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Lunga v Regina [2014] SBCA 24; SICOA-CRAC 29 of 2013 (17 October 2014)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

The appellant was convicted of murdering Barola Velopule on 20 March 2012. He appeals against that conviction on two grounds:

1. That the learned trial judge erred in finding that the crown had negatived the defence of self-defence beyond reasonable doubt.
   
2. That the learned trial judge erred in finding that the accused had the necessary malice aforethought to be convicted of murder specifically that the accused knew that his single kick would probably cause grievous bodily harm to the accused.
3. 
   

In the notice of appeal, provocation was also relied on but that ground was abandoned.

The following facts were agreed between the prosecution and defence at the outset of the trial:

1. That the accused herein is Commins Lunga and deceased is Barola Velopule.
2. That the alleged incident happened on 20th March 2012 at Noro Base in Western Province.
3. That the accused Commins Lunga kicked the deceased while he was standing up, the kick landed on the deceased's forehead area.
4. That the accused was wearing a shoe when he kicked the deceased.
5. Both the deceased and the accused, Commins Lunga, were standing on the road when this happened.
6. That the deceased fell and hit his head on the tar seal road.
7. The deceased died on 21st March 2012 at the National Referral Hospital.
8. That the deceased died from intercranial haemorrhages.
   

By the end of the trial, the following additional facts were not in dispute:

1. The incident took place between 9 and 10 pm
2. The deceased was walking along a road with his friend Mendana Huka when he passed by the accused who was standing beside the road.
3. The deceased and his friend had been drinking and were singing and laughing as they walked.
4. The kick was by the accused's right foot and landed on the deceased's left forehead causing bruising, 9 x 8mm and 10 x 3mm, noted during post mortem.
5. The deceased's skull was fractured on the right side of the head, there was a right extradural haemorrhage and a bilateral subdural haemorrhage, and the frontal area of the brain on the left side was ruptured.
   

The appellant did not give evidence but made a statement from the dock in the following terms:

"We were drinking at Baru. After we ran out of alcohol I took a bus going back to the Base Area. Noro Base. I was living there. I stopped, I flagged a bus where the incident had happened. I was intending to go and buy beer at Ela Motors. When I got off the bus the same time I got off the bus the man swore at me or cursed me. So we began arguing along the road. At that time another person who was with him was walking ahead. Not long after that a car came passed us. I was walking on the other side of the road, on the other lane and this man we were arguing was walking on the other side of the road. After that car had gone passed we continued arguing. I told him "why did you swore at me or cursed at me." He replied. "Why are you mad or angry." Then he punched me. I defended his punch of his hand and then I kicked him. He fell down then I walked off from him. I was wearing a sport shoe. I did not mean to kill him, I was just defending myself. And I did not know that the kick that I've done would result in his death. When they arrested me and I heard the story that that person had died I was every sorry because I did not mean to kill him. And this man was not even my enemy. We were not enemies at any time. When the police arrested me I was sorry because I didn't expect that person to die from my kick or the kick.

Only one person gave oral evidence for the prosecution, Jacob Wickham; he was referred to as PWI. The learned trial judge noted that "the version of events given by PWI was not challenged in its essential elements by the Defence although they did suggest he may not have seen and heard other things that occurred." The learned trial judge summarised PWI evidence as follows; in so doing he made findings of fact to that effect:

"He saw the accused and another man standing near a street light at an intersection. He did not know either of those two men but did know Mendana. He described the boisterous behaviour of the deceased and Mendana. P.WI then heard the accused call out to the two men in front and said "what is that you are showing off about in front of me?" The accused then swore at the two men. Mendana then apologised saying, "Sorry, we only wanted to enjoy and then we would go back home." The accused then sworn again and told the two men to wait for him as he ran towards them at this point. Mendana ran off but the deceased was blocked from running by the accused. He then saw the accused point to the deceased with his left hand and then immediately kicked him to the left side of the head with his right foot... PWI described the force of the kick as very strong and caused the deceased to fall backwards to the road. PWI was between 4-7 metres from the two men. Although it was dark light from the street light and also from the high beam headlights of an approaching vehicle enabled him to see the incident."

The learned trial judge went on to make the following findings:

"I have no hesitation in finding that the accused was the aggressor throughout the incident. I accept the evidence of PWI that he did not hear the deceased swear at the accused nor did he see the deceased at any time strike the accused. I am satisfied that he was in a position to both hear and see either of those events happening if in fact they did happen. I am satisfied that they did not.

So far as the accused said in his unsworn statement those events did occur, I reject his evidence. His account that as he got off the bus he was sworn at and then assaulted by the deceased, an unknown passer-by, is not only totally contradicted by the evidence of PWI who is a true independent witness, but is a version of events which is, in my judgment completely improbable.

Those findings were not only open on the evidence but were realistically the only findings reasonably and rationally open. PWI's observation were consistent with objective facts and there was no reason to reject his evidence. He described the kick landing on the left forehead and there was bruising to the left forehead. He described the man Mendana moving away from the immediate scene and that was corroborated by Mendana. He had the appellant running towards the deceased before the kick; in his statement from the dock the appellant has himself on the opposite side of the road to the deceased before the incident so he must have crossed the road to be in a position to deliver the kick.

Once it was found that the accused did not punch or attempt to punch the appellant there was no basis for consideration of a defence of self-defence. It was held the appellant was the aggressor and that was inconsistent with any defence of self-defence. In consequence, nothing need be said about the law for self-defence in the Solomon Islands.

The first ground of appeal therefore fails.

The submissions on behalf of the appellant were largely based on the fact that he was intoxicated. There was evidence from the dock statement that he had been drinking and that much appears to have been accepted by the trial judge. But there was no evidence enabling a court to hold that level of intoxication affected his reasoning capacity. It is not unreasonable to note that the kick by the right leg so that the foot struck the forehead of a standing man would throw all the kickers weight onto his left leg and impact on balance. If intoxicated one would think it likely that the kicker would lose balance and fall over. The appellant did not fall so the conclusion is open he was not heavily intoxicated.

The learned trial judge accepted that the appellant did not intend or know that his kick would result in the death of the deceased, but he considered that the appellant "knew that his action would or would be likely to seriously or permanently injure the health of the deceased." That finding was made based on the evidence from PWI that the kick involved "significant force"- "a very strong kick"- and the fact that the kick was delivered to the forehead or temple area. He held the force was directed to the head of the deceased.

This is every much what is often referred to as a "jury question." There is a subjective element involved and it cannot be overlooked we are concerned with a young Solomon Islander male who had consumed some alcohol. But when one accepts he was the aggressor and directed a forceful kick to the forehead of a standing man it cannot be said it was wrong to conclude he must have realised his action was likely to cause serious injury to the victim.

There is no basis for setting aside the finding that the prosecution had proven malice aforethought beyond reasonable doubt.

The appeal should be dismissed.

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Williams JA
Member of the Court of Appeal

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Sir Hansen JA
Member of the Court of Appeal

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Margaret Wilson JA
Member of the Court of Appeal