Police v Malaki [2011] WSSC 111 (21 July 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

IONATANA MALAKI male of Papa Sataua and Vaigaga.

Defendant

Counsels: Ms P Chang and Mr G Patu for prosecution
Mr J Brunt for defendant

Ruling: 21 July 2011

ORAL RULING OF NELSON J
(Provocation)

At the close of the trial evidence defence counsel submitted that an issue of provocation has been raised in this case and that it should be left to the ladies and gentlemen assessors to consider as a defence. This was objected to by the prosecution who argued there has been no provocation established as a matter of law and it should not be left to the assessors to consider. I have heard arguments from both sides and deliver herewith the following ruling.

The leading authority in this jurisdiction on provocation is the Court of Appeal decision in Tolova'a v Police (No 2) [1970-1979] WSLR 105. There the approach in Parker v R [1964] AC 1369 at 1392 was approved by the Court of Appeal:

"If the evidence given in a case contains some reasonable evidence of provocation, i.e., some evidence fit for the consideration of the jury, then the issue of provocation must be left to the jury even though the issue has not been raised by the defence .... Whether in any case there is evidence fit for consideration by a jury on a particular matter is a question of law. A judge may, therefore, in some cases properly withdraw any question of provocation from the jury..."

As to the test to be applied for provocation:

"The question which this Court has to determine is whether, on a view of all the evidence most favourable to the appellant, there is sufficient evidence for reasonable assessors to form the view that a reasonable person could be so provoked that he could be driven, through transport of passion and loss of self-control, to the degree and method of continuance of violence, which produced the death: Holmes v. DPP [1946] A.C. 588 per Viscount Simon at p. 597:

"If, on the other hand, the case is one in which the view might fairly be taken that (a) a reasonable person, in consequence of the provocation received, might be so rendered subject to passion or loss of control as to be led to use the violence with fatal results, and (b) that the deceased was in fact acting under the stress of such provocation, then it is for the jury to determine whether on its view of the facts manslaughter or murder is the appropriate verdict."

As to the loss of self control the following definition was also approved by the Court of Appeal in Parker:

"The provocative act had to be such as was likely to arouse passion in the breast of a reasonable man and which did in fact arouse it in the accused so that his conduct resulted from his being suddenly though temporarily deprived of his power of self-control and rendered him not the master of his mind."

And as the court noted in Tolova'a the test to be applied is that of the effect of 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. And that test is to be modified to one of a reasonable man in the social, racial and cultural context of the accused. The yardstick to be followed is that of the reasonable Samoan.

It is a question here of whether the facts in this case fall within these tests and definitions. So that provocation should be left to the assessors to consider as defence. Counsel for the defence argued that these have been satisfied and that the evidence establishes the accused was provoked because of the following factors. Firstly the history of quarrels between the deceased and his wife. The wife having spoken in her oral testimony of arguments occurring at least three times a week. This history stretching over the one year and a bit from late 2006 to the incident in early 2008 when the accused was residing with the couple at their property at Pesega. There was also the history of the deceaseds drunken behaviour coming home and using foul and offensive language to members of his family including his wife and mother in law.

The accuseds testimony was that this was not the way that he was brought up as a Samoan male and that the deceased should have had more respect and consideration for his wife and his mother in law whom the accused regarded as a mother and a sister even though he was not related to them. He said these were matters he had discussed previously with the deceased who had promised not to repeat such unsavory conduct. The accused also pointed to the deceaseds behaviour on the night in question as triggering the provocative incident. Which the evidence showed to be more drunken and offensive than normal. Because it prompted the mother-in-law to go next door to a neighbour to use their phone to ring the police to come and fetch the deceased, to take him away from the property.

Counsel for the defence argues that all this culminated in the accused exploding that night and losing his self control and doing what he did to the deceased. Which was namely he threw a rock at him which missed. Then he went to the kitchen, fetched a "kuai" or a coconut grater and used it to strike the deceased twice with. An assault which resulted in the fatal skull fractures to the right parietal side of the deceaseds head. Which led to the deceaseds death at the National Hospital some two days later.

Against all that must be balanced other factors that are emergent from the evidence. And I bear in mind that the test must be applied on the view of the evidence most favourable to the accused. Such other factors include the accuseds own testimony because he chose to give evidence in this trial and the accuseds cautioned statement which he gave to the police a few days after this incident occurred on 12 January 2008. In neither the cautioned statement nor his oral evidence does the accused actually say that he lost self control or was provoked to lose self control. In his cautioned statement he says and I quote from the bottom of page 4 when talking about the deceaseds actions on the evening in question:

"Peitai la o le po lea o le aso Toonai aso 12 Ianuari 2008 masalo ua lata i le 9 pm na ona ai foi Pita ma laulauvavale ae o loo iai lana fanau ma le tina o Sulesa. O le mafuaaga la lea na ou le fiafia ai loa ia Pita."

The words he used were "ou le fiafia ai loa ia Pita." He goes on page 5 to describe what he then did:

"Sa ou togia Pita i le maa peitai e lei lavea, o lea na ou savali mai ai loa i le umukuka ma uu atu le kuai valu penu ma ou savali loa ia Pita i luma o le fale o loo iai ma lana toalua."

Which suggests that the building from which he retrieved the kuai was separate to the building in which the deceased and his wife were in. The next question from the police officer was:

"O le a la lau gaioiga na fai ina ua e oo atu ia Pita?"

And the answer was:

"Sa ou taunuu atu o tu Pita i totonu o le fale ma sa ou taina loa pau lava lou iloa sa tali e Pita lau ta i ona lima ma o lau ta foi lea na pau ai Pita i lalo."

And later on he says;

"Sa ou toe taina ma sa tau i lona fatafata ma o le taimi lea na oso atu ai loa Sulesa ma vavao ese au."

When that happened he then says he walked away and got ready for work. On page 6 of his statement he was asked:

"Ionatana e iai sesisi mafuaaga e ese mai i mafuaaga ua e taua i luga na mafua ai ona e faaoo lima ia Pita Tofilau ua mafua ai lona maliu i le falemai i Motootua i le Aso Gafua aso 14 Ianuari 2008?"

And his reply was;

"Leai o le mafuaaga lava lea ona o le pisa soo o le ulugalii lea."

He was asked;

"Ua leva lava ona e nofo ma lou ita ia Pita a'o lea faatoa faatino ile po o le aso toanai lea aso 12 Ianuari 2008?"

And his answer was;

"O lea lava"

These are indications that the accused long held anger and resentment at the deceased and the deceaseds behaviour. But they do not appear to be indicators that this thereby caused him to temporarily lose his power of self control and be rendered in the phraseology of the authorities "not the master of his mind." He did not use phrases like "pogisa la'u vaai" or "out lo'u ulu" to describe his mental state. The terms that he used in his statement given to the police a few days after this incident are as recorded above. His state of mind is perhaps best illustrated by his own oral testimony before the court as recorded on page 47 of the trial transcript where his counsel asked him:

"I le taimi ao e faatinoina le sasaina lea na e faatinoina ia Pita na iai se mafaufau ia te oe e te faaooina le maliu ia Pita?

And his answer was;

"E lei iai sou mafaufau ma sou manatu poo se lagona oute taumafai e faaoo le maliu i le uso peitai ane sa ou sasa ia te ia faapea ia aoa'i lona mafaufau i le mea foi lea ua ia faia ma le mea ua tupu soo tele foi."

In other words he is saying that he assaulted the deceased in order to teach him a lesson. Unfortunately he went too far and caused the fatal injuries.

It is also necessary to consider the context of all these happenings. The accused is not related to the deceased or the deceaseds wife or her mother. And he has only been at the familys property for a year and a bit. The evidence did not show that he had a particularly close relationship with either woman. It did not show that he helped with family faalavelaves or other such obligations other than to give to the family $40 of his pay packet most of which probably went to his own family in Savaii for their upkeep and needs. And there was nothing stopping the accused from moving out at any time and removing himself from the argumentative and abusive behaviour that seemed to exist between the deceased and his wife.

It should also not be overlooked that there was some evidence from the mother in law who went to ring the police that she was fearful something may happen between the two men. There was further some evidence admitted to by the accused himself of a conflict over the deceaseds bottle of beer which he had brought home with him and which he had placed at his feet before passing out. The mother-in-law in her evidence at page 9 stated that before she went next door to the neigbour to ring the police she had told the accused to get ready to go to work and "aua nei iai se mea e tupu." No doubt the mother-in-law was also conscious of the argument that had just occurred between the deceased and his wife concerning the $5 the wife had given to the accused out of the deceaseds money.

This is the setting of this incident and the accuseds actions must be evaluated in that context. Considering all the relevant matters I am not satisfied that as a matter of fact the accused lost his self control and was rendered not the master of his mind when he carried out this assault on the deceased or that he was in a continuous state of hot bloodedness as submitted by his counsel. There is no doubt he was angry. There is no doubt that he had been harbouring resentment and anger against the deceased. But losing ones temper and completely losing ones self control are different matters. I am equally not satisfied that the reasonable Samoan in the accuseds position would have in the circumstances that he was in, lost his self control.

I accept the prosecution submission that provocation has not been established as a matter of law and that it should not be left to the assessors neither should it be referred to in any way in counsels closing addresses.

As a last point I wish to formally record my thanks to both counsel for the prosecution and counsel for the defence for producing at such short notice some very cogent and well researched submissions and in writing. I hope counsels you did not lose too much sleep in that process. These proceedings will accordingly be adjourned till 10 am tomorrow morning to hear closing arguments.

............................
JUSTICE NELSON