HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 153 of 2012

REGINA

-V-

Henry BADE

Hearing: 8 – 12,17-19 April, 1 May 2013
Judgment: 27 May 2013

L.J. Fineaganofo (Ms.) and J. Naiqulevu for the Crown
H. Fugui assisted by L. McSpedden (Ms.) for the Defendant;

Palmer CJ.

1.	The defendant, Henry Bade ("the Defendant") is charged with one count of murder, contrary to section 200 of the Penal Code. It was alleged he killed Charlton Piako ("the Deceased") at Luepe village, Temotu on the night of 14 October 2011 by stabbing him on his left leg, which caused excessive loss of blood, from which he later died of at Lata Hospital.

2.	The prosecution's case is that the Defendant intended to cause grievous bodily harm to the Deceased and/or in the alternative, knew that by stabbing him at his leg that it will probably cause grievous bodily harm to the Deceased.

3.	The defence case on the other hand is that the act of stabbing was unintentional, done on a spur of the moment when he suddenly encountered his wife and the Deceased at the corner of Raphael's house (also referred to as Augustine's house). When the Deceased sought to escape, he swung his knife at him and hit him somewhere at his leg; he denied knowledge as to where exactly it hit the Deceased on his leg. On that basis, it was submitted it could not have amounted to any malice aforethought on his part, as he did not have the requisite mens rea to satisfy the test of intention or knowledge. I think the submission is that it was a spontaneous reaction to seeing the two together at the corner of that house suddenly.

Facts not in dispute.

4.	It is not in dispute that the Deceased and the Defendant's wife, Joylin Yodu ("Yodu") walked back together to Luepe Village, in Santa Cruz. The Defendant was on his way to meet up with his girl friend at Napir Village, which is about six minutes away from Luepe village. 

5.	There is no dispute the Deceased died from the stab wound to the back of his left knee and that it was caused by the Defendant with the knife he had in his possession. The knife has been tendered as an exhibit. 

6.	The medical report of Dr. Roy Maraka confirmed that the Deceased died from exsanguination; this is a medical term for excessive blood loss. This is not in dispute and is not in dispute as well that this was due to the stab wound at the back of his knee.

Issues in the trial

7.	The main issue in this trial is that of intention to cause grievous bodily harm, or whether the Defendant knew that, the act of stabbing will probably cause grievous bodily harm to the Deceased.

8.	This in turn is dependent on the findings of this Court on the issues of credibility, veracity and reliability. Two separate and differing versions have been advanced before me and so part of my task as the arbiter of facts is to determine whose evidence or version is credible, truthful and can be relied on? To do this entails an examination of the evidence adduced in this case and determining where the ring of truth lies supported of course by credible evidence. This will require an assessment of the evidence of witnesses' called, their consistency, accuracy, whether corroborated or not and issues of proof.

9.	I have had the opportunity to consider the evidence adduced and observe the witnesses when giving evidence in court and come to the following decision.

10.	I find that the Deceased and Yodu walked back together to Luepe village on the night of the 14th October 2011. The critical evidence of what happened when they arrived opposite Raphael's house and Ellen Bilves' ("Ellen") house was that given by Yodu, Ellen and Elyn Memua ("Elyn"). These witnesses gave oral evidence in court. Their evidence as to the sequence of events that night is consistent with the statement of Alice Margaret Inesa ("Alice") tendered by consent and marked as "Exhibit C". 

11.	In her statement, she told the police that she was woken up from sleep when she heard a banging noise coming from under her house. When she looked out she saw the Defendant threatening his wife, Yodu. She also saw that he had a small knife in his possession and saw him hitting her with it at the back of her neck. Yodu then escaped from him. She also heard him asking her who she had come back with from the show at Kati School and heard her mentioning inter alia the name of the Deceased. She also heard the voice of Ellen saying to someone to wait while she went to get some betel nut leaf. The next thing she heard after this was the voice of the Deceased screaming in pain with a loud voice saying that his leg had been stabbed. She then ran downstairs and went to the direction of the voice. 

12.	Her evidence has been unchallenged. 

13.	One of the witnesses, Yodu who gave oral evidence, told the court that she first returned to her house to drop off some bananas she had been given earlier on that evening by her sister. The Deceased was waiting for her at the side of the road. She had gone to get some lime at her house and then walked across to Ellen's place to get some betel nut leaf, called korokua. She was going past Raphael's house to go to Ellen's house when she was accosted by the Defendant and assaulted. After assaulting her, the Defendant ran towards the direction of the Deceased saying "where is that man?" She then heard the Deceased saying something to the effect that something bad had happened to his leg.

14.	The other witness, Ellen also gave evidence, which was consistent with what Yodu had said in court. She confirmed meeting Yodu between her house and Raphael's house, that she asked her for some korokua and the Defendant assaulting her shortly after that. She also tried to intervene telling the Defendant to refrain from harming his wife. She told the court she saw the Defendant running towards where the Deceased was standing beside the road before assaulting him on the neck and stabbing him at the back part of his knee. 

15.	She is the only witness who gave direct evidence of witnessing the stabbing. She told the Court she saw the Defendant twisting the knife before pulling it out. Shortly after this, the Deceased called out for help and she went to assist him. She noticed there was a lot of blood coming out from the stab wound. 

16.	Yodu's version of what happened is also supported by another witness, Elyn. She had accompanied Ellen and another man called Sae, that evening. She told the court that the incident occurred when Ellen had gone to her house to look for her key. She was standing on the roadside nearby, with Sae at that time. She confirmed that the Deceased was standing nearby as well; she estimated the distance to be about 20 or so meters but at a darker part of the area and so she told him to come out into the area where the security light was shining. 

17.	Her evidence is consistent with Yodu's version that the Defendant first assaulted her before attacking the Deceased. She told the court she heard Yodu crying. She said Yodu was crying and shouting as well. She heard her saying that she had come with her brothers. She confirmed that the Defendant then ran towards the Deceased and saw his leg move, the Deceased also moved his leg and moved backwards. The Defendant then ran away the same way he came up. At the same time, she heard the Deceased saying that the Defendant had stabbed his leg and asking for help.

18.	In contrast, the Defendant says in his evidence given under oath, that he was on his way to get some matches (fire), to light his smoke when he came upon Yodu and the Deceased suddenly, opposite Raphael's house. He said he was shocked to see them together as much as they were and it was when the Deceased attempted to make an escape that he swung his knife at him, hitting him at the back of his leg. He then turned towards his wife and assaulted her. He denied assaulting her first before attacking the Deceased.

19.	He then asked her where the two girls were that she had gone to get. He told the court that Ellen arrived shortly after this. He also told the court that after the Deceased ran off and fell down he did not run after him or do anything to him as he had no intention of causing any further harm to him. 

20.	His version is unsupported. The prosecution case on the other is supported by at least four witnesses, Yodu, Ellen, Elyn and Alice, who all gave consistent evidence as to where their respective positions were, what they were doing and the sequence of events at that crucial time. They all gave clear, unambiguous and quite detailed accounts of where Yodu was assaulted by the Defendant, where the Deceased was standing, where each of them were, and why. The three witnesses who gave oral evidence, remained firm and unshaken in cross examination regarding their evidence. The fourth witness's evidence, Alice, was unchallenged. I am satisfied their evidence has been consistent, unambiguous, credible, and reliable and I accept their evidence as providing the correct and true version of what happened that night. I reject the version of events as described by the Defendant.

Evidence of intention or knowledge.

21.	 Did the Defendant intend to cause grievous bodily harm to the Deceased or knew that by stabbing the leg of the Deceased he would probably cause grievous bodily harm. The evidence adduced and proven by Prosecution is that the Defendant was angry with his wife Yodu, when she came back in the company of the Deceased and therefore after assaulting her ran towards the Deceased and stabbed him. He was also heard to have uttered words to the effect "where is that man" or "where is he". This is entirely consistent with the actions of a man that is angry or upset. It appears he knew where the Deceased was standing because immediately after assaulting his wife, he ran straight towards him without hesitation and stabbed him. 

22.	In his evidence in court, he stated he stabbed him at his leg because he knew that no one would die from such a wound. 

23.	Evidence of intention and knowledge can be gleaned from the words used, actions that occurred prior to and after and the surrounding circumstances. 

24.	I am satisfied the Defendant intended to stab the Deceased as he was upset with him and Yodu when he saw them returning together. He could have avoided stabbing the Deceased with the knife and confronted him instead to have his concerns and doubts resolved in a peaceful and responsible manner. He was able to control himself and confined himself to assaulting his wife without the use of the weapon he had in his hand. 

25.	I am satisfied he knew that his actions were bound to cause grievous bodily harm. The use of any weapon, especially a knife with a blade of about 18 cm long and a wound which had a depth of about 67 mm, length of some 3-4 cm and width of 1-2 cm is a serious wound. The Doctor, who carried out the autopsy report described the depth of the wound as penetrating to about 50-60% of the posterior-anterior width of the knee. 

26.	He described the wound as cutting the skin, muscles and tendons. This would also have the effect of cutting the small blood vessels (small arteries and veins) in those tissues. He stated it was difficult to identify if any large blood vessels were cut which are located behind the knee in the wound but expressed the opinion that it was possible they could also have been cut.

27.	The immediate consequence of such a wound would be bleeding from the cut muscles resulting in loss of blood, severe pain and difficulty in walking. The cause of death, which is not in issue, is excessive loss of blood or exsanguination. 

28.	The law on the requisite knowledge to satisfy the test of malice aforethought can exist even if 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. In the Defendant's own words, he stabbed the Deceased in the knee area because he knew that no one would die from such an injury. I think what he meant was that he presumed that such wounds would not in some instances cause life-threatening injuries. That presumption, or wish, that grievous bodily harm may not be caused in this case however is immaterial for the injury was life threatening and was the cause of death of the Deceased. The evidence adduced showed there was immediate and excessive bleeding from the wound and despite and in spite of evasive or remedial measures taken the Deceased died shortly after at Lata Hospital. 

29.	I am more than satisfied Prosecution have established the requisite element of malice aforethought and I find the Defendant guilty of the charge of murder and convict him accordingly. 

Orders of the Court:

1.	Find Henry Bade guilty of the charge of murder and convict him accordingly.

The Court.