Loumia v Director of Public Prosecutions [1986] SBCA 1; [1985-1986] SILR 158 (24 February 1986)

SOLOMON ISLANDS COURT OF APPEAL

LOUMIA

-v-

DPP

Solomon Islands Court of Appeal
(Connolly and Kapi JJA, Wood C.J.)
Criminal Appeal No. 1 of 1985

15 January 1986 at Honiara
Judgment 24 February 1986

Murder reduction to manslaughter (belief in legal duty to kill) whether duty asserted under custom amounts to law under Constitution Sch. 3 para. 3(1) - whether customary law inconsistent with Constitution s.4 (right to life) - whether customary law inconsistent with Penal Code - whether assessors directed properly on provocation.

Facts:

The appellant was convicted before a judge sitting with three assessors of the murder of three men. The appellant was a member of a group (the Kwaio) who attacked another group (the Agia) with knives, spears and bows and arrows. During the attack the appellant saw one of his people wounded and another killed and so at trial it was maintained that, according to Kwaio custom, it was his duty to kill those responsible for the killing of his relative.

The appellant appealed on the ground that the Acting Chief justice erred in refusing to allow the assessors to consider that pursuant to Kwaio custom the appellant believed in good faith and on reasonable grounds that he had a legal duty to kill those people responsible for the death of a close relative and therefore the appellant lost a chance of conviction for manslaughter rather than murder under s.197(c) of the Penal Code. He also appealed on the ground that the assessors were misdirected in relation to provocation which also deprived him of a chance of conviction for the lesser offence.

The appellant argued that s.4 of the Constitution applied only to relationships between private persons and the State and not to those between private persons only, therefore the appellant's duty to kill under Kwaio custom was not inconsistent with s.4 of the Constitution and so should have been recognised as part of the law of Solomon Islands under Schedule 3 para. 3 of the Constitution.

Held:

1. (Connolly J.A.) Conceding that most of the fundamental rights guaranteed in Chapter II of the Constitution are principally concerned with the relationship between the citizen and the State (Maharaj v. Attorney General for Trinidad and Tobago [1978] UKPC 3; [1979] A.C. 385; 2 W.L.R. 902 and Thornhill v. Attorney General for Trinidad and Tobago [1981] A.C. 61; [1980] 2 W.L.R. 510 followed), if the Kwaio customary duty to kill were part of the law of Solomon Islands it would be public law and therefore inconsistent with s.4 of the Constitution.

2. (Connolly J.A.) The Penal Code, together with so much of the common law as it incorporates, is a complete statement of the law in relation to the offences with which it deals. Killing for revenge is not lawful under the Penal Code or the Common Law. Accordingly, custom which calls for killing, which is a criminal offence under the statutes of Solomon Islands, is inconsistent with statute and, therefore, pursuant to Schedule 3 para. 3(2) of the Constitution is not part of the law of Solomon Islands.

3. (Connolly J.A.) The direction to the assessors on provocation reminded them of Kwaio custom and told them it had to be taken into account. Accordingly, although the direction did not say so in so many word, it met what was contended on appeal that the direction should have told the assessors to consider whether the sight of dead and wounded brothers was enough to make a reasonable East Kwaio pagan villager do as the appellant did. Therefore the direction satisfied s.198 of the Penal Code. (DPP v. Camplin [1978] UKHL 2; [1978] A.C. 705; (1978) 67 Cr. App. R. 14 per Lord Diplock followed).

4. (Kapi J.A.) Because Solomon Islands Constitution differs from that of Trinidad and Tobago, the broad principles stated by the Privy Council in Maharaj v. Attorney General of Trinidad and Tobago (No.2) [1978] 2 All ER 690 cannot be readily applied without examination of the provisions of the Solomon Islands Constitution themselves.

5. (Kapi J.A.) Nothing in s.4 of the Constitution confines the protection against deprivation of life to acts by the State only. If s.4(2) allows a private person to kill in defence of another person or property, then by implication s.4(1) prohibits deprivation of life by a private person.

6. (Kapi J.A.) The fundamental rights provisions in the Solomon Islands Constitution apply to all persons and are limited only by the terms and qualifications set forth therein.

7. (Kapi J.A.) The exceptions to the prohibition on deprivation of life do not include taking life in payback in accordance with custom. By implication it is prohibited and cannot be recognised by law. Accordingly, it is contrary to s.4 of the Constitution and cannot reduce murder to manslaughter under s.197(c) of the Penal Code.

8. (Kapi J.A.) By a different process of reasoning, s.3 of the Penal Code provides that the Code shall be interpreted in accordance with the English Criminal Law. The words "legal duty" in s.197(c) in English Criminal Law do not include a legal duty arising under Kwaio custom. Moreover, the offence was prosecuted under the Code which is exhaustive and customary law is irrelevant unless incorporated therein.

9. (Kapi J.A.) The functions of assessors in Solomon Islands differ from those of juries in other countries in that pursuant to s.274(1) of the Criminal Procedure Code the assessors express their opinion only and by s.274(2) thereof the judge is not bound to conform to that opinion. Accordingly. in basing his decision on the principles outlined in his summing up to the assessors, he properly directed himself on the law of provocation under s.198 of the Penal Code.

Accordingly, the appeal was dismissed.

Cases considered:

Maharaj v. Attorney General for Trinidad and Tobago [1978] UKPC 3; [1979] A.C. 385; [1978] 2 W.L.R. 902
Thornhill v. Attorney General for Trinidad and Tobago [1981] A.C. 61; [1980] 2 W.L.R. 510
DPP v. Camplin [1978] UKHL 2; [1978] A.C. 705; (1978) Cr.App.R. 14
Bedder v. DPP (1954) 38 Cr.App.R. 133
Maharaj v. Attorney General for Trinidad and Tobago (No.2) (1978) 2 All E.R. 690
Ministry of Home Affairs & Another v. Fisher L. Another [1979] UKPC 21; (1979) 3 All E.R. 21

Andrew Radclyffe for the Appellant
John Freeman & Thomas Kama for the Respondent

Connolly JA: The appellant was convicted on 7th December 1984 before Sir John White A.C.J. sitting with three assessors of the murder of John Ramoalama, Peter Maeliliu and Adriano Laugwaro. The appellant, one Hasimae and others were members of a group who, on 3rd August. 1984 attacked the Agia group with knives, bows and arrows or spears, as a result of which the deceased met their death. From the manner of attack it was open to the assessors and to the learned Acting Chief Justice to conclude that there was a common intention to cause death or grievous bodily harm and that those who actually struck the blows were aided, abetted, counselled or procured by the others so that all were guilty under s.21 of the Penal Code; and alternatively that there was a common plan to attack the Agias, that death was a probable consequence and that all were guilty under s.22. In the result, the appellant was, as I have said, convicted of murder Hasimae was convicted of manslaughter and the others were acquitted.

It was contended on appeal that, in effect, the appellant lost a chance of a conviction of manslaughter rather than murder on two grounds. The first was that the learned Acting Chief Justice refused to allow the matter of extenuation, which is the subject of s.197(c) of the Penal Code, to be considered by the assessors. This provision requires conviction not for murder but for manslaughter only if it be proved that in causing the death, the prisoner acted in the belief. in good faith and on reasonable grounds, that he was under a legal duty to cause the death or do the act which he did. The second was that the assessors were misdirected in relation to provocation.

It will be convenient first to deal with the matter of extenuation raised under s.197(c). The legal duty relied upon derives from the Kwaio custom, of which evidence was given by Chief Oleka, that if a close relative is killed custom requires the killing in turn of the person responsible for the death of the close relative even if the person under that duty is himself exposed to the danger of death. Now the Constitution of Solomon Islands, which is the supreme law of the country, does give limited recognition to customary 'Law. Schedule 3 to the Constitution, cl. 3, provides as follows:

"3. (1) Subject to this paragraph, customary law shall have effect as part of the law of Solomon Islands.

(2) The preceding subparagraph shall not apply in respect of any customary law that is, and to the extent that it is, inconsistent with this Constitution or an Act of Parliament.

(3) An Act of Parliament may -

(a) provide for the proof and pleading of customary law for any purpose;

(b) regulate the manner in which or the purposes for which customary law may be recognised; and

(c) provide for the resolution of conflicts of customary law."

The appellant contends that the Kwaio custom takes effect as part of the law of Solomon Islands; and he further contends that he was under an actual legal duty to kill the men in question. If so not only would s.197(c) operate to reduce the offence to manslaughter, but it would seem that the killing became lawful. Section 193,which provides for the offence of murder, provides that any person, who of malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder. But if it be the law that the Kwaio custom imposed an obligation to kill on the appellant, then it would seem that he was guilty of no offence at all. Mr Radclyffe did not, however, go so far but was concerned to establish grounds of extenuation pursuant to s.197(c). In relation to this, I would observe in passing that there is room for doubt whether the appellant had sworn to a belief that he was under a legal duty. What he swore was that in the circumstances, he, having seen one brother killed and another seriously injured in the fight, was under a "custom duty" to do what he subsequently did. It is unnecessary however to dwell upon this point.

The effect of cl.3 of Schedule 3 is in my judgment that the customary law of the Solomons, provided it was not inconsistent with the Constitution or with a statute, received the force of law on the coming into effect of the Constitution, but that its operation may be modified by statute. The learned Acting Chief Justice held that the Kwaio custom is inconsistent both with the Constitution and with the Penal Code and the question is whether he was correct in so ruling.

I deal first with the question whether the Kwaio custom is consistent with s.4 of the Constitution, which provides that no person shall be deprived of his life intentionally save in the execution of the sentence of a court in respect of a criminal offence under the law in force in Solomon Islands, of which he has been convicted. Section 4(2) provides that a person shall not be regarded as having been deprived of his life in contravention of if he dies as a result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably necessary for defence of any person or property, to effect lawful arrest or prevent escape, for the purpose of suppressing riot, insurrection or mutiny or to prevent the commission of a criminal offence or if he dies as the result of a lawful act of war. Section 4 is part of Chapter II which deals with the protection of fundamental rights and freedoms of the individual. It was argued that s.4 and indeed most of the other fundamental rights provisions do not relate to relationships between private persons but rather to the relationship between the State and private persons. It is contended therefore that the fundamental rights provisions are concerned with the field of public civil law and have no application in the present case. It may be conceded for present purposes that most of the provisions of Chapter II are principally concerned with the relations between the citizen and the state.

See Maharaj v. Attorney General for Trinidad & Tobago [1978] UKPC 3; [1979] A.C. 385; [1978] 2 W.L.R. 902; Thornhill v. Attorney General for Trinidad & Tobago [1981] A.C. 61; [1980] 2 W.L.R. 510, both of which were decisions of the Privy Council.

The fundamental rights and freedoms of the individual may be infringed by the State in, broadly speaking, one of two ways. The infringement may occur arbitrarily and in defiance of the general rules of law. In such circumstances the individual has his remedy in the courts. It is thus not strictly necessary, though it may be salutary, to have contained in the Constitution provisions guaranteeing those fundamental freedoms. The evident purpose of the provisions of Chapter II is to prevent the infringement of those freedoms by the enactment of laws or regulations which impair them. The customary duty to kill or maim a wrongdoer who has himself killed or maimed which is contended to be part of the law of Solomon Islands in relation to the Kwaio people would, to that extent, be a part of the public law and therefore, on any view, inconsistent with s.4 of the Constitution. The question whether it can stand with s.4 of the Constitution may be tested by asking whether the National Parliament itself could, consistently with s.4, pass an Act imposing such a duty on relatives of a victim. Clearly enough, the National Parliament could not do so consistently with s.4. There is thus a clear conflict between the custom which is relied upon and s.4 of the Constitution.

It is also desirable that this court rule on the question whether the custom set up is consistent with the Penal Code and so much of the Common Law of England as falls to be applied pursuant to ss.2 and 3 of the Code itself. Section 4 deals only with deprivation of life. The court should not, by its decision, give any encouragement to the view that an alleged duty to maim or otherwise injure the person or property of others can render lawful that which is expressly made unlawful by the Statute Law of Solomon Islands. In this connection the Penal Code, together with so much of the Common Law as it incorporates, is a complete statement of the law in relation to the offences with which it deals. I need scarcely say that as an "existing law" it was continued in operation by the Solomon Islands Independence Order 1978 cl.5.

It is beyond question that a killing for revenge or retaliation could not have been regarded as a lawful act in the application of the Code or at Common Law. The defences available will be found in Part IV of the Code which deals with the general rules as to criminal responsibility. The matters of extenuation which will reduce the offence from murder to manslaughter are set out in ss.196, 197 and 199 of the Code and it is sufficient to say that the desire to avenge the death of another or exact retribution are not matters of defence or extenuation either under the Code or at Common Law. Clearly therefore, in my judgment, custom which calls for action which is a criminal offence by the statute law of Solomon Islands is inconsistent with statute. Thus cl.3(2) of Schedule 3 to the Constitution has the result that no such custom can have effect as part of the law of Solomon Islands. The ruling of the learned Acting Chief Justice was therefore plainly correct.

The appellant had also set up, as a ground of extenuation, that the sight of the death and wounding of his brothers amounted to provocation, and that the killings of which he was convicted were the result of that provocation. The learned Acting Chief Justice let the case go to the assessors on the footing that the events relied upon were sufficient to amount to provocation and the question then, pursuant to s.198 of the Penal Code, was whether "the provocation was enough to make a reasonable man do as he did." The section requires that in determining that question there shall be taken into account everything both done and said "according to the effect which it would have on a reasonable man." Section 198 of the Penal Code reproduces (with the substitution of the court for the jury and the deletion of the reference to the opinion of the jury), the provisions of s.3 of the Homicide Act 1957 of the United Kingdom. In Director of Public Prosecutions v. Camplin [1978] UKHL 2; [1978] A.C. 705; (1978) 67 Cr. App. R. 14 Lord Diplock, whose speech had the concurrence of Lord Fraser of Tullybelton and Lord Scarman, expressed the view that a proper direction to a jury under s.3 of the Homicide Act 1957 would be on the following lines:

"The judge should state what the question is using the terms of the section. He should then explain to them that the reasonable man referred to in the question is a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused's characteristics as they think would effect the gravity of the provocation to him; and that the question is not merely whether such a person would in like circumstances be provoked to lose his self-control but also would react to the provocation as the accused did."

Now the learned Acting Chief Justice did not use this formulation. What is complained is that his Lordship failed in terms to direct the assessors that they should consider whether the provocation was enough to make a reasonable East Kwaio pagan villager do as the appellant did and that in determining that question they should take into account everything according to the effect it would have on a reasonable East Kwaio pagan villager. Now without in the slightest degree questioning the guidelines suggested by Lord Diplock, it may be noted that it is not expressed to be a formulation which must be adopted and on its face it is no more than a proper direction. Any other direction to the same effect will equally satisfy s.198. His lordship in this case did indeed state what the question was, using the terms of the section. He did not in so many words say that the reactions of the appellant should be assessed for the purposes of s.198 in the light of his being an East Kwaio pagan villager but that fact was adverted to more than once.

The assessors were indigenous Solomon Islanders and their assessment of the behaviour and reactions of a person such as the appellant might be expected to reflect that. In particular, it should be noted that in directing on provocation his Lordship reminded the assessors of the Kwaio custom and told them that they might think that that was a matter which had to be taken into account. When the whole of the summing up is regarded I do not think that there was any misdirection in this respect.

In relation to the decision in Camplin it should also be noted that the House was concerned to correct an error at the trial, the jury having been directed to ignore, in relation to provocation, the fact that the prisoner was a 15 year old lad. Similarly in Bedder v. D.P.P. (1954) 38 Cr. App. R. 133 which was disapproved in Camplin, the jury had been directed to ignore the very infirmity in the prisoner about which he was taunted by the victim, this being the provocation. That is not this case. On the contrary, the directions to the assessors emphasised at many points that the appellant had the characteristics which the notice of appeal contends should have been brought to their attention.

In the result I would dismiss this appeal.

Kapi JA: The appellant was convicted of murder by the High Court (sitting with assessors), pursuant to s.193 of the Penal Code (Ch.5). The circumstances of the case are set out in the judgment of Connolly, J.A. The first ground of appeal raises a question of law, namely, that the learned trial judge erred in law in ruling that the matter of extenuation raised by the appellant pursuant to s.197(c) of the Penal Code was inconsistent with the Penal Code and the Constitution.

At the trial, counsel for the appellant raised the defence under s.197(c) of the Penal Code which is in the following terms:-

"197. Where a person by an intentional and unlawful act causes the death of another person the offence committed shall not be of murder but only manslaughter if any of the following matters of extenuation are proved on his behalf, namely-

(a) ......

(b) .......

(c) that, in causing the death, he acted in the belief in good faith and on reasonable grounds, that he was under a legal duty to cause the death or to do the act which he did."

It was argued under this provision that when the appellant killed the deceased, he acted in the belief and in good faith and on reasonable grounds that he was under a legal duty to do so. The legal duty upon which he acted was based on customary law. The customary law relied upon in short was that the appellant's brother was killed by the deceased and that he was under a duty in accordance with the customary law of Kwaio to kill the deceased in payback. The learned Acting Chief Justice rejected this argument.

The Court here was concerned with the application and interpretation of a s.197(c) of the Penal Code. In order to appreciate the legal issues raised in this ground, it is necessary to give an interpretation and the applicability of this provision.

A person who wishes to rely on this provision must prove the following elements:

(1) That by an intentional and unlawful act he caused the death of another.

(2) That he acted in the belief in good faith and on reasonable grounds that he was under a legal duty to cause the death. This presupposes that he has some knowledge of the existence of a legal duty.

(3) The belief referred to above must be based on an existence of a legal duty to cause death or to do an act in accordance with a principle of law.

The essence of this defence is that a person acts in good faith and on reasonable grounds but under a mistaken belief that he was acting under a legal duty. For if a person acts properly in accordance with a legal duty, that would be a different matter altogether. For instance, if a person acts lawfully in defence of another person or property and causes death, under s.17 of the Penal Code, such a person may not be criminally responsible for the death. However, the section has an element of mistake. That is the only way the words "belief in good faith and on reasonable grounds" can be given any sensible meaning. The defence does not excuse a person from criminal responsibility but simply reduced murder to manslaughter. Let me give an illustration. A person charged with murder may rely on this provision if he killed a person in defence of another person or property. The duty to defend such a person or property is set out under s.17 of the Penal Code. His defence under s.197(c) of the Code is made out if he can prove that he acted in good faith and on reasonable grounds but under a mistaken belief that he was under a duty to defend. In other words, he acted out of duty in accordance with s.17 but the circumstances did not justify such an action. He was therefore mistaken.

In applying the provision, the learned Acting Chief Justice only considered the third element - the existence of a legal duty according to law. He found that there was no such legal duty in law as the customary principle relied upon was inconsistent with the Constitution and the Penal Code. Had he found that there was such a legal duty, he would have gone ahead and considered the second element - that is, whether, the appellant acted under a reasonable but a mistaken belief that he was under a legal duty to cause the death of the deceased. However, he did not go as far as that.

This ground of appeal is therefore confined to the third element. As I have pointed out before, the existence of a legal duty must be supported by reference to some other provision or law applicable in Solomon Islands. For instance, if the legal duty relied upon is based on defence of a person or property, the existence of that duty must be determined in accordance with the principles of common law as adopted under s.17 of the Penal Code. In the present case, the appellant relied upon a legal duty to kill in accordance with the principles of a customary law. While evidence was called to establish this custom, the learned Acting Chief Justice did not make any findings. He simply assumed that this was the relevant customary law.

The applicability of this law must be determined in accordance with Schedule 3(3)(2) of the Constitution. As I understand the custom, it was put on the basis that a person who kills another person according to custom the circumstances of this case, would not be held responsible for the killing. What is being considered here is customary law as a separate body of law as distinct from other sources of law recognised and applied under the Constitution.

Is this principle of customary law inconsistent with the Constitution? The relevant provision is s.4 of the Constitution.

"4. (1) No person shall be deprived of his life intentionally save in execution of a sentence of a court in respect of a criminal offence under the law enforced in Solomon Islands of which he has been convicted.

(2) A person shall not be regarded as having been deprived of his life in contravention of this section if he dies as the result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably justifiable –

(a) for the defence of any person from violence of defence of property;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) for the purpose of suppressing a riot insurrection or mutiny; or

(d) in order to prevent the commission by that person of a criminal offence, or if he dies as the result of a lawful act of war."

Counsel for the appellant has submitted that this section does not apply to the circumstances of this case. He based this submission on the proposition that the fundamental rights provisions in the Constitution do not a ply to relationships or dealings with or between private persons - they only apply to relationships between the State or Government or its agents and private persons. The effect of this submission is that as the fighting which resulted in the death of the deceased took place between private persons (that is the deceased and the appellant) that the deceased were not entitled to the protection of life pursuant to s.4 of the Constitution. Counsel sought to support this submission on a decision of the Privy Council in the case of Maharaj v. Attorney General of Trinidad and Tobago (No. 2) (1978) 2 All ER 690.

This submission invites the Court to cut down the application of fundamental rights provisions to a limited number of circumstances. The decision of the Privy Council on this point is distinguishable. The fundamental rights provisions of Trinidad and Tobago Constitution (Ch.1) are different from the corresponding provisions in the Constitution of Solomon Islands:

(a) Human Rights provisions in Trinidad and Tobago proceed on the basis that these rights are secured by existing laws before the Constitution came into force, (see s.1). The protection giver, by this section only goes as far as is protected under the existing law. This is modelled on the Canadian Bill of Rights, 1960, 8 & 9, Eliz. II, 644. Whereas ch. II of the Constitution of Solomon islands creates the rights and the freedoms. They are therefore separate from other rights and freedoms which may be conferred by other laws. It is modelled or the European Convention on Human Rights (1950).

(b) All existing laws which secure rights in Trinidad and Tobago are not to be read subject to s.1 of the Constitution (see s.3), whereas, the corresponding provisions in the Constitution of Solomon Islands are supreme and all existing laws which continue to operate by virtue of s.5 of Solomon Islands Independence Order 1978, Schedule 3(1) and Sch. 3(2) are all made subject to the Constitution (see s.2 of the Constitution).

(c) Protection given by ss.2 and 3 of the Constitution of Trinidad and Tobago by their very terms are directed at any contravention by the State or by some other public authority. Whereas, the provisions in the Constitution of Solomon Islands are drafted in greater detail and the extent to which they apply must be inferred from the provisions themselves.

(d) The Privy Council was concerned with the question of "redress" for breach of right to personal liberty without due process of law. They were not concerned with right of life.

For these reasons, I do not consider that the broad principle stated by the Privy Council can be readily applied without proper examination of the provisions of the Constitution of Solomon Islands.

Having regard to the provisions relating to fundamental rights in the Constitution of Solomon Islands, I cannot find any support for the submission made by counsel for the appellant. It is true that most of the provisions in ch.II are principally concerned with relations between citizen and the State. However, I cannot find any words in s.4 which would confine the protection against deprivation of life by the State only. The words, “No person shall be deprived of his life intentionally . . . . . ” must be given a wide and generous application. Ministry of Home Affairs & Another v. Fisher and Another (1979) All ER 21, per Lord Wilberforce.

Purpose of s.4 is to protect the right to life against any person or authority (including) the State). This can be inferred from s.4 (2) (a) where it is permissible under a law (e.g. s.17 of the Penal Code) to allow a private person to kill another in defence of another person or property. The implication is that s.4 (1) prohibits deprivation of life by a private person.

Examination of the other provisions in II also support a wider application of fundamental rights provisions. Section 15(3) of the Constitution prohibits certain types of treatment as between private persons and private bodies.

The essence of fundamental rights provisions in Solomon Islands is that they apply to all persons and they are limited only by their terms and the qualifications set out thereunder.

I reject the submission by counsel for the appellant and find that the deceased were entitled to the protection of life under s.4 of the Constitution.

Section 4 of the Constitution quite clearly prohibits intentional taking of life. The provision also sets out the exceptions which may be permitted by law. The exceptions do not include taking of another person's life in payback in accordance with custom. By implication it is prohibited and therefore it is incapable of being recognised or enforced by any law. The learned Acting Chief Justice was right in concluding that this customary principle was incapable of being applicable as contrary to s.4 of the Constitution.

Is the customary principle in question inconsistent with the Penal Code? Section 193 of the Penal Code prohibits intentional killing. There is no express provision under the Code which permits a person to kill another person in payback in accordance with custom. However, it was submitted at the trial that a legal duty arising under custom is incorporated into the Penal Code by the words "legal duty" under s.197(c). Although, the learned Acting Chief Justice did not say so in so many words, it appears from his ruling that he accepted this construction. It was on this conclusion that he found it necessary to consider whether or not the legal duty under customary law was inconsistent with the Constitution. Having reached this conclusion, the question of the inconsistency between the customary law in question and the Penal Code does not arise. It would be incorporated as part of the Penal Code and reduce murder to manslaughter. Although I have come to the contrary view on this point, this ground of appeal will be dismissed as I have held earlier that the customary law principle would not be applicable as it is inconsistent with section 4 of the Constitution.

The final result of my reasoning is that the duty to kill another person in payback in accordance with Kwaio custom is incapable of being applied or recognised as part of the law of Solomon Islands. Therefore, the third element under s.197(c) as outlined earlier, cannot include the customary law in question. Section 197(c) is unable to assist the appellant in the circumstances of this case.

The same result can be reached by process of a different reasoning. As I have pointed out before, the learned Acting Chief Justice appears to have accepted the interpretation that the words "legal duty" under s.197(c) of the Penal Code are capable of including a legal duty according to a principle of customary law. In my opinion, the proper view is that the words " legal duty " do not include a duty arising under a customary law Such a construction would be supported by section 3 of the Penal Code.

"3. This Code shall be interpreted in accordance with ... and the principles of legal interpretation obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context, and except as maybe otherwise expressly provided, to be used with the meaning attaching to them in English Criminal Law and shall be construed in accordance therewith.,"

Applying the latter part of the above provision, it is difficult to see that the words "legal duty" in English Criminal Law bear the meaning which would include a duty arising under a customary law of Solomon Islands.

On this construction, the question of customary law would not be relevant as the offence was prosecuted under the provisions of the Penal Code. The Code itself is exhaustive on all matters and unless other sources of law are incorporated (e.g. section 17 of the Code), they are not relevant.

There appears to be three sources of Criminal Law in existence in the Solomon Islands:

(1) Statutory Laws.

(2) Common Law as applied under Schedule 3(2) of the Constitution.

(3) Customary Law as applied under Schedule 3(3) of the Constitution.

In this respect the Constitution of Solomon Islands is different from the Constitution of Papua New Guinea in that only written law (i.e. Statutory Laws or Constitutional Laws) can prescribe a criminal offence and other related matters. See section 37 (2) of the Constitution of Papua New Guinea.

For these reasons I would dismiss this ground of appeal.

In relation to the second ground of appeal, agree, with Connolly, J.A. that this ground should be dismissed. Function of assessors in Solomon Islands is different from the function of juries in other countries. Assessors are only required to express an opinion on matters referred to them by the judge. Section 274(1) of the Criminal Procedure Code (Ch.4). The judge is not bound to conform to the opinion of assessors. The final decision is vested exclusive in the judge. Section 274(2) Criminal Procedure Code.

Therefore, the decision on provocation under s.198 of the Penal Code vests exclusively in the Acting Chief Justice. The learned Acting Chief Justice was not unaware of this because in his summing up to the assessors he stated,

"The law provides and I should mention this just for completeness that your findings are not binding on the judge under the law."

After the assessors announced their opinions, the learned Acting Chief Justice reached his own decision in the following words:

"In the cause of considering the case I have considered the evidence in accordance with the principles to be applied and I accept the opinion of the assessors."

On the question of law of provocation under s.198 of the Penal Code, he based his decision on the principles outlined in his summing-up to the assessors. Connolly, J.A. has adequately dealt with this in his judgment. I agree with his reasons and find that the Acting Chief Justice in reaching his decision adequately directed himself on the law of provocation under s.198 of the Penal Code.

I would dismiss this ground of appeal as well.

Wood C.J.: I will read the judgments of Connolly and Kapi JJA.

Having had the opportunity of reading the judgments of Connolly and Kapi JJA and having nothing useful to add I respectfully concur with the judgment of Connolly JA and world also dismiss this appeal.