Regina v Talu [2005] SBHC 87; HCSI-CRC 402 of 2004 (9 August 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case Number 402-04

REGINA

-v-

MARTIN TALU

Date of Hearing: 4^th July - 6^th July, 13^th July, 15^th July 2005
Date of Judgement: 9^th August 2005

H. Kausimae for the Crown
D. Hou for the Defendant

Palmer CJ: The defendant, Martin Talu ("the Defendant") stands charged in this court for the murder of Jack Waletaloa ("the Deceased") contrary to section 200 of the Penal Code (cap. 26), offence alleged to have been committed on 8^th of April 2000.

Prosecution alleges the Defendant intended to cause the death of the Deceased or knew that by stabbing him with a screw driver this will probably cause his death.

The Defendant does not deny he stabbed the Deceased with a screw driver but submits he was provoked relying on the defence in section 204(a) of the Penal Code which reduces murder to manslaughter if successful.

Facts not disputed and which can be accepted as evidence can be stated as follows. It is not disputed that the aggressor in this case was the Deceased. He had been quite upset with the Defendant it seems for taking back a tape recorder which belonged to a Chinese man, Sam Chan. The Defendant says the tape recorder was stolen from Sam Chan and that he had then went to collect it back from the Deceased. The prosecution version on the other hand was that the tape had been sold to the Deceased by the Defendant the previous day but then had been taken back the following day without refunding his money in the sum of $150.00. This was the reason why the Deceased was upset with the Defendant.

It is not disputed that the Defendant had actually walked past the Deceased before he was recognized by the Deceased. When asked to repay his money, the Defendant told him that he would give him the money on the next day. The Deceased however did not accept this answer and persisted with his demands.

It is not disputed that the Defendant turned around at some point of time and confronted the Deceased. The stabbing occurred shortly thereafter. It is not disputed the Defendant used a screw driver to stab the Deceased with and that the stab wound caused the death of the Deceased shortly after he had been taken to hospital.

Evidence of swearing?

The prosecution case is that the Deceased did not swear at the Defendant. The first prosecution witness, Monica Geli, ("MG") mother of the Deceased, denied hearing her son swearing at the Defendant though she conceded the Deceased was "cross" (angry) about his money.

The third prosecution witness, John Nunua ("JN"), also denied hearing any swearing other than that the Deceased used the words "you woman", (implying the Defendant was a weakling like a woman), at which the Defendant then turned around, confronted the Deceased and following which the Deceased was fatally stabbed. He also confirmed that the Deceased was very angry with the Defendant over some money for a tape which he wanted paid straight away.

The second prosecution witness, Johnson Tome ("JT") was the only witness who confirmed the Defendant’s version that the Deceased swore at him.

Having listened carefully to the prosecution witnesses’ evidence, I reject MG and JN’s evidence that no swearing occurred in favour of the Defendant’s version supported by JT’s evidence. MG and JN’s evidence may have been coloured to some extent by their closeness¹ to the Deceased as opposed to the evidence of JT, an independent witness, not related to the Deceased or the Defendant and therefore in a more objective position to give reliable evidence as to the happenings of that evening. JT was a security officer who was with the Deceased at that time and therefore in close proximity to everything that occurred that evening.

Was the Defendant alone or in the company of two other persons?

MG and JN both also denied seeing the Deceased in the company of others, whilst JT confirms the evidence of the Deceased that there were two other persons with him at that particular time. Again I defer to the evidence of the Defendant and JT on this point.

Findings of fact

I find that the Deceased was the initiator and aggressor of the events that fateful night. He was clearly upset with the Defendant about some money and tape. I find also that the Defendant had already walked past the Deceased when accosted. There is no evidence to suggest that the Defendant planned to attack the Deceased or do anything to him that night. I accept the evidence of the Defendant he was on his way to Paradise Night Club with two of his friends when accosted by the Deceased. I find no evidence of any intention either to attack or do harm to the Deceased that night. I accept his evidence that when he told the Deceased that he would give him his money the next day, the Deceased swore at him. I also accept his evidence that the abusive words used were "fuckem sister and mummy blong you".

The defence of provocation

The Defendant does not deny that he stabbed the Deceased with a screw driver. He raises the defence of provocation however. Sections 204(a) and 205 of the Penal Code provide a defence for provocation as follows:

"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 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; or

....

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 for provocation is an objective one and has received detailed coverage in numerous cases coming before this court and the Court of Appeal. In Loumia v. DPP² ("Loumia’s Case") their Lordships pointed out that the reasonable man referred to in the section is that of 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 affect 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."

In Loumia’s Case the question was posed in the light of its effect on a reasonable East Kwaio pagan villager.

There are two elements to provocation. The first is the subjective element, whether the Defendant was so provoked so as to lose his self control; the second is the objective element, whether a reasonable man in the position of the accused would react in the manner in which the Defendant did.

On the first limb, I am satisfied there is clear evidence of provocation by word and action. It is not disputed that the Deceased was aggrieved over some tape and money owed to him by the Defendant. His actions that night were consistent with that of such person. The fact he was drunk as well did not help. When accosted and asked about some money, the Defendant told the Deceased he would give him the money the next day. The Deceased however was not content with such response and swore at the Defendant. I am satisfied this clearly provoked the Defendant as it was only at this critical point of time that the Defendant turned around and confronted the Deceased resulting in a fight and in which the Deceased was fatally stabbed.

I accept the evidence in so far as the subjective element is concerned, that the Defendant was so provoked by what the Deceased said and did to lose his self control, turn around and confronted the Deceased. The Deceased also already angry and upset about his money did not turn or run away, instead advanced towards the Defendant and threw the first punch at him.

The Defendant chose to give evidence in court and it was obvious when asked about what he thought of the words used against him by the Deceased that night that he was still affected emotionally. He could not hold back his tears when asked in court and told the court he had been raised and taught by his parents not to do harm to anyone or use bad words/language against anyone. He told the court no one had used such bad language at him previously.

The second objective limb is whether a reasonable man in the position of the Defendant would have responded in the way he did that night taking “... into account everything both done and said according to the effect which it would have on a reasonable man.” There are also two elements incorporated into the assessment of this second limb, the first involving an assessment of the gravity of the provocation and the second calls for an application of an external standard of self control.

The statutory reference to "a reasonable man" is intended to refer to an ordinary person, that is, a person of ordinary self control; see the leading case of Regina v. Camplin³ where Lord Diplock gave the definition of the meaning of the phrase "reasonable man" for the purposes of the law of provocation as follows:

"It means an ordinary person of either sex, not exceptionally excitable or pugnacious, but possessed of such powers of self control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today."

At page 718 Lord Diplock expressed his view as to what would be a proper direction to a jury on the question as follows:

"He should ... 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 affect the gravity of the provocation to him; and that question is not merely whether such a person would in the like circumstances be provoked to lose self control but also whether he would react to the provocation as the accused did."

In the same case Lord Glaisdale at page 726 also said that the phrase “a reasonable man” refers to "a reasonable man of ordinary self control". See also R. v. Morhall⁴ per Lord Goff of Chieveley:

"...despite the express words of the statute, to speak of the degree of self control attributable to the ordinary person is "certainly less likely to mislead" than to do so with reference to the reasonable person."

And the case of Mancini v.The Director of Public Prosecutions⁵ per Viscount Simon LC who said:

"The test to be applied is of the effect of the provocation on a reasonable man .... So that an unusually excitable or pugnacious individual is not entitled to rely on provocation which would have led an ordinary person to act as he did."

See also the case of Kwaku Mensah v. The King⁶ a similar test was applied as follows:

"The tests should be applied to the ordinary West African villager and it is on just such questions as these that the knowledge and common sense of a local jury are invaluable."

In Solomon Islands, a similar test has been applied; that of an ordinary Solomon Islander, in this particular case, the ordinary Malaita man sharing the same age, sex, characteristics and background of the Defendant. Would an ordinary man from North Malaita react in the way the Defendant had done? Would he have been provoked by such swearing? And if so, would he have acted in the way the Defendant had done; that is, to so lose his self control as to cause him to stab the Deceased, whether it be with intent to kill or cause grievous harm?

In Regina v. Moses Haitalemae and Others⁷ at page 4 Kabui J. described such swearing words as a powerful incitement or challenge to a fight. An ordinary man from Malaita would find such swearing extremely provocative and respond by fighting the person who had uttered the swear words.

In this particular instance, the evidence adduced is more consistent with the view or conclusion that the swearing provoked the Defendant. There is no evidence to suggest that the Defendant intended or planned to do anything to the Deceased that night. The Defendant was on his way to the Paradise Club and had already walked past the Deceased before he was accosted. When he was asked about some money owed, he told the Deceased that he would pay the money back on the next day. This was not accepted by the Deceased who not only insisted that it be paid there and then but swore at the Defendant. This was all needless and unfortunate bearing in mind that the Deceased was drunk, already angry and intent it seems on provocative behaviour. He not only told the Defendant to pay back his money but told him also not to use that road access and told him to go; again needless as the road was a public road. When he swore at the Defendant, this apparently was the trigger which turned the Defendant around. JT confirmed that the Defendant turned around and confronted the Deceased after he was sworn at. JN also confirmed that the Defendant turned around when the Deceased called him a "woman". They also agreed that when the Defendant turned around, the Deceased also advanced at the Defendant and threw the first punch. The Defendant stabbed the Deceased after blocking the punch. When asked by JN and MG what he had used to stab the Deceased with, he did not seek to conceal this. In fact when JN enquired, the Defendant threatened to stab his wife "MG" with the screw driver as well. He then walked away to where he was staying; actions all consistent with that of a man who had been provoked to lose his self control.

The Defendant did not deny his actions from the beginning. He told the court he became extremely angry when the Deceased swore at him and caused him to lose his self control. He told the court he felt so provoked by the swearing that the only thing he felt he could do was to fight the Deceased. In so doing however, he used a screw driver (a dangerous weapon) which he had with him at that time and stabbed the Deceased with it.

Is the retaliation proportionate to the provocation?

This raises the further issue whether the retaliation was disproportionate to the provocation. Prosecution submits that in any event the actions of the Defendant were disproportionate to the provocation. In Johnson v. The Queen⁸ Barwick CJ held that:

"I have come to the conclusion that the proportionality of the fatal act to the provocation is part of the material on which the jury should consider whether the provocation offered the accused was such as would have caused an ordinary man, placed in all the circumstances in which the accused stood, to have lost his self control to the point of doing an act of the kind and degree of that by which the accused killed the deceased. That proportion is not, in my opinion, a separate matter to be considered after it has been decided that an ordinary man in the accused’s circumstances, to lose his self control as to do an act of the kind and degree as to the act of the accused."

In Webb⁹ Bray CJ reiterated the test as follows:

"There is no separate requirement of proportionality between the provocative conduct and the means of retaliation employed by the accused. There is one question for the application of the objective test, namely whether an ordinary person in the position of the accused would so far have lost his self control as to have done an act of the same kind and degree as the act of the accused."

In this instance, the question remains whether the provocation was sufficient so as to deprive an ordinary man of the power of self control to such an extent as to cause such a person to do what the Defendant did? In my respectful view, this question must be answered in the affirmative.

Conclusion

I am satisfied the Defendant had raised sufficient evidence of provocation in the words and actions of the Deceased; that his actions were consistent with that of a man who had been provoked. He reacted, turned around and confronted the Deceased only after he was sworn at. That the weapon used (a screw driver) was already in his possession and there is no evidence to suggest that it was taken with any specific intent in mind. That the weapon was used where there had been no time for reflection, or time for passion to cool; the evidence showed that everything happened so quickly. In the words of Lord Devlin¹⁰, "whether there was ... time for cooling, that is for passion to cool and for reason to gain dominion over the mind." In Phillips¹¹ their Lordships pointed out:

"The average man reacts to provocation according to its degree with angry words, with blows, with a blow of the hand if the provocation is gross and there is a dangerous weapon to hand, with that weapon."

Having raised sufficient evidence of provocation in the facts of this case it is for Prosecution to disprove beyond reasonable doubt that provocation did not occur. I have considered the case for Prosecution on this crucial matter but cannot be satisfied they have discharged that onus to the requisite standard. Prosecution had failed to show that the Defendant had any motive or reason, intent that evening to attack the Deceased and that the screw driver in his possession was carried for any such purpose. If there was any such intent he could have attacked the Deceased without having to walk past him. He was well on his way to the Paradise Night Club and walked past the Deceased when accosted. Even at that point he did not turn around to confront the Deceased. He only reacted when the Deceased swore at him; a moment of sudden passion, anger, quarrel and sudden attack when blows were exchanged. Everything happened so quickly/suddenly, consistent with the actions of someone provoked.

I am satisfied the defence of provocation succeeds in this instance to reduce the offence to that of manslaughter, it not being disputed that the Deceased died at the hands of the Defendant. The Defendant is acquitted of murder but convicted of the manslaughter of the Deceased.

Order of the Court:

1. ACQUIT the Defendant of the charge of murder.

2. Find him GUILTY of the offence of manslaughter and CONVICTED accordingly.

THE COURT.

ENDNOTES:

1. Monica Geli is the mother of the Deceased whilst, John Nunua his stepfather
2. [1985/1986] SILR 158
3. [1978] UKHL 2; [1978] AC 705 at 717
4. [1996] AC 90 at 98
5. [1942] AC 1 at 9
6. [1946] AC 83 at 93
7. HCSI-CRC 210-01 22nd November 2001
8. [1976] HCA 44; [1976] 136 CLR 619
9. [1977] 16 SASR 309 at 314
10. [1968] UKPC 24; [1969] 2 AC 130
11. Duffy [1949] 1 All ER 932