R v Sare [2023] SBHC 36; HCSI-CRC 304 of 2022 (7 June 2023)

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Case name:	R v Sare

Citation:

Date of decision:	7 June 2023

Parties:	Rex v Raphael Sare

Date of hearing:	25 & 26 April 2023

Court file number(s):	304 of 2022

Jurisdiction:	Criminal

Place of delivery:

Judge(s):	Maina; PJ

On appeal from:

Order:	1. The defendant Raphael Sare is sentence to life imprisonment 2. Apply for parole after serving 15 years

Representation:	Zoze JW & Vaike S for the Crown Limeniala O for the Defence

Catchwords:

Words and phrases:

Legislation cited:	Penal Code S 200, S 204 and 205

Cases cited:	Regina v Martin Talu [2005] SBHC 87, Loumia v Director of the Prosecutions [1985]/1986] SILR 158

The Defendant Raphael Sare was charged for murder contrary to section 200 of the Penal Code.

The Crown alleged that on 27^th March 2022 the Defendant killed his wife Joy Sare by assaulting her and that caused her death. On arraignment, he pleaded not guilty to the charge.

On 27 March 2022 in the early hours or morning, the defendant returned back at the family house at Fiu village but when he checked for his wife in their room, the wife was not there at the house. Defendant went and found his at Atas house.

At the morning, there was crying in the house and then the defendant brought down or led his wife to the kitchen. He laid her on a bench in the kitchen. Defendant’s wife Joy had swollen face and she was very weak. Some women at the village came and assisted her and later they transported Joy to Kilu’ufi Hospital.

An autopsy report by Dr. R. Maraka dated 11^th of April 2022 on the cause of death stated that the deceased died from bleeding (blood loss) in the abdominal cavity (haemoperitoneum) due to rapture of the spleen which was caused by the blunt trauma to the abdomen.

With this case, the elements of murder of person, the cause of the death, the other person and unlawful act are not disputed. The Defence disputed that the Defendant did not have any intention to kill or cause grievous harm to his wife. He claimed that the wife had provoked him.

As noted from the facts, the deceased died because the defendant had kicked her and resulted to the death. However, the defendant claim that he did not intended to cause death or grievous bodily harm to her when he kicked his wife with his foot.

The Crown’s evidences are from five witnesses and the autopsy report was tendered in consent by consent.

PWI Jack Ata in his evidence stated that before the incident, the defendant was looking for his wife at the night and he came to his house. Defendant’s wife Joy was in the house he found her there. Defendant was drunk, angry and demanded to take his wife Joy to their house. The Defendant told PW1 Ata that he himself knew what he would do to his wife. Defendant took his wife and went back to their in the every morning.

The defendant’s father Allan Kuitaá (PW5) in his evidences stated that the defendant came back to the house at the night. He found that his wife was not in the room. Defendant woke up everyone in the house and asked where his wife had gone. His father told the defendant that they did not know and the Defendant then left the house and went out to look for his wife.

Defendant’s father then went and slept under the house. At the early morning, he was shaken by the cry sound of the Defendant’s wife in the room. He went and talked to his son on what he was doing to his wife. As the father looked up to the window of the room, he saw Joy was standing there and cried.

After PW5 talked to his son he then went away to Steven Forau and told him to go report the incident to the Police.

The evidences of PW2 Timothy Tolo, PW3 Doreen Hiu and PW4 Kwalasi they all heard the Deceased Joy was crying in the house. The women came and washed her body with water.

The Crown’s evidences are all circumstantial as they were on what they heard and saw from the Defendant before and what they did to the Defendant’s wife immediately after the incident.

These Crown evidences were on the acts and behaviors of the defendant before and aftermath towards his wife.

The autopsy report was tendered in court by consent and that the deceased Joy had external bruises on her forehead and left eyebrow, a laceration on the right side of the forehead and bruise present on the right thumb.

On internal examination, the doctor found that there were extensive haemorrhage or blood bleeding on the forehead, left temporal and top of the head under the scalp.

She died from the bleeding (blood loss) in the abdominal cavity due to rupture of the spleen, which was caused by blunt to the abdomen.

The doctor stated that the bruises on the forehead, left eye were caused by blunt object such as hits, kicks to the head.

Defendant admitted in his evidences that he caused the injuries to the deceased by kicking her twice on the head. Defence counsel in his final submission also stated that Raphael Sare had kicked his wife on her head twice and his acts could have caused the death of Joy Sare.

The Crown evidences before and aftermath shows that the defendant was angry to his wife and he intended to an act to her, consequently from defendant’s evidences he had kicked the wife with his foot twice which injury to her and resulted to her death .

The defendant was angry to his wife and intended to do an act or cause injury to her and his acts thereafter were expressed by his acts of kicking twice the wife with his foot that landed on the forehead thereby caused injuries or grievous bodily harm to his wife and resulted to her death.

Defendant stated that kicked to his wife because she wore or said bad or insulting words to him and his friends when she said “You and oketa boys’ ufala gogo kaikai shiti blo oketa woman side-sea”.

Defendant said that he was provoked and did this to her immediately or right after or his wife said these words to him. Defendant said that he was sitting and ate the food when his wife said these insulting words to him.

Defence counsel submitted that the Defendant do not deny or has admitted that his acts had resulted to the death of his wife. However, the defendant was disadvantaged of the power of self-control when his wife said these insulting words to him while he was sitting and ate food in the room.

Defence counsel then referred to sections 204 and 205 of the Penal Code in his submission and stated his client be convicted on the lesser charge of manslaughter.

The test on the provocation under section 205 of the Penal Code is set or fix on a reasonable man. Palmer CJ in the case in Regina v Martin Talu [2005] SBHC 87-HCSI-CRC 402 of 2004, stated the test for provocation is an objective and he referred to the Court of Appeal in Loumia v Director of the Prosecutions [1985/1986] SILR 158.

With this case, the intention of the defendant on what he wanted to do to his wife were revealed by what he told the witnesses and or his acts and behaviours before and after the incident. The evidences are from the Crown witnesses and defendant himself when he gave evidence on oath at the witness box. These evidences are direct and relate to what the Defendant intend to do and had done to his wife and the cause of her death.

It all started when the defendant came back to the house and his was not there in the room. The Defendant was angry, woke up everyone in the house, and enquired about his wife but none knew where his wife had gone. The Defendant was angry or not settled then he left the house and went out to look for his wife.

The Defendant went and found his wife at PW1 Jack Ata’s house and he demanded to take back his wife. He told Ata that he himself knew what he would do to his wife. Defendant took his wife and went back to their house every early in the morning.

The evidences of PW2 Timothy Tolo, PW3 Doreen Hiu and PW4 Kwalasi they all heard the Deceased Joy was crying in the house. The women came and washed her body with water.

Later Defendant’s mum, PW3 Doreen and PW4 Kwalasi took deceased Joy to the Kilu’ufi Hospital.

In summary the acts or behaviours of the defendant when he came to the house and found his wife was not in the room made him angry to his wife. he went and found his wife at Ata’s house and demanded the wife to go with him. Defendant told Ata he himself knew that he would do to his wife.

Defendant’s acts of kicking his wife twice on her head were unlawful acts committed by him. The intention of the defendant as he had said were expressed or implied by his acts of kicking on the forehead and caused grievous bodily harm to his wife and resulted to his wife’s death.

The facts that the accused was angry to his wife, went and found her, demanded her to go back to the house and upon returned to the house in the morning the defendant kick her twice with his foot. For the defendant to say he was provoked by bad or insulting from his wife appears to be irrational or awkward and in particular, when the defendant was already angry to his wife.

Defendant had kicked his wife twice on the forehead, caused grievous injuries and loss of blood, and resulted to her death. Accordingly, I find and do satisfied beyond reasonable doubt that the accused killed the deceased with malice aforethought and convict him on the charge of murder.

High Court of Solomon Islands

R v Sare [2023] SBHC 36; HCSI-CRC 304 of 2022 (7 June 2023)