Rex v Ake [2005] TOSC 39; CR 140 2005 (20 December 2005)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

CASE NO: CR 140/05

REX

-v-

'ALEKISANITA 'AKE

HELD BEFORE HON CHIEF JUSTICE WEBSTER sitting alone at Nuku’alofa on 12, 13, 14 & 16 December 2005

EXPANDED REASONS IN WRITING FOR RESERVED DECISION GIVEN ON
16 DECEMBER 2005

Counsel:
Prosecution: Ms Linda Simiki
Defence: Mr Teisina Fifita

Preliminary

The Defendant 'Alekisanita 'Ake was charged with murder, and alternatively manslaughter and grievous bodily harm, following the death on 4 May 2005 of Fekumi Matekuolava. He pleaded guilty to the alternative count of manslaughter, but that plea was not accepted by the prosecution, so the case came to trial before me sitting as Judge alone on the count of murder.

Indictment

The principal charges against the Defendant were as follows:

Count 1:

MURDER, contrary to section 87(1)(b) of the Criminal Offences Act (Cap 18)

'Alekisanita 'Ake, on or about the 4th of May 2005, at Tokomololo, you did murder Fekumi Matekuolava when you had the intention to cause him bodily injury which you knew was likely to cause death, and you were reckless whether death ensued or not, and you used an iron rod and hit him twice in the head causing severe head injuries leading to his death.

In the alternative:

Count 2:

MANSLAUGHTER, contrary to section 92 and 93 of the Criminal Offences Act (Cap 18)

'Alekisanita 'Ake, on or about the 4th of May 2005, at Tokomololo, you did cause the death of Fekumi Matekuolava when you used an iron rod to hit him twice on the head which caused severe head injuries leading to his death.

Evidence and submissions

The prosecution led evidence from PC Patelesio Tu'itavuki, Police photographer; Mrs 'Unaloto Matekuolava, Tokomololo, the victim Fekumi’s mother; Mr 'Alaipulotu Tu'alau, Tokomololo; Mr Filimone Hafoka Finau, Mr 'Aufuato Kaufusi, and Mr Samuela Polota, all of Tokomololo and all eye-witnesses who were participants in the drinking party along with the Defendant and the victim; A/Chief Inspector Siaosi Helepiko, CID, who recorded the Defendant’s interview, answer to charges and confession and subsequent demonstration; and Dr Siosaia Piukala, Vaiola Hospital, the surgical Medical Officer who saw the victim Fekumi before his death and prepared the Medical Report. The prosecution also produced a number of photographs and documentary and material exhibits. The defence led no evidence.

In general I accepted the witnesses for the prosecution as credible and reliable witnesses, though the members of the drinking party were drunk at the time, except that Samuela had slept at the bush allotment at Lomaiviti. Although Filimone appeared a somewhat reluctant witness, even he admitted hearing the Defendant saying he would hit Fekumi “to die”.

On completion of the evidence I heard submissions in support of their respective cases from the defence and prosecution. These centred on the principal issue in this case of whether there was extreme provocation in terms of sections 88, 89 and 90 of the Criminal Offences Act.

Principal findings in fact

The basic facts were mostly undisputed, and the issues were about the conclusions and inferences to be drawn from them. These are the facts that I find established:

There was a public holiday on 4 May 2005 and the Defendant spent a large part of that day drinking homebrew with some companions in a drinking party, which included the eye-witnesses, and also at a later stage the victim Fekumi. They were drinking from a bucket which initially contained around 20 litres of homebrew.

Filimone said in evidence that when Fekumi was drunk his behaviour sometimes provoked people to anger, in the sense that he was very hard to control; that he would not like it if Fekumi acted with that sort of behaviour towards him; and that he would have lost control of himself. ‘Aufuato said such provocation was Fekumi’s normal behaviour when drinking, and that was how he behaved that day, but no-one had ever attacked Fekumi before with something like an iron bar.

The drinking party began at a bush allotment in Tokomololo around 10.00 or 11.00 am but about an hour later the victim and some friends arrived, and the Defendant told the drinking party that he did not want the victim Fekumi to join the drinking party and that they should find another drinking spot. The drinking party then moved to another allotment near Fonongahina but the victim and his friends also came there, so the Defendant told in his friends to move back to Tokomololo to his family’s bush allotment near Lomaiviti, but by the time they arrived there around 5.00 to 5.30 pm the victim also arrived and the Defendant realised that he would not be able to avoid the victim, so they all sat down to continue drinking the homebrew.

About 1 hour later the Defendant told the drinking party that he was upset about the victim Fekumi and on between 2 and 4 occasions the victim and the Defendant started to get into a fight but were stopped and held away from each other by other members of the drinking party. Filimone said Fekumi had been swearing and he and the Defendant had been attacking each other. Filimone said it was twice in his evidence-in-chief, but agreed in cross-examination that it could have been more than 4 times, then in re-examination said he only remembered it twice. ‘Aufuato heard Fekumi say to the Defendant that it he wanted to fight they should fight, and if he did want to hit him he should come and do so. ‘Aufuato was not sure that it was more than twice that Fekumi attacked the Defendant at that time. The Defendant had told Fekumi that he did not want to fight. In his recorded interview (see below) the Defendant said it was four times. However all the witnesses were drunk at the time, and, while it is not crucially relevant to this decision because it took place much earlier than the defendant’s attack on Fekumi, on the evidence all I can be certain of is that Fekumi attacked the Defendant at least twice, but possibly up to 4 times.

Around a further hour later the Defendant and his friends left for the village of Tokomololo, which took around 5 minutes to reach, and they separated, but a few minutes later the victim Fekumi also arrived. During that time Filimone went home, with ‘Aufuato and Fekumi, then they parked the vehicle at Tualau’s house and checked at Kimami’s house. ‘Aufuato had told the Defendant not to worry about Fekumi’s behaviour because he was drunk. Samuela invited the Defendant to come and eat with them, as his family were at Kimami’s house, but he heard Fekumi calling out to the Defendant from about 20 m away.

After exchanging words, the Defendant was going away because of Fekumi’s swearing and shouting, but then Fekumi began shouting and swearing at the Defendant, using the Tongan words Lemu and Matausi, coupled with the name of the Defendant and his village Tokomololo, which is very offensive in Tonga. He used these words twice or 3 times or more. ‘Aufuato said Fekumi was also telling the Defendant to come and hit him. The Defendant told the victim to move aside, and Filimone heard the Defendant (who he said looked very angry and also very drunk) say he “would hit him to die”. ‘Aufuato also said the Defendant was drunk.

Samuela heard someone calling out to the Defendant whether he would be able to kill him. Samuela then heard the Defendant saying “I am sick of you carrying out these acts towards me, so just move over and I will hit you”.

The Defendant was very angry at this stage and uprooted from a back kitchen nearby an iron bar used for coconut de-husking. It was produced in Court [Exhibit 4] and it was solid and heavy, about 3 feet long; and Samuela estimated it weighed about 2 kg. When Filimone saw the Defendant with the iron bar behind his back (‘Aufuato said he was trailing it on the ground behind him), Filimone removed it and threw it away, but the Defendant came and attacked Fekumi and the others held him away. Fekumi was not holding anything when the Defendant went to attack him.

Filimone and ‘Aufuato then got back into the vehicle and were intending to go for more alcohol to continue on with their drinking. Filimone was driving and said he did not clearly recall seeing Fekumi and the Defendant when they drove off, though I found that evidence rather incredible, as his passenger ‘Aufuato clearly saw what happened.

The Defendant must then have picked up the iron bar again and walked up to the victim Fekumi. While Fekumi was lying on the ground ‘Aufuato saw the Defendant hit Fekumi with the iron bar, twice on the left side of the upper part of his body. The medical evidence showed that Fekumi was hit twice on the head and once on the chest.

Samuela also saw Fekumi on the ground with the Defendant standing over him around his waist, facing his head; and he saw the defendant hitting him twice behind the ear and on part of his ear with the iron bar. Samuela demonstrated in evidence how the Defendant held the iron bar with 2 hands about waist level and swung it powerfully downwards in a golf- or cricket-type stroke to hit Fekumi with considerable force. Samuela then pushed the Defendant aside and bent down and kissed Fekumi and touched his face, when he noticed blood coming out of his ears and mouth. The Defendant was standing beside Samuela and apologised to him and asked Samuela to take Fekumi to hospital, which he did. During the journey Samuela continually called Fekumi’s name and he answered “Ko au” (I am here).

The iron rod was later found nearby by ‘Alaipulotu, who lived in Tualau’s town allotment and had not been among the drinking party.

Fekumi died at Vaiola Hospital without regaining consciousness around 2 hours later at about 10.00 pm on 4 May.

The medical report [Exhibit 9] by Dr Siosaia Piukala, the surgeon who was called in to see Fekumi, was:

“MEDICAL REPORT ON POLICE CASE

MATEKUOLAVA FEKUMI M 23 yrs T

TOKOMOLOLO 04/05/05 2145 hrs

Type of case:

Assault with Severe Bodily Harm

Examination & Finding:

Deeply unconscious with a Glasgow Coma Scale of 3

Not responsive to anything

Both pupil fully dilated, fixed and not reactive to light

Laceration left temporo-parietal scalp and left side of upper face

Skull X-ray – fracture through temporal region left side

Opinion:

Examination and findings were consistent with the deceased being hit with a hard object on the head several times sustaining severe head injury leading to his death.”

Dr Piukala’s evidence confirmed that Report and he said that with all the injuries Fekumi had the prognosis was not good, even if better medical attention had been available. A Glasgow Coma scale of 3 was very, very bad and the chances of survival were not good. He said Fekumi had been hit on the head several times with a lot of force with a very hard object.

The Defendant was arrested at around 2.00 am the following morning and later that day recorded an interview [Exhibit 5] with the police and subsequently attended and took part in a demonstration at the scene of the crime, where photographs were taken [Exhibit 1]. In the Record of Interview, the evidence of which was not challenged at this trial, the Defendant answered:

“10. Were you intoxicated at the allotment before you moved into town?

Yes

11. Did anything happen at the bush or was it time for you to come back to town?

Yes

12. Approximately what time was this?

Maybe 1 in the afternoon

13. What happened?

We were drinking and the guy attacked me and I told him to stop again he attacked me and I told him to stop and the fourth time he did, I told him that I would hit him and then it was time for us to move into town.

14 Who was the guy that continually attacked at you?

Fekumi Matekuolava

15 Why did he attack you?

He was angry with me because he thought I was about to tell him to go away from our drinking

16 And when you came to town, where about in town did you go to?

On the vacated land near the Free Wesleyan Church of Tokomololo..

17 What alcohol did you consume there?.

Homebrew

......

20 Why did you finish drinking?

It finished when I hit Fekumi Matekuolava.

21 Please explain what happened?

We had moved our drinking into town, and this person again attacked me and I told him that I would hit him and I did hit Fekumi Matekuolava.

22 Alekisanita, please explain how you hit Fekumi Matekuolava?

I went and got a crow bar and hit him twice on the head.

23 Where was the crow bar from?

A crow bar used for husking coconut at Palu Tualau’s house.

24 Can you estimate the distance of where you were drinking to that of the crow bar?

Maybe about 30-40 feet.

25 Were you angry with Fekumi Matekuolava?

Yes.

26 When did you start getting angry at Fekumi Matekuolava?

It started when we were drinking at the bush.

27 If you were shown the crow bar that you used to hit Fekumi with would you be able to remember it?

Yes.

28 Please look at this coconut husking crow bar, Alekisanita was given the crow bar and he held and looked at it.

It is the crow bar.”

The law

In relation to the charge of murder, the relevant sections of the Criminal Offences Act (Cap 18) are:

Definition of homicide.

85. Homicide is the killing of a human being by any means whatsoever and is either culpable or not culpable.
    

Definition of culpable homicide.

86. (1) Culpable homicide consists in the killing of any person either -

(a) by an unlawful act;

(2) Culpable homicide is either murder or manslaughter.

When culpable homicide amounts to murder.

87. (1) Culpable homicide is murder in any of the following cases –

(a) ...

(b) if the offender intended to cause to the person killed any bodily injury which the offender knew was likely to cause death and was reckless whether death ensued or not; or ....

Essential elements of murder

Therefore the essential elements of Count 1, on which the Court must be satisfied beyond reasonable doubt to find the Defendant guilty of murder, are that it was the Defendant who:

1. by an unlawful act (ie not an act allowed by law);

2. intended to cause the victim Fekumi a bodily injury;

3. which the Defendant knew was likely to cause death;

4. and was reckless whether death ensued or not - what I shall refer to as an intention to inflict a lethal injury;
5. and the unlawful act caused the death of the victim Fekumi.
   

In a case of murder the Court is not entitled to find the necessary intention, unless it is sure that death or really serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the actions of the Defendant, and that he appreciated that such was the case. The prosecution only has to prove that the Defendant had the necessary intention at the time of the alleged offence: it need not have been a long-standing intent and it is sufficient for it to have been formed in a matter of seconds, say in a sudden flash of temper.

Provocation

It is not murder if it is proved on behalf of the Defendant, as submitted by the Defendant’s Counsel, that he was deprived of the power of self-control by an extreme degree of provocation given by the other person, the victim Fekumi, such as an unlawful assault committed on the Defendant by Fekumi, which was of such a kind either by reason of its violence or of accompanying words, gestures or other circumstances of aggravation as to be likely to deprive any person of ordinary character being in the circumstances in which the Defendant was, of the power of self-control.

If the Court finds that the Defendant was deprived of the power of self-control by such extreme provocation given by Fekumi, then the Defendant is deemed to be guilty of manslaughter by reason of provocation and not of murder.

The relevant provisions in the Act in relation to provocation are:

When culpable homicide is manslaughter only.

88. A person who commits culpable homicide shall be deemed to be guilty of manslaughter and not of murder if any of the following matters are proved on his behalf; namely –

(a) that he was deprived of the power of self-control by such extreme provocation given by the other person as is mentioned in section 89 hereof; or

(b) ... ; or

(c) ...

What matters amount to extreme provocation.

89. The following matters may amount to extreme provocation to one person to cause the death of another person namely –

(a) an unlawful assault committed upon the accused person by the other person which was of such a kind either by reason of its violence or of accompanying words, gestures or other circumstances of aggravation as to be likely to deprive any person of ordinary character being in the circumstances in which the accused person was, of the power of self-control;

(b) ... ;

(c) ... ;

(d) ...

When extreme provocation will not avail.

90. (1) Notwithstanding proof on behalf of the accused person of any such matter of extreme provocation as is mentioned in section 89 hereof, his crime shall not be deemed to be thereby reduced to manslaughter if it appears either from the evidence given on his behalf or on behalf of the prosecution –

(a) that he was not in fact deprived of the power of self-control by the provocation; or

(b) that he acted wholly or partly from a previous purpose to cause death or harm or to engage in an unlawful fight whether or not he would have acted on that purpose at the time or in the manner in which he did act had it not been for the provocation; or

(c) that after the provocation was given and before he did the act which caused the harm, such a time elapsed or such circumstances occurred that a person of ordinary character might have recovered his self-control; or

(d) that his act was in respect either of the instrument or means used or of the brutal manner in which it was used, greatly in excess of the measure in which a person of ordinary character would have been likely under the circumstances to be deprived of his self-control by the provocation.

(2) ...

Provocation is not a complete defence, leading to a verdict of Not Guilty. It reduces what would otherwise be murder to the lesser offence of manslaughter by reason of provocation. Because the prosecution must prove the Defendant's guilt, once the issue of provocation is raised, it is for the prosecution to establish beyond reasonable doubt that this was not a case of provocation, and not for the Defendant to establish that it was.

Referring to Archbold (see now Archbold 2005 para 19-56) Ms Simiki referred to the classic definition of provocation given in R v Whitfield (1976) 63 Cr App R 39, 42 (CA), repeating what was said by Devlin J in R v Duffy [1949] 1 All ER 932 (CCA):

“Provocation is some act, or series of acts, done [or words spoken] [by the dead man to the accused] which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.”

In Whitfield Goddard LCJ then added:

“There are of course, as is now well known, two features in that definition: the subjective feature requiring that the accused himself should have lost his self-control, and secondly the objective feature which requires that a reasonable man should have been similarly affected.”

Referring to Archbold 2005 para 19-61, more recently in R v Smith (Morgan) [2000] UKHL 49; [2001] AC 146, [2000] 4 All ER 289 (HL), [2000] UKHL in the principal speech in the House of Lords in London Lord Hoffmann said:

“Judges should not be required to describe the objective element ... by reference to a reasonable man, with or without attribution of personal characteristics. They may instead find it more helpful to explain in simple language the principles of the doctrine of provocation. First, it requires that the accused should have killed while he had lost his self-control and that something should have caused him to lose his self-control ... . Secondly, the fact that something caused him to lose his self-control is not enough. The law expects people to exercise control over their emotions. A tendency to violent rages or childish tantrums is a defect in character rather than an excuse. The jury must think that the circumstances were such as to make the loss of self-control sufficiently excusable to reduce the gravity of the offence from murder to manslaughter. This is entirely a question for the jury. In deciding what should count as a sufficient excuse, they have to apply what they consider to be appropriate standards of behaviour, on the one hand making allowance for human nature and the power of emotions but, on the other, not allowing someone to rely upon his own violent disposition. In applying these standards of behaviour, the jury represent the community and decide, as Lord Diplock said in Camplin ([1978] 2 All ER 168 (HL)), what degree of self-control ‘everyone is entitled to expect his fellow citizens will exercise in society today’ ... .”

The general principle is that the same standards of behaviour are expected of everyone, regardless of their individual psychological make-up. In most cases, nothing more will need to be said. But the jury should in an appropriate case be told, in whatever language will best convey the distinction, that this is a principle and not a rigid rule. It may sometimes have to yield to a more important principle, which is to do justice in the particular case. So the jury may think that there was some characteristic of the accused, whether temporary or permanent, which affected the degree of control which society could reasonable have expected to him and which it would be unjust not to take into account. If the jury take this view, they are at liberty to give effect to it.”

Referring further to Archbold 2005 para 19-62, drunkenness will not avail the accused, see DPP v Camplin [1978] 2 All ER 168,180 (HL) per Lord Simon:

“The original reasons in this branch of the law were largely reasons of the heart and of common sense, not the reasons of pure juristic logic. The potentiality of provocation to reduce murder to manslaughter was, as Tindal CJ said in R v Hayward, ‘in compassion to human infirmity’. But justice and common sense then demanded some limitation: it would be unjust that the drunk man or one exceptionally pugnacious or bad-tempered or over-sensitive should be able to claim that these matters rendered him peculiarly susceptible to the provocation offered, where the sober and even-tempered man would hang for his homicide. Hence, I think, the development of the concept of the reaction of a reasonable man to the provocation offered, even thought it may have originally come into this branch of the law by way of testing the credibility of the claim of the accused (who could not at that time himself give evidence) that he had been so deprived of his self-control as to be incapable of forming the relevant intent. But it is one thing to invoke the reasonable man for the standard of self-control which the law requires; it is quite another to substitute some hypothetical being from whom all mental and physical attributes (except perhaps sex) have been abstracted.”

See also R v McCarthy, 38 Cr App R 74, 80-82 (CCA) per Goddard LCJ:

“The test to be applied is that 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 not have led an ordinary person to act as he did. In applying the test, it is of particular importance (a) to consider whether a sufficient interval has elapsed since the provocation to allow a reasonable man time to cool, and (b) to take into account the instrument with which the homicide was effected, for to retort, in the heat of passion induced by provocation, by a simple blow is a very different thing from making use of a deadly instrument like a concealed dagger. In short, the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter. ...

We see no distinction between a person who by temperament is unusually excitable or pugnacious and one who is temporarily made excitable or pugnacious by self-induced intoxication. It may be that an excitable, pugnacious or intoxicated person may be more easily provoked than a man of quiet or phlegmatic disposition, but the former cannot rely upon his excitable state of mind if the violence used is beyond that which a reasonable, or as we may perhaps say an average, person would use to repel an act which can in law be regarded as provocation. ...

In view of the three decisions of the House of Lords to which we have referred, it is in our opinion now settled that, apart from a man being in such a complete and absolute state of intoxication as to make him incapable of forming the intent charged, drunkenness which may lead a man to attack another in a manner which no reasonable sober man would do cannot be pleaded as an excuse reducing the crime to manslaughter if death results.”

The loss of self-control must be associated with the act which causes death: Archbold 2005 para 19-57. Circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that a person has had time to think and reflect, and has done acts which require deliberation and a high degree of control, which would negative a sudden temporary loss of self-control, which is the essence of provocation: R v Baillie [1995] 2 Cr App R 31, 38 [1995] Crim LR 739 (CA).

Evidence of previous acts of provocation amounting to cumulative provocation is also admissible to place a defendant’s reaction in context, although a temporary and sudden loss of self-control arising from an act of provocation is also essential: Archbold 2005 para 19-58; R v Thornton 96 Crim App R 112 (CA); R v Brown [1972] 2 All ER 1328, 56 Crim App R 564 (CA).

These are useful authorities giving guidance on the application of the law, but it has to be remembered that the primary source of the law here in Tonga is in the words of the Criminal Offences Act.

When considering the question of provocation, the Court must first ask whether the Defendant was provoked at all, ie caused suddenly and temporarily to lose his self-control by things that had been said and/or done by the victim, rather than just his own bad temper. If the Court thinks that he was or might have been provoked in that sense, it is then for the Court to decide whether or not the Defendant’s loss of self-control was sufficiently excusable to reduce the gravity of the offence from murder to manslaughter. When deciding this, as mentioned above, the Court must bear in mind that the law expects people to exercise control over their emotions. If a person has an unusually volatile, excitable or violent nature (or is drunk) he cannot rely on that as an excuse. Otherwise, however, it is entirely for the Court, as representing the community, to decide what are appropriate standards of behaviour, what degree of control society could reasonably have expected of the Defendant, and what is the just outcome of this case. The Court must make allowances for human nature and the power of emotions.

However the crime is not reduced to manslaughter by reason of provocation if the Defendant was not in fact deprived of the power of self-control by the provocation; and the test of that is on an objective standard for the Court to decide.

If the Court is sure that the Defendant’s loss of self-control was not sufficiently excusable to reduce the offence from murder to manslaughter, it must find the Defendant guilty of murder. Otherwise, its verdict will be "Not Guilty of murder but Guilty of manslaughter (by reason of provocation)".

Cause of death

As a matter of law a defendant is still criminally liable if he hit a blow which was a cause of death – meaning something more than a minor cause; the incident need not be the sole cause of death, nor even a substantial cause, but it must be one of the causes and something more than de minimis: R v Hennigan [1971] 3 All ER 133 (CA). Even if something else happened after the original blow, it is enough that the original blow contributed significantly to the resulting death, if at the time of death the original injury was still an operating cause and a substantial cause, albeit that some other cause was operating: R v Smith [1959] 2 All ER 193 (CMAC).

Grounds of decision

As already mentioned, I believe it was agreed by both sides that this case hinges on the issue of provocation. The principal submission by Counsel for the Defendant was that the issue of provocation had been raised and the prosecution had failed to disprove provocation beyond reasonable doubt.

In Tonga the law on provocation is set out (as above) in sections 88, 89 & 90(1) of the Criminal Offences Act.

But as Crown Counsel submitted, there are useful authorities from England (set out above) giving guidance on the application of the law, provided one keeps in mind that the statute law is not identical.

In relation to this case it is important that the doctrine of provocation first requires that the Defendant should have killed while he had lost his self-control and that something should have caused him to lose his self-control. Secondly, the fact that something caused him to lose his self-control is not enough, the law expects people to exercise control over their emotions. A tendency to violent rages or childish tantrums is a defect in character rather than an excuse. The circumstances must be such as to make the loss of self-control sufficiently excusable to reduce the gravity of the offence from murder to manslaughter. This is entirely a question of fact. In deciding what should count as a sufficient excuse, the Court has to apply what it considers to be appropriate standards of behaviour, on the one hand making allowance for human nature and the power of emotions but, on the other, not allowing someone to rely on his own violent disposition. (Smith)

In applying the test in this case, it is of particular importance (a) to consider whether a sufficient interval has elapsed since the provocation to allow a reasonable man time to cool; and (b) to take into account the instrument with which the homicide was effected, for to retort, in the heat of passion induced by provocation, by a simple blow is a very different thing from making use of a deadly instrument – in McCarthy a concealed dagger was referred to. In short, the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter. (McCarthy)

I accept entirely that, once the issue of provocation has been raised, as it has been in this case, it is up to the prosecution to negative it or disprove it beyond reasonable doubt.

On the evidence I accept that in terms of section 98(a) there was an unlawful assault on the Defendant by Fekumi, though it must be said that there was no evidence that any assault by itself was so violent as to be likely to deprive the Defendant, or a person of ordinary character in his circumstances, of the power of self control.

But I do accept that there were accompanying words of aggravation (rude swearing in Tongan) which objectively might have deprived a Tongan of ordinary character of the power of self control, though ‘Aufuato advised the Defendant not to worry about Fekumi’s behaviour.

I must also mention at this stage that what section 98 deals with is not just provocation, but “extreme provocation”.

When I turn to the enumeration in section 90(1) of cases when extreme provocation will not avail, matters are much less clearly in favour of the Defendant.

In terms of paragraph (a) I considered on the evidence that subjectively the Defendant was not in fact deprived of the power of self-control by the provocation, even if I took into account the provocation all day. The Defendant had already had the iron bar taken away from him and been separated from Fekumi and, despite the renewed provocation, he had sufficient control to walk what he admitted in interview was 30-40 feet to get the bar again and back 30-40 feet to where Fekumi was. He had therefore done acts which required deliberation and control, thus negativing a sudden temporary loss of control. In addition his earlier words that he would hit Fekumi to die showed a desire for revenge which was inconsistent with provocation.

In this respect it is clear that the Defendant’s drunken state will not help him. There is no distinction between a person who by temperament is unusually excitable or pugnacious and one who is temporarily made excitable or pugnacious by self-induced intoxication. Apart from a man being in such a complete and absolute state of intoxication as to make him incapable of forming the intent charged, drunkenness which may lead a man to attack another in a manner which no reasonable sober man would do cannot be pleaded as an excuse reducing the crime to manslaughter if death results. (McCarthy)

It would be unjust that the drunk man or one exceptionally pugnacious or bad-tempered or over-sensitive should be able to claim that these matters rendered him peculiarly susceptible to the provocation offered, where the sober and even-tempered man would hang for his homicide: Camplin.

Then in terms of paragraph (c), after even the latest provocation and before the Defendant hit Fekumi, such a time elapsed or such circumstances occurred that a person of ordinary character might have recovered his self control. The Defendant had time to walk 30-40 feet to get the iron bar again and back 30-40 feet to where Fekumi was. I did not accept that the aggravation or circumstances ran continuously from the tax allotment at Lomaiviti right up to the assault on Fekumi: there was both a lapse of time and intervening circumstances, as described in the findings in fact above, although Fekumi did start provoking the Defendant again at Tokomololo. But even taking all the events of that day cumulatively, I found objectively that a sufficient interval – albeit brief - had elapsed since the latest provocation to allow a reasonable man time to cool.

But while these aspects under paragraphs (a) and (c) may be open to debate on the evidence, with reference to paragraph (d), objectively I was quite certain that the Defendant’s assault – both in respect of the vicious and lethal instrument used – ie the iron bar – and the brutal manner in which it was used, with a powerful swing to a man lying on the ground, was greatly in excess of the measure in which a person of ordinary character would have been likely under the circumstance to be deprived of his self-control by the provocation.

As a weapon the iron bar was far beyond what might have been excusable in the circumstances. Anything but a light tap with it was bound to produce a serious injury to the victim. As it was, it was used with considerable force by the Defendant in a powerful downward golf stroke (as tellingly demonstrated in evidence by Samuela, on which he was not cross-examined). That occurred twice. I have no difficulty characterising that as using the iron bar in a brutal manner. This was not a simple blow in the heat of passion induced by provocation, but was the use of a deadly instrument, so that in this case I found that the mode of resentment did not bear a reasonable relationship to the provocation.

I therefore find that the prosecution has established beyond reasonable doubt that this was not a case of provocation in terms of sections 89 & 90 read together.

There was really no dispute about the other elements of murder and on the evidence I found that it was established beyond reasonable doubt that it was the Defendant ‘Alekisanita who:

- by an unlawful act (hitting Fekumi with the iron bar);

- intended to cause Fekumi a bodily injury

(he said he would hit him to die);

- which ‘Alekisanita knew was likely to cause death;

- and was reckless whether death ensued or not

(as death or serious bodily harm was a virtual certainty as a result of the Defendant’s actions, and from his earlier words he clearly appreciated that that was the case);

- and the unlawful act was a substantial cause of the death of Fekumi

(as established by the medical evidence).

This is a tragic case, but I therefore find you guilty ‘Alekisanita ‘Ake on Count 1 of the murder of Fekumi Matekuolava.

R M Webster MBE
Chief Justice

20 December 2005