REGINA – V- ALLEY REX

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua, J)

Criminal Jurisdiction
Criminal Case No: 185 of 2015 

Date of Judgment:   20 July 2016	

Ms. F. Joel for the Crown 
Mr. C. Rarumae for the Accused	

JUDGMENT 

Mwanesalua DCJ: Rex Alley (Accused) is charged with one count of Murder under Section 200 of the Penal Code. The charge is that he murdered Lynette Keni, on 31 December 2014, at Tenaru in the Guadalcanal Province.  The Accused pleaded not guilty to the charge in Court.  He raised provocation as a defence to the charge.

He elected to remain silent after the close of the evidence for the crown. He did not make any unsworn statement from the dock.  He called no witnesses to give evidence for the defence during the trial.

The case for the crown is that the Accused killed Lynette Keni (the deceased) with malice, aforethought.  That he attacked the deceased with a small knife inflicting stab and slash wounds causing blood loss which led to the death of the deceased.

The Accused through his lawyer sets up provocation as his defence in law to the charge.  As he elected to remain silent during the trial, he did not testify to lay the foundation for this defence, but his counsel merely referred to evidence adduced in the prosecution evidence to support that defence.
The Accused based his defence under Section 204 (a) of the Penal Code, which states:

“204.  Where a person by an intentional and unlawful act causes the death of another person the offence committed shall not be of murder but only manslaughter if any of the following matters of extenuation are proved on his behalf, namely-

(a)	that he was deprived of the power of self-control by such extreme provocation given by the person killed as mentioned in the succeeding section;- 

205.	where on a charge of murder there is evidence on which the Court can find that the person charged was provoked (whether by things done or by things said or by both together) to loss his self control, the question whether this provocation was enough to make a reasonable man do as did he shall be determined by the Court; and in determining that question there shall be taken into account everything both done and said.  According to the effect which it would have on reasonable man.

The Accused inflicted these stab and slash wounds to the deceased at the scene of crime.  First the nature of stab wounds:

1.	Stab wound – 24mm x 10mm and 28mm deep on the left shoulder.
2.	Stab wound – 26mm x 8mm and 47mm deep on the left shoulder.
3.	Stab wound – 35mm x 19mm and 72mm deep on the upper back.
4.	Stab wound – 32mm x 18mm and 68mm deep on the left thigh.
5.	Stab wound – 35mm x 4mm and 103mm deep on the right thigh. 
6.	Stab wound – 63mm x 4” and 33mm deep on the upper wrist.

Second the nature of the slash wounds:

1.	Slash wound – 63mm x 4mm and 3mm deep to the left wrist.
2.	Slash wound – 27mm x 1mm on the left hand. 
3.	Slash wound – 13mm x 1mm

A Memorandum of Agreed Facts, Statements and Exhibits were tendered to the court. They were considered by the court with other evidence in this case. 

The provocation relied on by the Accused here are swearing words contained in a text message received by the Accused on his mobile phone few days earlier. It was received by Accused and his wife, the sister of the deceased. 

The identity of the sender of this text message was never established as the Accused cancelled it from his mobile phone. The swearing words in the text message were “Fuck your mother”. 

As the Accused elected to remain silent, Counsel for the Accused submitted that his client heard the deceased used the same swearing words at the scene of crime.  There was no evidence that the deceased knew the number of the Accused’s mobile phone. An inference cannot therefore be drawn that the swearing words were from the deceased.

The wife of the Accused, who was the sister of the deceased, and present at the scene of crime, said in evidence that she did not hear the deceased use those searing words to the Accused, before the Accused attacked the deceased. She also confirmed that she received the text message but the Accused erased it from his mobile phone, thus it was erased from her mobile phone was well.  The source of the searing words remained unknown to the close of the trial.

The stab wounds and the slash wounds were very serious.  The nature of the wounds reflected the intention of the accused to cause death or grievous bodily harm to the deceased.  The defence of provocation is rejected on the basis that the wife of the Accused did not hear the deceased use the swearing words to the Accused. There is no evidence to link the swearing words to the deceased in this case.

The Accused is accordingly convicted of murder as charged.

SENTENCE

There is only one sentence for murder in this jurisdiction that I can pass. Life Imprisonment. The Accused is therefore sentenced to life imprisonment. I order accordingly.

THE COURT

……………………………………….
Hon. Justice Francis Mwanesalua
Deputy Chief Justice