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Republic v Vaeanoa [1989] NRSC 7; [1980-1989] NLR (5 December 1989)

[1980-1989] NLR
[Ed - No page no. in original]

IN THE SUPREME COURT OF NAURU

Criminal Case No. 6 of 1989

BETWEEN:

THE REPUBLIC
Informant

AND:

KATALINO VAEANOA
Accused

Dates of Hearing: 30/11/89, 1/12/89, 5/12/89

Raju for the Republic
Finikaso for the Accused

Decision of the Court

The accused is charged with 5 counts all arising out of events occurring on the 25th August, 1989. The charges are:

1. That he did murder one Martin Aroi - section 305 of the Criminal Code.

2. That he committed manslaughter by unlawfully killing - section 310 of the Code.

3. That he caused grievous bodily harm - section 320 of the Code.

4. That he unlawfully wounded - section 323 of the Code.

5. That he unlawfully assaulted - section 339 of the Code.

The charges are laid in the alternative and he has pleaded not guilty to each of them.

After careful consideration of the evidence, I am satisfied that the following relevant facts established beyond reasonable doubt.

On the evening of the 24th August, 1989 the accused, a Tuvaluan, went to Mr. Daimon Hilo's house at Boe for the purpose of mending his fishing net. When he arrived at the house, he saw four boys and two girls engaged in drinking outside the house. He was asked to join them which he did, had one drink and then proceeded into the house to mend his net. He came out of the house from time to time during that task and partook of some drinks. During this period, Martin Aroi had joined the group. He announced to them that he was looking for a Tuvaluan whom he said had been "bothering" a Nauruan boy. He was in a belligerent mood and had concealed in the shirt he was wearing, two knives. He pulled out the smaller of the two brandished it and, when he assured himself that the Tuvaluan he was looking for was not there, he threw away the knife which landed under a pandanus tree several feet away. He then joined the drinking party. At that stage, he was already under the influence of alcohol. The accused arrived after this incident at which stage Martin had switched his attention to a girl Egugute whom he asserted was "not a good girl" and a friend of his brother. He took out his remaining knife from beneath his shirt, banged it on the table beside which the girl was sitting and pointed it at the girl's chest saying, "Do you want me to kill you?" The girl was frightened and tried to run away. This prompted one of the boys present, Jamien Dediya, to call out to Martin to stop. The accused also called to Martin telling him to sit down and put the knife away. He tried to calm him. He was told by Martin to "shut up and sit down" which he did. Martin continued to harass the girl for a short while. He then went to where the accused was sitting and jabbed his knife into the table very close to the latter's face. The accused grabbed the knife. Martin pulled it away from him cutting his (Martin's) hand as he did so. He then pushed the blade against the accused's chest. The accused brushed it aside. A short exchange of words occurred resulting in the accused being chased by Martin who had the knife in his hand. The accused was very frightened and highly excited. He eluded Martin, ran to a nearby road, saw one of the partygoers, another Tuvaluan, and sought his assistance without success. He then decided to return to the house on his way back, he was seen by Martin who resumed the chase with the knife in his hand. The accused ran to where the party had been drinking. The accused picked up a piece of wood. There they were seen by Pearl Hilo who had also seen the first chase. She is a reliable witness and I accept her version as to what happened on the second occasion when she said in cross-examination:

"On the second occasion, I saw the accused with timber and the deceased (Martin) had a knife with him. They were talking to each other to throw away their arms. At the first few minutes they refused, then Martin threw away his knife. He asked the accused to throw away the timber. He refused......they were about 15 feet away (from each other)......Accused was telling Martin he didn't want to fight. Martin wanted to fight......He called the accused a female. Accused said he did not want to fight. Martin was going towards the accused......Accused was backing away."

Pearl did not witness the hitting of Martin by the accused with the timber he held. This and the evidence of the accused satisfied me that Martin disposed of the knife he had been carrying an appreciable time before the final incident which caused his death. The accused in evidence said that he asked Martin three times to throw away the knife and that after the third request, he did. The accused said that he then threw away the plank of wood. The evidence clearly establishes that not to be so. Mr. Daimon Hilo and his son heard and saw the accused hitting Martin with the plank. Again I do not accept the accused's evidence that before the final act of retaliation by him, the accused was coming towards him with a knife. The accused in his statement to the police made shortly after the incident, admits hitting Martin with the plank and his evidence that the latter had thrown away his knife before the last confrontation negates his assertion that the knife was then used. I am satisfied the deceased had only two knives. He had thrown both away. There is no doubt that Martin died as a result of being hit by the plank of timber. He was hit twice. In his statement, the accused said he punched Martin on the jaw, Martin fell down, kicked him on the head and finally hitting him with the wooden plank twice. I am satisfied that is what happened. The injuries sustained as a result were on the head and were such as to cause instantaneous death. The accused, I am satisfied, was during the whole incident highly excited and emotionally upset.

For the accused, ably represented by Mr. Finikaso, two answers to the charges were raised, self-defence and alternatively provocation. Self-defence, if sustained, is a complete answer to all charges here laid and would entitle the accused to an acquittal. In this case, I hold that Counsel quite properly submits that the accused did not provoke what undoubtedly was a sustained assault on him. He invokes the defence available under section 271 of the Criminal Code which reads:

"Self-defence against unprovoked assault. When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, provided that the force used is not intended, and is not such as is likely to cause death or grievous bodily harm.

If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable ground, that he cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for him to use only such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm."

The prosecution contended that in the defence of self-defence, the burden is on the accused to prove it. That is not correct. While self-defence can be pleaded as a justification for the commission of the offences here, it cannot be regarded as a defence in respect of which any onus rests on the accused. It is a matter which the prosecution must disprove as an essential part of their case before a verdict of guilty is justified. R v Abraham (1973) 57 Cr. App. R. 799. In that case, the Court suggested a form of direction to a jury when there was in issue self-defence as follows:

"Members of the jury, the general direction which I have just given to you in relation to onus and standard of proof has a particularly important operation in the circumstances of the present case. Here the accused has raised the issue that he acted in self-defence. A person who acts reasonably in his self-defence commits no unlawful act. By his plea of self-defence the accused is raising in a special form the plea of Not Guilty. Since it is for the Crown to show that the plea of not guilty is unacceptable, so the Crown must convince you beyond reasonable doubt that self-defence has no basis in the present case."

This I consider correctly states the approach to be taken by me in consideration of the plea here. Section 271 requires an examination of two separate elements namely:

(1) The nature of the belief in circumstances justifying force and;

(2) The nature of the force that may be reasonable, granted the circumstances believed to exist.

As to element (1), it is a cardinal principle underlying criminal responsibility that moral obligation is determined not by the actual facts but by the actor's opinion regarding them. Thus, in the case of a plea of self-defence, in a consideration on whether when the accused killed the deceased he reasonably believed that an unlawful attack which threatened him with death or seriously bodily harm was being made, the test is a subjective one and, the Court must determine what the accused himself might reasonably believe in all the circumstances in which he found himself. - See Viro v The Queen 141 (1978-79) C.L.R. 88.

In this case, the accused was never the aggressor. He was threatened by the deceased with a knife and then chased by him holding the knife. I have found, however, the deceased threw away the knife, an appreciable time before he was hit and killed by the accused. When the knife was thrown away, there was an argument and a challenge to fight by the deceased which was rejected by the accused. The accused has said he was afraid for his life and limb. I have no doubt that this was the position before the knife was disposed of, but, after that, the accused and the deceased discussed fighting and the throwing away by the former of his piece of timber. I do not consider, even in view of the highly excited state of the accused, that once he was aware of the knife being thrown away and his subsequent verbal confrontation with the deceased he could reasonably believe the threat he felt while the knife was carried, still existed. He would know that then the only prospect ahead of him was a fight involving physical force only. Nevertheless I am satisfied he was very afraid but not of the infliction injury by the knife, but rather of punishment at the hands of the deceased in a fist fight with him. In the circumstances, I am therefore satisfied it would be unreasonable for the accused to believe after he knew the knife was disposed of, that he could suffer death or grievous bodily harm at the hands of the deceased. I find he had no such belief when he delivered the fatal blows.

Turning now to the second element, the authorities are clear that while the circumstances of the incident are to be taken as those perceived by the accused, the question of reasonableness of the force used has to be determined on the basis of an assessment of the force used, on an objective footing, of what is reasonable in the particular circumstances which it is decided the accused believed to exist. I have found at the time he delivered the two blows to the deceased's head which killed him, the accused's fear was not based on a belief of danger to life and limb from the knife but to injury from fisticuffs. He desired to defend himself but to retaliate by the hitting of the wooden plank not once but twice on the head of the deceased and thereby killing him cannot by any measure be justified in these circumstances. The conditions contemplated in the second paragraph of section 271 (supra) are thus not applicable here and I so hold. The plea of self-defence therefore fails.

The defence of provocation has now to be considered. It is dealt with in section 304 of the Criminal Code which reads:

"Killing on provocation. When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter."

This section does not abrogate the rule always emphasised in the common law that a defence of provocation to a charge of murder can only avail when the homicide has been committed in hot blood and while the accused is still in the throes of passion. The deprivation of self-control implies a sudden transition to a state, necessarily temporary, during which the power of self-control is absent. There must be consideration whether the killing bears any proper or reasonable relationship to the sort of provocation said to have been given by the person killed. R v Young (1957) St. R. Qd. 599; The Queen v McGregor [1962] NZPoliceLawRp 13; (1962) N.Z.L.R. 1069.

In support of his plea of provocation of the nature set out in section 304, Mr. Finikaso submits that the whole episode - the intimidation of the accused with the knife by the deceased, the subsequent chase of him by the latter brandishing the knife with his words and threats to kill, was so violent and serious so as to cause the accused to lose control of himself and that he was in such a state of passion at the time he wielded the timber and killed the deceased as to deprive him of any intent to kill. He points to the evidence of the accused and the witnesses who saw the various stages of his confrontation as proving the great stress on the accused and his state of passion as a result of the actions of the deceased causing him to be apprehensive of harm and injury.

In law where in a trial of murder, questions of provocation are raised, it is not necessary for the defence to make out a "prima facie" case of provocation. Woolmington v Director of Public Prosecutions (1935) A.C. 462. Once there is evidence whether from evidence called for the prosecution or for the defence, sufficient to suggest provocation in law, the onus remains throughout upon the prosecution to prove absence of provocation beyond reasonable doubt. R. v McPherson (1957) 41 Cr. App. R. 213. The test to be applied is whether a reasonable person in consequence of the provocation received could be driven through the transport of passion and loss of self-control to the degree and method and continuance of violence which produced the death. Holmes v Director of Public Prosecutions (1946) A.C. 588 (speech of Viscount Simon).

Applying the above principles to the facts of the present case, I am satisfied there has been made out a case for provocation in law. There is no doubt that the accused who was not the aggressor at any stage during his battle with the deceased was badly provoked by the deceased. He was very afraid. The deceased pursued and threatened him, there were two vigorous chases with the deceased brandishing his knife, there was the final showdown when the latter advanced on the accused intending to fight with him. The accused did not want to fight and the evidence establishes a picture of his retreating to a position from which he could go no further. He was extremely excited and overwrought by the whole episode which was of short duration from beginning to end. On the evidence, I am satisfied that the accused was desperate to defend himself, he was sorely provoked, his passions were high and there was no time for them to cool as he right up to the killing was pursued and set upon by the deceased. I have no doubt that in the heat of passion, he lost his self-control and that was his condition when he administered the two blows which killed the deceased. The offence provided by section 304 therefore is established and I find the accused to be guilty of manslaughter.

The charge of murder is dismissed and the other charges being filed in the alternative are withdrawn.

CHIEF JUSTICE.

5th December, 1989