Police v Ulberg [2011] WSSC 96 (6 September 2011)

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

NOAH ULBERG male of Vailoa and Lepea
Defendant

Counsel: Ross Burns and Precious Chang for the prosecution
Semi Leung Wai for the defendant

Hearing: 29 - 30/8/2011
Conclusions: 30/8/2011
Reasons: 6/9/2011

Ruling on Provocation

1. The charge of murder against the accused arose out of an incident at Lepea on the morning of the 9th October 2010, where and when the accused inflicted eighteen (18) sharp force wounds on his wife ("the deceased") with a bush knife in the presence of four policemen and other onlookers. The accused and the deceased have been separated for over twelve months; their infant daughter was living with the deceased.
   
2. On the 8th October 2010 the day before the incident, the deceased received a text message on her mobile phone sent from the accused's mobile phone for the deceased to collect from the accused monies for the upkeep of the daughter.
   
3. On the morning of the incident the deceased and the accused met infront of a shop at Lepea close to the main road and not far from where the accused was living. Concealed in the empty sack carried by the accused was the bush knife.
   
4. A prosecution witness who knew the accused and who was at the shop saw the accused attempting to strike the deceased with the knife whilst the deceased was trying to restrain the accused. The deceased eventually ran to the main road. A police van travelling through Lepea swerved to avoid the deceased running towards them from infront of the shop. She was pursued by the accused. The police van stopped just after the deceased hit the side of the van.
   
5. As a result of the deceased coming into contact with the side of the van she fell down and she was thereupon attacked by the accused with the bush knife. One of the police officers approached the accused and called out to stop had to retreat to avoid the advancing accused. The deceased was seen putting up her hands to in an effort to cover her face from the attack. The accused walked away from the scene and headed to his home.
   
6. In his written statement to the police taken on the 10th October 2010 he said he was angry with her because she was useless. He usually gives her money amounting between $200 to $300 every Saturday for the upkeep of their daughter and he also knew she was having an affair.
   

Defence Counsel's Submissions

7. In his oral submissions, counsel submitted that the accused was provoked by the deceased's love affair. When the accused discovered or how he discovered the love affair is not stated in the written statement of the accused. Counsel however did state it was about two weeks before the date of the incident.
   
8. Counsel also cited the testimonies of two prosecution witnesses. One witness, a workmate of the deceased told the accused that the deceased had a boyfriend, the son of a businessman. But this witness also said he told the accused about the deceased's boyfriend after the death of the deceased and on the day the accused first appeared in this court charged with the murder of the deceased.
   
9. The second witness was another workmate of the deceased who told the court that in October 2010 she was told by the deceased that she (deceased) had a boyfriend.
   

Discussion

10. In this particular case provocation is the only answer to the charge of murder and so it is not to be lightly taken away from the assessors. The accused is entitled to put it forward so long as from the evidence as a whole there appears a credible narrative of events disclosing materials that suggests provocation in law.
    
11. The test to be applied is whether on a view of the evidence most favourable to the accused there is sufficient material for the reasonable assessors to find that the accused acted under provocation. The test was stated by Viscount Simon in Holmes v Director of Public Prosecution (1946) AC 588 at 597:
    

"In dealing with provocation as justifying the view that the crime may be manslaughter and not murder, a distinction must be made between what the judge lays down as matter of law, and what the jury decides as matter of fact. If there is no sufficient material, even on a view of the evidence most favourable to the accused, for a jury (which means a reasonable jury) to form the view that a reasonable person so provoked could be driven, through transport of passion and loss of self-control, to the degree and method and continuance of violence which produces the death it is the duty of the judge as matter of law to direct the jury that the evidence does not support a verdict of manslaughter. If, on the other hand, the case is one in which the view might fairly be taken (a) that 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 accused 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.

12. It is for the judge to decide as a matter of law whether the evidence supports the view that the provocation was sufficient to lead a reasonable person to do what the accused did. If there is provocation in law, it is for the assessors to consider:
    
    • (i) whether on the facts as they find from the evidence the provocation was in fact enough, to lead a reasonable person to do what the accused did; and if so,
      
    • (ii) did the accused act under the stress of such provocation
      
13. In Parker v R (1964) AC 1369 it was said at page 1392:
    

"If the evidence given in a case contains some reasonable evidence of provocation ie 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 ..."

14. The testimonies of the two prosecution witnesses cannot for very obvious reasons be termed reasonable evidence of provocation. The witness who informed the accused of the deceased's love affair did so after the accused had killed the deceased and the conversation between the other witness and the deceased was not known to the accused. That leaves the accused's written statement as the only evidence suggesting provocation. No suggestion is given as to how and when he discovered the so called affair. If counsel's response of two weeks is accepted as the length of time the accused knew about the affair before the killing, it cannot be said to be consistent with the concept of being suddenly deprived of the power of self control and rendered him not the master of his mind. A sufficient interval has elapsed to allow a reasonable Samoan to cool down.
    
15. Provocation is defined in Parker v R supra at 1387:
    

"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 power of his mind."

16. Macini v Director of Public Prosecution (1942) AC 1 at 9 stated the principles of provocation at common law:
    

"It is not all provocation that will reduce the crime of murder to manslaughter. Provocation, to have that result, must be such as temporarily deprives the person provoked of the power of self control, as the result of which he commits the unlawful act which causes death ... The test to be applied is that of the effect of the provocation on a reasonable man, as was laid down by the Court of Criminal Appeal in Lesbini [1914] UKLawRpKQB 204; [1914] 3 K. B. 1116, 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 the 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."

17. Provocation in law consists mainly of three elements as stated in Lee Chun-Chuen v R (1963) AC 220 at 231:
    

"Provocation in law consists mainly of three elements – the act of provocation, the loss of self-control, both actual and reasonable, and the retaliation proportionate to the provocation. The defence cannot require the issue to be left to the jury unless there has been produced a credible narrative of events suggesting the presence of these three elements. They are not detached. Their relationship to each other – particularly in point of time, whether there was time for passion to cool – is of the first importance. The point that their Lordships wish to emphasise is that provocation in law means something more than a provocative incident. That is only one of the constituent elements. The appellant's submission that if there is evidence of an act of provocation, that of itself raises a jury question, is not correct.

18. The accused's conduct the day before and in the morning of the 9th October 2010 are consistent with the elements of the formation and implementing of a plan to assault the deceased with the bush knife. He used the text message to lure the deceased to meet with him and when they did meet he had a machete concealed in a sack.
    
19. In any event such a deliberate act of resorting to and use of a lethal weapon on an unsuspecting victim cannot be said to lead reasonable assessors to find that the accused was acting under provocation. Indeed it can never be said here that on the evidence most favourable to the accused the assessors might hold that the merciless slashing of the deceased was proportionate to the provocation or to bear any reasonable relationship to the provocative conduct alleged by the accused.
    

Result

20. For the above reasons the defence of provocation was withheld from the assessors.
    

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JUSTICE VAAI