1977 GILR 119
FIJI COURT OF APPEAL

Criminal Appeal No 7 of 1975

IBEIBE TEBWEBWE

v

REGINAM

Heard: Gould V.P. and Henry J.J.A.

Suva, 7th and 25th July 1975

Appeal to Court of Appeal - murder - application for a re-trial - appellant not defended by counsel - challenge to fight - Gilbertese custom - provocation - appeal dismissed.

The appellant was found guilty of murder and sentenced to life imprisonment by the High Court sitting at Bairiki (Bodilly C.J.) on 11th February 1975 for stabbing to death a man by the name of Inatio Meamea at Bikati Island, Butaritari on 5th November 1974. The deceased, who was very drunk, called out to the appellant and a man named Taabo saying "Taabo come here and I will stab your head." The appellant then went towards the deceased carrying a knife and a fight started during the course of which the deceased was stabbed in three places and died almost immediately. The High Court held that according to the law as it stands at present if a sane man does fight in acceptance of a general challenge to "come out and fight" and in doing so causes death that is murder. The appellant appealed on the grounds that, as he was not defended by counsel, his case was not properly defended and argued and that, in Gilbertese custom, a man who is challenged is normally bound to fight the challenger and if he kills the challenger that is manslaughter and not murder.

HELD:

(1) That there was nothing in the first ground of appeal to justify an order for a re-trial;

(2) That insofar as the Gilbertese custom concerning challenges was concerned there was nothing before the Court to justify the court in taking judicial notice that such a custom exists;

(3) That anger caused by the actions of the deceased in issuing challenges, could not, even if looked upon in the light most favourable to the appellant, be regarded as constituting such provocation as would make an ordinarily reasonably Gilbertese retaliate as the appellant did here;

(4) That the appeal would be dismissed.

H.M. Payer for the Appellant
K. Ratnesser and R.S. Shankar for the Respondent

MARSACK J.A.:-

1. This is an appeal against conviction for murder entered in the High Court of the Western Pacific sitting in Bairiki in the Gilbert & Ellice Islands on 11th February, 1975. The appellant was charged that on the 5th November, 1974 he had murdered Inatio Meamea at Butaritari Island. At the trial the appellant was represented by Mr. Adkin as his next friend. Mr Adkin was not legally qualified. At the conclusion of the case for the prosecution, Mr. Adkin addressed the Court on the appellant's behalf but no witnesses were called for the defence.

2. The facts as found by the learned trial Judge may be shortly stated. On the evening of 5th November 1974 there was a game being played near the Catholic Mission station on a small island called Bikati, off the coast of Butaritari. Appellant and his adoptive father, Taabo, were sitting nearby. While the game was in progress, the deceased approached; he was very drunk and was shouting out aggressively. When that happened those who were playing scattered and ran away. The deceased was described by the learned trial judge as "a drunken man seeking to make trouble". There is evidence that he called, "Taabo, come here and I will stab your head." Taabo followed by the appellant went towards the deceased. The appellant was armed with a knife and Taabo with a fishing spear. A fight between the appellant and the deceased then followed; and in the course of this the deceased was stabbed in three places and died almost immediately. One of the stab wounds had, as the Judge finds, "lacerated the intestines and gone far towards disembowelling” the deceased.

3. It was submitted on behalf of the appellant that one at least of the wounds may have been inflicted by Taabo but the medical evidence discounted any such possibility.

4. There was no direct evidence as to what happened in the course of the fight. Taabo was not called as a witness; the appellant did not give evidence; and all other possible eye-witnesses had fled for cover on the approach of the deceased who was obviously looking for trouble. There was, however, a cautioned statement, admitted in evidence at the hearing, made by the appellant to the Police. In the course of this, he said:

"When he (the deceased) went outside I followed him. I sent back Taabo and I fought Inatio. I cannot recall exactly how I was fighting Inatio .... on my way back, I realised I had a knife in my hand. It was my own toddy knife. I realised that I had used it during my fight with Inatio. I cannot say how the stabbing was conducted".

Later in his statement he said, "I happened to get angry at Inatio because of his throwing and his challenging remarks".

5. The two main grounds of appeal argued before us may be briefly stated as under:

(1) That the appellant's case was not properly defended and argued;

(2) That in similar Gilbertese cases involving knife fights after challenges the verdict has always been manslaughter and not murder, in recognition of the Gilbertese custom that a man who is challenged is morally bound to fight the challenger.

6. With respect to the first ground, we are unable to find anything on the record to indicate that Mr. Adkin had overlooked obvious points which could have been urged in favour of the appellant. Moreover, the learned trial Judge has had long experience in the Islands in hearing cases where no legal assistance was available, and we are satisfied that he would not allow an accused person to be prejudiced in any way by the lack of counsel to represent him. We can see nothing under this heading to justify our making the order for which counsel for the appellant asks on this ground, that is to say, for a new trial.

7. The second ground, in so far as it concerns what is referred to as the Gilbertese custom concerning challenges, is not supported by any evidence; and there is nothing in our opinion to justify this Court in taking judicial notice that such custom exists. On the case before us as it stands, the only possible basis for a verdict of manslaughter in lieu of murder would be provocation. It is quite clear that the deceased was drunk and obstreperous and, as the learned trial Judge has found, seeking to make trouble. But that fact could not possibly be held to justify a severe attack with a knife on an unarmed man, with the fatal result that ensued. The appellants’ own explanation that he became angry with the deceased because of the way the deceased was throwing things about and issuing challenges is easily understood; but anger of that kind, caused by actions of the deceased, could not, even if looked upon in the light most favourable to the appellant, be regarded as constituting such provocation as would make an ordinary reasonable Gilbertese retaliate as did the appellant here. For these reasons we find that that the appeal must be dismissed.