Regina v Buarafi [2002] SBHC 121; HC-CRC 335 of 2001 (2 December 2002)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 335 of 2001

REGINA

–v-

URIEL DERAMO BUARAFI

High Court of Solomon Islands
(Muria CJ)

Date of Hearing: 4,5,6,7,8,13,14,15 and 19 November 2002
Judgment: 2 December 2002

Mr R.B.Talasasa for Crown
Mr I. Kako for Accused

MURIA CJ: The accused Uriel Deramo Buarafi has been charged with the crime of murder contrary to section 200 of the Penal Code. It was alleged that on 11 February 2002 at Honiara, the accused murdered the deceased, Kevin O’Brien. The accused did not deny stabbing the deceased to death with a two-edged sharp knife. He pleaded Not Guilty, relying on the defence of provocation.

Brief background to the case

The accused and the deceased were both employees of Fletcher Kwaimani Joint Venture Company, which at the time of the incident was carrying out the construction of the new building for the Ministry of Finance in Honiara. The accused was employed as a plasterer since 1999. The deceased was employed as a construction site supervisor and had been with the company for fourteen years, six of which were in Solomon Islands.

The deceased had been known to have the tendency of using foul language at work toward other employees, whether angrily or not. On Friday 8 February 2002, the deceased accosted the accused over certain work, which he (the accused) was assigned to do at the new Ministry of Finance Building. The manner of approach and the abusive language used by the deceased toward the accused were offensive to the accused who became very angry, not only that day, but throughout that whole weekend. On the Monday 11 February 2002, the date of the incident, the accused, while still angry with the deceased, took a two-edge sharp knife and placed it in his basket. Like other employees, the accused was picked up by the company’s truck and taken to work, taking with him his basket, with the knife in it. At the work site, the accused entered the new Ministry of Finance building and waited for the deceased to arrive. Not long after that, the deceased arrived and went into the building where he was giving some work instructions to PW1. It was then that the accused, ran down the stairways and upon reaching the place where the deceased and PW1 were, stabbed the deceased. The accused immediately ran out of the building, threw the knife into a drain outside the building and ran away. The other workers came to the assistance of the deceased, rushing him to the hospital, but were dead upon arrival at the hospital.

Facts not in dispute

The court accepts the following facts, as not in dispute, in this case. The accused and deceased were both employed by Fletcher Kwaimani Joint Venture Company at the time of the incident. The deceased had the habit of using vulgar language at work toward other workers whether angrily or not. On the morning of 11 February 2002, the accused came to work with a knife in his basket. He waited for the deceased to come to work and when he arrived at work, the accused stabbed him resulting in his death.

Defence

There is no dispute that the accused stabbed the deceased with a two-edged sharp knife, which was about 40 - 50 cm long. There is no dispute that the deceased died as a result of that stabbing. The accused had, by his own evidence, demonstrated that he had prepared, not only over the weekend but also on that fatal Monday morning to do what he did. The only question, therefore, is whether the defence of provocation relied on by the accused would succeed in this case. The onus is on the prosecution, not only to exclude the defence of provocation, but also to establish the required intent in a charge of murder: Regina v Orinasikwa.^[1] That specific intent is: that the killing was done with malice aforethought as provided under section 202 of the Penal Code, which states:

“202. 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.”

There are two states of mind, either of which, if proved, would establish the necessary mens rea required to be proved under that section. The first is, an intention to cause the death of or grievous bodily harm to a person, and the second is, the knowledge that the act which caused death will probably cause the death of or grievous bodily harm to, a person whether such person is the person actually killed or not. The onus is on the prosecution to prove either of these states of mind of the accused, although in the light of the admission by the accused that he caused the death of the deceased, that task is a less onerous one for the prosecution. The heavier task, though, is that of excluding the defence of provocation.

The basis relied on, in argument by counsel for the accused, in support of the defence of provocation is the swearing words allegedly used by the deceased toward the accused. The words used by the deceased were said to be so offensive in custom that the accused was provoked to kill the deceased.

Before I deal with the evidence relied upon in this defence, I set out the provisions of the law on provocation. The defence of provocation is set out under sections 204 (a) and 205 of the Penal Code. These provisions provide:

“204. 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 of manslaughter if any of the following matters of extenuation are proved on his behalf, namely –

(a) that he was deprived of the power of self-control by such extreme provocation given by the person killed as is mentioned in the next succeeding section;

...............

205. Where on a charge of murder there is evidence on which the court can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be determined by the court; and 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.”

The test to be applied under these provisions in determining whether the defence of provocation can succeed is two fold. Firstly, whether the accused was so provoked, such that it deprived him of the power of self-control. Secondly, whether a reasonable man in the position of the accused would react in the manner in which the accused reacted to the action of the deceased in this case. But in applying these tests, regard must also be had to the background circumstances between the deceased and the accused, so that the court may be able to ascertain whether in consequence of the actions of the deceased, the accused suffered a loss of self-control to the extent of doing what he did: R.^[2] It is therefore necessary that we turn to the evidence to ascertain the basis upon which the defence of provocation is relied by the accused.

In his evidence, PW1 said that the deceased, on occasions, would use swearing words such as “fuck, shit, and mother fucker” at workers except himself.

He did not hear the deceased swearing at the accused on Friday 8 February 2002, although later he heard that the accused and the deceased had some problems between themselves. PW2, PW6 and PW7 also said that they did not hear the deceased swearing at the accused, although they said that the words “fuck and shit” were always on the deceased’s mouth, especially whenever he found the jobs not done properly. PW6 went on to say also that the deceased was a strict man who wanted work to be done well and that he learned from the deceased of the need to organise one’s self. PW3 gave evidence that the deceased once swore at him and so also was PW4 who complained to PW5 (Robert Sulu) who advised PW4 not to worry about the swearing. PW5 confirmed that he spoke to the accused on Friday 8 February 2002 and that the accused complained to him that the deceased swore at him. According to PW5, when he spoke to the accused on the Monday morning while waiting for the deceased to arrive, the accused was in an angry mood.

In his evidence, the accused stated that the deceased swore at him a week before, that is, on Monday 4 February, using words such as “fuck” and “shit on your head, shit on your mouth”. On Tuesday 5 and Wednesday 6 February, the deceased and the accused did not talk to each other. On Thursday 7 February, the accused was again accosted because of the work not done properly. This, the accused said, had hurt and greatly discouraged him. The following day, Friday 8 February, the accused came to work and shortly after he arrived that morning, the deceased confronted him and in the course of which, the deceased swore at the accused, saying, “I should have sacked you long ago. Shit on your head, shit on mouth, fuck your mother, fuck your father, fuck your sisters, fuck your brothers and fuck your people.” The accused was very upset by the offensive swearing. When the accused came to collect his pay in the afternoon of that day, the accused, once again swore at the accused, his parents, family members and his people. There was anger “boiling in him” like a fire. He went home that Friday evening full of anger. He could not eat well nor sleep well that whole weekend because the swearing had greatly troubled him. On Monday morning 11 February, the accused was still in anger and that his mind was in the “dark,” set out from his house to go to work, taking with him his basket and knife which he hid it inside his basket. When asked in cross-examination:

“Q. Your thought of taking the knife and to kill Kevin came about as a result of the Friday swearing?

1. Yes, but also because of all that he had been doing.
   

In re-examination, the accused stated:

“On Friday, he swore at me two times – in the morning, and in the afternoon, when I went to get my pay.

I did what I did because he swore at me, my mother, my daddy, brothers, sisters and my people.”

The accused confirmed it himself that his feeling since Friday 8 to Monday 11 February 2002 did not change. He was angry and that “my mind was dark” that Monday morning. No submission was put to the Court as to what is meant by the expression “my mind was dark.” However, when asked by the Court what he meant by his mind was “dark,” the accused replied:

“When I said my mind was ‘dark,’ I meant that I could not think of anything else. Even if anybody talked to me, I would not talk to him. It would not be possible for me to talk to him.”

In common parlance, this simply means that the accused was very, very angry indeed. As his Counsel submitted, “the act was done because the accused could not control the anger that arose in his mind when he recalled the swearing and that in the heat of that moment he rushed down stairs and stabbed the deceased.” That is not an impelling of provocation, but rather, it is an instance of compulsion to act in a state of extreme anger.

Whether defence of provocation can be sustained

The evidence demonstrates that the accused intended to do what he did. However, that does not exclude the defence of provocation as pointed out in Regina v Ellison Orinasikwa,^[3] following the cases of Perera v AG for Ceylon;^[4] Lee Chun-Chuen v R.^[5] Thus the defence of provocation is open to the accused even if he intends to kill the deceased, a position which contradicts Holmes v DPP.^[6] Having said that, the question to be asked is whether there is any evidence, which shows that the accused in this case was so provoked so as to lose his self-control? This loss of self-control must be that which arose out of a sudden passion because of the provocation.

Counsel for the accused put his client’s case based of the cumulative effect of the swearing done by the deceased to the accused between Saturday 2 to Friday 8 February 2002. It was submitted by Counsel that although the swearing ended on Friday 8 February, and the stabbing was done on Monday 11 February, this was due to the accumulation of the anger in the accused for more than a week. I accept that provocation can also arise from the cumulative effect of events caused or acts done by the deceased to the accused over a period of time. But the nexus between those cumulative events and the act of the accused must be such that there was no time for the passion to cool down or for reflection. In this case, however, the last act by the deceased was on Friday 8 February. There was nothing further done by the deceased until his fatal stabbing on Monday 11 February. On the other hand, the accused stated in his own evidence that he was angry on Friday, Saturday, Sunday and on Monday he came to his place of work, not to do any work but to await the arrival of the deceased and to stab him. He prepared his mind and his weapon and he executed them on Monday morning 11 February. It would be difficult for the accused, in the present case, to rely with any force in the argument that the stabbing of the deceased was the result of a sudden passion causing him to lose his self-control. The evidence, both called by the prosecution and defence simply do not add up to establishing the defence of provocation, even if one is to look at the defence raised on a cumulative basis.

Having reached that conclusion, it is not necessary to dwell on the second limb to the test of provocation in this case, suffice to say that in my judgment a reasonable man in the position of the accused must be that of a reasonable man from Central Kwara’ae, following the test set out in Loumia v DPP.^[7] This notion of a “reasonable man” of a particular character has long been recognised by judges^[8] and legal academics^[9] in the field of criminal law, in order to cater for the frailty of human nature. The prosecution witnesses, including PW7, who were from Malaita, told the court that according to the custom of Malaita, the first thing to do was to go through the relevant authorities with the view to claiming compensation. This was not done in this case. Quite plainly, the accused was not acting under provocation in this case. He was rather executing an intended course of action with malice.

On the evidence, I am satisfied beyond reasonable doubt that the accused stabbed the deceased with the intention to cause him grievous bodily harm. That is murder. The onus is on the prosecution to negative the defence of provocation in this case. This the prosecution has done.

The accused is therefore guilty of the crime of murder and he is convicted accordingly.

Verdict: The accused is guilty of murder and he is convicted accordingly.

Sir John Muria
CHIEF JUSTICE

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^[1] Regina v Orinasikwa (24 March 1999) High Court, Criminal Case No. 18/1998.
^[2] R (1981) 4 A Crim R 127.
^[3] Regina v Ellison Orinasikwa (24 March 1999) High Court, Criminal Case No.18/1998.
^[4] Perera v AG for Ceylon [1953] 2 WLR 238.
^[5] Lee Chun-Chuen v R [1963] 1 All ER 73.
^[6] Holmes v DPP [1964] AC 588.
^[7] Loumia v DPP [1985-1986] SILR 158 where the test applied was that of a “reasonable East
Kwaio pagan villager.”
^[8] R v Moses-Robert [1965-66] PNGLR 180, 185-186 Frost J
^[9] Warwick John Andrew, Donald R C Chalmers and David Weisbrot Criminal Law and Practice
of Papua New Guinea (2ed, The Law Book Company Limited, Sydney, 19.. ) 422.