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High Court of Solomon Islands |
HIGH COURT OF SOLOMON ISLANDS
Criminal Case No. 178 of 2004
REGINA
-V-
VICTA BINA
Date of Hearing: 5th - 6th April, 14th, 15th & 19th April, 18th May, 1st & 2nd June,
21st, 22nd and 23rd June
Date of Judgment: 8th July 2005
Evidence - presumption - "to intend the natural and probable consequences of his acts" - whether proper test in trial by judge without a jury.
Criminal Law - "malice aforethought" in cases of murder - considerations contrasted with "mens rea".
Evidence - medical evidence on cause of death - spleen killing - doctor’s findings on cause of death- whether consistent with prosecution case.
Criminal Law - "grievous harm" definition found in; Interpretation - s.4 of Penal Code - whether an intention to inflict grievous bodily harm may be inferred from the nature of the act which is done - degree of force required.
Criminal Law - "knowledge that acts likely to cause grievous bodily harm" in terms of "malice aforethought", (s.202 of the Code) - knowledge may be inferred from understanding in ordinary villager of likelihood of really serious harm in particular circumstances.
Criminal Law - "callous indifference" - terminology used in s.202 of the Code dealing with "malice aforethought" - matters giving rise to such finding.
The accused was charged on information of the Director of Public Prosecutions with the murder of his mother-in-law, Dominita Nita by kicking her, so causing a rupture of her spleen where-upon she bled to death. The facts appear from the judgment.
Held: 1. To "intend the natural and probable consequences of his acts" is a presumption which may be called in aid to reach a conclusion about the existence or otherwise of "malice aforethought" but it does not derogate from the strict use of the words "intention" or "knowledge" in s.202(a) & (b) of the Code. A judge when alluding to the state of mind, "malice aforethought" is entitled to accept the proposition provided he is careful to find that the particular defendant can be shown by the prosecution to have intended the natural probable consequences of his acts.
Cases cited: 1. R -v- Jimmy Viu (1994) Cr.App.Case 7 of 1993
Trial for Murder
P. Little for the Director of Public Prosecutions
L. Kershaw of the Public Solicitors Office for the accused.
Brown PJ. The accused has been charged on Information with the murder of his mother-in-law, Dominita Miru on the 2 January, 2004. This was alleged to have happened at Madakocho Village, Weather Coast, Guadalcanal following an argument during which he punched and kicked her. She died shortly after from the effects of a ruptured spleen.
The prosecution, in its opening address said that the accused occasioned the woman’s death by a kick to that part of her body, her lower left rib area intending to do serious harm. He is accordingly liable for the death in terms of s. 202 of the Penal Code and guilty of murder.
The cause of death was in fact the ruptured spleen which was enlarged and susceptible to rupture by a blow.
In support of the prosecution case Mr. Little proposed to rely also on the confession to the assault in the accused’s record of interview where he said;
"Me like talem law I killed my mother-in-law. Long day drink beer brother-in-law and cousin brother me cross at wife:
Q. Why did you kill Dominita?
Mr. Little said this admission is a direct confession of unlawful assault.
The prosecution case at the trial was that the defendant must be presumed to intend the natural and probable consequences of his action in that kicking the deceased, Dominita Mita would result in grievous bodily harm, or that grievous bodily harm was a likely consequence. Ms. Kershaw takes issue, saying the test is that to be found in s.202 of the Code; one dealt with in R -v- Elison Orinasekwa (unrep. CRC 18/1998) where Muria CJ restated the test at 6.
That section [referring to section 202 of the Penal Code (Ch.26) clearly sets out the mens rea to be proved. There are two states of mind must be established under the section, as was pointed out in R v Jimmy Viu (1994) CRC15 of 1993 (HC) (Judgment given on 11 February 1994) which was upheld by the Court of Appeal in Jimmy Viu v R (1994) Cr App No 7 of 1994 (Judgment given on 17 June 1994). This Court stated in that case:
There are two states of mind either of which, if proved, would establish malice aforethought. The first of those states of mind is an intention to cause the death of or grievous bodily arm to a person. The second is the knowledge that the act which causes the death will probably cause the death of or grievous bodily harm to a person whether such person is the person actually killed or not.
With the greatest respect I am of the view it is confusing to use mens rea together with s.202 where that phrase is not used; rather "malice aforethought" is the particular test in cases of murder. That "malice aforethought" is defined by section 202,
s. 202- 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 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 I 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." (emphasis added).
Our Code follows closely the Griffith Code which has been adapted and applied in various Australian States and in Papua New Guinea.
In R -v- English, one of the most fundamental distinctions between the common law and the provisions of the Griffith Code is that under the latter mens rea is not required. This has been so since the inception of the Code and has been recognised in case law since 1907 (see Widgee Shire Council v Bonney [1907] HCA 11; (1907) 4 CLR 977) which has been commonly applied throughout the history of the Griffith Code".
"The danger of using the phrase in a loose way is illustrated by Stephen J’s judgment in R -v- Tolson (1889) 23 QBD168; [1889] UKLawRpKQB 85; (1886-90) All E.R. Rep 26 (CCR) at 185; 36):
"My view of the subject is based upon a particular application of the doctrine usually, though I think not happily, described by the phrase non est reus, nisi mens sit rea. Though this phrase is in common use, I think it most unfortunate, and not only likely to mislead, but actually misleading, on the following grounds. It naturally suggests that, apart from all particular definitions of crimes, such a thing exists as a mens rea, or ‘guilty mind’, which is always expressly or by implication involved in every definition. This is obviously not the case, for the mental elements of different crimes differ widely. Mens rea means in the case of murder, malice aforethought; in the case of theft, an intention to steal; in the case of rape, an intention to have forcible connection with a woman, without her consent; and in the case of receiving stolen goods, knowledge that the goods were stolen. In some cases it denotes mere inattention. For instance, in the case of manslaughter by negligence it may mean forgetting to notice a signal. It appears confusing to call so many dissimilar states of mind by one name." (Ross at 676)"
So to prove "malice aforethought" the prosecution must show either the intention to cause the death or grievous bodily harm or knowledge that the act which caused the death will probably cause the death or grievous bodily harm.
It is to that issue (or either of those issues) Mr. Little, as I understand him puts the proposition that the defendant must be presumed to intend the natural and probable consequences of his action in kicking the woman Dominita Mita. In other words the phrase "to intend the natural etc" may be called in aid in reaching a conclusion about the existence or otherwise of "malice aforethought", but it does not derogate from the strict use of the words "intention" or "knowledge" in s.202 (a) and (b).
The form of words of the proposition, when used as a direction to assist the jury, has been criticised in Australia, but the proposition is not, as seemingly implied by Ms. Kershaw, a substitute definition or "test" for murder. A judge when alluding to the state of mind, "malice aforethought" is entitled to accept the proposition provided he is careful to find that the particular defendant can be shown to have intended the natural probable consequences of his acts. In this case, where the defendants denials in the witness box, to any such kick as described by the prosecution witness, Decla John; it is open to me to find for instance, that the denial may reflect knowledge in this particular man of the serious effect of such kicks and hence he seeks to distance himself from the kick altogether. In other words, the defendant intended the natural probable consequences, for him, by his denial of any kick in the trial, exhibited an awareness of the probable consequences and sought to distance himself from his subjective realisation of the consequences. Of course any such view by the court must be predicated on the acceptance of the Crown case that the kick actually happened; this defendant did the kicking.
The Crown must still satisfy me however, of knowledge in this particular defendant that the act of kicking, "will probably cause the death of, or grievous bodily harm to such person 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". It is insufficient in my view to rely on the defendant’s denial of complicity in the death by his evidence exculpating himself in court for the onus rests on the prosecution to prove that, at the time he did the kicking, he had the requisite knowledge of the effect or was indifferent. The denial in court is relevant but of itself, cannot substitute for an absence of implicating evidence leading up to and including the kick.
The use of the proposition, that a man intends the natural and probable consequences of his acts is a dangerous direction in jury trials for it may leave the jury with the idea the defendant need rebut the proposition when the onus rests on the prosecution throughout, to prove the particular element of the offence. Here, an element is knowledge in this defendant that the act, which caused the death, will probably cause the death or grievous bodily harm. So knowledge is a crucial issue. This court then may look at all the evidence when it considers the issue.
Quite simply, in this case the act is the kick. I am not dealing with any ambivalent behaviour, where probable consequences may be numerous and possibly unforeseen, such as a fight situation, rather this is a straight forward kick. "Kick" means here, and is used in the context of the actual resultant, the connection of the defendant’s leg with the torso of the woman.
So the kick then is the starting point as it were for even on a one view of the defence case the "kick" was admitted (the Record of Interview). Clearly, then in the face of such a simple scenario, the act, the "kick" is self evident although as I say, knowledge of a "natural consequence" here; death or grievous bodily harm must still be proved by the prosecution.
In view of the simple scenario Mr. Little’s use of that phrase does not mislead me on the question of burden of proof. Other criticism of the phrase elsewhere, relates to directions to a jury which does not need to give reasons, for its decision, and consequently cannot be brought to account if its reasoning process is in fact, skewered mistaking the presumption as shifting the burden of proof from the prosecutor.
Since this matter of Mr. Little’s suggestion of the presumption I should draw from the defendant’s acts has brought Ms. Kershaw to question it, by way stating it to be an "incorrect test", I have spent some time on dealing with the issue for it really only arises in jury trials involving as they do, a duty on the judge to properly direct. Of course that does not excuse a judge from not keeping to the forefront of his mind that the burden of proof rests with the prosecution throughout.
To put the presumption (or proposition as I have called it) in context of jury trials I quote from Ross on Crime at 542/543 (Ross) where the learned author, when opining that a judge is not to direct that a person intends the natural or probably consequences of his acts, quoted:
"In R -v- Schoneville [1998] 2 VR 625 (CA) Winneke ACJ said (at 633):
"Courts in this country have consistently said that, in cases where specific intent is an ingredient of the crime alleged, it is wrong for trial judges to tell juries that there is a presumption that a person intends the natural consequences of hi or her acts: Smyth v R [1957] HCA 24; (1957) 98 CLR 163 at 166; Stapelton v R ([1952] HCA 56; 1952) 86 CLR 358 at 365; Vallance v R [1961] HCA 42; (1961) 108 CLR 56 at 82-3 per Windeyer J; Parker v R [1963] HCA 14; (1963) 111 CLR 610 at 632-3 per Dixon CJ, 648-9 per Windeyer J; Snow v R [1962] TASStRp 26; [1962] Tas SR 271 at 286-8; R v Hubert (1993) 67 A Crim R 181 at 198-9. The reason usually assigned for disapproving such a direction is that it tends to conceal the true nature of the jury’s function: Smyth at 167; Thomas v R [1960] HCA 2; (1960) 102 CLR 584 per Kitto J at 597. In Parker’s case, where the relevant direction was that the ‘law normally...treats the person who has made the attack as having intended the natural and probable consequences of the use by him...of the weapon...’ Windeyer J said at 648:
‘Any reference to the natural and probable consequences of acts is apt today to let loose a flood of debate so-called "objective" and "subjective" tests, a debate that can readily become far removed form the realities of the case in hand. I have stated my own understanding of the basic principles as this Court has stated them and as I accept them, and I need not repeat what I said in Vallance v The Queen. In every case where intent is in question the question is what did the accused- the man before the court-intend."
Facts
The foregoing alludes to the fact that I accept this defendant kicked the deceased; I accept the evidence of Delca John on this point. She can be seen from the photographs in evidence, to have had opportunity to see and did, I am satisfied, see the defendant throughout his assault of the deceased. She said they were quarrelling, Victa Bina was very angry, he was shouting. She said he punched and kicked her (demonstrating punching to the left side of her head). The kick was to the left side of Dominita’s body.
Of course in his own case the defendant distanced himself from any assault. I do not believe him for the same reason the villagers didn’t. They were there, aware of the assault and forceably detained him until he was taken the next day to Honiara by RAMSI personnel in a helicopter. The defendant complained at some length of the villagers’ attitude and behaviour towards him. This criticism in itself implies the cause for his detention rested in his own actions. To accept his witness John Qurusu’s suggestion that some time after, Delca John admitted to John Qurusu (her husband) that she did not see the happenings on that day is to stretch credulity for that, while put to Delta John by Ms. Kershaw in cross examination, was continually denied.
It was the subject of strong cross examination at the time. Delca John gave her evidence here on the 6 April, yet this story of John Qurusu came out on Wednesday 22nd June. When asked by the Court, Mr. Qurusu said he had first spoken to the defence lawyer in May but subsequently accepted Ms. Kershaw’s suggestion that she had first seen him in March, before the trial commenced. I’m satisfied, then that John Qurusu’s evidence about speaking to Delca John (in possibly March last year) who conceded, according to him that she had not actually witnessed the events, is a recent fabrication and owes more to the fact Mr. Qurusu is in custody on a murder charge than to an honest recollection of a conversation with his wife. The cross examination of Decla John in relation to the actual assault by Victa Bina was conducted on the basis that the witness could not have viewed the assault. Ms. Kershaw put to the witness that she couldn’t have seen Victa Bina punch or kick Dominita, a proposition that she denied. Decla John reiterated she had seen Victa Bina do that. The cross examination over the photos left me in no doubt the witness had a good recollection of the happenings for she was very close to the protagonists. She said others came, attracted by the shouting of Bina. One was called, but her evidence has been disregarded, for she suffered a difficulty of some sort whilst here and was not recalled, hence the defence had no opportunity to cross examine her. Her evidence was, it seems, supportive of the prosecution case and her absence was not a matter for conjecture or comment by Ms. Kershaw.
It was not put by Ms. Kershaw that Dominita in fact succumbed during the argument, perhaps and collapsed in front of Victa Bina without any assault on his part. For that was the defence put by the defendant when he gave his own evidence. The re-examination did go some way to explain the defendant’s crossness for the witness said it arose from Dominita’s complaint that the defendant had not given a bride price for his wife, Veronica. I accept the witnesses’ evidence that Veronica escaped into the bush during this affair when her mother was killed, and see it as evidence of the violence of the man’s behaviour towards the woman.
The Record of Interview
I allowed the record into evidence after an argument on the voir dire. In that record he admitted kicking Dominita.
I have had the relevant parts translated from Pidgin into English.
Q.18 (see earlier)
Q.19 What leg of Dominica did you kick?
Right Leg
Q.20 When you kicked her on the left side of ribs, did she fall down?
No
Q.21 What happened after you kicked her?
She was standing and not long after she fell down unconscious
Q.22 What did you do when you saw her unconscious?
I went back to my house.
Q.23 After arriving at your house, did you go anywhere?
I was outside my house when my brother in-law and cousins came and
kicked, punched and shot stones at me.
Q.24 What is the relationship between Dominita Tila (Deceased) and you?
She is my mother-in-law
Q.25 What did you hear later?
I heard that she had died
Q.26 Did you hear that on the same day or the following day?
Same day
Q.27 Before closing my interview would you like to say something?
I regret what I did which has broken my relationship with my wife and family. I would like to raise concern about those who attacked me and damaged my property to be brought to justice.
Q.28 Do you want me to read back the questions and answers that I have recorded?
Yes
Q.29 Is there any alterations you would like to say?
No, I have nothing to say but accept the wrong I have done. I did not have the intention to kill my mother-in-law. It was by accident
that I kicked her whereby she died. Thank you.
Q.30 Do you agree to sign?
Yes
He has resiled in court from the story which he gave to the police, soon after the killing. I prefer to accept Mr. Little’s argument about this record, for he placed great emphasis on, what he called independent indicators as to where the truth was.
He pointed to the forensic pathologist’s evidence which located the trauma over the ruptured spleen, to the left side of the body or torso above left ribs 8, 9 and 10. The witness Delca John spoke of a kick to that part of the body. The defendant, in his record, also said the same, when, at the time he left the village, on the day following the death, had the deceased collapsed and died as he alleged in court, he would have been unaware of the cause of death when he made his statement to police. Consequently he would not have been aware the trauma was to her left rib area, where in his record he recounts kicking her.
Ms. Kershaw, in her cross examination of both the Detective Sgt. Joseph Leuhavi and the Police Constable Aronisaka, suggested that the record was inaccurately recorded but that was denied. I have no doubt the record truthfully recounted what was said by the questioning officer and in reply by the defendant. He signed it, after it had been read over to him and whilst that is not determinative of the accuracy of the record, despite cross-examination at length, I am left in no doubt the record is correct, nor am I in any doubt that it was fairly taken, in circumstances which do not call for the exercise of my discretion to exclude.
Other prosecution witnesses
The prosecution relied upon evidence given by a 10 year old boy, Rex Sam who whilst not sworn, was sufficiently aware of the need to speak truthfully as to satisfy me his testimony could be taken. There was some talk he was thirteen. In PNG a Judge may assess the age of an individual but I am unaware of any similar provision, here.
Mr. Little relied on his statement given police but recounted in court that Rex Sam overheard Victa Bina say earlier that day, "he will kill his wife’s family, kill his wife’s family members". This obviously may be related to the perceived grievance recorded in Victa Bina’s record of interview, where he said he was angry at the woman and to the fact he had been drinking. Ms. Kershaw was at pains to point out the boys relationship to his grandmother, the deceased but even so, I am satisfied he has recounted the conversation he overheard when Victa Bina was cross, while Victa Bina was talking, not directly to the boy but others accompanying Bina.
I accept the fact the boy perceived Bina to be cross and that this anger was related to his wife’s family. I do not place weight on the words actually recounted, for after the event, the boys father had occasion to talk with him before he gave his statement to the police, and in the circumstances under the tree, whilst the fact of Bina’s anger may have drawn Rex Sam’s attention, I cannot be sure the words actually recounted were used for the boy would have little reason to remember them exactly at that time.
Mr. Little was careful to address on the rule in Jones -v- Dunkel [1959] HCA 8; (1959) 101 CLR 298 concerning inferences that the defence may ask me to draw from his failure to call other witnesses under the mango tree with Rex Sam, witnesses who might be expected to be called. Ms. Kershaw did not seek to make a point, and Mr. Little did explain why others were not called. Nothing then turns on the rule.
The evidence of the arrest
On Saturday 3 January 2004 Detective Inspector Brian Dobrich a RAMSI officer, went with a number of other police including Snr. Sgt. Wayne Corbett and Sgt. Mala Jilopaia to Madakacho Village where saw the deceased woman lying in a hut at about 4.05pm. He then spoke to a villager who told him something, where upon he with Station Sgt. Kenny went into a hut where a male person whom he now knows to be Victa Bina, was. A Mr. John Qurusu translated his questions and answers by Victa Bina who was told the police were investigating the death of Dominita Mita, the deceased woman.
Detective Insp. Dobrich said:
"We have been told that you assaulted Dominita last night and that she died shortly afterwards. I believe that your attack on Dominita caused her death. You are under arrest for the offence of murder. Do you understand that? He said yes.
I said: "I now want you to come to Honiara where you will be interviewed in relation to Dominita’s death. Do you understand? He said, yes".
Later the defendant changed his clothes and was taken by helicopter to Honiara, where the defendant was taken to Central Police Station."
It is curious that the friend (of the defendant), who gave evidence in court, one John Qurusu, should have the same name as the person used as the interpreter by Detective Insp. Dobrich, (although the name spelling is different). Certainly John Qurusu was there on the afternoon of the killing, and I say friend, for his evidence in court was to the effect he came to Bina’s aid whilst Victa Bina was unconscious on the ground and later, in the words of Ms. Kershaw "protected" Victa Bina.
The Detective Inspector’s statement was admitted by consent. In cross examination in court, it became apparent a villager, William had walked to AvuAvu to report the death, and William accompanied Detective Inspector Dobrich in the helicopter back to Madakatcho Village where he told the policeman that Victa Bina was in a house held by the villagers. Under further cross examination the officer denied the suggestion the defendant was laying on the floor of the hut when he first entered, rather Victa Bina was sitting on the floor, then he stood up. The officer did not recall any injury to Bina and none was recorded in his statement.
The officer was asked if Qurusu heard the answers, but the policeman said he did, although the defendant was speaking softly, and appeared nervous. The officer did not notice Bina’s wrists and I take that to mean, his attention was not drawn to the wrists at that time. It was Snr. Sgt. Corbett who took statements from villagers on that day, which statements and briefing notes were given to Sgt. Runi of Guadalcanal Provincial to deal with, as a RSIP responsibility.
I am satisfied, then if Snr. Sgt. Corbett was delegated to take statements of witnesses, as Dect. Insp. Dobrich said, Delca John either gave her story to police on the afternoon of the 3rd January or was sufficiently identified at that time. I’m further satisfied when I read exhibit "4", the sketch plans inside Madakacho Village drawn by Station Sergeant Clayton Kenny, that the husband of Delca John, was identified and described as "John Gureusu" on the sketch. This "John Qurusu" who came to court, then was the same person as the "John Gureusu" who was present and used to interpret when Dect. Inspect. Dobrich spoke to the defendant in the house. John Gureusu (aka John Qurusu) was fully aware of the allegations and circumstances implicating Victa Bina that afternoon when he was arrested. John Qurusu made no complaint at that time but he has come to this court alleging his wife has fabricated a story. I do not believe him for it beggar’s belief to accept his evidence that his wife has perjured herself, when he was there throughout the initial police arrest and interview and must be presumed to know why Victa Bina had been detained by his neighbours and assaulted. Of course I cannot overlook the fact that he, himself has been charged with murder and his bias is apparent when I consider his evidence which now seeks to contradict that of his wife.
In cross examination, Ms. Kershaw’s suggested that Decla John had subsequent to the death, told her husband that she hadn’t seen Victa Bina kick the deceased, and they were denied. They were put:
Q. You didn’t see Victa Bina punch Dominita
A. No, I saw him
Q. You didn’t see him kick her
A. No, I saw him
Q. First time you saw her she was already on the ground
A. No
It was suggested Delca John was busy looking after baby changing nappy but Delca John was, I’m satisfied where she said she was in the photograph, and well able to see what happened, notwithstanding she may have been busy with baby.
Her evidence, then on that most material point, the actual assault is eye witness evidence which has not been undermined, least of all by the defence witness John Qurusu.
Her ill feeling towards Victa Bina does not lessen the weight of that evidence, for the ill feeling arose from the assault and is natural in the circumstances but cannot in my view detract from the truthfulness of her recollection of the actual event.
Matters which assist from the forensic pathologist’s report in terms argued by the prosecution.
Dr. Malcolm John Dodd MB, BS (Melb); FRCPA; DMJ (Path); of the Victorian Institute of Forensic Medicine carried out the autopsy on Dominita Mita on the 17th January 2004. The deceased who was aged about 50 was a slightly built woman who weighed approximately 50 - 60 kg. His height was 160cm so she could be described as relatively light weight and of typical height.
His findings were:
Cause of Death
I (a) Haemoperitoneum (Blood in abdominal cavity)
I (b) Traumatic Laceration of Spleen
I (c) Blunt force trauma to left blank area
Contributing Factors
II Splenomegaly
Comment
6. The spleen was moderately enlarged.
Splenic enlargement is not uncommon in the tropics
The underlying aetiology in many cases is one of malaria.
7. Enlargement of the spleen renders it vulnerable to external trauma
The spleen may rupture at the instant of impact, or rupture as a secondary event subsequent to a tear of the capsule.
Significant enlargement renders the spleen vulnerable to external trauma as is seen in this case.
13. No other contributing factors were identified after a complete autopsy.
The doctor was called and gave evidence, assisted by reference to the photographs tendered as exhibit "11". He said she had an enlarged spleen some 5 to 6 times larger by volume than normal. He opined the spleen was vulnerable to rupture as a result and the vulnerability was exacerbated by her slim build.
When asked whether low force or pressure could cause rupture he said while a possibility in this case well defined bruising between the ribs, 11 & 12 exhibits more than a small degree of force.
Ms. Kershaw sought to ascertain whether the forensic inspection of the spleen rupture, could give the pathologist sufficient information to pinpoint the time when the spleen suffered the shearing rupture.
He was asked whether shearing to the spleen indicates injury over time, to which he answered that it probably does, but he couldn’t give a time frame. He later, in cross examination, qualified that to relate the injury to the likely cause or mechanism to cause what he had observed. He said may be a kick, a punch or blow with a blunt object, or a fall upon a protruding surface. The degree of force required would, in a range mild, moderate or severe, likely be "moderate". In answer to Ms. Kershaw’s supposition, that it was not possible to rule out blood loss from trauma earlier in the day, the doctor conceded that it could not be excluded. He did say that the bruising to the ribs that was observed, (adjacent to the ruptured spleen) was recent to that spleen blood loss or contemporaneous to that loss. Later he was asked about a time frame for the bruising to the ribs, of 5 to 6 hours and he conceded that he couldn’t exclude that. Falling on an elbow or knee in a tug of war for instance may result in such bruising but in answer to a question by the court about the likelihood of pain associated with the bruising observed to the intercostal space between the ribs, the doctor stated he would expect the victim to complain of pain straight away. In re-examination the doctor put the time frame from the time of trauma to death at ½ hour to many hours, for the shearing (and blood loss) could occur at the time of the trauma.
What this court must do is, on the evidence given about Dominita’s doings on that day consider the doctors findings on the cause of death and his evidence given in court, to determine whether that evidence is consistent with the Crown case. If so I need be satisfied beyond reasonable doubt that the kick was the probable cause and the defence hypothesis is excluded.
The defence case was that Dominita may have suffered the injury whilst at the tug of war, a game played by the villagers during the day. There is no direct evidence the woman hurt herself if she did in fact fall during the game. Reflection suggests if she had fallen, the fall in the circumstances of a collapsing line of people onto the ground, may not afford the "moderate" degree of force which the doctor considered necessary to cause the rupture. Falling in a relatively static line cannot be equated to the shock of hitting the ground after a rugby tackle at speed. In any event, there is direct evidence of the act of the "kick" which I am satisfied, caused the bruising to the ribs and the underlying rupture to the spleen. Commonsense would suggest a fall in a tug of war would not be the cause of any complaint of hurt. The kick resulted in intercostal bruising, pain and thus a degree of force is reflected, force sufficient in the experts opinion to rupture the spleen. The woman was seen to stagger back a few steps, and subside to the ground, where she subsequently died.
The defence case proposed by the accused in his evidence, where he stated the woman collapsed in front of him, without any outward manifestation of hurt or injury is not believable in the context of this case, for I accept the evidence of Decla John whose eyewitness account accords with, as Mr. Little says, the independent indicators to be found in the doctors evidence. There was point force, resulting in the intercostal bleeding, consistent with a kick.
The defence argument
Ms. Kershaw argued very strongly the points which are apparent from my judgment. She was at pains to criticise the evidence of Decla John for her eye-witness account of the assault, descriptive as it was coupled with the photographs which supported her expressed view of the affair, was determinative of the facts of the assault. Ms. Kershaw used John Qurusu, the witness’s husband to support her argument. He unfortunately did not impress me as a witness of truth for the reasons I have given. In her submissions, counsel posed the question, was Decla John being truthful to her husband or to the court. Having listened to the witnesses replies to the cross examination relating to the supposed conversation with her husband before he was arrested and remanded in custody, I am satisfied she had no awareness of her supposed acknowledgement during any conversation or at other times that she didn’t witness this affair. Where John Qurusu is relied upon to such an extent and is not in my view reliable, Decla John’s evidence stands uncontradicted, despite Ms. Kershaw’s argument to the contrary.
Ms. Kershaw also argued forcefully that the tug-of-war could possibly have caused the injury which over time, resulted in the shearing rupture to the spleen. As I say, there is direct evidence as to a probable cause, the kick and no evidence that the deceased had suffered hurt in the tug-of-war.
Again Ms. Kershaw came back to the record of interview, asking me to consider whether the police are telling the complete truth. The record was the subject of a voir dire and was admitted after argument. It is consequently relevant on factual matters with which it deals and on the issue of the defendant’s credibility now that he has resiled from it.
The inconsistencies in recollection of the two police are explainable with the passage of time and did not affect the recording itself or impinge on the question of fairness. Again on the face of the interview, it is clear the accused cogently put his reasons for the assault and took the opportunity to say he did not intend to kill the woman dead. These factors must be read in the circumstances as supportive of the prosecution case in affording the accused a fair chance of putting something "which he may subsequently rely on in court". In this case he chose to deny the record and distance himself, metaphorically speaking, from the woman’s collapse. Having accepted the record as evidence, I am entitled to find the defendant’s attitude in court as evidence going to the "knowledge" which is necessary for the prosecution to show in terms of s.-202(b) of the Code.
Ms. Kershaw says I cannot be satisfied beyond reasonable doubt that the confession made by the accused was a true one. Having accepted the record, the confession, if you like, can only relate to the assault for there has been a denial to murder throughout. The record thus does afford an explanation for the assault and a defence to the murder. For the defendant was recorded as saying he did not intend to kill Dominita. I accept that must be properly considered in my deliberations, for it is evidence in the trial, even though, as explained above, the defendant now seeks to argue otherwise. In the circumstances, Ms. Kershaw has mounted a very capable defence but on the facts found, it does not leave me with any real doubt.
Knowledge of the consequences or indifference whether death or grievous bodily harm caused or not.
To follow the punch with a kick exhibits to my mind, a callous indifference to whether or not harm is caused.
When I look at the photographs of the dead woman it is clear she was but slightly built and not a young woman. It is more probable than not a kick would cause serious hurt to this person were the kick to be directed at her ribs. Whilst the resultant cannot be used to prove the case, a reasonable man in the village could be expected to realise that such a kick, landing on this woman’s ribs, would more likely than not, cause serious harm and pain. A consequence of a rib injury, pain, is common knowledge to whosoever has suffered a serious hurt to his ribs which carries a real risk of injury to the underlying vital organs of the body, including the spleen. Whether the spleen is enlarged or not, is immaterial when considering the actual possibility of injury which exists in the face of a kick of this type.
Knowledge that the kick will probably cause grievous bodily harm.
When I speak of the reasonable villager, I do so advisedly for the test is objective as to the "knowledge" of "an intention to inflict grievous bodily harm may be inferred from the nature of the act which is done". That has been the law here since the Code, and authority for the proposition is not needed. But what this court must be satisfied about, in this place and time is that a kick would ordinarily be seen, when involving an older woman of slight build, a real likelihood of really serious harm. There can be no doubt that an ordinary villager appreciates the importance of protection afforded by the ribs to the vital organs and consequently to attack the ribs is to risk that harm. For the use of a knife, for instance, to penetrate the ribs causing death would without further, be evidence sufficient, I suggest of the intent or knowledge that grievous harm would result.
"Grievous harm" is defined to mean:-
"any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, membrane or sense;"
This harm then clearly falls within the definition of harm- "which amounts to dangerous harm,"- for the spleen was damaged. Where inexplicable underlying injury and hurt is occasioned to the torso, a normal villager would understand vital or vital organs had been involved, even though not apparent, perhaps on the surface of the skin. Such understanding springs from the knowledge that risk of serious harm attaches to injury to vital organs about the torso so that serious injury to the ribs carries with it the associated risk to the organs. The various alternatives in the definition is wide ranging and cannot be precisely expressed beyond the wording itself and should not, for the circumstances of injury themselves are so wide-ranging as to deny better definition. I am satisfied, however that an ordinary villager on the Weather Coast would foresee a real risk of really serious harm were a woman of that age and stature to be kicked as described.
By such a kick, then this defendant has exhibited an intention to cause grievous bodily harm in the knowledge that such kick would probably cause that harm, although callously indifferent to whether such harm was caused or not.
A kick delivered in the fashion described is not a random blow proffered in a fight melee, rather an act calculated to hurt and cause grievous bodily harm. I find then that the defendant was indifferent to the consequences as to whether grievous harm would be caused or not, and that indifference was to some extent caused by alcohol which he said he had been drinking during the day. His anger was manifest to the boy and fuelled the argument Decla John saw. I am further confirmed in my view of the indifference exhibited throughout the argument and assault, given on the evidence of Decla John, indifference which grounded her anger towards him. He persevered, following a closed fist punch to the woman’s face, with a kick to her body. Such an assault must be seen as intending to go beyond the hurt occasioned by the punch, and to cause really serious injury to a woman of her constitution.
On his own evidence, the accused was at pains to accentuate his own subsequent hurt as a result of his detention by his own kind He was seemingly oblivious to the state of the woman on the ground in front of him, who on his account, inexplicably collapsed. He cannot then, be said to be unaware of the resultant injury following hurt when Dominita collapsed, for he has been so forthright in complaining of his own. Yet he did nothing for his mother-in-law at the time and that leads me to the conclusion of callous indifference.
I am satisfied then beyond reasonable doubt, that the accused’s kick caused the death of Dominita Mita, and at that time the accused had the requisite malice aforethought in terms of s. 202 (b) of the Code. He is accordingly guilty of murder.
THE COURT
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URL: http://www.paclii.org/sb/cases/SBHC/2005/158.html