Mataroa v Republic [1998] KICA 2; Criminal Appeal 02 of 1997 (9 March 1998)

IN THE COURT OF APPEAL OF KIRIBATI
CRIMINAL JURISDICTION

CRIMINAL APPEAL NO. 2 OF 1997

BETWEEN

RUOIKABUTI MATAROA
Appellant

AND

THE REPUBLIC
Respondent

Date of Hearing: 4 March 1998
Delivery of judgment: 9 March 1998

Mr D Lambourne for the Appellant
Ms P Tebao for the Respondent

JUDGMENT OF THE COURT
(Gibbs V.P., Connolly and Ryan JJ.A)

The Appellant was convicted of the murder of Koru Motete on 26 October 1996 at Utiroa, Tabiteuea North. He appeals from his conviction on the ground that the learned Chief justice misdirected himself on the question of provocation.

The evidence established that on the evening of 26 October 1996 Koru was drunk. One Teitintau had called in to Koru's house to obtain some Bingo, an alcoholic drink, but had found Koru's wife alone. When Koru came back to his house soon afterwards he attacked Teitintau. They fought for some time but then stopped fighting and Teitintau returned to his house. However, Koru followed him and again fought with him. They were then separated by one Roobu, a community worker, who went with Koru to Koru's house. While they were there the Appellant appeared armed with a spear and a bush knife and said that he had come to fight with Koru. The Appellant gave evidence that his reason for this was that some time earlier Koru had come to his house and attempted to stab him and that the Appellant wanted to ask him why he had done so. Roobu tried to calm the Appellant who said, "don't stop me, otherwise you will receive a blow for him". Roobu then ran off with Koru. supporting him because he was drunk. As Koru was being dragged away he loudly shouted words that meant that the wife of the Appellant had frequently had sex with other men; according to the Appellant's evidence Koru also said that he was one of the men who had had sex with the Appellant's wife.

Roobu took Koru away but left him on the roadway, when he went to get a torch. When he returned he found Koru lying dead. He said that he was away for 15 or 20 minutes.

The evidence as to what happened in the meantime is somewhat confused. The Appellant said that he prepared himself for a function (namely a funeral) that he had to attend and that he had stopped being angry when he was preparing for the function because his child was at the function. On his way to the function he saw his wife Erati who had gone to the house of one Tearoba. It may be inferred that she had gone there to escape her husband's anger. The Appellant questioned his wife about Koru's charges of sexual impropriety and said in evidence that he was planning to finish her off if the charges were true but that when she told him they were not true, he became angry at what Koru had said.

Tearoba tried to persuade him not to break the peace but the Appellant said, "Now I will go and take him or he will take me", referring of course to Koru. The Appellant said that after a while they managed to calm down and he said, "Let's go to the funeral and Set the children". They walked off and on the way met Teitintau and stopped and spoke with him While they were talking, Koru approached. He changed direction and walked quickly towards the Appellant. He appeared angry. The Appellant shone a torch in his face and hit him with a bush knife which he was carrying. It is not unusual to carry a knife in Tabiteuea North. The wound caused Koru's death. The Appellant said that he thought that Koru was going to come and stab him again and also said that he was angry because he remembered the bad things he had said about. his wife. The evidence which was accepted by the learned Chief justice shows that Koru was not in fact armed at the time.

There is a dual test for provocation. First, was the accused actually provoked into losing his self-control as a result of which he committed the act which killed the deceased? Secondly, was the provocation such that it was capable of causing an ordinary person to lose self-control and to act in the way that the accused did? The burden of negativing provocation lies on the prosecution.

The learned Chief justice accepted that there was some provocation, namely, the evidence that Koru had earlier in the evening attempted to stab the Appellant and the evidence that Koru had said some very insulting things about the Appellant's wife. However, he found that there was no evidence that the Appellant killed Koru at a time when he had lost his power of self-control. He dealt with three incidents. As to the first, the attempt by Koru to stab the Appellant, he said that there was no evidence that that incident had caused the Appellant to lose his self-control. As to the second incident. the insulting words said by Koru, he mentioned the Appellant's own evidence that his anger had disappeared and that he prepared himself to go to the funeral. The learned Chief justice further said that the Appellant's decision that if he was not happy with his wife's explanation of what Koru had said, he would kill her, was not the conduct of a man bereft of self-control. Rather, he said that Tearoba's evidence was that the accused had already made up his mind to kill or be killed, so far as Koru was concerned. As to the third incident, the learned Chief justice found that the way in which Koru approached the Appellant was not capable of amounting to provocation. Moreover, the shining of the torch, by the Appellant, possibly to make sure that his aim was true or to blind Koru, and the fact that it took only one blow to kill Koru, did not indicate that the Appellant had lost control of his mind. He found what the Appellant did was the deliberate fulfilment of what he had set out to do.

The learned Chief justice went on to say "the evidence clearly establishes that since the earlier two incidents the accused had formulated a desire for revenge, and a desire for revenge is inconsistent with provocation since the conscious formulation of a desire for revenge meant that a person has had time to think, to reflect. and that negatives a sudden temporary loss of self-control which is of the essence of provocation". He cited the decision in Duffy (1949) 1 All E.R. 932n where Devlin J. said: “. . . circumstances which induce a desire for revenge, or a sudden passion of anger, are not circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that a person has had time to think, to reflect, and that would negative a sudden temporary loss of self-control which is of the essence of provocation".

The summing up of Devlin J. in which these remarks appear has met with approval, no doubt because of the way in which it states the general principles. However the remarks which have been cited are too narrow. Circumstances which induce a desire for revenge may also lead to a loss of self-control. The relevant aspect of the test is whether the accused lost his self control as a result of the provocation. It is immaterial that he also sought revenge if he in fact lost his self control. Of course if he consciously and deliberately sought revenge that is another matter.

With all respect, we cannot agree that the Appellant in stabbing Koru was carrying out a formulated plan to revenge himself. He did not seek out Koru. He was on his way to the funeral when Koru saw him, changed direction, and walked rapidly towards him showing signs of anger. From the Appellant's point of view, the man bearing down on him had recently attempted to stab him, had attacked another, and had vilified the Appellant's wife. In these circumstances, we consider that it is not possible to be satisfied, beyond a reasonable doubt, that the Appellant did not lose his self control as a result of Koru’s actions and words, past and present. The final approach of Koru was, if we may resort to metaphor, the spark that lit the tinder already made inflammable, or the extra weight that turned the burdened scale. Taken in conjunction, the three provocative incidents made the Appellant lose his self control, and were capable of causing an ordinary inhabitant of Tabiteuea North to act as the Appellant did or, more precisely, that this was so has not been excluded beyond reasonable doubt.

We hold, therefore, that in this case the Appellant should have been found guilty of manslaughter only.

The appeal will be allowed, and the conviction for murder quashed. In lieu thereof there will be substituted a verdict of guilty of manslaughter. The case will be remitted to the High Court to sentence the Appellant in accordance with this judgment.

Vice President: Gibbs V.P.
Judge of Appeal: Conolly JA
Judge of Appeal: Ryan JA