[1979] KILR 65

HIGH COURT OF THE GILBERT ISLANDS

Criminal Case No 24 of 1979

REGINA

v

TEBUABUA UAKEIA

(O'BRIEN QUINN C.J.)

Betio: 30th April, 7th and 10th May, 4th June 1979

Criminal law - murder - section 193 of Penal Code (Cap 8) - provocation - prolonged bullying - intoxication - retaliation - knife used in course of fight - border-line case - provocation sufficient - reduced to manslaughter - sentence - five years' imprisonment.

The facts are set out in the judgment.

HELD: (1) That the accused had been attacked, beaten, punched and kicked by the deceased twice earlier on the same evening, that both parties had been drinking and that the provocation was sufficient to cause a young man of 17 years of age with the accused's background to do as he did;

(2) That the accused would be acquitted of murder but convicted of manslaughter contrary to section 192 of the Penal Code (Cap 8);

(3) That the accused would be sentenced to 5 years' imprisonment from date of conviction.

Authorities referred to:

R v Noon 6 Cox 137
R v Walsh 11 Cox 336
D.P.P. v Camplin (1978) 2 Al1 E.R. 168

M. Takabwebwe, Crown Counsel, for the Crown
Paul Tatireta, next friend, for the Accused

O'BRIEN QUINN C.J.:-

In this case the accused Tebuabua Uakeia, is charged with the murder of Aata Tewarawara contrary to section 193 of the Penal Code (Cap 8) on 7th October 1978 at Tekaman Village on the Island of Tabiteuea North.

2. The accused, on arraignment, pleaded "Not Guilty" to the charge.

3. The Crown then called eleven witnesses, some of whom were cross-examined immediately after giving their evidence-in-chief and others had their cross-examination reserved until later dates in order to give the Defence a fair opportunity of presenting its case.

4. The evidence given by the Crown witnesses was to the effect that, on the evening of 7th October 1978, a number of fights took place in which the accused and the deceased were involved. From the evidence it appeared that early in the same evening the deceased, Aata, had struck the accused, knocked him to the ground and kicked him before being restrained by other witnesses present on the beach, at the time, drinking considerable quantities of sour toddy. By all accounts, this first attack by the deceased on the accused was unprovoked. After that one of the witnesses, Torobimo, who played a large part in the case, took the accused home. Later on Torobimo requested the accused to ask a girl named Taware (P.W. 5) to come and meet him, the accused, at a certain place, but when the girl found that it was Torobimo and not the accused who was waiting for her she was upset and complained to her relative, Aata, the deceased. Whereupon the deceased again, this time at the request, it seems, of the girl, punched the accused on the face a number of times. Again Torobimo rescued the accused and took him home. On Torobimo's advice the accused collected his toddy-knife before the second fight and later on went to the Protestant Maneaba at Tekaman Village.

5. From the evidence it would seem that Torobimo was intent on settling a score with Aata the deceased and that at the Protestant Maneaba a fight started between Torobimo and Aata. From the evidence of PW. 2, Tabaon Okitawe, it was a properly staged fight at a clearing chosen by Torobimo but all the other evidence seems to point to the fight having broken out spontaneously as a follow-up to the second fight. In any event, Aata appears to have got the better of Torobimo in the fight, which was with fists only, and Aata had to be dragged off Torobimo whom he was choking as he lay on the ground. When Aata was dragged off Torobimo one of those who assisted in doing so was the accused, although the accused, in his statement made under caution, did not admit this but said that when he was about to do so Aata suddenly attacked him and they struggled violently during the course of which struggle Aata was stabbed. The eye-witness evidence as to the fight between Aata and Torobimo was that when Aata was taken out of the fight he either saw the accused himself or was told by someone in the crowd that the accused was there and he immediately jumped on the accused. A fierce struggle then ensued during the course of which eye-witnesses saw a knife in the accused's hand and some witnesses actually saw the accused's hand against the left breast of the deceased with the handle of the knife visible only. One witness, in particular, P.W. 6, Akireti Mawanei, a nurse of 9 years' experience, while trying to stop the fight, saw the accused's hand being withdrawn from the left chest wall of the deceased and that it contained a knife whose blade was streaked with blood. She immediately struck the accused's hand with her torch causing him to drop the knife.

6. The deceased was taken away, still on his feet, but he got weaker. The accused was taken to the house of the Village Warden and was later arrested by the Police on a charge of unlawful wounding. The deceased was taken, still alive, on the Police transport but, near Eita Maneaba, he succumbed to his injuries and died.

7. The knife was found, recognized and given to the Village Warden who, in due course, handed it to the Police who properly produced it in Court.

8. The accused made a voluntary statement under caution to the Police in which he admitted the various fights with the deceased and the final struggle but denied that he used his knife on the deceased and said that he did not know that the deceased had been stabbed.

9. The medical evidence showed that the deceased received two stab wounds; one on the neck which was 1/2 an inch long and 1/4 of an inch deep and one 2 inches long and 4 inches deep under the left breast which penetrated the abdominal cavity and caused internal bleeding from which the deceased died. The wound on the neck was not serious, it would seem; the main wound being that in the chest.

10. At the close of the Crown case I found that there was a "prima facie" case for the accused to answer and I complied with section 194 of the Criminal Procedure Code (Cap 7).

11. The accused elected to say nothing and not to call any witnesses.

12. In argument, the Crown contended that there was, at least, implied malice aforethought, that there was no question of self-defence and that any provocation that there may have been was against the deceased and not the accused. It was argued that the evidence clearly proved murder as charged.

13. For the Defence it was conceded that self-defence did not arise but it was strongly contended that the accused was grossly provoked by the bullying tactics of the deceased and that he used his knife in the heat of passion with no intention of causing the death of or grievous bodily harm to the deceased. The Defence asked the Court not to find the accused guilty of murder but guilty of manslaughter, only, on the evidence.

14. Before considering the evidence I must direct myself that the burden of proving the offence of murder lies squarely on the Crown and that burden is discharged only when the Crown establishes beyond a reasonable doubt that the accused by a voluntary act with malice aforethought, express or implied, killed the deceased at the time and at the place specified. I must bear in mind that Mr Paul Tatireta, although having done hiss very best for the accused, is not a qualified lawyer.

15. Examining the evidence, I am fully of the opinion that the question of self-defence does not arise in this case. It was never raised by the Defence and the Crown evidence is to the effect that the accused, at no time, took any steps to run away or withdraw from the attack of the deceased. I find, therefore, beyond any doubt, that the accused was not acting in self-defence.

16. The next question which arises for decision is whether or not the accused acted with malice aforethought or whether he was so provoked by the actions of the deceased that he acted in the heat of passion thus reducing the offence from one of murder to one of manslaughter.

17. The facts are clear to my mind, that the accused stabbed, and thus caused the death of, the deceased, and that the deceased without any provocation from the accused attacked the accused after he had previously beaten, punched and kicked him twice earlier on the same evening. It is also clear that both the deceased and the accused had been drinking earlier in the evening but it is not clear if either of them was still under the influence of alcohol when the fatal fight started. The deceased, it is clear on the evidence, was not armed. The accused, on his own admission, had taken his toddy-knife from his home and was armed at the time the fatal fight started. While there is some doubt about the accused's intention in taking his knife with him and about what he and Torobimo had planned there is no doubt that the accused could well have used the knife on Aata, the deceased, when Aata beat him up the second time, and when Aata was on top of Torobimo just before the fatal fight. However, the accused did not use his knife then. Further, it must be remembered that the deceased received two knife-wounds; one on his neck and one in his chest. The nature of the wound on the neck showed that it was not serious and in the fierceness of the struggle it is likely that it was not an intentional wound. The wound in the chest which caused the death of Aata is, to my mind, the result of a single blow delivered during the fight and I incline to the view that the wound on the neck ought to be disregarded for the purpose of proving malice aforethought.

18. The law on the subject is contained in section 195 of Cap 8 which reads as follows:-

"Malice aforethought may be expressed or implied and express malice shall be deemed to be established by evidence proving either of the following states of mind proceeding or co-existing with the act or omission by which death is caused, and it may exist where that act is unpremeditated -

(a) an intention to cause the death of or grievous bodily harm to any person, whether such person is the person actually killed or not; or

(b) knowledge that the act which caused death will probably cause the death of, or grievous bodily harm to, some person whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused",

section 197(a) of Cap 8 which reads as follows:-

"(a) that he was deprived of the power of self-control by such extreme provocation given by the person killed as is mentioned in the next succeeding section",

and section 198 of Cap 8 which reads as follows:-

"Where on a charge of murder there is evidence on which the Court can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be determined by the court; and in determining that question there shall be taken into account everything both done and said according to the effect which it would have on a reasonable man."

In addition, one must take account of the case-law on the matter particularly R v Noon 6 Cox 137 where it was stated that if a man kills another suddenly, without any, or, indeed without a considerable provocation, malice may be implied and the homicide amount to murder. But in R v Welsh 11 Cox 336 it was held that if the provocation was great, and such as must have greatly excited him, the killing is manslaughter only. In the recent case of D.P.P. v Camplin (1978) 2 All E.R. 168 the question of provocation is gone into thoroughly and it is the latest decision on the state of the law in England.

19. The question, then is: Would a reasonable man of the accused's age, about 18 years, having received the provocation that the accused did and carrying a knife, which is not unusual in Tabiteuea North, have reacted to the provocation in the way in which the accused did or would he have reacted differently?

20. I have examined cases decided in the High Court of the Western Pacific and appeals decided by the Fiji Court of Appeal in recent years and I find that the provocation received by the accused from the deceased in the two previous fights which were not provoked by the accused and the deceased's action in gratuitously attacking the accused for no reason whatever were, to my mind, sufficient provocation for a young man of the accused's age and background to cause him to act as he did. I do not approve of the use of knives and I do not approve of the prolonged drinking session in which these young men indulged. However, I must take into account the age of the accused, following D.P.P. v Camplin (1978) 2 All E.R. 168, and the fact that he was attacked by the accused for the third time in the space of less than 3 hours without any valid reason and, while it is a border-line case, I consider that, in law, what the accused did not amount to murder and, giving him the benefit of the doubt, I find him guilty of the lesser offence of manslaughter.

21. The accused, Tebuabua Uakeia, is, therefore, found guilty of the manslaughter, contrary to section 192 of the Penal Code, (Cap 8), of Aata Tewarawara on 7th October 1978 at Tekaman Village, Tabiteuea North and I so convict him accordingly.

Sentence: The accused is 18 years of age, of good character, unemployed and unmarried. His parents are divorced and he lives with his aunt. The twin evils of drink and knives are present in this case. Manslaughter is a most serious offence. The accused has taken the life of his friend. In 1977 there were two similar cases, one from Tabiteuea North, like this one, and from Abemama, in which in drunken fights young men were killed with knives. Going back over the years I see that such cases are very common but this sort of thing must stop sometime. I would pass a sentence of 10 years' imprisonment but it would not be upheld by the Fiji Court of Appeal as high sentences passed in the Gilbert Islands have been reduced before (Tewaite Itibita v R, 1975) and (Teitengaun Tebana v R 1976). Accordingly, I take into account the accused's age, the time he has spent in custody and the fact that he must learn his lesson and I sentence him to 5 years' imprisonment from today. I informed the accused of his right of appeal against conviction and sentence to the Fiji Court of Appeal within 30 days from today.