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Regina v Mona [2014] SBHC 19; HCSI-CRC 141 of 2011 (9 April 2014)

HIGH COURT OF SOLOMON ISLANDS.
(Faukona J).

REGINA

V

PAUL MONA

Criminal Case No. 141 of 2011.

Dates of Hearing: 5/11/2013, 6/11/2013, 7/11/2013,
16/12/2013, 14/1/2014, 20/1/2014,
24/1/2014, 1/2/2014 and 28/2/2014.

Date of Judgment: 9 April, 2014.

Ms F. Joel for the Crown.
Mr H. Fugui for the Accused.

JUDGMENT.

Faukona J: The accused Paul Mona was charged for one count of murder contrary to section 200 of the Penal Code, and one count of unlawful wounding contrary to section 229 of the Penal Code.

2. The charges emanated from an incident that occurred at Uimadji village, South Malaita around 4 or 5 am on 25th December, 2010. It was alleged that at that of incident the accused inflicted a stabbed wound upon Charles Fox, which gave rise to the unlawful wounding. At the same time inflicted three major stabbed wounds upon the deceased (Festus Aitorea), one of which fatally led to his death.

3. What may have been transpired is that a group of boys, about three, Charles Fox, Francis Iro and Billy Kala left Tawaro village and went to Uimadji village to celebrate Christmas eve. Alcohol was the major element of celebrations. There were 2 groups drinking. And they started somewhat after twelve midnight. At some stage, there was a shout from Joseph Suiga coming from the accused's lodge (young boy's house). That attracted attention of one group of men. Charles Fox went to the scene to verify what happened only to find him being severely wounded. Following that was another encounter by the deceased and the accused, which consequently led to deceased sustaining three major stabbed wounds and fatally died of the cause of one of them.

4. When the accused was arraigned at the commencement of trial, he pleaded not guilty to both charges. However, he raises a defence of self-defence against the murder charge. No specific defence is advanced in respect of unlawful wounding charge. As such, naturally, the defence will wish to rely on the strength of the Crown evidence. Further to that, it would appear from the tone of defence case that what may have occurred at the time of the unlawful act is that the accused did not form any intent or ought to foresee the result as it was.

Charge of murder:
5. The charge of murder is defined by section 200 of the Penal Code. Attached to it is a mandatory sentence of life imprisonment for a convicted or guilty accused. To convict, the crown has to establish 2 elements, the act that cause the death and the state of mind of a person charged. They are questions of fact. The Court has to assess facts existed prior to or co-existing at the time the act which caused the death. This boils down to the question whether the accused has the necessary element of intent to cause the death or grievous bodily harm to the deceased. Section 202 (1) of the Penal Code defines malice aforethought see R V David Kwaoga[1] and R V Ellison Orinasikwa[2]. However, intention is a state of mind, which can never be proved as fact; it can only be inferred from other facts, which are proved[3].

Defence of self-defence (The Law):
6. On the outset, the accused admits inflicted three major wounds sustained by the deceased including the wound on the left chest, which found by Dr Maraka as fatal causing death of the deceased. When it is necessary to defend oneself, the use of such force as is reasonable is not unlawful. The prosecution or Crown must prove the killing was unlawful on the evidence. The onus is on prosecution to prove beyond reasonable doubt that the accused was not acting in self-defence when he caused the deceased's death[4].

7. The starting point as appeared to be concertedly agreed to by Counsels is section 4 (2) of SI constitution which advocate preservation of life. Deprivation of life is permitted by law in a circumstance where force applied is reasonably justifiable.

8. As a developing nation with infant legal system, section 17 of the Penal Code subsidised the use of force in the defence of person or property be determined according to the principles of English Common law.

9. The test to be applied for self-defence were in the words of Lord Griffiths in Beckford V the Queen[5] where he stated,

"... that a person may use such force as is reasonable in the circumstances as he honestly believes them to be in the defence of himself or another."

10. The principle of self-defence at common law known as the traditional view was pronounced by the Privy council in Palmer V R[6] and was approved by the Court of appeal in R V McInnes[7]. Lord Morris Bothy Gest stated,

"It is both good law and good sense that a man who is attached may defence himself. It is both good law and common sense that he may do but may only do, what is reasonably necessary. But everything will depend on the particular facts and circumstances. It may in some cases be only sensible and clearly possible to take some simple avoiding action. If there is some relatively minor attack, it would not be common to permit some action of retaliation which was wholly out of proportion to the necessities of the situation.

11. The phrase "taking some simple avoiding action" may well be interpreted as one meaning of duty to retreat. This is a restrictive approach, which has now being abandoned. The rational is that in some cases where the accused is acting in self-defence he will also be acting to prevent a crime being committed by the aggressor. The test for self-defence and prevention of crime is identical. Over time law formulated to suit circumstances and it ought to be remembered that if use of force is clearly unnecessary, for example, the initial aggressor has started to retreat, and then it will not be reasonable in the circumstances to use force[8]. What is necessary is that he should demonstrate by his actions that he does not want to fight, one way of negativing the accused acting out of motives of retaliation rather than defence. The denial to retreat shift away from the defence as being necessary use of force toward use of force which is reasonable in the circumstances. If possible to retreat then use of force is unnecessary but the real question is whether the accused acted reasonably in using force rather than retreating

Degree of force:

12. The degree of force used by an accused will not be regarded as reasonable unless the accused believed that it was necessary to use that degree of force. It is unreasonable to use force that one knows to be unnecessary. However, necessity is not enough, fatal force may be the only way of stopping a starving man trying to steal a loaf of bread but that does not make killing in such circumstance justified, it is not reasonable in the circumstances[9].

13. If the accused misjudges the degree of force permissible and use excessive force, he is deprived of the defence. This may be hash on the accused who genuinely try to use reasonable degree of force but has overreacted; the Courts must apply the rule in a manner, which takes account of the motives of the accused, which is no longer wholly objective.

14. In Palmer's case as above His Lordship continued;

"If there has been an attack so that the defence is reasonably necessary it will be recognised that a person defending himself cannot weight to a nicety the exact measure of his necessary that would be most potent evidence that only reasonable defensive action had been taken. If the prosecution have shown that what was done was not done in self-defence then that issue is eliminated from the case. If the jury consider that an accused acted in self-defence or if doubt as to this, then they will acquit. The defence of self-defence either succeed so as to result in acquittal or it is disproved, in which case as a defence it is rejected".

15. A point to note is that while the test of whether the force used in self-defence was reasonable is objective. In deciding, the Court should be directed to consider what the accused himself thought. In the case of R V Shannon[10] Lord Ormrod described the traditional approach as;

"... a bridge between... the objective test, that is what is reasonable judged from the view point of an outsider looking at a situation dispassionately, and the subjective test', that is the view point of the accused himself with the intellectual capabilities of which he may in fact be possessed and with all the emotional strains and stresses to which at the moment he may be subject to."

16. In later years Lord Justice Brooke in the case of DPP v Armstrong Braun stated;

"The test of the appropriate degree of force a person was entitled to use in self-defence was not any degree of force which he believed was reasonable, however well founded the belief. A jury must decide whether a defendant honestly believed that the circumstances which such as required him to use force to defend himself from an attack or threatened attack..."

17. In respond to a subjective test proportionality of the responses offers a gateway to in defensible over reaction. Justice Sedley in Armstrong case articulated similar remarks;

"... what is done to the perceived threat is to be judged by a judicial appraisal of its reasonableness in all the circumstances..."

The evidence on murder charge:

18. The accused did not dispute he stabbed the deceased with a knife between 4 and 5 am at Uimadji village on the day in question. He did not dispute that he caused the fatal wound on the left chest of deceased, which caused his death. His admission was confirmed by his record of interview, which was tendered to Court by consent.

Further, the memorandum of agreed facts dated 5th November 2013, tendered to Court also confirmed accused's admission of stabbing the deceased causing his death.

19. Despite admission, his excuse is that he did so reasonably believed to avoid being choked by the deceased. Let alone the defence of self-defence. How he defends the coming force is a question of fact which has to be appraised by judicial process.

20. There are two versions of what actually happened on 25th December, 2010 between 4 and 5 am. It is relevant to narrate the two versions for contrast purposes.

21. The accused version as a lone witness is that earlier on 24th December, 2010 he was drinking with two boys namely Martin and Toloiasi at his lodge. Whilst drinking beer two boys Billy Kale and Francis Iro approached them and asked for beer. The accused reply was that the beer was just enough for them. This happened twice. After Kala and Iro left the second time, the accused then went to the group that were drinking, and then returned to his lodge.

22. After a while, three boys approached the accused lodge. They were Aitorea (deceased), Charles Fox and Francis Iro. As soon as they got to the lodge they started to damage and dismantle the wall of the lodge. The accused was startled at the sudden noise and fear of his life. After the wall of the veranda was pushed and crashed down he stood up and held his knife. He was in the veranda of the higher floor while the three were on the lower floor. It took about one minute to crash the wall down.

23. Then the accused questioned the cause of their anger, it was then that the deceased jumped at him and struggled with him at the small high elevated veranda. The deceased then grabbed the accused neck with both hands as they struggled and tossed around and hitting the wall. As they twist and shuffled around the deceased grabbed the neck of the accused from behind with both hands. The accused described the deceased as muscular as and bigger in size than him. The accused says that he found it difficult to breath. He struggled to free himself from the deceased grip but could not; he was fighting for his life. He then swang his knife several times over his left shoulder. He could feel his knife has landed but was not certain on what part of deceased's body. After then felt the grips of the deceased were loosened. He then jumped out through the window and quietly went away.

24. The Crown version is that the accused caused the death of the deceased by an unlawful act (stabbing) with malice afore thought founded on section 202 (b) of the Penal Code. The Crown advocates that the accused knew that by stabbing the deceased with a sharp knife directing to the chest would cause grievous bodily harm to the deceased.

25. In support of its version the Crown evidence is that a group of boys comprised of Joseph Suiga (PW1), Charles Fox (PW2), Billy Kala (PW3), Francis Iro (PW4), Walter Maelasi PW5), Samuel Manu (PW7) and the deceased were drinking near a grave at Uimadji village. They started drinking after midnight (there is time difference in evidence) on 25/12/2010. The accused and another group were drinking at a location not far from them. Then they went to the lodge. At some stage, Kala and Francis went to accused's lodge to buy some beer, but the price was quite expensive $30.00 for each beer, so both men returned to their group.

26. Later the accused visited the group and the returned to his house in the company of Joseph Suiga. At the accused's house, both men were drinking. According to Suiga it was accused who called him. Joseph Suiga then started to shout. According to Fox and Kala the shout was in agony or fear and was purposely to attract attention. Fox even describe it as a fight between the accused and Suiga. So Kala attended the scene at accused's house. At the door where stood he could see the accused grabbed Suiga by the front collar of his shirt with his left hand and a knife on his right. At the same time Fox entered and tried to pull Suiga out but accused stabbed him with the knife. As he entered he could see accused grapping Suiga's neck and they were facing each other. Subsequently Fox shouted he was being stabbed. That shouts was heard by Kala who was standing outside of the lodge. Then Suiga jumped out through a window followed by Fox. When Fox jumped out there was no other person with the accused in the lodge. Suiga jumped out because accused was in possession of a knife and he feared him. When Charles jumped out, he shouted accused had a knife. Suiga saw Fox's hand was bleeding when he jumped out. At the same time, the deceased entered the house. According to Kala no one damage any wall of the lodge at that stage.

27. Suiga says when the deceased entered the lodge there was a fight between the accused and the deceased. He could hear banging on the walls but could not see the actual fight as it was dark. He was standing closed about 7-8 meters from the lodge. However, with the assistance of the moonlight he could see clearly. Kala saw that as soon as the deceased entered the lodge the accused stabbed him. He also could here movements in the house. He was very close to the lodge. He was standing on some grasses on the right side of the building. Consequently, Suiga who saw the deceased fell from the house and did not say a word. According to the evidence of Kala, the deceased was in the house for about eight minutes before he jumped out of the house.

Analysis of evidence:

28. In appraising the evidence it is pertinent to identify what prompted the accused to do what he did which in normal circumstances could not have been done. In submissions, the Counsel for defence outline in pre-existent event when the deceased and his two friends approached the accused in his house (lodge) and damage a wall because he did not allow them to buy his beers. Therefore, they were angry and colluded to intimidate the accused so that they would get his beers. Upon witnessing the activities by the three men the accused formed a reasonable belief hence resort to his knife in order to protect his property and himself. Little later the use of the knife was eminent randomly in the circumstances because of the deceased's grip on his neck in order to free himself.

29. Suiga denies being apprehended by the accused. That of course has stretched to certain extend the Crown evidence which is inconsistent with what Charles Fox and Kala say. Had it not been so, the motive for the deceased that Fox and Kala preceded to the accused's lodge could have been well verified. Nevertheless Suiga maintains by admitting he shouted wildly because of drinking. On that portion no tribunal of fact could accept. However, it is apparent from evidence that Suiga is the uncle of the accused and both lived in the same village of Uimadji, South Malaita. By photographs 10 and 11 of exhibit 11 shows uimadji village is a small family village. If Suiga could concocted that part of his evidence there is high possibility he would do. I would infer by common sense that he does not want to create ill feelings among the family and the fact they are living together in one small community. Of course, in such community people want to maintain peace, harmony and good relationship.

30. Despite inconsistency in that portion of evidence, Suiga affirms the reason why Fox was there was to take him away because he made a lot noises. Further to that, he affirms that the accused stabbed Fox. He did not see the actual stabbing but he heard Fox shouted that the accused had a knife. As he jumped out, he told Kala that the accused had stabbed him.

31. This evidence points to the crevices of this case. The evidence reveal that immediately prior to the deceased entered accused's lodge, three Crown witnesses were there within close proximity of the lodge. Witness Suiga was standing 7-8 meters from the lodge. Fox was lying on the ground very close to the lodge and Kala was standing on some grasses next to the building. All of them were on the right side of the building. They all witnessed that the deceased entered the lodge by himself. He was not armed. Kala even states there was no wall damage right up to that time. He also mentions as soon as the deceased entered, the accused attacked him with his knife.

32. It would appear from that evidence that no three persons entered the lodge at once; no more damages to any wall as yet. That evidence has the capacity to disqualify the propose motive and collusion advance by the defence. If there was a collusion to intimidate the accused then why should Suiga denied being apprehended, an evidence which appear to contradict any collusion. And later return to the evidence which supports the Crown case. More significantly, at that stage is evidence revealing that the accused had already being in possession of a knife and had used it to stab Charles Fox before the deceased entered the lodge. This emulated to the fact which can be profoundly ascribe as violent aggressor by the accused even prior to the unlawful act of murder which he was charged for. In the circumstances, which evidence will I belief? On the pre-existence evidence, I have no reservation to belief the Crown witnesses and not the defence version.

33. There may be some discrepancies in the Crown evidence irrespective of this issue. The fact is that that evidence pointed to one thing that the three persons whom the accused states had entered his lodge at once was an inaccurate version or not of any truth. Suiga, Fox and the deceased by evidence entered the accused lodge not at one time but at different times at short intervals. There is also denial by Suiga and Fox participated concertedly in damaging a wall of accused's lodge. All they could hear was sound of fight and banging of the wall when the deceased encountered the accused in the lodge. They were outside of the building. Kala even stated as soon as deceased entered the lodge he was stabbed by the accused.

34. The Crown evidence perceived is credible and could able to negate the accused version. The evidence existed prior to substantive murder tantamount to initial aggression, which legally do not require the accused to defend his property and himself. How would he defend himself, he was already an aggressor. The accused version that he was outnumbered therefore resort to use of a knife is an unreasonable belief in the circumstances. However, in this case that had never happened. The three men as shown by evidence were never armed. They did not enter the lodge together, and denied breaking any wall. So any defence of property or self is not accepted and cannot rely on by the accused.

35. If that point fail, is self-defence necessary and which the law allowed and recognised? The accused version is that he was grabbed by the deceased on the neck with two hands and he did what he did applying his knife to the body of the deceased in order to relief him from being choked. That evidence ran contrary to that of Crown witnesses.

36. It would appear without doubt that as soon as the deceased entered the lodge there was a fight. That could be a reasonable conclusion because the evidence supports that the accused had been in possession of a knife and had been acted violently by wounding Fox earlier before the deceased entered the lodge. I am far from accepting the accused's version that he was under apprehension and whilst swaying his knife landed on Fox, and hence raise that his act is something occurred independently out of his will. Or an act which he does not have any control over it. That is far from believing it.

37. Then the question, how did the accused inflict the wounds, sustained by the deceased. It is accepted there is no eye witness and it was dark inside the lodge for any one standing outside could able to see. However, the accused who actually indulged in the struggle, narrates he was grabbed on the neck. Being in that position, he swayed his knife over his left shoulder to the left side of the deceased several times. Whether his knife landed on a point of contact on deceased body is not of his worry. What he was concerned about was the release from the grip of his neck. He was under tense cross examination and he did not mention he sway his knife to other direction toward the body of the deceased.

38. In contrast to that is the medical report (tendered to Court by Consent), and dated 28th December, 2010. The report identified four wounds, and two abrasions were sustained by the deceased. Not only that but seven of the front teeth were mobile. To reflect in full the evidence as to injuries, here are extractions of the medical report.

1. A stab wound on the left shoulder, 25 x 8m and 30 mm deep, located 100mm above the left armpit.

2. A stab wound 130mm above the left nipple 35 x 16m. This wound entered the left chest cavity causing haemorrhage on the left chest wall. It then cut through the upper lobe of the left lung 40mm long. There was 450mls of blood in the left chest cavity. The wound continue making a cut on the posterior chest wall, 14 x 1mm and 2 mm deep.

3. A slash wound, 49 x 10 mm and 8 mm deep on the right side of the face caused by sharp object.

4. Incision wound, 20 x 1m, on the lateral area of the left foot.

5. Abrasion, 14 x 1mm on the left forearm (front area of the elbow joint).

6. Abrasion, 9 x 8mm, on the posterior aspect of the right hand.

39. The accused did not deny using a knife exh.13 to cause the wound on the left chest that caused the death of the deceased. However, he demonstrated in Court several times that he swayed his knife across and above his left shoulder toward the deceased front body. In that sense then he could possibly cause two wounds on the deceased left shoulder and the fatal wound on the left chest. Unfortunately, evidence of the medical report reflects the cause of action the accused displayed. If it is just a sway of the knife above the left shoulder why should the deceased sustained wound on the right side of the face, a wound which in the opinion of the Dr was caused by a sharp object. Apart from that, the deceased also sustained seven mobile teeth and abrasions on the left forearm and right hand and also lateral area of the left foot.

40. In reality the injuries sustained by the deceased are inconsistent with the manner which the accused thrust his knife. It only concludes to the very fact that the Crown witnesses must be believed. That there was a fight between an unarmed deceased and an armed accused. That also affirms Kala's evidence that as soon as the deceased entered the lodge the accused stabbed him.

41. A fight is a physical contest between people. The usual features are punching, kicking, stabbing, struggling and moving around. And that is exactly what the Crown witnesses heard even though it was dark in the lodge and could not view the actual happenings. As a result of the fight the wall of the house was broken and the deceased suffered multiple wounds and died of a fatal wound on his left chest.

42. The fatal wound on the left chest and the wound on the left shoulder are consistent in my opinion with the thrashing of a knife by a right handed person straight on. The accused is a right handed person who demonstrated by thrashing his knife with his right hand over his left shoulder to the deceased who said to have been standing at his back.

43. The necessary force applied to inflict the fatal wound can be ascertained by the depth of the knife wound. Dr's report reflected the exponent of the wound which entered the chest cavity and cut through the upper lobe of the left lung, and continue making a cut on the posterior chest 14 x 1mm and 2mm deep. The depth of the wound and the extend of the injury sustained shows the accused applied very strong force. Such force in my opinion can probably be applied by the accused standing in front of the deceased. By swaying a knife over his left shoulder as demonstrated by the accused could not be possible to achieve a wound that depth as prescribe by the Dr's report.

44. Another point to note is that if the accused was grabbed by the neck from behind then his right hand with a knife is free and could make a sway to the right abdomen or lower part of the accused. In my opinion that direction is perceived as an easy access to the body of the deceased. However, the accused chose not to, but resort to a direction the fatal wound was identified in order to substantiate the cause. Further, the deceased is 168cm high, roughly 5 feet 5¾ inches. If the accused is 5ft and one or two inches then he has 3 or 4 inches to push the knife through over his left shoulder. He has to be very accurate in calculating the space he could push the knife through and not to hurt himself. I am considering that the incident involved a lot of movement and was dark. In such circumstances how accurate, would the accused administer his knife to the left upper part of the body of the deceased? By assessing and analysing the accused's version of facts, he fails to convince me.

45. Observation of photograph no 21 of exhibit 11 reveals a lot of blood at the lower level floor at the right side near to the shattered wall. Nothing much on second level floor. This implicates the major attack and activities were done on the second floor and no wonder the wall have to be shattered.

46. Conclusively, this is a case where two men physically encountered each other in a small dark space of the veranda of a lodge (boy's house). One was armed with a knife the other was not. From the outset, evidence has negated that a group of three men entered the lodge at once and damaged the wall of the lodge, has never occurred. It therefore left for me to conclude that the accused, having wounded Fox earlier is ready to attack. From the first attack he continuously in possession of his knife, he was aggressor. Evidence from two witnesses outside within close proximity of the lodge attested that there was sound of a fight. One even state that as soon as the deceased entered the house the accused attacked him with the knife. As a result of the fight the deceased sustained multiple injuries and died of the fatal wound on his left chest. The accused suffered no injuries at all, no evidence to the contrary.

47. In the circumstances, substantiated by evidence, that accused was being armed and used a knife whilst indulged in the fight with an unarmed man. On the outset it is imbalance and disproportionate. That situation does not permit the accused to use the knife at all. By using it is contrary to the principle, uphold by self-defence. There was no force at all which legitimately permit him to counter attack. His version that deceased grabbed him by the neck and choke him is a fabricated version formulated to divert the whole truth. His act of swaying his knife over his left shoulder is an attempt to substantiate the wounds sustained by the deceased on his left chest and shoulder and was done by an act of self-defence, to allow him escape the grip from the deceased. That is absolutely fabricated. The medical report and the evidence disqualify any act of self-defence at all. What the accused did was an attack on an unarmed man causing multiple injuries with intention to course grievous bodily harm. It can be argued (not in this case) that the deceased was a trespasser. This line of argument is not considered because it was not raised. Even so, the use of a knife is disproportionate irrespective to the circumstances of the case. There was no incoming force so as to require self-defence. Even if there is some force, which require accused to defend himself in defence, by using a knife is disproportionate. I am satisfied beyond all reasonable doubt that the crown has adduced evidence that is convincing to prove the charge of murder.

48. Having found the accused guilty of murder, he is liable to serve the mandatory sentence of life imprisonment accordingly.

Charge of unlawful wounding:

49. The charge of unlawful wounding is defined by section 229 of the Penal Code. Anyone found guilty for wounding another commits misdemeanour and is liable for imprisonment for five years.

50. The Crown case is that on the 25th December, 2010, about 4-5 am, the accused stabbed Charles Fox on the right arm using a knife thereby unlawfully wounding him.

51. The defence advance by the accused is that when he struggled to free himself from the grip by the deceased, he also sways his knife. The victim, Fox, could have approached them and in a close proximity within the sphere of the swaying knife sustained the wound on his hand. This contention is supported by the facts that three men (first two Crown witness and the deceased) entered the accused lodge at the same time and concertedly damage a wall of the lodge. Their action would immediate prompted respond but accused was self-restrained without any reaction for a minute. Having enquired as to the reason for their aggravation the deceased then jumped at him and grabbed his neck with both hands. A struggle ensued and eventually the accused swayed his knife around. There are no further submissions in fact and law irrespective of this particular principle of defence.

52. In negativing that defence it is apparent that crown is relying on the same evidence given which had been considered in the pre-existing event discussed in paragraph 25 (part of), 26 and 27 above.

53. There are two contrasting set of facts. The Crown case is that there is a shout of anguish coming from the accused's lodge. It was by Suiga. It attracted Kala and Fox to attend the scene. Kala was standing at the door and saw the accused gripped Suiga with his left hand and had a knife on his right hand. Being moved aside from the door Fox went in. In an attempt to pull Suiga away, the accused stabbed him. He shouted warning others the accused had a knife and had stabbed his hand. The shout was heard by Kala who was at that time was standing outside of the house but very close. Suiga also saw Fox's hand bleeding as he jumped out. Suiga then jumped out of the house through a window followed by Fox who was then unconscious. Suiga jumped out of the window being feared accused was armed with a knife. If accused was self-restraint until a minute later then why should Suiga, a close relative of the accused, jumped out of the window of accused's lodge. That clearly shows that that Suiga did in fact escape for his safety. It reflects Suiga is not being truthful about being apprehended by the accused. His reason for being untruthful can be perceived on the basis that he is closely related to the accused and both live in the same village, the village of the incident, which accommodated just family members.

54. The medical report filed by Lovelyn Sade, a registered nurse at Tawaro Clinic who examined the victim on his arrival, states the wound was identified on the right arm between wrist and elbow. The wound was caused by a sharp instrument. It was a punctured wound from the inner arm and penetrated out to the outer arm. Opening of the wound is 4cm wide and the outer arm is 3 cm wide.

55. At cross-examination the accused confirms he never sway his knife in any other directions. He is concentrated on the deceased who gripped his neck. My assessment of the wound could be inferred (Dr was not called for opinion) in that the victim must have stretched his right arm to grab something when he was stabbed by a right handed person with a sharp instrument as knife and landed on the inner part of the arm and penetrated through to outer part. Force used could be assessed as strong, direct with no intervening or disrupted action at all.

56. The medical report seem to support contention alluded by the Crown witnesses who were at the scene at the time.

57. From the two versions, I am satisfied on the Crown evidence. There is proof and logic in it. I must in this respect reject the defence version.

58. I also noted there are number of inconsistencies raise through defence submissions. I accept some of those but they do not severe enough to discredit the entire evidence of the witnesses. Some inconsistencies are also not relevant. For instance, whether there is invitation to attend celebration at Uimadji village and whether there was a fest at all on Christmas eve; time when drinking started, who arrived first at the accused lodge, and who jumped out first, whether the parents of accused attended the scene during the event or after etc. How can an unconscious person see? They are petty inconsistencies, which do not affect the whole entire evidence of Crown witnesses. One paramount reason for swaying of evidence is because the incident occurred more than three years ago. At that time of occurrence accused and majority of Crown witnesses were under the influence of liquor. Mr Kala (PW3) was a child of 13 years at that time. Sequential order of events also change but not to the entirety of discrediting entire the evidence of the witness.

59. One of the major discrepancies has been dealt with by this Court in respect of Suiga's denial of being apprehended. That has been dealt with and reasons had been given.

60. All in all I am satisfied that the Crown has proved its case beyond reasonable doubt and therefore finds the accused guilty of unlawful wounding of Charles Fox. Court to adjourn for further date for submissions as to sentence.

The Court.

^[1] [Unrep. Criminal Case No. 22 of 1998).
^[2] [Unrep. Criminal Case No. 18 of 1998].
^[3] [R V Ward (1987) Cr. App R71 at Page 75.
^[4] Arch bold, 42 edition para 20-21.
^[5] [1988] AC 130
^[6] [1971] 55 Cr. App. R 223
^[7] [1971] 55 Cr. App. R 551
^[8] Priestnall V Cornish (1979) Crim LR 310.
^[9] Blackstones Criminal Practice, 1991 edition.
^[10] [1980] 71 Cr. App. R. 192, C.A.