1977 GILR 124

FIJI COURT OF APPEAL

Criminal Appeal No 29 of 1975

TEBAO TOKIA

v

REGINAM

Before: Gould V.P., Marsack and Henry J.J.A.

Suva, 23rd and 25th July 1975

Appeal to the Court of Appeal - Murder - Challenge to fight - Gilbertese custom - provocation - reaction to provocation by Gilbertese - retaliation disproportionate - appeal dismissed.

The appellant was found guilty of murder and sentenced to life imprisonment by the High Court (Cooke J.) sitting at Bairiki on 22nd August 1974 for the murder of Touakin Buroro at Markei on 3rd June 1974. The deceased was sitting in the house of Tewiko Taaka when the appellant, who had a knife in his hand, came up to the house and entered it saying to the deceased "So Touakin you are here, I am tired of looking for you." The appellant then pushed Tewiko aside and attacked the deceased, who was sitting down, stabbing him five times with his knife causing his death within an hour. There was a background of ill-feeling between the appellant and the deceased and the deceased had started to burn down the appellant's house on the previous day. It was argued that the appellant had been challenged and could not, by custom, refuse a challenge and that he had to fight the deceased to stop him from attacking him in future. On appeal it was argued that by Gilbertese custom, if a man is challenged by another to fight he must accept that challenge and fight or be despised and regarded with shame by his fellows and also that reaction to provocation, with consequent loss of self-control, may take an appreciably longer time in the case of the Gilbertese than it does with Europeans.

HELD: (1) That while it may well be that when a Gilbertese is challenged to fight with a knife he will feel under a definite obligation to accept that challenge but that, of course, would not make the action of either of them lawful and that no opinion would be expressed as to what would be the correct verdict if one of them were killed but as there was no challenge in the instant case the question did not arise;

(2) That on the question of provocation there was nothing in the evidence to show a loss of self-control, in the legal sense, on the part of the appellant and that it was clear that his action was deliberate and in accordance with a preconceived plan; that even if there were provocation the retaliation was not proportionate to the provocation received;

(3) That the appeal would be dismissed.

G.P. Lala for the Appellant
P. Wilson for the Respondent

MARSACK J.A.:- This is an appeal against a conviction for murder entered in the High Court of the Western Pacific sitting at Bairiki in the Gilbert and Ellice Islands on the 22nd August 1974. The appellant was charged that on the 3rd day of June, 1974, he murdered one Touakin Buroro at Marakei Island. At the trial the appellant was represented by Mr. Watters as his next friend. There was no dispute as to the actual. killing of the deceased by the appellant; but he has claimed throughout that the correct verdict should have been manslaughter.

2. The facts as found by the learned trial Judge may be shortly stated. On the 3rd June 1974 the deceased was in the house of one Tewiko Taaka in the late afternoon. The appellant, who had a knife in his right hand, came up to the house and entered it. He said to the deceased "So Touakin you are here, I am tired of looking for you". The appellant then pushed Tewiko aside and attacked the deceased - who was sitting down - stabbing him five times with his knife: two of the wounds were 7" deep in the chest and intestines. Deceased died within an hour.

3. The defence set up was provocation. The Attorney General, in opening the case for the prosecution, said there was a background of ill-feeling between them; that the deceased had gone to the appellant's house. The deceased actually started a fire at the appellant's house on 2nd June, though the latter did not see him do it. The village warden put the fire out and took the deceased away to keep him out of trouble.

4. At the trial the appellant gave evidence. In answer to the question "When did you make up your mind that you were going to attack him?" he replied, "When I saw him in the house of Tewiko Taaka. It was his sulky face that made me attack him. If he had not had the sulky face I would not have attacked him". He went on to say that he killed the deceased to stop the deceased from attacking him in future. He also stated that the bad thing done by the deceased was the setting on fire of the appellant's house, and his coming to the house with a knife. Later in his cross-examination the appellant said:

"He came to my house to fight a duel. It was next morning that I considered it constituted a duel challenge. It was his ugly look that constituted the challenge."

In his statement to the police which was evidence in the trial, the appellant said:

"I have gone to finalise what Touakin was thinking, otherwise he killed our relatives or children that is why I did it first."

5. At the hearing of the appeal, Counsel for the appellant put forward two main arguments:-

1. That by Gilbertese custom, if a man is challenged by another to fight he must accept that challenge and fight, or be despised and regarded with shame by his fellows;

2. That reaction to provocation, with consequent loss of self-control, may take an appreciably longer time in the case of the Gilbertese than it does with the European.

6. On the first point, Counsel quoted the evidence of the Clerk to the House of Assembly at Tarawa to the effect:

"If a person is challenged, he has to face it and do everything he can to protect himself. If he does not he will feel ashamed. If a Gilbertese is challenged by another with a knife he would have to face that person with a knife."

7. It may well be that a Gilbertese when challenged to fight with a knife will feel under a definite obligation to accept that challenge. That of course would not make the action of either of them lawful and we do not express any opinion as to what would be the correct verdict in such a case if one of the two combatants were killed in the course of the fight. But in the present case there is no evidence that the deceased had challenged the appellant to a duel. In any event no such evidence was given at the material time. The deceased, when he was attacked and fatally wounded, was sitting peaceably in the house of a friend; and so it was not a fight which took place but an assault by one person with a knife on another who, from his position and the fact that he was unarmed, was unable to defend himself. We can, therefore find no substance in this ground of appeal.

8. There remains the ground of provocation. That relied on by the appellant is that the previous day the deceased had come to the appellant's house carrying a knife, and material with which to set fire to the house. He attempted to burn the house but the fire was extinguished apparently with little if any trouble by the village warden. That same village warden in his evidence said that it would be normal to fight someone who attempts to set fire to his house; but, he went on to say he was surprised they fought with a knife. It is usual to fight with fists or give him a good talking to. It is better to inform the police first.

9. There is the further point that the appellant took no action of any sort until late the following afternoon. Mr. Lala has drawn our attention to the fact that in Western Samoa it has been said that reaction to provocation may be appreciably longer delayed than in the case of members of a white race; but there is no evidence that this applies also to the Gilbertese and we have nothing before us which would justify us in coming to that conclusion. Moreover nothing in the evidence establishes a loss of self-control in the legal sense, on the part of the appellant at the crucial time. It seems clear that his action was deliberate and in accordance with a preconceived plan. It could not in any event be said that, even if it be accepted that there was some provocation the previous day, the murderous assault on the deceased could be regarded as retaliation reasonably proportionate to the provocation received. That being so we can find no grounds for upholding a defence of provocation.

10. For these reasons the appeal must be dismissed.