far beyond what Master Loki said about the distance where he stood, to where the fight took place which was 3-4 meters (pointed as from where he sat to the wall behind the bar table). There is no further evidence to indicate he moved closer to the spot of incident 3-4 meters apart.

22. The second version of Master Loki's evidence is that when they were fighting the deceased grabbed the accused shirt on the collar. The grapping was done when both men were on the ground. It was then the accused picked the piece of timber and hit the deceased on his head above the right ear.

23. After an interval of some time, as the deceased was continuing constructing his new house by putting a post into a hole, he collapsed and died. Master Loki said he was there. He also saw the accused was the first to attend to the deceased when he collapsed.

24. Master Loki's evidence is treated with care and cautiousness. The reason being, because of his age and lapse of time. In most children, particularly at tender age, the actual event of incident will remain vivid in their minds. In this case it appears to be without exception.

25. After a short interval and adjournment, Master Loki was called in and examination in chief continued. He pointed out in his third sentence that that man hit his father with a piece of timber, an immediate conclusion. Perhaps he might have thought that other events that led up to the actual incident may not be seen as important. This is where prosecuting Counsels have to be patient and tactical leading a witness of tender age slowly and in an orderly sequence so that the evidence follows the sequence of events. In doing so opens little room for the witness to sway.

26. I accepted that master Loki has two versions in regards to what stage the accused delivered the fatal blow. He agreed those two versions are true in cross examinations. However, both versions cannot be true at the same time; the Court has to accept one.

27. The accuse gave sworn evidence and commenced by describing sticks on the ground on photograph 10, and posts and piece of wood in both photograph 1 and 10 of Exhibit "P4". He described that was the environment the deceased died.

28. In this case the accused also gave two versions of the actual incident that transpired on 4th October, 2008. In evidence he stated, on that date in the morning, he went to their bush garden. His wife and children including PW1 and his sister Rose accompanied them. On their return in the afternoon his wife got angry with him. It would seem that argument continued from there on until they reached their house.

29. Initially the accused agreed he chased his wife with a piece of timber and not a knife. That piece of timber was without any nail. It was "4 x 2" and a meter long. It was not the timber exhibited in Court. As he continued to run after his wife he dropped the piece of timber. On passing, the deceased told him not to hit or scolded his wife as she was pregnant. The deceased was digging a post then. As the accused ran passed the deceased stood up and grabbed the collar of his shirt from behind. The accused then struggled to free himself. He moved his shoulders forward and backward and eventually freed himself from the deceased's grip. After being freed the accused followed his wife, and eventually went back to his house.

30. The accused further stated that when he shrugged and freed himself the deceased lost balance and fell down to the ground and he gripped hold of a wooden stick with two sharp ends. After that the accused stood up and followed his wife and did nothing more.

31. The second version by the accused is that when the deceased fell down to the ground he also fell down. In fact he said he fell down first then the deceased. He fell because the deceased was pulling the collar of his shirt. As examination in chief continued the accused then said both of them fell down to the ground at the same time. After that he got up and followed his wife. She could not be found so he returned and sat on a tyre beside his house. He was facing the deceased whilst working on his new house.

32. Whilst sitting there, the accused saw Robert (PW2) at the building site sitting on one of the sticks and talking to the deceased. He saw the deceased digging and then carried a wooden post and stood it in the hole. At that time he was shaking and fell forward and hit his head on the post. The accused demonstrated how he fell forward and hit his head on the left side of the post.

33. From the accused's evidence it is apparent that the first version culminates that the deceased fell to the ground himself when the accused shrugged his shoulders and freed himself. That argument is purposely to circumvent corroborating the second version of PW1's evidence that both the accused and the deceased fell to the ground during the fight and struggle.

34. Later in examination in chief the accused admitted that both fell down together because the deceased pulled him down by the collar of his shirt.

35. Though the versions vary, the defence case is that the deceased pumped his head on the post he planted as he collapsed down in a forward position. That assertion is partly supported by PW2 who saw the deceased collapse near the post. However, such evidence is totally unreliable because PW2 did not actually see the deceased pumped his head onto the post. In any event the purpose of relying on such conclusion is to distance the accused away from being responsible for causing the wound on the deceased head. And might as well to suggest that the wound sustained by the deceased was caused during the fall. There is argument as to who initiated the fight or struggle. That controversy will be dealt with later. Meantime the assertions drawn by the defence can't be possible because PW3 said in evidence that he was at the building site, sitting on one of sticks when he saw blood on the right side of the deceased's head. That affirmed that the deceased had sustained the wound during the fight and struggle with the accused before he collapsed and died.

36. In assessing the evidence, the second versions of PW1 and the accused are almost similar in nature. I noted there are two notable differences. One that the accused denied hitting the deceased with a piece of timber whilst on the ground, a fact PW1 had witnessed. Secondly, the accused said it was the deceased who pulled him down to the ground by grapping the collar of his shirt, a fact contrary to PW1 evidence who saw both men fight, struggled and fell together to the ground. Then accused picked a piece of timber and hit the deceased head with.

37. The whole entire case of both Crown and defence differ in two extreme areas narrated in paragraph 36 above. Apart from that, the rest of the facts are not disputed.

38. The accused is a mature married man than PW1. His first version was an attempt to avoid being absorbed by the second version of PW1's evidence. Initially he was trying to avoid being fallen with the deceased together on the ground. In doing so attempted to distance himself and had no part in causing the wound sustained by the deceased. As such the only constructive conclusion which can be drawn is that the wound must have been caused by either a stick or stone from where he fell.

39. His Second version of events appears though accepted falling together, the fatal wound was caused by the post which the deceased pumped onto when he collapsed. That can't be true because PW3 saw blood on the deceased head and hair before he collapsed. This boils down to the very fact that the fatal wound and other injuries sustained by the deceased must have been caused by the fall to the ground.

40. The medical reports made it clear that there is a puncture wound on the right scalp with haematoma area of about 4 x 4cm. There is loosing of two lower teeth and bruising and haematoma on the right shoulder. There is also bruise/haematoma on the left back at lower loin area. There is dislocation of the left clavicle from the sternal joint.

41. With those wounds identified, were they the likely cause of someone merely struggled to free himself, or was it a result of a real fight with struggle and falling to the ground. The accused attempt to demonstrate by description that the actual physical confrontation was mild and that all the injuries were caused by the fall and the wooden post. On the other hand PW1, master Loki affirmed to the Court that there was a real fight and struggle between the two men. Consequently the accused hit the deceased on his head with a piece of timber whilst on the ground.

42. A mere struggle to free oneself would hardly leave a person with multiple injuries as sustained by the deceased. Logically, I would draw conclusion that those injuries must have been caused by unlawful assault and physical manhandling. It requires force of such a magnitude to leave behind a devastating effect. If both men were fighting and struggling on equal basis what injuries did the accused sustain, even after both men fell to the ground. There is no evidence coming from the accused to show to the Court that he also sustained some injuries. It clearly indicate it was a fight going to accused's way, a one sided affair. Of course that is a possibility expected. The strength of the accused cannot be matched with the deceased. The accused is a strong young man compared to the deceased who was above fifty years of age at the time of incident.

43. With that evidence it gives me no reservation at all to accept master Loki's second version of the events. He is a young child, tender in age. Court room atmosphere is his first experience. He was subjected to intense cross-examination. There was some variation in account but not to the extent to discredit his entire evidence. He was firm and quite smart in giving his answers. He knew he has no reason to lie. Suggestion by the defence that PW1 was manipulated by adults; no adult witness was called by the Crown whose evidence is similar to PW1. PW1's evidence stands out of his own, as the only eye witness in this case. He is a credible witness.

44. In any good judgment two extreme and distinctive versions cannot be accepted at the same time. One has to be disbelieved. And I do so in this case. I cannot belief the accused's version. As it proves in evidence the accused was responsible for inflicting the fatal blow with a piece of timber on the deceased's head. The Crown therefore has proved its case beyond reasonable doubt that the fatal blow that caused the death of the deceased was made by the accused.

Malice aforethought:

45. Section 202 of the Penal Code defines the state of mind (malice aforethought) which must be proved by evidence, preceding or co-existing with the act. There are two states of mind expressed in subsection (a) and (b), either of which if proved would establish malice aforethought. Has the accused intention to cause the death of or grievous bodily harm to the deceased?

46. The accused's state of mind must be established by evidence by the Crown. Some of the considerations were emphasized by Muria CJ in R v Orinasikwa, quoted above in full. However a relevant extract is;

"Such evidence would include what the witnesses, including accused, said happened at the time of incident or immediately prior to or after the incident… The nature of injuries is also a very important factor in determining state of mind of the accused…

47. The cause of death according to the opinion of Dr Rakei is extradural haematoma trauma received on the head. However, Dr Salini found it difficult to determine the cause of death due to decomposing nature of the body with loss of normal structure and anatomy.
48. The difficulty reached by Dr Salini was because where the scalp wound was, there was no fracture noted on the skull, therefore unable to confirm or exclude, fracture to the brain structure as it had already been liquefied due to normal decay process. He could not exclude death following a heart attack. However given old age there is possibility of fatal brain injury.

49. Dr. Rakei was cross examined and agreed that medical literature showed that 80% of fatal head injuries were accompanied by a skull fracture. Therefore the probability is at 20%. He also confirmed that the deceased had no history of heart problem. He was posted at Lata Hospital for years but was not aware of any heart anomaly to the deceased. PW6 said her late husband was a healthy person who never had a heart problem during the time they lived together.

50. The wound was identified by both Doctors on the right side of the head of the deceased. According to Dr. Salini, the edges of the wound were rough which is consistent with the use of a blunt object to hit the head.

51. From that evidence it cannot be ruled out the probability that the deceased died of brain haemorrhage following blunt trauma given his all age which was above 50 years.

52. The question is, has the accused the necessary intention when he delivered the fatal blow that will cause the death of or grievous bodily harm to the deceased. Counsel for the accused submitted that if the accused hit the deceased with a piece of wood that was found on the ground and struck it on the deceased's head whilst both men were on the ground struggling. There was no time to form any intention as to malice aforethought. If PW1's evidence is accepted in whole or in part then it can only be used to prove a charge of manslaughter.

53. The Crown submits that the accused hit the deceased on the head with a heavy piece of timber measuring 3 "x 2" x 3' and weighing under 2 kilograms (Exhibit P3 – Photos of timber on scale) was sufficient to establish intention to cause grievous bodily harm.

54. I have already accepted the second version of master Loki's evidence. The facts pertaining to how the accused delivered the fatal blow is clear, that while both men were struggling and were on the ground the accused picked a piece of timber and hit the head of the deceased with. Whether that piece timber was the one exhibited in court or not, it is accepted a piece of timber was actually used. In such circumstances is there an opportunity to form such malice aforethought, or the knowledge that death would probably result from the blow. I do not think so. I have examined the piece of timber myself and indeed was a heavy piece of timber, and appear to be fatal. The corners of the piece of timber appear dangerous and would cause havoc if applied with reasonable force. In my respectable view, if the accused has the intention to cause the death of or grievous bodily harm, a parallel force determine by the will of the accused would have caused at least grievous bodily harm or immediate death to the deceased. It did not happen in this case. The deceased continued work after the blow on his house for some time before he collapsed.

55. There is no evidence to establish the motive pertaining to any previous acts or words of the accused prior or immediately prior to the incident to show that he entertain feelings of enmity or grudges between the two men and their families to prove as an integral part of the history of alleged crime. After the deceased died the accused attended him and called him uncle, uncle. Then they carried the dead body to his house. What transpired in this case was an incident occurred in a spur of a moment. I find there is no evidence to prove motive which can prompt intention. In order for a crime of murder is committed the element of forbidden action must be accompanied with a forbidden mind. In this case there is nothing to support the malice aforethought.

Self Defence:

56. The Counsel for the accused submits that if master Loki's evidence is accepted in whole or part then self-defence becomes a live issue. This is because the first physical contact between the accused and the deceased was initiated by the deceased.

57. This defence was not raised during the trial. It would have been better so that PW1 and the accused be cross-examined on. It emerges only in final submissions. However, the question I pause is, what is the force delivered by the deceased that require the accused to defend himself, an action excusable in law, so that, should it not, will cause harm to him. Evidence reveals the deceased first grabbed the collar of the accused shirt and then both men struggled. What force was there if accused should weigh to a nicety? And what force had he employed and applied to counter the incoming force, so that will justify the action he took. There was no specific explanation by way of evidence.

58. PW1 says the deceased attempt to stop the accused not to chase and beat his wife seeing he was armed with a piece of wood. The accused said he was first grabbed on the collar of his shirt by the deceased. Can it be termed as an assault comprising some force of any degree? Technically it may, but in the circumstance of this case the deceased attempted to stop the accused from doing what was wrong. In fact he was acting in good faith knowing the accused's wife was his daughter. She was heavily pregnant at that time. Indeed he was actually assisting the deceased to stop what he was doing or he would endanger his wife and the unborn child in his wife's womb.

59. I do not seem to see any assault at all or force delivered by the deceased so that it would require defence. If there was an initial assault then the result of the force employed by the accused to cause five injuries on five different parts of the body of the deceased was excessive and therefore cannot be justified. Defence of self-defence is rejected accordingly.

60. Having said that, evidence has revealed considering the circumstances of this case, that there was no opportunity for the accused to form the necessary intention, or death would probably result from the blow. It was an incident occurred in a spur of a moment. Having accepted PW1's second version of events which can only be used to prove the charge of manslaughter.

Orders:

1. Accused Ben Penai is therefore discharged and acquitted on the charge of murder and convict on the charge of Manslaughter contrary to Section 199(1) of the Penal Code.
2. Case adjourns to 9th May 2012, 9.00 am for submissions in regards to sentencing on a charge of Manslaughter.

3. Accused is remanded in custody awaiting sentence.

The Court.