Regina v Tauku [2011] SBHC 172; HCSI CRC 273 of 2010 (10 November 2011)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 273 of 2010

REGINA

-V-

ROIBI TAUKU

HEARING: 24 October, 26 – 27, 28, 31st October, 3rd November 2011
JUDGEMENT: 10 November 2011

H. Kausimae and N. Kesaka for the Crown
B. Hiele and R. Cavanagh for the Defendant

Palmer CJ.

1. The defendant, Roibi Tauku is charged with the murder of his partner, Rachel Kio ("deceased") on 3rd March 2010 at Gizo, Western Province, contrary to section 200 of the Penal Code.
   
2. The burden of proving the offence lies with prosecution, that of proof beyond reasonable doubt.
   
3. This is the case of a relationship that had gone horribly wrong with tragic consequences. It started with an argument, which degenerated into a fight and the fatal stabbing of the deceased.
   
4. The case for the Crown is that the defendant had the specific mens rea, (intent), when he stabbed and killed the deceased at their home. The defence say his actions were as a result of provocation which caused him to react in the way he did and therefore he should not be convicted of murder but manslaughter pursuant to sections 204 and 205 of the Penal Code.
   
5. Prosecution's case is that the defendant had been angry and jealous over his relationship with the deceased when he arrived in Gizo. He had heard stories while he was in Honiara in the National Referral Hospital that the deceased had rejected him. They say he was angry, felt unloved and betrayed. He had revenge on his mind when he was discharged from hospital and planned to kill her when he reached Gizo that day because he was angry with her.
   
6. From the outset I thank Counsels for their planning and preparation put into this case because that had greatly reduced the number of witnesses required to be called and ultimately reduced trial time. As well it has enabled the court and parties to narrow down the issue(s) in this case. This has assisted in the smooth and expeditious hearing of this trial and I commend counsels for this.
   

Elements of malice aforethought.

7. Murder is defined under our law as the killing of a person with malice aforethought[1]. Section 202 in turn provides that:
   

"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."

8. There are two elements, either of which the Crown needed to prove to establish the guilt of the defendant. The first is that he had an intention to cause the death of or grievous bodily harm of the deceased. The second is that he knew that the act of stabbing with a knife will probably cause death or grievous bodily harm. Proof of either of these states of mind will suffice.
   
9. Under both limbs, the element of intention or knowledge can be established by words, conduct or behaviour or inferred from the facts and circumstances where they are not expressly admitted.
   

Proof of intention: is there evidence of an intention to kill.

10. In terms of the material that is available regarding the question of proof of the necessary mens rea to commit murder, the evidence adduced by prosecution on this element has been quite limited, rather relying on the factual circumstances of the incident and the wounds inflicted to support the necessary element of murder. Of the evidence adduced in respect of a plan or motive in support of an intention to kill, apart from the evidence of the defendant himself, this is also quite limited.
    

There is no evidence from any of the crown witnesses that suggest or support the prosecution case that when the defendant came down to Gizo on Monday 1st March 2010 from Honiara, he had any plan or thought of revenge on his mind, or that he felt unloved, betrayed or rejected. There is no evidence to support Crown's contention that he had any intent to commit murder when he came down on the boat. None of the prosecution witnesses gave any evidence which suggested he harboured any anger, resentment, or malice towards the deceased, or heard him say anything bad against the deceased or by his conduct it could be inferred that he planned to do something. Those closest to him, the little boy, Leo, and the house-girl, Verona Kiko made no mention of anything said or done prior to, during or after the incident that would support such suggestion.

To the contrary, there was no inkling that anything bad or tragic would happen. The only direct account of the events, from his arrival to that fateful night came from the defendant himself. Nothing in what he told police or the court, supported prosecution's case. On his arrival at Gizo wharf, he was met inside the ship by the deceased, taken and dropped off at their house in a taxi she had arranged; the deceased returned to work after that. He told the court that when the deceased arrived home at about 6.30 pm, they were all happy and telling stories. In his evidence given amidst sobs, he said:

"We were happy and were talking. I loved my wife, we were telling stories and sharing jokes, then in the morning on Tuesday, we woke up, had a prayer, then after, about 7 o'clock at 8, the house girl came she wanted to take Leo. He said that he did not want to go to school. He wanted to stay with me so I said you stay with me, so the three of us stayed. When his mother said to Leo 'are you ready to go to school', Leo said that he did not want to go to school, then his mother said, 'ok', he said he wanted to stay with Roibi. So his mother said ok."

If there was anything unusual in the demeanour, mannerisms, behaviour or conduct of the defendant, Verona Kiko may have noticed but she did not.

The evidence of a passerby, Tingo Leve, returning home after work and after a game of darts with his friends and wantoks at Magezo Workshop, later that evening, of overhearing a male voice talking in the deceased's house and making the observation that that person was talking in a good and sensible manner does not support prosecution's case. It would seem that what happened that night was totally unexpected and unforeseen.

In his evidence in court, the defendant referred affectionately throughout to the deceased as "Rae". He told the court he returned to Gizo at her request and insistence, despite suggesting that he should stay in Honiara upon the advice of the doctor for his operation.

I find no evidence to support prosecution's case that when he came to Gizo it was his own decision and because he had heard rumours and stories that the deceased was planning to leave him and he was jealous and resentful of this. Any suggestion to that effect is mere speculation.

What happened that night, evidence of intention to kill?

11. The only window of insight we have on the events immediately prior to, during and after the incident came from the defendant himself; (i) from his statement to the police taken on 4th March 2010 and (ii) his evidence in court, apart from the evidence of the neighbours who heard noises coming from the house of a screams and shout, crying and of things falling around in the house.
    

In his evidence, the defendant said he noticed that the deceased didn't look happy when she arrived from work that Tuesday (2nd March 2010) evening. He told the court that when she normally arrived from work, she would always hug and kiss him and Leo but that evening she did not do that. She then asked him if he had cooked dinner. He said they stayed together that evening and when Leo asked to have some tea, she fed him and they had dinner. He says after dinner he told stories for Leo until he went to sleep. The deceased carried him and put him on his bed. He says that the deceased was doing her knitting / crocheting that evening.

12. He says he sat beside her and tried to talk with her but he noticed that she seemed disinterested and did not talk nicely to him. She again asked him about his past relationships with other women. He said at this point he felt tired, his arm sore and so he decided to lie down on their bed. This would hardly be the actions of a man who had any plans or intent to do the deceased any harm. After completing her knitting/crocheting, the deceased took her mobile with her, turned off the hurricane lamp and sat beside him.
    
13. He says she was persistent with her questioning of what he did while in Honiara. When he denied these and told her that he only came down to her because of her request and that he would rather go to his mother if this was how she was going to treat him she turned around and accused him of wanting to run away from her.
    
14. He says while they were still arguing on the bed, she hit him suddenly on the face with the mobile. He was shocked by this and sat up on the bed. She then held his arm, which was injured and squeezed it causing intense pain. She pulled him on that same hand out of the bed, they struggled and fell onto the floor. He then whipped her face with his left hand, held her head, squeezed her and both fell to the floor. He says he fell onto some mineral water, pots and boxes. While he was still leaning with his hand on the floor, she stabbed him on his left thigh. Again he says he was shocked by this. When she attempted to stab him a second time, he struggled with her. He says it was at this point of time in their fight or struggle that he sort of "blacked out". After grabbing the knife from her, he says he stabbed her. His senses only came back when he heard her saying to him that he had killed her. He then left her and walked out of the house.
    
15. Prosecution submits that the evidence on oath of the defendant should be assessed against the backdrop of his earlier statement to police, which had a number of variations, as well as the evidence in the statements of what some neighbours in the vicinity heard coming from the house around that time and of the events after. For instance, in his statement to police he did not mention that the deceased wanted to stab him a second time with the knife. He merely told police that after she stabbed him on the left thigh, he kicked her on the chest, causing her to fall down; the knife also fell from her hand, which he picked and stabbed her with it.
    
16. Under cross examination he was asked why he gave a different version in his statement, why he did not tell police about the attempt by the deceased to stab him a second time, that he "blacked out" and did not know what he did thereafter. In his response he said that when he tried to explain what happened, that he blacked out and did not recall what he did, he says they did not seem to understand this and persisted in questioning him expecting answers or some sort of explanation on what happened. He says his answers were given in response to that. Prosecution submits that the court should not believe his oral evidence, that his answers in his statement were made against his interest and therefore more likely to have the ring of truth than what he told the court.
    

Defence of provocation.

17. In his evidence in court, the defendant raised the defence of provocation when he told the court that he blacked out and did not really know what he did thereafter. This defence is available to a defendant who alleges he was provoked by things done or said or both, and that what happened thereafter was a consequence of such provocation. The effect of such defence if accepted will reduce an offence of murder to one of manslaughter.
    

Section 204 of the Penal Code provides:

"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

(b) that he was justified in causing some harm to the other person, and that, in causing harm in excess of the harm which he was justified in causing, he acted from such terror of immediate death or grievous harm as in fact deprived him for the time being of the power of self-control;...."

Section 205 in turn provides that the anvil on which provocation is to be measured is that of a reasonable man:

"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."

Further light on the meaning of a 'reasonable man' has been shed on this in the case of Loumia v. Director of Public Prosecutions[2] in which the Court of Appeal endorsed what was said by the English Court of Appeal in Director of Public Prosecutions v. Camplin[3] that a reasonable man is a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused, sharing his characteristics and which would affect the same gravity of the provocation to him and which in like circumstances would have provoked him to lose his self-control and to react in the way he did.

Evidence of provocation.

18. The concept of a sudden and temporary loss of control and resulting in a sudden eruption of violence is consistent with the element of provocation and often preceded by a triggering incident. In R. v. Muy Ky Chhay[4], the Court made the following pertinent observations:
    

"It will probably remain the case that, for many people, loss of self control is a concept that is most easily understood, and distinguished from, a deliberate act of vengeance in the factual context of a sudden eruption of violence. However, times are changing, and people are becoming more aware that a loss of self control can develop even after a lengthy period of abuse, and without the necessity for a specific triggering incident. The presence of such an incident will assist a case of provocation, but its absence is not fatal."

19. The learned Author in Ross on Crime[5] pointed out that some incident may trigger a loss of control and that there may even be a time gap between the incident and the charged act.
    
20. It appears the defence case is that there is evidence of a triggering incident which resulted in the loss of the power of self-control as well as being justified in what he did in that he acted from such terror of immediate death or grievous harm which deprived him of the power of self-control. This occurred over a spate of things which happened one after the other and over a very short period of time; namely being hit on the face with a mobile phone, squeezed and pulled on his injured arm, stabbed on the thigh and sought to be stabbed a second time and the culmination of all these causing extreme pain and fear.
    
21. I am satisfied defence have raised sufficient evidence of a possible defence of provocation for the following reasons.
    
    • - I find that while it is not disputed that the victim had as pointed out by Mr. Hiele, no propensity to violence according to the evidence presented and agreed to by the defendant, neither has it been shown that the defendant had any propensity to violence as well. In his evidence in court, the defendant gave uncontradicted evidence that neither of them had hurt each other before this incident. He told the court that they started living together in 2008. In his submissions, Mr. Hiele pointed out that the night when this incident occurred was an exceptional night for both of them. I agree with learned Counsel's observation in that there is no evidence of prior incidents which showed that the defendant or the deceased had physically attacked each other than the normal arguments that they would have as partners living together.
      
    • - I find that the defendant's evidence of the triggering incident and chain of events fairly consistent throughout; that their argument degenerated into uncontrollable violence which is consistent with his explanation of extreme provocation and or, fear of immediate death or grievous harm.
      
    • - It has been submitted by prosecution that the court should not believe the evidence of the defendant as he did not mention that he blacked out or that the victim attempted to stab him a second time and said words to the effect "I will kill you". But even if that part of his account is not to be believed, it does not necessarily imply, that the rest of his testimony is to be discounted, for his description of being hit with a mobile, pulled by his injured arm and stabbed on the thigh were consistent throughout and capable of amounting to a triggering incident, which ultimately led to the sudden eruption of violence on his part.
      

During cross examination, he sought to explain the variations and omissions in his caution statement by pointing out that he did tell police that he blacked out etc. but the police had incessantly asked for some sort of response or explanation from him because of what they referred to as the many injuries found on the victim's body. His answers he said were an attempt to explain what happened. I am not satisfied the discrepancy and variations in his statement and evidence sufficient to discredit him totally as an unreliable and untruthful witness or to discredit his evidence in its entirety. I do not find him evasive or vague, to the contrary I find his evidence given in court to be sincere and frank and given in a fairly honest manner as he understood the events that happened that night.

- I find his explanation of coming to his senses when he heard the victim tell him that he had killed her to be believable. In his statement to police, (pidgin version), he was asked at question 58: "How nao you stop?" and his answer was the same: "Kee, you barava killem mi nao." This is entirely consistent with his evidence in court that his senses returned when he heard her saying this to him.

- I find that his action in leaving the knife there at the scene of the crime, walking out of the house and then to his uncle's house, would not be something not to be expected of a person in his position.

I find also the observations of his uncle, Adam Tauku ("Adam") immediately after the stabbing to be consistent with his version. Adam told the court that the defendant told him he and his wife had had a fight and did not know if she would be alive or not. He also told Adam that the victim had pulled his arm during their struggle. Adam also observed him nursing his arm and appeared to be in great pain. He told the court that throughout that period he was busy nursing his arm as well as holding onto his thigh which he noticed had an injury. I find Adam to be a reliable, honest and objective witness. His evidence I find to be consistent with what the defendant told the court and support his claim of a triggering incident and loss of self control. These observations support the version of the defendant.

Apart from that, there was nothing that was said by the defendant that could indicate any animosity, resentment or anger against the victim.

- I find also that the evidence of Rosema Tauku, wife of Adam, supports the version of the defendant that she overheard him telling Adam that he did not know what he did and whether the victim would live or die.

22. Having raised sufficient evidence of a possible defence of provocation, it is for prosecution to disprove beyond reasonable doubt that there was no provocation. For the following reasons I find that the onus had not been discharged.
    
    • - I am not satisfied prosecution have shown that the stabbing was other than in the context of a sudden eruption of violence culminating from a loss of self control arising from the immediate preceding events.
      
    • - I am not satisfied they have shown that the evidence of the neighbours who heard the deceased screaming, "help, help[6]", "you go out, livim house blo me"[7], "come tekem pikinini blo me"[8] and words to that effect supported the prosecution case that the stabbing was not as a result of anything other than provocation. The defendant did say that they were both shouting at that time but also explained in cross examination that he did not know what happened when he stabbed her. I am not satisfied the words or shouting heard by neighbours during the fight that night supported prosecution's case anymore than what the defendant had described. I do not think they can be construed as supporting prosecution's case of an intentional stabbing other than in the context of a sudden loss of control as a consequence of provocation. The evidence adduced showed that everything happened within a very short time, which is consistent with the defendant's testimony.
      
    • - I am not satisfied any adverse inference can be construed from the actions of the defendant in going to seek help from his uncle rather than going straight to the police or to the hospital and seeking help for his wife if he cared for her. He told the court that he went to see his uncle because he lived not far from them on the top of the hill. I am not satisfied his response showed that his actions were inconsistent with that of a man who did not care about his wife and her welfare. During his testimony, he spoke tenderly of the deceased, referred to her as "Rae" throughout and sobbed regularly in between his testimony. I did not get the impression he was trying to put on something so that the court could have sympathy for him other than that he had been gravely affected by the incident. That night was an unusual night for both of them when their argument degenerated into uncontrollable violence. I am not satisfied his actions were unusual and inconsistent with those of a reasonable person, to go for help to his nearest next of kin before surrendering himself to police. Nothing in what he told his uncle or the police indicated any sense of anger or animosity other than that he did not know what might happen to his wife as a result of the stabbing.
      
    • - The autopsy report prepared by Dr. Roy Maraka dated 15 March 2010, showed numerous stab wounds on the body of the victim. There were as well bruises on the left side of her neck; left knee; left eyebrow and left cheek; and on the mucosal surface of the lower lip.
      

There were lacerations on the base of the right thumb; mid-portion of the right thumb; base of the right 2nd finger; right forearm which had a saw-toothed pattern and linear lacerations above the wound. There were also incision wounds on the base of the right 2nd finger; right cubital fossa (front of the elbow joint); a v-shaped incision wound on the right arm, anteriorly; right chest wall; left chest wall; left forearm; and stab wounds at the midline of the upper abdomen creating a cross-type (+) of wound.

The stab wounds on the abdomen were the most serious. The report identified two stab wounds which pierced the liver, stomach, diaphragm and heart. According to the report, the injury to the heart was the fatal wound which in his opinion, caused death.

The report also identified a saw-toothed injury on the upper edge of the laceration on the right forearm consistent with a coconut scraper that had been tendered in court as an exhibit. The defendant however denied using anything else other than the knife. The little boy, Leo in his statement, told Police he saw him using a fork but there is no evidence of any fork having been used as the murder weapon. In the circumstances I am not satisfied it had been established by prosecution that the coconut scraper was also used as a weapon to attack the victim with. It is likely the injury may have been caused when the victim stumbled onto it before collapsing at the spot where her body was discovered.

The stab wounds inflicted were consistent with the description of the defendant as to what happened when he stabbed the victim on the front part of the body and that during that time they both struggled with the knife as well. This would explain some of the wounds on the fingers of the deceased and defence wounds referred to in the report.

Conclusion.

23. I am not satisfied prosecution have discharged the onus of disproving beyond reasonable doubt that what happened that fateful night did not amount to provocation. Section 204 of the Penal Code provides that 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 provocation is established. Accordingly the defendant is found guilty of manslaughter and convicted.
    

Orders of the Court:

1. Enter guilty verdict against Roibi Tauku of manslaughter; and
   
2. Enter conviction accordingly.
   

The Court.

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^[1] Section 200 of the Penal Code.
^[2] [1985-1986] SILR 158; [1986] SBCA 1.
^[3] [1978] AC 705; (1978) 67 Cr App R 14
^[4] (1994) 72 A Crim R 1 (NSW CCA) Gleeson CJ at 13-14, quoted in Ross on Crime 5^th Edition, at para. 16.7820
^[5] 5^th Edition, para. 16.7825
^[6] Transcripts Peter Smith at Day 2, pages 12-13;
^[7] Transcripts John Kovoto at Day 2, pages 23-25;
^[8] Transcripts John Kovoto and Peter Smith;