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R v Nutoga [2024] SBHC 181; HCSI-CRC 28 of 2024 (14 October 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 28 of 2024

REX

V

AARON NUTOGA

Date of Hearing: 29 & 30 April and 1 & 2 May 2024
Date of Judgment: 14 October 2024

Counsel: Mr Tovosia and Mr Beto for the Crown
Counsel: Mr Limeniala for the Defendant

Keniapisia; PJ

JUDGMENT ON DOUBLE MURDER CHARGE

1. Mr. Aaron Nutoga (“AN”) stabbed Rex Riafasia (“RR”) and his brother Paul Tome (“PT”) on 20/02/2023 at Aimania village logging camp area, East Fataleka, Malaita Province. The two brothers died instantaneously from the stabbing. Mr. AN is charged for the double murder of the two brothers. Mr. AN denied the two counts of murder.
2. Mr. AN assert he was provoked and stabbed RR. AN assert he acted in self-defence when he stabbed PT.
3. There are three issues I must determine: -
   • 3.1 Whether RR provoked AN by swearing at him?
     • 3.2 Whether AN was acting in self-defence when he stabbed PT?
     • 3.3 Whether AN acted with malice-aforethought when he stabbed RR and PT?

Whether RR provoked AN by swearing at him?

4. Mr. AN stabbed RR on the stomach at the back of Fataleka constituency truck because RR provoked him by swearing at him. Mr. AN, RR and other boys were returning after fetching water for the logging camp. It was around 5 pm, on the 20/02/2023. According to AN there was a brief downpour. The other boys carried the containers of water and ran to the tent house at the logging camp while AN and RR remained at the back of the truck.
5. Mr. AN said he reached into his pocket and pulled out his savusavu (home-made tobacco). AN was cutting his cigarette, when RR swore at him saying, “You fuck your sister, mother and father”. AN thought about it and felt deeply offended. In Fataleka custom such swearing is extremely offensive, provocative and culturally unacceptable. AN could not withstand the feeling of anger. AN lost his power of self-control. As a result, AN stabbed RR on the stomach (upper abdomen) with his bush knife, at close range, using a great deal of force.
6. AN said the knife was 24 inches long and sharpened. Prosecution witnesses say it was 26 inches long and sharpened. This discrepancy in the evidence does not matter. Whether the knife was 26 inches or 24 inches long, it is still a deadly weapon, when sharpened.
7. According to Dr Levao’s oral evidence and Exhibit PE4A – Autopsy photos for RR the knife wound on RR’s right abdomen (stomach) and right arm were alarmingly serious. The wound on the right arm measured 8x6x6 (cm). The wound on the abdomen measured 26x6x5 (cm). The 26 cm wound length is almost the same length as a 30 cm ruler. There is a deep wound in the right side of the liver. The wound on the left side of the abdomen is deep, exposing the fractured rib bones. The doctor said a very sharp object (knife) was used with strong force exerted on the body of the deceased. RR died instantly from haemorrhage shock and loss of blood.
8. Prosecution witnesses denied that RR swore at AN at the back of the truck. Junior Abana said he sat with AN and RR at the back of the truck and denied hearing RR swear at AN. Other witnesses who were around in the truck or at the camp tent did not hear RR swear at AN. This is another area of discrepancy in the evidence of both sides. I will accept that RR swore at AN. I find no other serious reason why AN could just fatally stab RR from the prosecution witnesses.
9. Observing the prosecution witnesses as they gave evidence, I feel that they were selective or cautious on what to say. And what they say concentrated on AN stabbing RR with a long sharp bush knife on the stomach at the back of the truck. Then RR jumped down from the truck and ran some distance before he collapsed and died along the bush road next to Wasi’s house. That still leaves me with a lot of doubt as to why AN acted with such fury and stabbed RR with a deadly weapon.
10. The prosecution’s evidences are incomplete and illogical, lacking the basic natural law of common sense or the basic natural law governing causes and effects. Everything happens for a reason or for every effect there is a specific cause. Such specific cause is the missing link in the prosecution’s evidences.
11. Therefore, I have to accept AN’s evidence, as more logical. That AN stabbed RR because RR swore at AN, using culturally offensive words to “fuck his sisters, mother and father”. As a result, AN was infuriated, lost his power of self-control and stabbed RR. AN is not denying he stabbed RR with a deadly weapon (sharpened bush knife). AN’s evidence however, raised the issue of provocation, pursuant to Sections 204 (a) and 205 of the Penal Code Act (Cap 26).
12. Section 204 (a) of the Penal Code Act (Cap 26) provides that where it is proved that an unintentional and unlawful act causes the death of another person and the evidence shows that provocation by the person killed was so extreme that the accused was deprived of his power of self-control as a result of that provocation, the offence will be manslaughter and not murder.
13. Section 205 provides the test by which the Court should determine when the evidence shows that the accused lost his self-control as a result of the provocation whether the provocation, was sufficient to make a reasonable man do as the accused did. Collectively these two sections provide for matters of extenuation, the effect of which is to reduce murder to manslaughter.
14. There are two pertinent questions that I must consider in terms of the evidence to establish if the prosecution has dispelled the issue of provocation which the accused raised as matters of extenuation under Sections 204 (a) and 205.
    1. Subjective test - Did the provocation actually cause AN to lose self-control that AN acted whilst deprived of self-control before he has had the opportunity to regain his composure?
    2. Objective test - Was the provocation such that it is capable of causing an ordinary person to lose self-control and to react in the way AN acted?
15. In terms of the subjective test, AN said that the kind of swearing to fuck his sisters, mother and father is extremely offensive in the culture of Malaita Province generally and Fataleka ethnic group specifically. I would extend that and say such swearing is indeed offensive and unacceptable to any cultural or ethnic grouping within Solomon Islands.
16. For the case of Malaita or Fatalekan village ethnic group, the gravity of the offending is likely to be felt intensely because culturally, kinship or family relationships are closely weaved and still very much alive.
17. So, it is plainly clear on the words uttered that it was truly an insulting and offensive language. It is also abundantly plain that AN found the swearing words to be extremely insulting and offensive thereby causing AN to react the way he did in stabbing RR. I therefore find on the evidence that AN was indeed culturally and naturally offended causing him to react the way he did in stabbing the aggressor (RR). That is not the end of the matter. I must also be equally satisfied on the second test.
18. On the second objective test, Fo’oka^[1] cited with approval various Australian and local persuasive authorities, one being Talu’s case, where Palmer CJ said: “...a similar test has been applied in the Solomon Islands. Kabui, J described certain swearing words as a powerful incitement or challenge to a fight in Malaita. An ordinary man from Malaita would find such swearing extremely provocative and respond by fighting the person who uttered the swear words”. (My underlining).
19. The case of Fo’oka also discussed at length the objective test more generally but focussing specifically on the context of Solomon Islands and Malaita, where the accused, Mr. Fo’oka originates from.
20. In this case, AN’s conduct is more consistent with the view that his actions were motivated by anger and revulsion at the comments or swearing words from the deceased RR. And in terms of the objective test, Fo’oka suggested inter-alia: -
    1. An ordinary man, placed in the shoes of the accused in all the circumstances to have lost his self-control to the point of acting in a hostile manner to cause the death of the deceased. In Talu the objective test was how a “reasonable man” like the accused would react in the manner in which AN did?
    2. How an ordinary person like AN could have reacted in the circumstances?
    3. What an ordinary person like AN might have done in the circumstances.
21. Whatever catchphrase is used the underlining consideration for the proportionality of the retaliatory actions, Mr. AN took in taking away RR’s life, should be viewed on whether an ordinary person in the position of AN, would have lost his self-control, so as to have taken retaliatory act of the same kind and decree as the act of the accused (AN).
22. That is to say that the retaliatory reaction of the accused must not exceed what would have been the reaction of a reasonable man. And in Fo’oka, that reasonable man should be a young man of the same age and ethnicity as the accused. That is the ordinary or reasonable man I must consider in my objective test.
23. For such ordinary man or reasonable man of a Fatalekan village origin in Malaita Province (considered in AN’s shoes), the swearing words complained of, will definitely cause him to be offended, angered, or even outraged. He may be provoked into swearing back, arguing with, or even fighting with the deceased (RR). He may even ask for customary recognised compensation for such swearing.
24. However, AN’s retaliatory reaction of using a long-sharpened bush knife (a deadly weapon) to strike at the deceased’s stomach with strong force, with the only possible intention to cause death or cause grievous bodily harm to the deceased, who on the evidence, was unarmed, is in my view, unreasonable.
25. To find otherwise would be to elevate the extenuation in this case beyond that which is tolerable in a civilised community. The Malaitan community must be civilised and move away from payback, retaliation and violence, to a more tolerant and peace-loving community, where its members are willing to embrace each other even in the midst of adversity.
26. There is a saying; “Weak people retaliate, strong people forgive and intelligent people ignore in times of adversity”. We all want to see strong and intelligent people in Malaita and Solomon Islands. We are a predominately Christian country. Jesus taught us civilised moral values such as; “Love your enemies, do good to those who hate you and or forgive those who do wrong to you”.
27. The evidence also showed that AN and David Naifaka (father of RR and PT) forgave each other and reconciled their logging agreement issues in a civilised and peaceful manner through dialogue, a week before the stabbing.
28. AN could have chosen peace and forgiveness as a way to resolve the swearing rather than resort to delinquency. AN chose forgiveness a week before the stabbing. This is the kind of civilised community and people we want to see cherished in Malaita and Solomon Islands.
29. Therefore, the question remains whether the swearing (provocation) was sufficient so as to deprive an ordinary man from a Fatalekan village setting like AN (young energetic man in his 20s), of the power of self-control, to such an extent as to cause AN to take the bush knife and forcefully strike RR, on the stomach? In my considered view, this question must be answered in the negative.
30. As a result of these findings, I am satisfied the prosecution dispelled the issue of provocation as a matter of extenuation and has proven the charge of murder against AN beyond reasonable doubt. I convict AN for the murder of RR, contrary to Section 200 of the Penal Code Act (Cap 26).

Whether AN was acting in self-defence when he stabbed PT?

31. Mr. AN also admitted stabbing PT on the left cheek. According to the doctor, the cut or laceration on the left cheek started at the side of the nose and extended to behind the neck or cervical spine (see Exhibit PE 4B - Autopsy photos for PT). PT died from haemorrhage shock due to sharp forceful object used.
32. After AN cut RR at the back of the truck, RR jumped down and ran away while the others at the tent came running and shouting at AN. AN held his knife in his hand and confronted them. AN said Junior Abana ran towards him and that Junior Abana was angry. So, AN jumped down from the truck and chased after him. Junior saw AN was holding a knife so he ran away using the logging road all the way to Gagalu village to tell RR and PT’s parents.
33. RR and Iduri (second operator with Eddie Kwaimau) also ran away with Junior but took the bush road leading up to Wasi’s house. RR fell to the ground and died instantly next to Wasi’s house along the bush road.
34. Then Rex Abana, PT, Grey Abana and other boys at the tent ran after AN. As AN ran after Junior Abana he heard them shout, “AN come back we fight”. AN turned back and saw that PT, Rex Abana and Grey Abana were all holding 3x2 timbers in their hands, as they chased after him. AN stopped chasing Junior Abana and turned back to face PT, Grey Abana and Rex Abana and the other boys who were running and shouting after him.
35. AN said, he wanted to escape but Rex Abana, Grey Abana and PT already caught up with him. The three blocked him. AN walked up to the three and the others when Eddie Kwaimau (first operator) shouted, “Run away from him, he’s holding a knife”. Rex Abana replied and said, “No, let us fight”.
36. Grey Abana stood to AN’s right with Rex Abana in the middle and PT to his left. Grey Abana hit AN’s left arm with a piece of timber. AN wanted to cut him but then another piece of timber landed on AN’s right arm. AN turned back to Rex Abana and saw PT hit him with a 3x2 piece of timber (about 4 meters long). AN blocked the timber and simultaneously stabbed PT on his cheek. AN then found an opening and escaped as the boys chased after him. Grey Abana holding a piece of timber chased after AN and shouted for him to come back but AN escaped back to his house at Aisimanu village.
37. The prosecution witnesses denied the boys fought with AN using timbers. This is another area of discrepancy in the evidence of both sides. Prosecution produced inconsistent evidence. Some witnesses (Eddie Kwaimau and Rex Abana) say the boys used timbers to fight with AN. Others (Junior Abana and Grey Abana) denied fighting with AN using timbers.
38. AN’s evidences made sense against the prosecution’s self-contradictory evidences. I find that AN fought his way between the boys, missed some timbers before he blocked PT’s timber and cut PT on the cheek and then escaped. I will accept AN’s evidence that he was acting in self-defence as he tried to escape. AN’s evidence also made sense to me why AN cut PT on his cheek. As PT hit AN with a piece of timber, AN blocked it with his one hand and cut back at PT’s cheek using the other hand. The cheek was at the same level with any timber PT might have lifted up in his hand to whip AN.

Self-defence – The law in Waidia, Court of Appeal 2015

39. Using the subjective test, I will ask “What threat did AN face to justify his use of a bush knife to cut PT’s cheek? I will say there was a real threat. AN has just stabbed RR to death. RR’s brothers and other boys at the camp tent had ran after and encircled AN holding pieces of sawn timbers in their hands and had begun hitting AN’s body. AN was trying to find an escape route for his own safety.
40. AN was alone to confront a group of boys, (Grey Abana, Junior Abana, PT and other boys at the camp). AN’s two cousin brothers (Simon and Bobby) were around in the vicinity but have not played any part to assist AN. If AN did not stab PT, PT and the boys would have beaten him to death because he just killed their brother RR. And the boys had come onto him armed with timbers to make a revenge killing.
41. In terms of the objective test, a reasonable person (young man in his 20s like AN from a Fatalekan village setting, Malaita Province), looking at what AN did from a distance, would also say AN was faced with an eminent life threatening encounter being caught up between a group of boys armed with timbers and AN just stabbed their brother (RR), there was a real threat that PT, his brothers and the group of boys would also want to end AN’s life.
42. In my assessment of the reasonableness of the force AN used, it was necessary in the circumstances. That is to say I find the force or action AN took to defend himself was reasonable in the circumstances. The circumstances I am referring to is the evidence I discussed above in paragraphs 32 - 38. On the criminal standard, prosecution has not discharged its duty to negate self-defence, which AN raised in his evidence.
43. Consequently, I find AN not guilty of the charge of murdering PT on the criminal standard. Instead I find he was acting under self-defence. I will acquit AN of the murder of PT accordingly.

Whether AN acted with Malice-aforethought when he stabbed RR and PT?

44. Turning now to malice-aforethought. The prosecution relies on the second limb of malice-aforethought or state of mind or mens rea in Section 202 (b) of the Penal Code Act (Cap 26). The prosecution submitted that AN knew or had knowledge or ought to know what he did (cut PT with a bush knife on the cheek and cut RR with a bush knife on the stomach) will probably cause their death or caused grievous bodily harm to them. Second limb of malice aforethought is implied intention not expressed intent.
45. In view of my findings on the stabbing of RR above, I do not have much difficulty to conclude that AN knew or ought to know (implied intention) that using a sharp bush knife to cut the stomach of an unarmed person like RR would probably cause RR to die or cause grievous bodily harm to RR. AN ought to know that using a sharp bush knife (deadly weapon) on vulnerable parts of the body with severe force is unsafe.
46. Employing the subjective and objective tests above, I still find that AN knew or had knowledge or ought to know that striking strongly at RR’s stomach with a sharpened bush knife will probably cause RR to die or will cause grievous bodily harm to RR. This satisfies the second limb of malice aforethought in Section 202 (b).
47. The same could be said about AN’s stabbing of PT’s cheek in terms of malice-aforethought. However, I already reached the conclusion in respect of PT’s stabbing that AN was acting in self-defence. Self-defence is a complete defence to the charge of murder. I therefore acquit AN of murdering PT.

Conclusion and Orders

48. I will repeat again in my final orders. I find AN guilty of the charge of murdering RR. I convict AN for murdering RR accordingly. For the charge of AN murdering PT, I find AN not guilty because he acted to defend his own life. I acquit AN for the charge of murdering PT accordingly. For the conviction of murder, I will impose the only mandatory punishment of life imprisonment. I will convene next to deliberate on the minimum parole entitlement period for AN.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

^[1] R v Fo’oka [2013] SBHC 209; HCSI-CRC 250 of 2012 (High Court) and Fo’oka v Regina [2014] SBCA 10; SICOA-CRAC 11 of 2014 (9^th May 2014) (Court of Appeal).