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R v Ofea [2019] SBHC 41; HCSI-CRC 174 of 2017 (24 May 2019)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case Number 174 of 2017

REGINA

V

JACK OFEA
Accused

Date of Hearing: 4-7 March 2019
Date of Judgment: 24 May 2019

Crown’s Counsel Mr B Dalipanda
Defence’s Counsel Mr. B Ifuto’o

SENTENCE

Maina PJ:

Jack Ofea (Accused) was charged for the offence of murder c/s 200 of the Penal Code. On 9^th December 2016 at Gounasu’u village East Fataleka Malaita Province, he killed Wilsmen Nori (Deceased). He pleaded not guilty on arraignment.

1. Background and Agreed Facts

On the morning of 9^th December 2016 there was an incident occurred at Odou market i.e. Pastor Timothy Kosui was chased by the accused and others. News about the incident with Pastor Kosui reached the village and a group of men with children including the deceased rushed or went to the Odou market. The group said they went there to find out the cause of the problem with Pastor Timothy Kosui and the accused and others.
When the group of men with children arrived at Odou market; the accused had left to his village at Gounasu’u and the men then proceeded to the village.
The Prosecution and defence agreed to the facts that the accused used a steel rod approximately 2.5 meter long to attack the deceased. And he used his 26 inch bush knife to cut the deceased after he attacked with the steel rod. Accused cut the deceased several times with the knife that resulted to the injuries to the deceased on his forehead, both shoulders, left upper limb, abdomen and left leg. The injuries to the deceased made him unable to walk. He bled profusely and lost a lot of blood. The deceased was taken back to his home by the men who came with him to Gounasu’u village but he died on the way.
Autopsy on the deceased was conducted by Dr Roger Marata on 10^th December 2016. A report stated that there were 9 superficial slash wounds; nose; chin and upper limbs. There were 8 other wounds on the forehead shoulders, left upper limb, abdomen and left leg. Deceased died as a result of blood lost from the multiple wounds on him.

2. Facts not disputed

The accused do not dispute that he caused the injuries to the deceased. And it is not disputed that the deceased died from loss of lot of blood from the injuries.

3. Issues

The issues for determination is the fact from the versions of evidence by the prosecution and defence on the moments at the incident or alleged offence.
And there are two related issues:

• (i) Whether accused has intended to cause the death or grievous bodily harm of the deceased or the accused knew that his act would result in the death or grievous bodily harm of the deceased?
• (ii) Whether the accused had acted in self-defence of him and family?

The course of the death of the deceased is not disputed but or the accused only raised a defence on self-defence.

4. The Law

Murder is under section 200 of the Penal Code and requires the proof of malice aforethought. And Malice aforethought is defined in section 202 of the Penal Code:

• “Malice aforethought may be expressed or implied and express malice shall be deemed to be established by evidence proving either of the following states of mind preceding or co-existing with the act or omission by which death is caused, and it may exist where that act is unpremeditated-
  • (a) an intention to cause the death of or grievous bodily harm to any person, whether such person is the person actually killed or not; or
  • (b) Knowledge that the act which caused death will probably cause the death of, or grievous bodily harm to, some person whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused.”

For this case the prosecution is pursuing it case under section 202 (a) and alleging that accused had an intention to cause the death of or grievous bodily harm to the deceased.
And I remind myself that the burden of proof lies with the prosecution to prove its case beyond reasonable doubt.

5. The court

The cause of the deceased’s death is not disputed, the deceased died as a result of loss of blood from the multiple wounds caused by the accused to the deceased. Accused admitted that he inflicted the wounds to the deceased but raised self-defence that he was attacked and he defended him from the attack.

(a) Prosecution Evidence

The accused had the necessary mens rea by ct when shot the deceaseceased with the spear and severally cut him with a 26 inches knife. Consequently he had intention to caue death of or grievous bodily harm of the deceased or knew that his action would probably cbly cause these to the deceased.
Prosecution called witnesses and they gave sworn evidence and cross-examined by the defence; among them were PW 2 Michael Siau, PW3 Elson Sanga, PW4 Michael Faif’u and PW 5 Dudley Fugui.
PW2 testified in court that accused shot the deceased with a steel rod and it landed on the deceased’s chest and he fell down on the ground.
Both PW2 and PW3 stated in the evidence that accused firmly held on the rod at deceased’s body, pulled out or grabbed his knife by his left hand and cut the deceased’s body. Accused did that several times and did it very fast. After the accused finished cutting the deceased with the knife he pulled out the spear from the deceased’s body. He then ran to his house and PW4 and PW 5 stated in their evidences that when the accused arrived at the house they saw blood on weapon (knife and rod) he was holding in his hands.
The autopsy report by the doctor is the deceased died from the loss of lot of blood from the injuries or wounds being struck with a sharp instrument such as a knife and with somewhat strong force. And the prosecution’s evidence is the accused shot the deceased with wire rod and cut his body several times with the knife.

(b) Defence Evidence

The accused acted in self-defence. The deceased shot the accused with steel rod and accused acted to defend him otherwise deceased would cut his head. Accused said they were 30 people who had come to the village for his family and they were all armed with weapons as knives spears; stick and stones.
The accused gave sworn evidence and said he was feeding his pigs when he heard some people attacking his family. He came to assist them but he was attacked from the group of men of about 30 who came to his place.
The group of people came and shouted and when they saw him they threw the stones at him. He said Dudley Fugui shot a spear at him and tore the jean he was wearing. When Fugui threw the spear at him; he reversed to escape on the road. As the accused turned he saw deceased (Nori) was running on the road.
He was holding a re-enforce wire and a knife. Accused ran behind the deceased as he wanted to escape or run away.
Accused and deceased were running and when they were about 4/5 meters away from each other the Accused jumped to the garden area. He jumped because he was afraid of the deceased as he was holding a spear and he might kill the accused with it.
Both of them ran along the road but the deceased blocked the accused and shot him with the spear. The spear missed by accused and both also missed the road. Deceased jumped to the accused with a knife to cut his head but the accused moved closer and the knife missed him.
Accused stated that he held and speared the deceased with the steel rod. And he quickly cut the deceased several times with his knife. Accused said he did this to the deceased to stop him from cutting accused with the knife. From there the deceased fell down and some men came to him. After the cutting he pulled out the spear from the deceased and ran away to his house.
Accused had admitted that he had inflicted the wounds or injuries to the deceased and he also stated at the CXM by the prosecution that he cut the deceased several times with the knife.
And I am satisfied accused had inflicted wounds to the deceased with a steel rod and 26 inch knife as a result the deceased loss of lot of blood and resulted to the deceased’s death.

6. Self-defence

When self-defence is being raised on the evidence the prosecution must exclude it beyond reasonable doubt.
The defence submitted that there was a threat to lives of the accused and his family. Accused said the people did not come to sort out the dispute as there were no chiefs and elders and they were armed with weapons He stated at the cross-examination that the deceased with the group of men did not come to settle the problem but had destroyed his house and other properties. Accused admitted that he caused the death of the deceased but he acted on self-defence.
Prosecution said the people were consisting of men and young children who went to the accused’s place to enquire or want to find out the problem or what had happened to Pastor Kosui and accused at the market. But the defence said the men who came to him were armed with steel rod; knives etc.
I consider the evidences adduced by prosecution and Defence, both tested in cross examination and re-examination and concluded that the people who came to accused’s place were men and young children. When the accused saw the people approached and confronted him, he reacted angrily to them. His honest believe as he said that he was going to die is not establish as there is no evidence of 30 men armed with steel rod and knives they were coming to kill him; although some men and young children went to his place and shouted to the accused.
The wife of the accused gave sworn evidence and alleged that the people who came to their place were the aggressors; a portion or segment of what the accused claim as self-defence.
I am satisfied that beside the presence of the people who came the accused’s place there is no evidence of attack to accused and his family and no damage to properties.
The accused said he acted in self-defence but the prosecution’s evidence is the accused shot the deceased with a steel rod on the chest and made the deceased fell on the ground. The spear went in the deceased’s body and accused held firmly the spear at the deceased’s body; grabbed his knife by his left hand and several times cut the deceased body. He then pulled out the spear from the deceased’s body and ran to his house.
The prosecution evidence or version describe the moment or circumstances when the accused caused wounds to the deceased. This evidence is consistence with the accused’s account when he said that he cut the deceased but did that to stop deceased from cutting him with the knife. The deceased fell down and accused cut the deceased and then pulled out the spear from him.
Further the accused’s evidence raise a disbelief or doubt on his part and in particular when he said that Fugui threw the spear to him and he reversed to escape on the road. He saw deceased running on the road and was holding a re-enforce wire and a knife and he ran behind him.
This evidence relate direct to the line-up moments or occurrence of the act by the accused to the deceased. But it is ambiguous when accused said that he wanted to escape but took the same road the deceased who was at the front was taking or route on. It is so as when escaping from a threat to human life or if you want to escape or run away from a danger to your life; you must avoid the same road or access; cannot run behind or to the person who poses the danger to your life. You must take another route otherwise you have intended to attack or to do some act to the person you were behind him running towards.
And another ambiguity or vagueness of accused’s evidence is when he stated that he and deceased were running and they were about 4/5 meters away from each other he jumped to the garden area because he was afraid the deceased was holding a spear and might kill him with it. Accused stated in his evidence that at the instant or time he was running behind the deceased. That evidence shows accused intended to move or locate himself close to the deceased than escaping the danger of being killed or avoid the spear he allegedly said in the possession of the deceased.
The parts of sworn evidence by the accused are not credible but also proved that the accused was an aggressor as shown in the evidences of the Prosecution witnesses.
Accused was an aggressor and by his act of shooting the deceased with a steel rod on the chest and the deceased to fall on the ground. And while the spear on deceased body; accused firmly held the spear at the deceased’s body; grabbed his knife by his left hand and very fast severally cut the deceased’s body.
Autopsy conducted by Dr Roger Marata that there were 9 superficial slash wounds on the body i.e. nose; chin and upper limbs and 8 other wounds on the forehead shoulders, left upper limb, abdomen and left leg.
These facts and doctor’s report attested the accused’s act with an intention to cause the death of or grievous bodily harm to the deceased. The deceased was already helpless and on ground but accused continued to pursue or wound him and that was unreasonable and excessive force.

7. Conclusion

The injuries to the deceased was caused by the act of accused and the deceased died as a result of the loss of lot of blood. And I am satisfied the prosecution have proven beyond reasonable doubt that the accused had an intention to cause the death of or grievous bodily harm to the deceased Wilsmen Nori
And I am satisfied the prosecution have exclude the defence of self–defence beyond reasonable doubt. The defence by the accused or his acts, behaviours and attitudes when he attacked the deceased were unreasonable and excessive force.
The accused Jack Ofea must be convicted on murder and accordingly I convict the accused on the charge of murder contrary to section 200 of the Penal Code.

8. Orders of the Court

Accused Jack Ofea is sentenced to life imprisonment.

The Court
Justice Leonard R Maina
PUISNE JUDGE