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Regina v Oso [2015] SBHC 41; HCSI-CRC 204 of 2012 (13 February 2015)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

CRIMINAL CASE No. 204 of 2012

REGINA

–v-

MANESE OSO, MARA KILI AND KEITH SPENCE ASHLEY

Date of Judgment : 13 February 2015

Mr. H. Kausimae for Manase Oso
Mr. W. Gemu for Mara Kili
Mr. H. Fugui for Keith Spence Ashley

JUDGMENT

Mwanesalua J:

1. The three Defendants in this case are jointly charged with the alleged murder of Alwyn Wako ("the Deceased") on 2 April 2012. The Defendants pleaded not guilty to the charge when they were each arraigned before the trial.
   
2. The Prosecution case is that the Defendants caused the death of the Deceased through their intentional, deliberate and unlawful acts, that is to say punches and kicks to the body of the Deceased. And the fractures to the bones of the Deceased manifested the intensity of their attack and felonious intention.
   
3. The case for the First Defendant, Manase Oso, is that there is no evidence that he caused the death of the Deceased. The fatal injuries to the skull and brain which led to the death of the Deceased could not be conclusively attributed to the hits, punches and kicks alleged against him. Further, he said that there were other probable causes of the injuries to the skull and the brain which caused the death of the Deceased. For instance, such injuries could have been caused by a fall and hitting the side of the head on a tar sealed road like in this case.
   
4. The Second Defendant is Mara Kili. His case is that although he was present at the scene of the offence, he did not take any part in such attack nor counselled or procured the two Co-Defendants in attacking the Deceased.
   
5. The Third Defendant is Keith Spence Ashley. His case is that there is no direct or circumstantial evidence against him from other witnesses, apart from the evidence of Claid Wale which lacked any weight and reliability.
   
6. As is usual in criminal cases, the Prosecution must prove all the elements of murder against each Defendant beyond reasonable doubt before they can be convicted of that offence. The use of the phrase "beyond reasonable doubt" stems from Lord Sankey's speech in Woolmington v. DPP[1] and has been in use ever since.
   
7. Another way of expressing the concept was set by Lord Denning in Miller v. Ministry of Pension[2]:[3]
   

"Proof beyond a reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence 'of course it is possible but not in the least probable' the case is proved beyond reasonable doubt, but nothing short of that will suffice".

8. At day time on 2 April 2012, the Defendants attended a fund raising event organised by the Vura Youth Group, in Mary's house at Vura 3 in Honiara. The event closed at 7pm. Between 9pm and 11pm, the Defendants sat in front of the Neiko store ("the store") near May's house. The Deceased and Monty Sipolo ("Monty") drove down in a white bus from Kobito to Vura, and parked near Mary's gate. They were drunk when they walked out from the bus. The Deceased asked for beer but a young boy named Sani told him that there was no beer left in Mary's house. Sani was standing on the road with them with his cup of tea in his hand. The Deceased took the cup of tea from Sani and tested it. He poured out the tea and the cup fell to the ground. Sani picked up the cup and threw it at Monty. An argument occurred between them. Monty was angry and chased Sani up the road towards Kobito. The Deceased swore at a group of boys including the Defendants who were sitting in front of the store and Mary's gate. The Deceased then ran after Sani and Monty towards Kobito. However, not long after that he was attacked by a group of men at the middle of the road where the minor road from Vura heights merges with the main road leading up to Kobito and coming down to Vura.
   
9. The Deceased was seen lying on the road after the incident and taken to the National Referral Hospital. He passed away on 8 April 2012. His body was examined by Dr. Maraka, a Pathologist who made an Autopsy Report. That report shows that the Deceased sustained abrasions, bruises, lacerations and healing wounds on his body. There were fractures to his left ulna and radius bones. He had subdural haemorrhage due to a blunt trauma to the head. There was a fracture on the right side of the skull. Dr. Maraka's opinion is that the Deceased died from the left subdural haemorrhage as a result of a blunt trauma to the head.
   
10. The external examination shows three kinds of injuries on the body. They are abrasions, Bruises (contusions) and Lacerations.
    
    1. An Abrasion is an injury resulting in the loss of the superficial epithelial layer of the skin. It may be produced by a blow, a fall on rough surface, being drugged in a vehicle accident, by scratching or by grazing with finger nails, by thorns, teeth bites, friction or ropes tied around the neck or other parts of the body. In summary an Abrasion is a blunt impact injury[4].
       
    2. A bruise or contusion is an injury caused by a blow from a blunt weapon, by a fall; by crushing or compression[5].
       
    3. A Laceration is a wound which penetrates the full thickness of the skin and of necessity severs blood vessels and leads to bleeding[6].
       
11. (1) The evidence against Manase Oso is that: (a) he hit the Deceased on the head when he stood at the right side of the Deceased; and (b) that he kicked the Deceased on the ribs; abdomen; face; and chest.
    

(2) The evidence against Mara kili is that he hit the deceased on the abdomen.

(3) The evidence against Keith Spence Ashley is that he: (a) kicked the Deceased on the right face; (b) left hip; (c) backside; and belly.

12. The material evidence against the Defendants in paragraph 11 above came from Claid Wale and Eric Trevor. They were the main witnesses for the Prosecution. They were with the Defendants at Vura who took part in the fundraising event. They were sitting with the Defendants and other boys near the store when the Deceased was attacked on the road at a road junction where the light from the store was slightly dark. Claid Wale said that during that night, there was only one light from the store. He was the first suspect rounded up by the relatives of Deceased and taken to Kukum Police Station for the Police Investigation on this case.
    
13. There are no external or internal injuries to the Deceased's chest, face, ribs, stomach or belly, left hip and backside. There is a healing laceration on the right side of the head above the right ear. It would seem too high up to reach that spot with a punch if the Deceased and an assailant were both standing up. There were two bruises on the middle of the upper and lower hips. If these injuries are either caused a swing kick or fist with a degree of force to the face, then one would expect to see damage to the teeth and the nasal bones of the Deceased. No such damage occurred in this case. There were no evidence on who or what caused the fractures to the Deceased's left ulna and radius bones. There is therefore serious doubt on the truth of the evidence of Claid Wale and Eric Trevor against the Defendant's on the assaults referred to in paragraph 11 above.
    
14. On internal examination, Dr. Maraka found haemorrhages under the scalp on the right side of the head; a fracture of the right temporal bone, which extended to the right base of the skull; and a left subdural haemorrhage (below the dura, covering the brain). In his opinion the Deceased died from the left subdural haemorrhage as a result of blunt trauma to the head. There was fracture on the right side of the skull but the haemorrhage was present on the left side of the brain. He explained that this type of injury can occur in an acceleration – deceleration head trauma. He gave an example, that in a fall resulting in the trauma of the head on the right side suddenly caused the brain to move inside the skull, injuring the opposite side of the brain causing the left subdural haemorrhage.
    
15. Dr. Maraka confirmed in his evidence that the Deceased suffered a contre-coup injury. This occurs when a moving head strikes the ground or other fixed surface; the brain damage is frequently sustained diametrically opposite the point of impact[7].
    
16. There are three Defendants in this case. There were also other people involved in the assault of the Deceased. There is no evidence on how and when the Deceased fell down on the road from where he was taken to the hospital for medical assistance. It is clear from the Medical Report that the Deceased died from the subdural injury to his brain caused a fall on the tar sealed road. There is no evidence on the identity of the persons responsible for the fall of the Deceased from a standing position down to the tar sealed road. There is no evidence that any of the Defendants did so. They are accordingly acquitted and discharged of the murder charge. Order accordingly.
    

THE COURT

^[1] [1935] A.C.462
^[2] [1947] 2 All E.R.372
^[3] Ibid, PP. 373-4
^[4] HOMICIDE The Law and the Proofs by Gerad Nash and C.K.Jaisimaha Rao, P.115
^[5] Ibed, P.112
^[6] Lawyers Guide to Forensic Medicine by Bernard knight.
^[7] Lawyers Guide to Forensic Medicine by Bernard Knight p.66