HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 48 of 2013

REGINA

-V-

PATRICK SOVESUIA

Hearing : 4th - 6th May, 11th May, 14th July 2015
Judgment : 27th November 2015

Ms. Florence Joel for the Crown 
Mr. Wayne Ghemu for the Defendant

Palmer CJ.

1.	The defendant, Patrick Sovesuia ("the defendant"), is charged with the murder of Daniel Siola ("the deceased"), the particulars of which state that he killed the deceased at Terea village, Makira Province on the 4th December 2012. He entered a not guilty plea and a trial was commenced on the murder charge.

2.	During the trial two additional charges, for criminal trespass and attempted arson were included; he also entered not guilty pleas to them.

The cause of death.

3.	It is not in dispute that the Deceased died from cardiac tamponade, a medical term for describing pressure that builds up on the heart when blood or fluid builds up in the space between the heart muscle (myocardium) and the outer covering sac of the heart (pericardium), preventing the heart from working properly. As a consequence the victim dies through lack of blood supply to the body. 
 
4.	It is not in dispute that this condition was caused by a stab wound into the left chest of the Deceased by a screw driver as the weapon. 

The case for prosecution.

5.	The case for prosecution is that the Defendant stabbed the Deceased with a screw driver when he was confronted at the bottom of the ladder of John Kapentana's house and that he had the necessary mens rea constituting malice aforethought when he did this. Prosecution's case is premised on the second limb of the definition of malice aforethought that he knew that what he did would cause death or grievous bodily harm to the Deceased.

The case for the defence.

6.	The defence submits that the stabbing was an act of self-defence, that he believed he was in imminent fear and danger. The defence deny that he had the necessary intent for malice aforethought and that there was no premeditation.
 
7.	In the alternative the defence submitted that pursuant to section 204(a) of the Penal Code that an alternative verdict of manslaughter be imposed on the basis of extreme provocation.

Facts not in dispute:

8.	I find that the defendant was under the influence of alcohol when he went to the house of Mr. Kapentana. He had been drinking earlier with a friend and some girls. One of the girls was a former girl-friend who decided to leave the defendant earlier that night. 

9.	I accept that later that night he went to the house of Mr. Kapentana and it was while there that he was accosted by the deceased at the bottom of the ladder to that house.

Facts in dispute:

10.	The defence denies that the defendant stabbed the deceased at the bottom of the ladder. The defendant says that he stabbed the deceased after he had been attacked by three men and only used the screw driver to effect his escape. He says after using the screw driver, he was able escape and ran off but was followed and caught up after he ran into a fence and fell down. He says he lost consciousness after he was beaten up and when he regained consciousness he realised he was at the Kira Kira police station.

11.	Crown witnesses however say that the deceased was stabbed by the defendant at the bottom of the ladder before making his escape.

12.	I am satisfied having heard the evidence that the stabbing occurred at the bottom of the ladder. I also find that this occurred immediately after the deceased had punched the defendant.

Self-defence.

13.	The main issue in this case is whether the defendant acted in self-defence when he stabbed the deceased and the law on this has been encapsulated in section 4(2)(a) of the Constitution and section 17 of the Penal Code. 

Section 4(2)(a) provides: "A person shall not be regarded as having been deprived of his life in contravention of this section if he dies as the result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably justifiable-
(a) for the defence of any person from violence or for the defence of property;". 

14.	The elements to be established as set out in the Constitution are that the force used is lawful and reasonably justifiable in the circumstances in the defence of person or property. 

15.	In section 17 of the Penal Code, the principles of the common law dealing with the use of force in defence of a person have been incorporated into the laws of Solomon Islands and expressly set out as follows:

"Subject to any express provisions in this code or any other law in operation in Solomon Islands, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English common law."

The burden of proof.

16.	Once self-defence has been raised as a defence, the burden remains with prosecution to disprove that fact, that is, to prove beyond reasonable doubt that the fatal act was not done in self-defence. 

Assessment of evidence and findings.

17.	I am satisfied on the evidence adduced before me that the following occurred that night when the three main prosecution witnesses, Rocksly Kerete ("Kerete"), Richard Bwagi ("Bwagi") and Hillary Nahu ("Nahu") went to investigate the person earlier seen by Bwagi approaching John Kapitana's house. They decided to go to that house to investigate because they knew that the house was occupied by an elderly widow who was living alone and it seems were also concerned for her safety.

18.	I find on the evidence that the deceased and Kerete went ahead to investigate, with Bwagi some distance behind and Nahu much further back.

19.	On arrival they saw the defendant going down the ladder. The deceased then approached him and threw a punch at him which landed on his mouth. The defendant retaliated with a sideways punch at the deceased and then escaped. He was then chased both by Kerete and the deceased but the deceased collapsed along the way. Bwagi and Nahu joined the chase at some point later.

20.	The main issue before this court is whether the actions of the defendant in hitting the deceased done in self-defence?

21.	Having had the opportunity to consider the evidence carefully, I find that defence have raised sufficient evidence to establish a prima facie defence of self-defence in the circumstances. It is accordingly incumbent upon the prosecution to disprove that defence beyond reasonable doubt. 

22.	The evidence showed that the defendant was approached at the bottom of the ladder by at least two men. While it was denied in evidence that they did not say anything to him, it is more consistent with the evidence of the defendant that they would have confronted him or said something to him before attacking him, for that is what happened. The defendant says in his evidence that they swore at him and shouted at him that they were going to kill him and that he wanted to be smart. As soon as the deceased reached the defendant he asked him what he was doing there and then threw a punch at him straight away. 

23.	The defendant says that he was already frightened when he heard Ellen Wateoha shouting as the house was in a village and he was frightened people in the village would come and do something to him. He says when he was attacked he used the screw driver to defend himself before escaping and running away. 

24.	I am not satisfied having heard the evidence that prosecution had disproved his defence that he was acting in self-defence when he used the screw driver to stab the deceased with it. 

25.	In Palmer v. The Queen Lord Morris of Borth-y-Gest articulates the defence of self-defence as follows: 

"It is both good law and good sense that a man who is attacked may defend himself. It is good law and good sense that he may only do what is reasonably necessary. But everything will depend upon the particular facts and circumstances. It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack, it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril, then immediate defensive action may be necessary. If the moment is one of crisis for someone in immediate danger, he may have to avert the danger by some instant reaction. If the attack is all over and no sort of peril remains, then the employment of force may be by way of revenge and punishment, or by way of paying off an old score or may be pure aggression. There may no longer be any link with a necessity of defence.

If there has been no attack, then clearly there will have no need for defence. If there has been an attack so that defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If the jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary that would be the most potent evidence that only reasonable defensive action had been taken."

26.	I find on the evidence before me that the defendant was not the aggressor neither was he the first to attack the deceased. He had been confronted by at least two men who were also under the influence of alcohol like him and therefore may not be as calm and controlled in the circumstances as may be expected and more likely were abusive and threatening in their conduct towards him. One of them (the deceased) also initiated the attack without any provocation from him, whether by words or actions, apart from merely standing there at the bottom of the ladder. I find on the evidence he only retaliated when attacked and thereafter escaped. 

27.	This I find to be more consistent with the actions of a man who was trying to defend himself rather than an intentional and revengeful attack. The sideways thrust of the screw driver is also consistent with the actions of a man trying to fend off his attackers. He did not stab the deceased a second time or repeatedly and nothing to suggest that he was the aggressor or pursued the deceased in any way. Instead the evidence is undisputed that he took off immediately thereafter when he saw it seems an opening for him to escape. 

28.	I find on the evidence he did the minimum that was reasonably necessary in the circumstances and it was tragic his actions caused the death of the deceased. I am satisfied in the particular circumstances of this case he cannot weigh to a nicety the exact measure of his necessary defensive action. I am satisfied that in a moment of unexpected anguish on being suddenly attacked without warning, I find on the evidence that his actions were consistent with that of a person who had only done what he honestly and instinctively thought necessary to defend himself. 

29.	I am not satisfied prosecution had shown to the contrary that he did not honestly believe that the circumstances were such as to require him to act in the way he did.

30.	It has been suggested that the defendant could have run away instead of standing at the bottom of the ladder and that this supported prosecution's case that by remaining there this was consistent with an intentional act to cause death or grievous bodily harm or, knowledge that what he did would cause death or grievous bodily harm.

31.	On the other hand, it does not necessarily follow that the fact he remained and stood at the bottom of the ladder implied he had any motive or intention to commit any offence. It is a fact he did not run away and it is for prosecution to prove that his actions in standing at the bottom of the ladder were reflective of the mens rea consistent with malice aforethought, that is, he had the necessary intention to attack or harm the deceased when he was approached. 

32.	There is however no evidence to support such submission and to suggest that when he was standing there he did display anything whether by words or actions to provoke the attack on him. He could equally have stood there out of fear or hoping that when they arrived he would be able to explain to them why he was there. He was however never given any opportunity to explain for he was punched on the mouth as soon as the deceased reached him. 

33.	In Zecevic v. Director of Public Prosecutions, in the joint judgements of Wilson Dawson and Toohey JJ, following the Privy Council's judgment in Palmer at 831-832, it was held:

"The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal."

34.	I am satisfied it has not been disproved that the defendant did not believe upon reasonable grounds that it was necessary in self-defence to do what he did. I am also satisfied it has been shown and it is not disputed that there were reasonable grounds for that belief, that is, there were two persons who approached him that night. There is evidence that they were also under the influence of alcohol and so it is more consistent with the evidence of the defendant that when they did so it was in an aggressive and confronting manner for as soon as they arrived the deceased threw a punch at the defendant. I find that the actions of the defendant were consistent with more a defensive reflex action in self-defence for immediately thereafter he ran off.

35.	In The State v. Li Jun it was said: "…where self-defence is an issue, account must be taken of the personal characteristics of the accused which might affect his appreciation of the gravity of the threat which he faced and as to reasonableness of his or her response to the threat:"

36.	It is not in dispute that the defendant in this instance was under the influence of alcohol and his appreciation of the threat posed to that extent may have been impaired and as well affecting his response to the threat posed.

37.	In another case in this jurisdiction referred to by Counsel for the defendant, which is also relevant, is the case of Taika v. Reginam in which the Court of Appeal stated:

"In order for the accused to defend himself and rely on self-defence, there has to be some serious force from the deceased putting the accused in immediate peril, or to defend the attack by the deceased, or some forcibly violent felony attempted on the accused by the deceased, or an assault by the deceased which the accused honestly believed that the circumstances were such as required him to use the knife to defend himself by stabbing the deceased, or that the deceased strike at the accused which entitled him to get his blow first as he saw it necessary to do so in self-defence."

38.	It is not in dispute in this case that the defendant was first attacked by the deceased putting him in immediate peril and eliciting a defensive reflex action in the circumstances to ward off the attack and to defend himself. In such circumstances, it is recognised that a person defending himself cannot weigh to a nicety the exact measure of this necessary defensive action.

Decision.

39.	I am not satisfied prosecution has established to the requisite standard, that the defendant was not acting in self-defence and therefore he must be acquitted of the charge of murder.

Charge of Criminal Trespass.

40.	The defendant has also been charged with criminal trespass contrary to section 189(1)(a) of the Penal Code that he entered the premises of John Kapentana with intent to commit an offence.

41.	I am satisfied on the evidence that the offence has been made out. He was never invited to enter the premises at any time and more so quite late at night. He had no legitimate business to go to that property so late at night. 

42.	In her evidence before this Court the occupant of that house at that time, an elderly lady, Mrs. Ellen Wateoha told the court that she was woken up by the sound of someone knocking at the front door. She then overhead that person threatening to burn the house down and then lighting the mosquito net which she had used as a rope to tie the front door with. Her evidence on this is undisputed. 

43.	Her evidence is supported by the evidence of her daughter who lived next door to the house and was woken up the sound of Ellen calling to her for help and telling her that someone was trying to burn the house down.

44.	I am satisfied the elements of criminal trespass have been established and the defendant is convicted of this offence.

Offence of Attempted Arson.

45.	The defendant has also been charged with the offence of attempting to commit arson contrary to section 320(a) of the Penal Code. 

46.	I am satisfied also on the evidence before me that prosecution have also proved beyond reasonable doubt that the defendant attempted to set fire to the house of John Kapentana that night. 

47.	The evidence of both Ellen Wateoha and Ruth Watoto is un-contradicted. There is clear evidence that the defendant attempted to set fire to the house by having the mosquito net tied to the door alight. Fortunately, that mosquito net did not cause any other part of the building alight and it died out once it had burnt through. He is also convicted of this offence.

Orders of the Court:

1.	Find the defendant not guilty of the charge of murder and direct that he be acquitted accordingly.

2.	Find him guilty of the offences of criminal trespass and attempted arson and convict him accordingly of both offences.

The Court.