Regina v Titiulu [2005] SBCA 10; CA-CRAC 006 of 2005 (4 August 2005)

IN THE SOLOMON ISLANDS COURT OF APPEAL

PARTIES:

REGINA
(Appellant)

-v-

TIMOTHY TITIULU
(Respondent)

NATURE OF JURISDICTION: Appeal from Judgment of the High Court of Solomon Islands (Chetwynd Commissioner)

COURT FILE NUMBER: Criminal Appeal No 6 of 2005 (On Appeal from High Court Criminal Case No 113 of 2004)

DATE OF HEARING: Tuesday 19^th July 2005

DATE OF JUDGMENT: Thursday 4^th August 2005

THE COURT: Lord Slynn of Hadley P, Adams & Kabui JA.

ADVOCATES: Appellant: Peter Little & Ricky Iomea

Respondent: Lorraine Kershaw

JUDGMENT

Kabui JA: This is an appeal by the DPP filed on 6/4/2005 under section 21(1) (a) of the Court of Appeal Act (Cap. 6) which allows the DPP to appeal to the Court of Appeal on a point of law. At the hearing of the appeal, Counsel for the Appellant, Mr. Little dropped grounds 2, 5 and 6 of the appeal but maintained grounds 1, 3, 4 and 7. The combined effect of the remaining grounds of appeal was summarized into two arguments meant to constitute the points of law for the consideration of the Court. The first point was that the learned Commissioner erred in taking into consideration the relationship between the deceased’s brother and the prisoner’s daughters as part of the events leading to the prisoner’s action. The second point was that the Commissioner had failed to make a finding as to what had been said by the deceased that caused the prisoner to act in the way he did towards the deceased. Counsel for the Respondent, Ms Kershaw argued that these points of law were not sufficient in the circumstances of the case to merit allowing the appeal. The conclusion reached by the Commissioner was based upon the evidence before him after the assessment of the evidence. On the basis of that assessment of evidence, the Commissioner found that there was a basis for him to find the prisoner guilty of manslaughter on the ground of provocation and acquitted him of murder.

The issue.

The issue clearly is whether or not the Commissioner was correct in applying the law of provocation on the facts and reaching the correct conclusion as he did.

The facts upon which intend to harm the deceased by the prisoner was based as a conclusion reached by the Commissioner.

On or about 7/5/2003, the prisoner with a group of relatives went to Noro. The purpose of their going to Noro was to ask for compensation from Nathan Loe. On arrival, the group spoke to the female relatives of the deceased. A little later, the group split into two sub-groups. The majority of them proceeded on the main road whilst the prisoner and another person took a short cut. One of the sub-groups met some women and said they had come to see Nathan Loe about compensation and had come to kill him. The prisoner had a knife with him. The prisoner denied having met or spoken to any women or telling them that they had come to kill Nathan Loe. What he said was that he had told the other group to look for Nathan Loe and that he would go to the wharf. It is not disputed that the prisoner was responsible for assembling the group and travelling with them to Noro. The Commissioner described the prisoner as the “engine” of the group in terms of getting them together and moving them to Noro on his instructions. Nathan Loe being a married man had had extra-marital affairs with two daughters of the prisoner. This fact explained why the prisoner and his group went to Noro to seek compensation from Nathan Loe. The Commissioner reached the conclusion on the evidence that the prisoner and his group had been aggressive in attitude towards Nathan Loe and if their demand for compensation was not heeded, they would harm Nathan Loe for that reason. They were capable of doing that for the prisoner was armed with a knife, a lethal weapon. There was evidence to show that the prisoner was the person who stabbed the deceased after pushing the deceased and speaking to the deceased saying that the deceased was one of them. At that point in time, there was no reason why the prisoner should stab the deceased and so the conclusion reached by the Commissioner was that the prisoner had intended to harm the deceased and thus caused his death by stabbing him in the chest. That would have been a reason for the Commissioner to reach the conclusion that he should convict of murder as alleged by the Crown.

The evidence of provocation.

The prisoner in his evidence said that he was aware of his two daughters’ affair with Nathan Loe. He said Nathan Loe used his second daughter as his wife. He was not happy. He said Nathan Loe’s wife approached him and asked him to take back his daughter from her husband or else she would fight her husband over it. He was much troubled about the situation as it was against Melanesian custom and would inevitably involve a demand for compensation from Nathan Loe. He spoke to Pastor Warame about the matter but he could not speak directly to Nathan Loe and his uncle. In the meantime he heard that his daughter had gone to Honiara and so he sent his wife to bring her back. His wife went to Honiara and returned without her daughter but he heard that his daughter was staying with his brother and he felt better for that reason. His wife returned from Honiara and told him that she was sick. She had a lump in her breast. This was an additional worry for him. Again, his wife returned to Honiara because of her sickness. Again, Nathan Loe’s wife confronted him and demanded that he call back his daughter as she was again staying with Nathan Loe. He became sick following that visit by Nathan Loe’s wife. His wife arrived back from Honiara and he took her home. Through the intervention of Prescot, his wife’s uncle, his daughter returned from Seghe. He talked to his daughter and advised her not to contact Nathan Loe again. Her daughter had caught asthma. He spoke to a Pastor about his daughter’s situation. In spite of that, his daughter took off again with Nathan Loe. This time, he demanded compensation of $2000.00 and told his wife to look for Nathan Loe where he worked. Nathan Loe did not bother paying the compensation being demanded by the prisoner despite visits to him by his wife for that purpose on his instructions. He became very upset as the behaviour of Nathan Loe demonstrated a total lack of respect for him. At this point, he decided to go to Noro to get his compensation. At the wharf, he told a small boy to go and tell Nathan Loe to come and talk to him. Nathan Loe not being available, he spoke to the deceased, the brother –in-law of Nathan Loe. He saw Loe walking down. The deceased in an aggressive way uttered the words, “For what.” He said he was cross and upset about that sort of approach. He then slapped the deceased with his left hand to which the reply was, “You eat shit, you wait for me” whereupon he said he went blank. He said he had a knife in his pocket as he had been fishing. When asked in cross-examination whether he went to Noro with anger, he said no because he went to see Loe to settle the problem. According to the Commissioner, the prisoner’s evidence was not challenged on provocation issue. As rightly said by the Commissioner, the burden of proof beyond reasonable doubt was borne by the Crown to show the absence of provocation. That burden of proof was not discharged by the Crown in this case. No harm had come to Nathan Loe who was the person the prisoner had gone to see to settle their difference.

The law on provocation

The relevant sections in the Penal Code on provocation are sections 204 and 205. One of the grounds in section 204 upon which a murder charge can be reduced to manslaughter is ground (a) in that the accused was deprived of the power of self-control by such extreme provocation given by the person killed. Section 205 says that the sufficiency of provocation of a reasonable man in terms of losing self-control, is a matter for the court. In determining that question, the court must take into account everything both done and said according to the effect which it would have on a reasonable man. The circumstances, in the opinion of the Commissioner, which qualified the prisoner as a reasonable man under section 205 above so as to lose his power of self-control are set out on pages 6 to 8 of the Commissioner’s judgment. The Commissioner said and I quote-

“When I am to consider the “reasonable man” who is mentioned in s.205 of the Penal Code I am also to take into account, “everything both done and said according to the effect which it would have on a reasonable man.” There appears to be a bar to me taking into account what was done by Nathan Loe when the person killed was Alphida Hitu. In s.204 it says, ”... such extreme provocation given by the person killed” [my emphasis]. However, in my view s. 205 and the authorities are clear on that point, I am entitled to and should take into account everything both done and said and that includes what was done and said by Nathan Loe. ^[1]

It is possible then that something was said by Alphida Hitu to the Defendant. The prosecution has not proved beyond reasonable doubt that nothing was so said. The independent witness was not fully focused on what was going on and it is not too fanciful to conclude that he might have missed an exchange of words. If an aggressive response was forthcoming from Alphida Hitu then it would have been very provocative to the Defendant, on his evidence it caused a kind of black rage where he cannot remember anything for half an hour. I do not accept the Defendant’s evidence on the period of time that he “blacked out” it is simply too convenient. However I do accept that he flew into a blind rage and during that period of time he stabbed the unfortunate victim Alphida Hitu.

All that had led up to the stabbing was enough to provoke the Defendant and the final straw was possibly something said by Alphida Hitu. I am therefore of the opinion that the answers to the matters I am required to consider by s.205, namely was there provocation and was it sufficient to cause the Defendant to lose his self control are yes. As stated earlier, it is not for the Defendant to prove these things, it is for the Prosecution to prove otherwise beyond reasonable doubt.”

Evaluation and Assessment

In summary then, the prisoner was a Melanesian villager who was married and had two daughters. He was educated only up to primary level. The behaviour of Nathan Loe, the brother –in-law of the deceased, towards his daughters being a married man was a breach of custom. Payment of compensation for the wrong done to him as the father of the two daughters was inevitable. It was only a question of time before it was paid according to his custom. Nathan Loe was not co-operating in that regard and in spite of approaches made to him for that purpose, he showed resistance to that idea. The fact that one of his daughters had not listened to his advice to stay away from Nathan Loe and the pressure from Nathan Loe’s wife demanding him to take back his daughter from her husband would have put him in a dilemma of whether to satisfy Mrs. Loe’s demand first or to satisfy his demand for compensation. There was also the disrespectful and rather arrogant attitude of Nathan Loe who seemed not to appreciate the prisoner’s problem caused by none other than himself to the prisoner. Nathan Loe must pay him compensation. He went with that intention to Noro. When he got there, he went to the wharf to speak with Nathan Loe but he was not immediately available for that purpose. Instead, he spoke to the deceased who aggressively replied with words importing in meaning, non-cooperating in or blocking of what he had come to do. Obviously, one meaning of the behaviour of the deceased was that he was siding with Nathan Loe in what Nathan Loe was doing. Such feeling is not impossible bearing in mind that the deceased was the brother -in -law of Nathan Loe. The custom of the deceased may well be different from that of the prisoner regarding marital matters. Swearing by the deceased perhaps in response to being slapped added to the prisoner’s feeling of frustration and anger thus losing his head as it were and struck the deceased with the knife he had with him. It was not retaliation because there is no evidence to suggest that conclusion. It was the attitude of Nathan Loe that the deceased had when the prisoner spoke to him at the wharf just before the deceased uttered the swearing words. The question is would an ordinary Solomon Islander have reacted in the way the prisoner did in the circumstances of the prisoner? The law on provocation is well known. It is its application to varied circumstances in life in terms of creating a reasonable man in every society from time to time who reacts to acts of provocation and kills another person that is wrought with difficulty. In R. v Uriel Deramo Buarafi, [2002] SBHC 121; Criminal Case No. 335 of 2001, (unreported), the deceased was an expatriate New Zealander, who was a foreman of a contractor, who had sworn at and used abusive language towards the prisoner as a result of which the prisoner killed the deceased several days later. The argument by the defence was that the swearing and abusive language had had a cumulative effect on the prisoner. Muria, CJ rejected that argument because there was a cooling off period on the evidence before him unlike in this case. It is difficult to define what a reasonable man is of general application. The courts make what a reasonable is on the evidence at the relevant time and clothe him or her with that description for the purpose of sections 204 and 205 of the Code. The answer to the above question is yes. There was evidence upon which the Commissioner made his finding of manslaughter on the ground of provocation. The appeal is dismissed.

Lord Slynn of Hadley P and Adams JA: We agree that this appeal should be dismissed for the reasons given by Kabui J. No error of law has been shown in relation to the critical issue.

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^[1] R –v Doughty [1986] EWCA Crim 1; 83 Cr.App.R. 319 CA and R –v- Davies [1975] Q.B. 691