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Regina v Bela - Judgment [2004] SBHC 35; HC-CRC 100 of 2002 (3 May 2004)

HIGH COURT OF SOLOMON ISLANDS
Criminal Case No. 100 of 2002

REGINA

-v-

KENNEDY BELA

HIGH COURT OF SOLOMON ISLANDS
(F.O. KABUI J.).

Date of Hearing: 28, 29 and 30 April, 2004 at Gizo.
Date of Judgment: 3 May, 2004.

J. Cauchi and H. Kausimae for the Crown.
E. Garo for the Accused.

JUDGMENT

Kabui, J.: The accused is Kennedy Bella as described in the information filed by the DPP on 10^th April 2002. He is the accused in this case (the accused). The accused is charged with the offence of attempted murder, contrary to section 215 (a) of the Penal Code Act (Cap. 26) “the Code”. The victim of the attempted murder charge is Hence Lotanga Winch (the victim). The accused pleaded not guilty to the charge against him and thus put the Prosecution under the obligation to prove his guilt beyond reasonable doubt. That is to say that the Prosecution bears the burden of proof beyond reasonable doubt. I am well aware of this requirement and I have borne that in mind in reaching my conclusion in this case.

Discharging the burden of proof.

In discharging the burden of proof beyond reasonable doubt, the Prosecution called 5 Crown witnesses to give evidence which, if I accepted, would prove the guilt of the accused as charged. The accused also gave evidence on oath and called 2 defence witnesses.

Does the Prosecution have the right to rebuttal after reply?

After the closing address by defence counsel, leading counsel for the Prosecution, Mr Cauchi, stood up and expressed his wish to comment on what he called new matters that emerged from the closing address by the defence counsel. I asked him whether he had the right to do so and he replied in the affirmative though without citing any authority. Miss Garo, for the defence did not object to Mr. Cauchi and so I allowed Mr. Cauchi to rebut. This is most unusual in terms of section 273 of the Criminal Procedure Code Act (Cap. 7) “the CPC” as representing the practice in this jurisdiction. In her closing address, defence counsel did make the point that the asteric marks on the sketch plan of the accused’s house according to the key to the plan, indicated damaged louvers to the windows of the accused’s house being consistent with the accused’s allegation that the victim had smashed the louvers of his house before the accused shot the victim. She also made reference to letter D where an empty shell was found in terms of the key to the sketch plan. Mr Cauchi’s point was that the key to the plan was not evidence as the sketch plan alone was tendered by consent. It was obviously difficult for defence counsel to interpret the sketch plan by using the key to it without cross-examining the Police Officer who drew up the sketch plan. She had forfeited the right to cross-examine the Police Officer by agreeing not to challenge the sketch plan and she made her position no better by excluding the key to the sketch plan in her bargain with the Prosecution not to challenge the sketch plan. She was tactically disadvantaged on this score. I think she was under the impression that by tendering the markings on the sketch plan as Exhibit 6, the key to the sketch plan must by necessity link up with the sketch plan itself not realizing that the sketch plan and its content were already evidence by consent. She was not entitled to substitute herself for the Police Officer who was not called by the Prosecution to explain the sketch plan and the various markings on it as explained by the key to the sketch plan. This was the point Mr Cauchi wanted to rebut and I allowed him to do so.

The other point was that defence counsel relied on section 17 of the Code which allows self-defence as at common law in England to be raised. Mr Cauchi’s point was that that defence could not be raised because there was no evidence to support it at all and should not be pursued in the closing address. Mr Cauchi’s point as I understood him to be saying was that how these matters had been dealt with in defence’s closing address was unfair to the Prosecution and would have the potential of misleading the Court in assessing the evidence for the Prosecution.

I have thought about section 273 of the CPC and its implications in this regard. This section represents the rule of practice in this jurisdiction and obviously assumes that proper practice is adhered to at all times by practitioners and the courts. Where this rule of proper practice under this section is abused, misapplied or misunderstood with the result that unfairness may occur disadvantaging the Prosecution, the Prosecution, in my view, may rebut after reply. I end with these words-

“...The last word, in a criminal trial, leaving aside the judge’s summing- up, belongs to the defence. After the prosecution closing speech, defence counsel sums up his case to the jury. He has a broad discretion to say anything he considers desirable on the whole case, but he should not allege as facts matters of which no evidence has been given. As it was put in R. v. Bateson (1991) The Times, 10 April 1991, he should not ‘conjure explanations out of the air’, but he is entitled to suggest, for example, that there might be an innocent explanation for his client’s lies if there was evidence in the case on which to base such an explanation. The rule applies equally to prosecuting counsel, but defence counsel may be more tempted to transgress it...”. “(See Emmison on Criminal Procedure, by John Sprack, 5^th Edition, 1992 at 143)”.

Transgress as it may be, this sort of rebuttal can only be very rarely resorted to. The inexperience of defence counsel or the lack of proper preparation can suddenly throw up these rather unwanted things on circuit for the Court to deal with on the spot.

Facts that are not in dispute.

On 27^th July 1997, at Tuki village, on Kolombangara Island, the accused, his wife and daughter went in the morning to their copra drier in their coconut plantation to pack copra into sacks for sale. The victim and his mother and other members of his family also went to their own plantation to do some work there. A river separates the two plantations of the two families. The victim then chopped a sago palm tree which fell across that river which separates them. The sago palm tree lying across the river was a concern to the accused because it blocked the river making it impossible for the accused to move his bags of copra along that river. The need to clear the river of that sago palm tree had been duly communicated to the victim who went to play volley-ball in another place. In the evening of that same day, the accused and his wife went back to check the river and met the victim near their canoe house. The accused spoke to the victim about the sago palm tree still being in the river resulting in the exchange of words after which the victim went to his house and the accused did likewise. Not long afterwards, the victim went to the accused’s house followed by his father PW3 though they followed different paths to reach the accused’s house. The victim did reach house the accused’s house but was still outside the house when the accused shot the victim with his .22 rifle and the victim fell to the ground. Almost immediately, the victim’s father PW3 also arrived and grabbed the rifle from the accused who held on to it resulting in a second shot going off up in the air. Ruben Lester Alezama PW 4 then arrived and helped PW3 to get the rifle out from the accused which they succeeded in doing and PW4 then destroyed the rifle with a stone. The victim was later taken to Gizo and then to Honiara where he underwent surgery and was discharged later.

The doctor’s report shows a bullet wound of 4 mm in diameter between the 8/9 ribs on the right lower chest of the victim. Internal examination revealed a small tear on the under surface of the right lope of the liver and a round wound of the same size as above on the upper pole of the right kidney. A quantity of blood had also been drained out from the victim’s body.

The facts in dispute.

The victim said that the accused punched him in the face causing blood to appear on his mouth when the accused confronted him near the canoe house. He said the accused also cut him with a bush knife but he avoided it and was not hurt. He said the accused told him to tell his father PW3 to go to the accused’s house if they wanted to settle the matter with him. He said that was why he and his father PW3 went to the accused’s house. The accused however said the victim was the aggressor. He said the victim kicked him in the groin near the canoe house on being told about the sago palm tree. He said the accused pulled out a pocket knife and wanted to stab him with it. He said the victim told him that he would go to his house to get his bush knife and would return to the accused. He said he heard someone whipping the louvres of his house before the victim appeared in front of his house and he shot him.

The issue to be decided.

Identification of the accused is not an issue nor is self-defence is an issue. The issue is whether or not upon the evidence the accused had intended to cause the death of the victim by shooting the victim with his .22 rifle on the date of the offence. The accused admitted in his caution statement to the Police Exhibits 4 and 5 and in his sworn evidence that he shot the victims with his own .22 rifle. This is not in dispute.

The Law on Attempt.

The catch words in the information filed by the DPP are “attempted murder”, meaning the accused had taken steps to cause the death of the victim but the victim did not die due to the bullet missing the organs and blood vessels followed by surgery performed by the doctors in Honiara. What then is “attempted” in law? Section 378 of the Code defines “attempt” thus-

“...When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.

It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfilment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.

It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence...”

So ‘intent’ is the element in the offence of attempt which begins with the carrying out of that intention by means enabling the fulfilment of that intention by some overt act which falls short of the commission of the offence, in this case, murder. It does not matter that the offender has taken all the steps necessary to complete the offence or the fulfilment of intent has been prevented by a factor independent of his will or has stopped further fulfilment of his intention on his own motion. Also, it does not matter that it is not possible to commit the intended offence due to reasons unknown to the offender. The commentary by the learned authors of Criminal Law and Practice of Papua New Guinea, 2^nd Edition, 1985 pages 292-293 is relevant in this regard. At page 293, the authors emphasised that-

” ...It is sufficient if the act relied upon is consistent with the intention confessed or inferred from all the facts...”

As put by the Court of Appeal in Whybrow (1951), 35 Criminal Appeal Rep. 141 cited in Smith and Hogan, Criminal Law, 3^rd Edition 1973 at page 192 and was cited by Palmer, J. R. v. Nelson Funifaka and Others, Criminal Case No. 33 of 1996, also cited by Miss Garo, intent is the principal ingredient of attempted murder. It seems to be the case that intent as the principal ingredient of attempted murder can be implied based on the facts in the case as evident from the part of the commentary cited above on the definition of ‘attempt’ in section 4 of the Criminal Code of Papua New Guinea similar in wording to our section 378 of our Code cited above. In Regina –v- David O’o fania, Criminal Case No. 14 of 1975 (unreported), Bodily, C.J of the High Court of the Western Pacific sitting in Honiara delivering the judgment in an attempted murder case at page 3 said-

“...I am satisfied that the accused fully intended to kill his wife; but if he had not specifically formulated that intention, then we must look at the natural and probable consequences of his acts, which as a reasonable being he is presumed in law to know. One does not need to look further than the medical evidence. If a man thrusts a bayonet into another person’s stomach in the way in which the accused did he must be well aware that without prompt medical attention that person will die...”

The facts of that case were that the accused went to White River where his wife was staying and stabled her repeatedly in the stomach with a bayonet but desisted and ran away when one of the PWs saw him and screamed for help. In Regina v. Muarenk [1965-66] PNGLR 64, Ollenshaw, J. of the Supreme Court of the Territory of Papua New Guinea convicted the accused of attempted murder. The facts were that the prisoner attacked her husband with a tomahawk inflicting four wounds on the body of her husband. The husband had died from pneumonia whilst recovering in hospital from his wounds. The medical evidence was that the husband did have 50% chance of survival but without medical attention, the chance of survival would have been 10% only. In her caution statement, the prisoners had said that her husband had cut her with a knife but she pulled it away and threw it in the sleeping room. Then her husband cut her with an axe – a tomahawk but she pulled it from him and cut him with it. The prisoner said she had been cross with him for various reasons. The defence did raise provocation and self-defence on the caution statement but were of no consequence. The prisoner had not given evidence in her own defence. In The State v. Wanaepe Warora [1977] P.N.G.L.R. 458, Prentice Dep. C.J. also convicted the prisoner of attempted murder. The prisoner had stabbed the victim causing the intestine to burst forth. The victim was only saved by surgery performed on him. Defence did concede that self-defence could not be raised due to use of a knife on the victim. I now turn to the facts of this case.

Self-defence

In my view, self-defence does not arise in this case. There is no evidence upon which this defence can be based. There is no evidence to show that the victim had attacked the accused or any member of his family. The evidence points instead to a pre-emptive strike against the victim. The victim had not yet entered the accused’s house when the accused shot him. The allegation by the accused that the victim had a bush knife and was using it to smash the louvers of his house which was denied by the victim is also of no consequence for the same reason that the victim did not attack him when the accused shot him or was destroying his house when shot. Even if that were the case, shooting with a gun was not using reasonable force against the victim in protecting his house. The accused is not entitled to claim self-defence in this case. In fact, self-defence is an open question in attempted murder because attempted murder is not murder. The principal element in attempted murder is intent to cause death to someone from the start and so where does self-defence come in to co-exist with intent as the principal element in attempt as an offence? The accused cannot claim self-defence as a substitute for his intention to cause death to the victim. The motive though for attempted murder is a different thing and should not be confused with self-defence.

Intent

This is the crucial issue in this case. I cannot say what was going on in the mind of the accused just before he shot the victim on 27^th July 1997. But I can look at his conduct and what he said to the Police in his caution statement and his evidence on oath given from the witness-box. I can also observe his body language in the witness-box. Intent arises from the desire to do something good or bad. The desire to do something can be the result of many factors working on the mind of a person to do something. I have studied the accused’s caution statement in pidgin English, Exhibit 4 and its English translation, Exhibit 5. The picture I paint of the events leading up to the shooting of the victim is this. The fact that the sago palm tree was still in the river despite the accused’s wife’s request for its removal by the victim was irritating or perhaps provoking to the accused because he was intending to use the river to transport his copra for sale the next day. For this reason the accused confronted the victim near their canoe house for an explanation for the victim had not done what he had been told to do in the morning. I believe the accused spoke to the victim in an accusing and perhaps aggressive manner so that the response from the victim was correspondingly aggressive and he kicked the accused. The accused retaliated and slapped the victim in the face. The victim having been slapped became angry but did not fight back as his sister had pulled him away. However, the victim told the accused that he would return and told the accused to wait for what was coming. I do believe the victim when he said the accused cut him with a bush knife but he avoided it. The use of this weapon must have prompted the victim to get a similar weapon to match the knife used by the accused. The accused having reached his house was expecting the victim to appear at his house as promised by the victim. I believe that the victim got something in his hand and returned to the accused’s house followed by his father PW3 to see what his son was up to with the accused. I do not believe that the victim had returned to the accused’s house to solve the matter on the accused’s invitation. I believe that the victim did smash the louvres of the accused’s house using something which the accused assumed to be a bush knife. Such commotion did cause the accused’s children to cry and come to the door of their house with a kerosine lamp to where the accused was standing with his .22 rifle. The accused’s frame of mind at that time can be said to be borne out by his caution statement made to the Police on 28^th July 1997. At page 6 of the pidgin version of his caution statement, he said he got to his house and had his .22 rifle ready and waited expecting the victim to attack him any moment. He said he was prepared to use his .22 rifle should the situation got worse. He loaded the .22 rifle with five bullets when the louvres were being smashed and his children were crying and running towards him. As far as he was concerned, he was under attack from the victim. He was sure that the victim had come to kill him, and believing his life being at risk shot the victim 10 metres from him. At page 9 of the same pidgin caution statement, he said that what he did was in self-defence to protect himself, blaming the victim for taking the wrong approach towards him. He believed that if he had not shot the victim, he would have been dead. He believes that the only way to end the row between them was to shoot the victim which he did. He said the victim had a bad attitude and a troublesome person. At page 10, he said to avoid being killed first, he must shoot first. In cross-examination, the accused confirmed that five bullets were already in the rifle before the victim got to his house. In further cross-examination, the accused agreed that shooting the victim with a .22 rifle would have killed the victim. He said that he was aware that if he shot the victim, the victim would have been hurt. The victim was alive today because by chance the bullet to use the words of Dr. Pana, “missed the major abdominal organs and blood vessels”. The accused did not say that he intended to kill the victim in so many words but he clearly decided to hit at the victim first before the victim got him. That intent was translated into loading the rifle with five bullets, aiming the rifle at the victim and pulling the trigger releasing the bullet that hit the victim between the 8/9 ribs on his right lower chest. All the steps had been taken to commit murder but the victim remained alive today only because the bullet missed the vital organs and blood vessels in the abdomen of the victim plus surgery performed on him. The evidence by the accused in his caution statement and on oath clearly shows that he intended to cause the death of the victim. Although the accused in his caution statement had not used nor on oath used the term “kill or shoutem die”, he had made up his mind to shoot the victim and he did so accordingly. There was intent on his part to unlawfully cause death to the victim but for the bullet missing the vital organs and blood vessels in the abdomen area of the victim plus surgery done on the victim by the doctors in Honiara. The intent was the decision to pre-emptively strike at the victim thus to strike him down before he could do any harm to the accused. A rifle is a lethal weapon to use to shoot anyone and expect the victim to be alive and well. This case can be likened to the example quoted by Palmer, J. in R v. Nelson Funifaka and Others cited above at page 11 of His Lordship’s judgment that-

“...if a jury are satisfied that D’s direct intent was to cause grievous bodily harm they may ( but need not necessarily) convict of attempted murder if satisfied that D knew that death was virtually certain to ensue. For example, if D throws V off a hundred metre high cliff (V miraculously surviving by catching hold of a protruding ledge) and claims ‘I only wanted to break his leg’, a jury should acquit of attempted murder if they believe D. But if they are satisfied that D realized that death was virtually certain to ensue they could infer the intention to kill from that foresight and convict of attempted murder.”

In cross-examination, the accused said, “I was trying scare him. It was a warning shot”. Saying that after the victim had already been shot and was only saved by chance as already described in this judgment is devoid of truth and common sense. I find the accused guilty of attempted murder and I convict him accordingly. The accused of course has the right to appeal his conviction.

Delay in prosecuting this case

I note that this offence was committed above 5 years and 8 months ago. I also notice that the investigation of the case had been completed by the end of 1997. Someone in Gizo Police Station or the Criminal Investigation Department or the DPP’s Office in Honiara had sat on this case for too long. The DPP filed the information on 10^th April 2002 but had taken another 2 years before it reached the trial stage though this may have been due to financial difficulties. It is important that the wheels of justice do turn in favour of the accused so that public confidence in our justice system is maintained. Delay by the Police is read by members of the public as lack of enforcement of the law which leads to loss of confidence in the Police and eventually disregard for the law and order. Delay in the prosecution of criminal offences has unfortunately been the hallmark of the Police and that must be reversed to gain respect and confidence by the community.

F.O. Kabui
Puisne Judge