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Liomauri v R [2022] SBCA 11; SICOA-CRAC 11 of 2021 (12 August 2022)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. This is an appeal against conviction. Allen Liomauri, the appellant, was convicted on 6^th May 2021, following trial, of the murder of Allen Mouala. After the deceased attempted to punch him, the appellant threw a punch back, knocked the deceased to the floor and whilst the victim was still on the ground kicked him twice in the region of his stomach.
2. The deceased died two days later. His intestine had been ruptured and permitted the release of toxins which resulted in septic shock. The cause of death is not in dispute, nor the unlawful act which caused the death. Whilst self-defence was raised and dealt with in a decision adverse to the appellant, it is not raised on this appeal.
3. The sole question, therefore, on this appeal is whether the trial judge was correct in her finding that the appellant knew that act or acts which caused the death, in this case the two kicks, would probably cause the death of, or grievous bodily harm to, the deceased.
4. Murder is defined in section 200 of the Penal Code as: -
   • Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder and shall be sentenced to imprisonment for life.
5. Malice aforethought is defined in section 202 as: -
   • Malice aforethought may be expressed or implied and express malice shall be deemed to be established by evidence proving either of the following states of mind preceding or co-existing with the act or omission by which death is caused, and it may exist where that act is unpremeditated-
   • (a) an intention to cause the death of or grievous bodily harm to any person, whether such person is the person actually killed or not; or
   • (b) knowledge that the act which caused death will probably cause the death of, or grievous bodily harm to, some person whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused.
6. In this case the prosecution indicated reliance on the defendant’s knowledge as set out in (b). Thus, it was incumbent on the prosecution to prove beyond reasonable doubt that the appellant knew that his kicks would probably cause death or grievous bodily harm to the deceased.
7. It is not suggested on this appeal that the trial judge applied anything except the correct test when she assessed the evidence given in the trial It is simply suggested that she arrived at a wrong conclusion when she applied the correct test to the facts that she found after hearing the evidence.
8. The evidence on the appellant kicking the deceased came from two civilian witnesses who both gave evidence at the trial and from the defendant’s own evidence. The defendant himself admitted kicking the deceased two times in the stomach. Other evidence differed on where the kicks landed on the body of the deceased but the conclusion that the trial judge arrived at was supported by evidence. It was a conclusion that she was entitled to draw.
9. Further evidence from the appellant was that his intention in kicking the deceased was to ensure that he would not be able to get up from the ground and continue with an assault on the appellant. The appellant’s evidence on this matter was that he feared the deceased may get up and continue in his efforts to assault him. The kicks were to ensure that this did not happen, that the deceased was so injured as to ensure he could not get up.
10. There is also evidence that the appellant was wearing shoes when he kicked the deceased. There is no evidence from witnesses about what force was applied when kicking the victim. Such evidence, if available, could only represent the subjective view of the witness. More significant, in our view, is the expressed intention behind the kicking, that is to disable the victim to the extent that he could not get back on his feet.
11. Given this scenario, based on facts which the trial judge found which are not challenged on this appeal, it is unsurprising the trial judge found that the appellant, when he kicked the deceased twice in the stomach, intending to stop him from getting up again, knew that the kicks would probably cause grievous bodily harm to the deceased. He intended such harm as to stop the deceased from being able to get up from the ground. It is not far from having the specific intention to inflict grievous bodily harm.
12. This ground of appeal must fail for those reasons. The trial judge applied the correct test and applied the test correctly, with no error in that process to suggest her findings were other than entirely supported by the evidence.
13. As it no longer forms part of this appeal, given that the ground of appeal was withdrawn, this judgment does not deal with that withdrawn ground. However, it is important that a few remarks are made about the withdrawn ground. It sought to raise the question of incompetent representation at trial as an amendment to the original, single, ground of appeal. It was done without present counsel obtaining written waiver of legal privilege between previous counsel and the appellant. When required to do so, counsel was unable to obtain that waiver of legal privilege from the appellant.
14. Without waiver of legal professional privilege, the inquiries necessary to make out such a ground of appeal as this cannot take place. The former lawyer cannot be asked about his actions nor can any of the details of instructions between the lawyer and his client be made available. The respondent to the appeal cannot question the former lawyer nor can the former lawyer make any statement in response to the criticism or give evidence on the appeal.
15. It is wrong to file an appeal ground raising criticism of a previous lawyer without first obtaining the written waiver of legal privilege. Before that waiver is sought, its meaning and effect must be explained to the client. No meaningful advice can be given when the new lawyer is prohibited from raising with the former lawyer the circumstances and the potential appellant is therefore prejudiced.
16. Equally it may be that the respondent to the appeal will seek to call the former lawyer at the appeal hearing, again, this cannot be done when legal privilege has not been waived but it should be an option open to the respondent where these issues are sought to be raised. It was correct to withdraw this ground of appeal when it became clear that the client was not prepared to give the required waiver of legal professional privilege. A lot of time could have been saved had this first step been taken when it should have been taken.
17. In seeking the written waiver of privilege, it is incumbent on counsel to explain to the client the full effect of the waiver. It will allow the new lawyer access to communications between the former lawyer and his client but will also allow the respondent to the appeal to speak with the former lawyer and determine whether an application should be made to seek leave for that lawyer to give evidence on the appeal.
18. Thus, a court will not entertain an appeal ground based on professional incompetence without written waiver of legal professional privilege.
19. The appeal is dismissed, and the conviction and sentence accordingly confirmed.

Goldsbrough (P)
Palmer (CJ)
Hansen (JA)