R v Fo'oka [2013] SBHC 209; HCSI-CRC 250 of 2012 (13 December 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
PALLARAS J

Criminal Case Number 339 of 2012

R

v

PETER DAVID FO'OKA

Coram: PALLARAS J
Crown: Ms. L. J. Fineanganofo
Defence: Mr A. Keseka
Hearing Dates: 9th December 2013
Verdict Delivered: 13th December, 2013

VERDICT

1. Peter David Fo'oka ("the Accused") was charged with the murder of his wife Linda Filia ("the Deceased") on the 29th May 2012 at Gilbert Camp in East Honiara, Guadalcanal.
   
2. The Accused admits that he killed his wife by striking her on the top and side of the head with an axe. These blows resulted in several fractures to the Deceased's skull causing severe blood loss and death.
   
3. The Deceased was also found to have a large number of bruises and abrasions on her nose, neck, upper back, hands, arms, legs and lower abdomen. For reasons best known only to herself, the Prosecutor did not put any of these injuries to the Accused when he gave evidence.
   
4. The Defence raised the issue of provocation and it was said that although it was accepted that the Accused deliberately killed his wife, he did so after she had provoked him by swearing at him.
   
5. The prosecution case relied upon the Record of Interview given by the Accused and tendered in evidence by consent. It is in that document and later in evidence, that the Accused raises the issue of provocation.
   
6. The Prosecution therefore were not required to call any viva voce evidence but nevertheless chose to call the evidence of Ms Oddy Giro, who testified that she was walking in the general area of the offence on the 29th May 2012, when she saw "a boy and a girl" approximately 200 metres away from her and above her on a hillside. The boy was waving his hands at the girl who was walking away from him. She did not know who they were, how old they were or what they were saying or doing on the hillside.
   
7. Not surprisingly, the Defence did not cross-examine this witness.
   
8. The Prosecution also announced that it intended to call other named witnesses. When asked why they were calling the witnesses and what issue their evidence would go to prove that had not already been agreed, the prosecutor was unable to say. In the end, no further witnesses were called by the prosecution.
   
9. The only witness for the Defence was the Accused himself who testified in accordance with his Record of Interview and repeated that he was provoked by the language his wife used to him.
   
10. He testified that a little earlier on the day of the killing, at about 2 p.m., he and the Deceased had argued at home over who should wash the lunch dishes. The Accused told the Deceased to wash the dishes and, according to the Accused, the Deceased refused and told his young niece to do them instead. According to the Accused, the Deceased said that he should "go fuck your niece".
    
11. This angered the Accused and he "told off" the Deceased.
    
12. Nothing else occurred and they "just stayed" in the house until about 30 minutes later when the Accused told the Deceased that she should come with him to the garden to collect firewood. They both then left the house, he carrying an axe and she carrying a basket. The Accused testified that he was not still angry with the Deceased when they left the house.
    
13. During the walk to the garden, they stopped for a rest sitting down close to each other. The Accused says that it was then that the Deceased complained about the amount of hard work that she had to do while living with him. The conversation became heated with the Accused saying that he would tell his father to retrieve the custom money, she could return to her parents and she would not have to work hard.
    
14. According to the Accused, the Deceased then said that if his father wanted to retrieve the money, he should get it out of the toilet and then he should eat the toilet. The Accused said that he sat quietly when this was said.
    
15. The Accused then said that the Deceased told him that if she had stayed with her ex-boyfriend she would not have to do so much hard work. He replied that she shouldn't say such things as they were now married and such words were forbidden as taboo.
    
16. She is alleged to have told the Accused that he should go back home "and fuck your mother and your sister". When the Deceased said this, the Accused got very angry with her and he struck her twice on the head with his axe. The Deceased fell to her side and began to shake, the Accused lifted her up in an attempt to resuscitate her but failed to do.
    
17. He then dragged the body of the Deceased about 10 metres into an area of long grass to try to hide the body as he was fearful that someone might have seen him do what he did to his wife and that he would then be in danger himself. He was frightened for himself that someone might kill him.
    
18. He threw away the axe, went home to change his clothes and then took bus rides to get away from the area. He hid for two days until he met a woman who offered him assistance. He told her that he had killed his wife. He used her telephone to call a relative who picked him up and told him that he should go to the police. The relative then took the Accused to Central Police Station.
    
19. When called on to make closing submissions, the Prosecutor first submitted that words could never amount to provocation. When asked for authority for that proposition, she could not provide it. She then submitted that the nature of the injuries indicated an intention to kill. When she was reminded that the issue was provocation and was invited to address on that aspect of the law, she declined.
    
20. The Defence submitted that the words used must be considered in their cultural context and that the words used by the Deceased are regarded as particularly offensive to a Malaitan. He provided two useful authorities in which similar issues had been discussed. When it was put to him that on the Accused's testimony, he had been the object of a very similar insult at the house before leaving for the garden without it producing anything like his later reaction, counsel submitted that the difference between mentioning the niece and then the mother and sister of the Accused, was significant.
    

PROVOCATION

21. Section 204(a) of the Penal Code provides that where an intentional and unlawful act causes the death of another person the offence committed shall not be murder but only manslaughter if any of the following matters of extenuation are provided on his behalf, namely –
    
    1. 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
       
    2. ....
       
22. The wording of the section requires that those matters of extenuation "are provided on his behalf". I take this to mean that the issue of provocation must arise on the evidence before a court will consider it. Provocation is not a defence in the usual sense of the word but something which the Crown must exclude beyond reasonable doubt. Once raised however, the onus is on the Prosecution to prove beyond reasonable doubt that there was no provocation. That is, it is upon the prosecution to establish beyond reasonable doubt that the accused did not act out of such extreme provocation and that he did not lose the power of self-control.
    
23. All of the elements of murder have by virtue of the Agreed Facts and the Record of Interview of the Accused been proved beyond reasonable doubt. The issue of provocation has been squarely raised in the Record of Interview and also in the sworn testimony of the Accused. The question now is – has the Prosecution proved beyond reasonable doubt that there was no provocation in terms of Section 204(a) of the Penal Code [Cap. 26]?
    
24. Section 205 of the Penal Code provides that –
    

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.

25. In Masciantonio v the Queen [1995] HCA 67; (1995) 183 CLR 58; 129 ALR 575; 80 A Crim R 331, Brennan, Deane, Dawson, and Gaudron JJ said (at 66; 580; 337):
    

Homicide which would otherwise be murder, is reduced to manslaughter if the Accused causes death whilst acting under provocation. The provocation must be such that it is capable of causing an ordinary person to lose self-control and to act in the way in which the Accused did. The provocation must actually cause the Accused to lose self-control and the Accused must act whilst deprived of self-control before he has had the opportunity to regain his composure.

26. In Regina v Martin Talu [2005] SBHC 87; HCSI-CRC 402 of 2004 (9 August 2005), Palmer CJ said-
    

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 Director of Public Prosecutions [1985/1986] SILR 158, 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 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."

27. In Loumia's case, the question was posed in the light of its effect on a reasonable East Kwaio villager.
    
28. In the present case, it has been asserted from the Bar table that the words used by the deceased are especially offensive to persons from Malaita. I would consider the words to be offensive to members of any community, indeed offensive to persons of any island in Solomon Islands or indeed of any nation. No evidence has been put before me nor has any material been offered of which it is said that judicial notice may be taken that such words are uniquely offensive or more offensive to Malaitans than to any other Solomon Islander. However, it is abundantly plain from the nature of the words used that they are insulting and offensive. It is also abundantly plain that the Accused found them to be (at least) insulting and offensive and caused him to react to them.
    
29. The components of provocation are twofold. The first is a subjective consideration of whether or not the Accused was provoked so as to lose his self-control ("the subjective element"); the second is an objective consideration of whether a reasonable man in the position of the Accused might have reacted in the manner in which the Accused reacted ("the objective element").
    
30. The approach taken in Common Law varies slightly when it comes to determining the objective element. In cases such as Talu, this Court has through Palmer CJ, expressed the view that the objective element is whether a reasonable man in the position of the Accused would react in the manner in which the Accused did.
    
31. In Australia, in cases such as Heron v The Queen [2003] HCA 17; (2003) 77 ALJR 908; 197 ALR 81; 140 A Crim R 317 per Gleeson CJ at [4]; per Kirby J at [33]; per Callinan J at [75] ff., it is said that a judge must direct a jury that the objective test is what an ordinary person could have done.
    
32. In R v Thorpe (No. 2) [1999] VR 719 (CA), the Court suggested that a judge should use the word "might". This would avoid the risk of saying "would" rather than what is suggested to be the correct "could".
    
33. I will use the formula which I perceive to be most favourable to the Accused, that is, what an ordinary person could have done. For the avoidance of doubt, I would have not come to a different conclusion to that which I reached had I used the "would" test.
    
34. While I have expressed the view that the particular words used by the Deceased in this case would be regarded as offensive and insulting in any culture, I am conscious of the fact that some words may be regarded by one culture as more offensive than when those same words are used in another culture. In that regard, ethnicity is a factor to be taken into account in assessing the gravity of the conduct said to constitute the provocation.
    
35. In Mungatopi v The Queen [1991] NTCCA 9; (1991) 2 NTLR 1; 105 FLR 161; 57 A Crim R 341 (CCA), the Court held in a joint judgement (at 6; 166; 346):
    

In the Northern Territory, the concept of an "ordinary person" has been held by Kearney J, in relation to that expression as it appears in s.34(2)(d) of the Criminal Code and for the purposes of that expression as it appears in the definition of "provocation" in the Code, to include an ordinary Aboriginal male person living today in the environment and culture of a fairly remote Aboriginal settlement, such as Milikapati: Jabarulu v Poore [1989] NTSC 24; (1989) 68 NTR 26; 42 A Crim R 479.

Kearney J went on to observe (at 34; 488), in relation to such an ordinary person:

He is neither drunk nor affected by intoxicating liquor, does not possess a particularly bad temper, is not unusually excitable or pugnacious, and possesses such powers of self-control as everyone is entitled to expect an ordinary person of that culture and environment to have. He possesses such of the appellant's general cultural characteristics as might affect [his] reaction to the [insult]...

36. In the case of Regina v Camplin [1978] UKHL 2; [1978] AC 705 at 717, Lord Diplock defined the term "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.

37. In Talu's case, Palmer CJ said-
    

In Regina v Moses Haitalemae and Others HCSI-CRC 210-01 22nd November 2001, a similar test has been applied in Solomon Islands. Kabui J described certain 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.

38. It is suggested by the Prosecution that the killing was premeditated because the Accused had brought an axe with him, the axe he later used to kill the Deceased. However, the prosecution do not dispute that the Accused set out to chop wood with his wife. It is difficult to imagine how he planned to do that without taking an axe with him. I reject the submission from the prosecution that this was a premeditated killing. In the present case, the conduct of the Accused is more consistent with the view that his actions were motivated by anger and revulsion at the comments of the Deceased.
    
39. In Johnson v The Queen [1976] HCA 44; [1976] 136 CLR 619, 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.

40. In R v Webb [1977] 16 SASR 309 at 314, Bray CJ described the test thus:
    

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.

41. It is therefore clear that the question of proportionality is absorbed in the application of the test of the effect of the provocation upon the ordinary person. The reaction of the Accused must not exceed what would have been the reaction of a reasonable man. And as Barwick CJ pointed out in Johnson's case, in considering whether an ordinary person could have reacted in the way in which the Accused did, it is the formation of an intent to kill or do grievous bodily harm which is the important consideration rather than the precise form of physical reaction.[1]
    
42. The effect of these words on a reasonable sixteen year old Malaitan, might well be to cause him to be offended, angered, even outraged. He may be provoked into swearing back at, arguing with or even fighting with the Deceased. But the Accused's reaction of using an axe to strike the deceased twice on the head, with the only possible intention being to cause death or grievous bodily harm to the Deceased is, in my view, unreasonable. To find otherwise would be to elevate the extenuation in this case beyond that which is tolerable in civilised community.
    
43. In this case, 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 take an axe and forcefully strike the swearer twice on the skull with that axe. In my respectful view, this question must be answered in the negative.
    
44. As a result of these findings, I am satisfied that the Prosecution have proven the charge of murder against the Accused beyond reasonable doubt.
    
45. It is the Order of the Court that the Accused be convicted of one count of murder contrary to Section 200 of the Penal Code [Cap. 26].
    

THE COURT

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^[1] See Masciantonio v the Queen [1995] HCA 67; (1995) 183 CLR 58; 129 ALR 575; 80 A Crim R 331 and also David Ross QC “Ross On Crime” 3^rd Edition at 16.7130