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Regina v Titiulu [2005] SBHC 49; HCSI-CRC 113 of 2004 (21 March 2005)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case Number 113 of 2004

REGINA

-v-

TIMOTHY TITIULU

In the High Court of Solomon Islands
(Commissioner Chetwynd)

Date of Hearing: 14th to 18th March 2005 at Gizo
Date of Judgment: 18th March 2005

Full reasons published 21st March 2005

P Little Esq for the Director of Public Prosecutions
Ms L Kershaw for the Defendant

Commissioner Chetwynd: The Defendant Timothy Titiulu, is charged with the murder of Alphida Hitu on 7th May 2003. There is no question that the Defendant stabbed Alphida Hitu and that Alphida Hitu died as a result of the stab wound. The Defendant has not denied that he stabbed Alphida Hitu. Of course it is a statement of the obvious to say that whilst every murder results in a death, not every death results in a murder. In order that the Defendant be found guilty of murder it must be proved, beyond reasonable doubt, that the he, with malice aforethought caused the death of Alphida Hitu by an unlawful act. [1]

Section 202 of the Penal Code provides guidance on what is meant by “malice aforethought”. It reads:-

“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 preceding 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.”

The Prosecution case is that on 7th May 2003 the Defendant went to Nono Camp. He went with a group of relatives and he had armed himself with a knife. Why this group was at Nono will become apparent later in this judgment but in short, they came to seek compensation from one Natthan Loe. On arrival the group spoke to several female relatives of the deceased (and related to Nathan Loe).

The Prosecution evidence is that a short conversation did take place on top of the hill which overlooks the log pond and wharf at Nono Camp. The group then split into two, the majority going along the main road and the Defendant and one other taking a short cut. The three prosecution witnesses who gave evidence of this were Marisa Philimon, Natalyn Justina and Oriana Alphida. Ms Philimon said the one of the group asked where (Nathan) Loe was. The group said that they had come to see Loe about compensation. Ms Philimon did not see the Defendant with a knife. The group also said in Marovo language that they had come to kill Loe.

Ms Justina said in evidence that she also heard one of the group speaking. She also said she saw the Defendant with a knife. She identified exhibit 3 as looking like the knife she saw. (It has never been contested that exhibit 3 is in fact the weapon used to stab Alphida Hitu.)

Oriana Alphida is the widow of Alphida Hitu. She was at her house on the top of the hill when she saw the group. She did not hear any of the conversation but she states that she saw the Defendant with a knife that looked like exhibit 3. She said he was holding it in his hand.

This evidence was strenuously challenged by the Defendant. In his evidence the Defendant denied that anyone in the group spoke to either Ms Philimon or Ms Justina. He denies that anyone said anything about killing Loe. He says he told part of the group to go along the main road to the office to look for Loe and he went down to the wharf area by the shortcut.

The relevance of this evidence is that it indicates the attitude, the mood, the character and appearance of the group of men, including the Defendant.

As I have said, Mrs Alphida is the widow of the deceased. Ms Philimon and Ms Justina are sisters and are also related to the deceased and to Nathan Loe. However, just because they are relatives does not mean I must discount their evidence but I must obviously bear in mind that they have a close and personal interest in this case.

I have indicated my view of the relevance of this evidence. It clearly would show the mood of the group. It is the Defendant’s own evidence that he assembled the group together. They traveled to Nono Camp at his request. It was the Defendant who had a grievance (against Loe) in custom. Whilst I do not say that the actions of other individuals in the group are the actions of the Defendant, the mood and attitude of the group would most certainly reflect the mood and attitude of the Defendant. He was “the engine” of the group and, even though I did not hear from any of the others in the group, no doubt the other members took their cue from him.

In my view, I can trust the evidence of the three women. They gave their evidence in a quiet unassuming way. They gave no indication that they were hell bent on revenge by giving perjured evidence and their tone in the witness box was not hectoring or angry. The impression I gained of them was quite the opposite.

I cannot accept the Defendant’s contention that nothing untoward occurred in the early stages of the events which lead to Alphida Hitu’s death. Something about the group clearly perturbed the three women. All three of them moved away from the houses where they first encountered the group and moved to different points closer to where the wharf and log pond were. Ms Philimon went to the mess area, Ms Justina “ran” to the office and Mrs Alphida went down to the Chief’s hut. Why would they do that if they were not concerned about what might happen? Why would they do that if they were not alarmed in some way?

I accept their accounts of the early encounter and I accept the evidence that two of them saw the Defendant with a knife. The Defendant initially denied having the knife and then later said yes he did have the knife but he wasn’t holding it, it was just in his pocket. I accept entirely the evidence of Ms Justina when she says she saw the Defendant “parcel up the blade with leaves” and then saw him place it in his pocket. I cannot believe he did that for safe keeping. If he had wanted to leave the knife somewhere safe he would have left it back at his own village or, at the very least, in the canoe when he arrived at Nono Camp.

The evidence shows that he armed himself deliberately with the knife and that he tried to hide it in his pocket. This was no small pen knife or kitchen knife. Exhibit 3 has a sturdy blade some 17 cms long and 4 cms wide. It has a sturdy handle and even now, nearly two years on, has every appearance of being a well honed knife. The Defendant would surely have known the effects of using such a knife in any confrontation or fight. He should have known, must have known that it’s use as a weapon would not have resulted in minor wounds and scratches, it would have inflicted serious or grievous harm.

There is clear evidence that the Defendant and his group went to collect money from Loe, in his own words, “...we went down (to Nono Camp) to demand compensation”. He took a group of in-laws with him, “so Loe would know to respect us”.

There is clear evidence that the group were aggressive. The meaning of the words spoken in Marovo language was not challenged. I accept that it was denied that any words were spoken but the meaning of those words as relayed by the witnesses was not challenged. I have found that the words were spoken. I also bear in mind what Ward CJ said on this, [2] that threats to kill made in such circumstances do not necessarily show the actual intention of the person or persons speaking them but they can show aggression.

“There was considerable discussion in the trial as to what was said by these people as they rushed to the steps and whether they were exhorting each other to kill or solely to hit the men by the ladder. I attach no great importance to the precise meaning. The fact aggressive things are stated during a fight, even a statement to kill, is evidence only of the aggression and not necessarily of the true intention”

The group of men including and especially the Defendant clearly intended to demand compensation from Loe and if no money or compensation was forthcoming harm was going to be inflicted on Loe.

The Defendant went armed with a knife and because of the nature of that knife any harm suffered by Loe was going to be serious harm. The evidence shows, and I am certain beyond any reasonable doubt of this, that the Defendant had an intention to inflict serious or grievous harm on Loe if no compensation was forthcoming. That is evidence of “malice aforethought”.

Turning now to the subsequent events of that day, the three witnesses I have so far relied on also gave evidence of the attack on Alphida Hitu. I do not rely on their evidence as to what happened next. I take that view not because I do not believe they honestly related what they thought they witnessed, I do so because they were not physically close to the incident of the stabbing and that distance may have distorted their clear view of what went on.

In any event, I do not have to rely on their evidence, the witness Mr Mweia Aturama can and did give much more reliable evidence on that. He is an independent witness. He is not related to any of the parties. He was very close to Alphida Hitu when the stabbing took place. I found him to be an honest and reliable witness who was not afraid to say he could not remember about a particular detail if he could not recollect what he was being asked about. He did not embellish his evidence by trying to embroider his memory of that day. He simply and honestly admitted he could not remember but he did so only after carefully thinking about what had happened and the question asked.

His evidence was that he saw Alphida Hitu talking to a man. He did not know the man. What he said was that Alphida Hitu and this man, “story a little bit in Marovo (language)”. Mr Aturama does not understand Marovo language. A second man came up, pushed Alphida Hitu, said words to the effect, “you are one of them” and as Alphida Hitu was trying to stand up, stabbed him. Mr Aturama identified the second man as the Defendant whom he knew. This is clear evidence of an unlawful act by the Defendant. There was no lawful reason put forward for the Defendant to stab Alphida Hitu.

In my opinion the Prosecution evidence establishes beyond reasonable doubt that the Defendant, with malice aforethought, caused the death of Alphida Hitu by an unlawful act, namely stabbing him once in the chest. However, that is not an end to it. The Defendant has raised the issue of provocation.

Where a person by an intentional and unlawful act causes the death of another person the offence committed shall not be of murder but only manslaughter if any of the following matters of extenuation are proved on his behalf, namely-

(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 [3]

The next succeeding section of the Act reads:-

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. [3]

The issue of provocation has been considered by the Court of Appeal in this jurisdiction. [4] In that case the Court pointed out that s.205 is almost word for word a reproduction of section 3 of the Homicide Act 1957 from the United Kingdom. As a result the law is well settled.

If there is any evidence that 1) the defendant was provoked and 2) that the provocation caused him to lose his self control, then the issue of provocation must be considered. Under English law, a Judge would be obliged to put those questions to the jury even if he thought no reasonable jury could possibly conclude on the evidence that a reasonable man would have been provoked to lose his self control and that on the evidence a verdict of manslaughter would be perverse. [5] However, a Judge need not leave the issue to a jury when the evidence is minimal or fanciful. [6]

Once there is evidence of provocation the onus is on the Prosecution to prove, beyond reasonable doubt, the absence of provocation. In other words it is not for the Defence to prove provocation, it is, once there is evidence of it, for the Prosecution to prove there wasn’t. The onus of proof is firmly on the Prosecution. [7]

The classic meaning of provocation was set out by Devlin J. [8] He said that,

"Provocation is some act or series of acts done or spoken which would cause in any reasonable man and actually causes in the accused, a sudden and temporary loss of self control, rendering the accused so subject to passion as to make him for the moment not master of his mind".

That description was accepted by the English Court of Appeal and it is said to still remain the meaning of provocation. [9]

In considering the two questions inherent in s.205 of the Penal Code and forming an opinion on provocation I must direct myself in much the same way a Judge would direct a jury in England. There is no magic or absolute formula involved (see the comments of the Court in Loumia’s case). What I should do is remind myself of the provisions and wording of s.205 of the Penal Code. It is also clear that I should refrain from thinking that there are hard and fast legal rules and tests.

Loumia’s case referred to the English authority of Camplin. [10] That case gave assistance on the question of the “reasonable man”. The question now is how authoritative is Camplin in this jurisdiction given that the English authorities have moved on form what was considered there. The more accepted authority in England is now R –v- Smith (Morgan). [11] In truth I do not believe that the “tests in Camplin differ too greatly from what was offered in Smith. As the now President of our Court of Appeal said when he was sitting in Smith, the section [s.3 of the Homicide Act] requires:

“That the jury should ask what could reasonably be expected of a person with the accused’s characteristics. This does not mean that the objective standard of what ‘everyone is entitled to expect that his fellow citizens will exercise in society as it is today’ is eliminated. It does enable the jury to decide whether in all the circumstances people with his characteristics would reasonably be expected to exercise more self control than he did or put another way that he did exercise the standard of self control which such persons would have exercised. It is thus not enough for the accused to say “I am a depressive, therefore I cannot be expected to exercise control’. The jury must ask whether he has exercised the degree of self control to be expected of someone in his situation” [12]

What has led to this situation in so far as it affects the Defendant. The evidence is largely unchallenged. The Defendant has two daughters. Both of them have been involved in extra marital sexual relationships with one Nathan Loe a married man. At one stage in this trial it was suggested that I hear expert evidence as to the consequences of such relationships in custom. I declined to hear such evidence. This was not because I consider myself an expert on custom but because how wrong this is in custom is just so well known I can simply take judicial note of it. I am aware from my living in this Country for nearly 10 years that there are very few places in Solomon Islands where extra marital relationships such as that between Mr Loe and the Defendant’s daughters would not be frowned upon and which would not result in a claim for compensation. I am aware of some parts of Solomon Islands where sexual mores are not so rigid but the Prosecution have not challenged the assertion that in the culture that the Defendant lived, that is in the Marovo region, such relationships as were evident would lead to claims for compensation in custom.

The Defendant is a Solomon Islander originally from Makira but who has lived most of his life in Marovo. He was educated to standard 6. Nothing remarkable in his life has been brought to my attention and he is, and I do not intend this in any disparaging sense, an average village man from Solomon Islands. As such he is subject to all the “normal” pressures of family life in a Melanesian society. He would be bound by all that is beneficial in custom but he would also be burdened by the exact standards that custom require of him. The reasonable man in s.205 would be similarly benefited and burdened. Custom would have been a very important part of his every day existence.

He heard about the relationships between both his daughters and Nathan Loe. This was no doubt very distressing for the Defendant. He tried to put his feelings into words and talked about his heart being pained. He did not say that he was angry but I expect that was part of his feelings. I believe that what the Defendant was trying to express was a kind of frustration, exasperation at the situation his family found themselves in. At the situation he found himself in. It is to be noted that when he gave his evidence Mr Nathan Loe said that he did not know that his relationships with the Defendant’s daughters would or could result in a claim for compensation. I, quite frankly, thought that such a comment was risible. He knew full well that custom would require him to pay compensation to the Defendant’s family. It is indicative of how he treated the Defendant who was making, what he considered and what custom considered to be a valid request for compensation.

From the evidence I heard this situation existed for some months. I can imagine a slow build up of frustration and rage in the Defendant. He even had visits from Nathan Loe’s wife asking him, the Defendant, to take away his eldest daughter and straighten matters in custom.

When I am to consider the “reasonable man” who is mentioned in s.205 of the Penal Code I am also to take into account, “everything both done and said according to the effect which it would have on a reasonable man.” There appears to be a bar to me taking into account what was done by Nathan Loe when the person killed was Alphida Hitu. In s.204 it says,”... such extreme provocation given by the person killed” [my emphasis]. However, in my view s. 205 and the authorities are clear on that point, I am entitled to and should take into account everything both done and said and that includes what was done and said by Nathan Loe. [13]

On 7th May 2003 matters came to a head. The Defendant says he sent his wife to see Loe at Nono Camp. She went to Nono and the Defendant’s evidence was that Nathan Loe turned his back on her. He therefore resolved to go to Nono with his in-laws. When he got there he sent one relative to talk to Loe. In his evidence Loe says he told that person that, “he was busy”. He saw the Defendant in the distance coming towards him and went onto the barge. I am certain from the evidence that the Defendant knew of and was very much affronted by Nathan Loe’s attitude on that day. It was the kind of arrogant and disrespectful behaviour that the Defendant had received at the hands of Nathan Loe for a considerable period.

I am firmly of the opinion that such behaviour would have been very provocative from the Defendants point of view and would have been seen as a gross and obvious insult. I have no doubts that the Defendant would have been in high dudgeon.

In that frame of mind he then encountered the deceased Alphida Hitu. There is a difference between what the Prosecution say happened next and what the Defence say. The Defendant gave evidence that he approached Alphida Hitu and asked him about compensation. He received an aggressive response of, “For what yia”. At that point he slapped Alphida Hitu who then swore at him and told him,”Kai kai shit”. The Defendant says the rest is blank and the implication is he does not remember the actual stabbing of Alphida Hitu. He does not deny that he stabbed Alphida Hitu.

There were other witnesses nearby. Mr Hicklas Jepa was about 10 metres away but he was walking away and had his back to the incident until he heard an exclamation like, “Heh”. There was another person who must have been close by, his exact identity is a little vague but according to Mr Jepa it was one Kelu. No one called him. Of course we also have the very reliable and independent evidence of Mr Aturama.

He was very frank in his evidence. He said in cross examination that he was still cooking and tending to his food when the first man came and spoke to Alphida Hitu (this is probably Mr Kelu). He went on to say that he only stopped cooking when Alphida Hitu fell down although he did say earlier that he had seen the Defendant push Alphida Hitu over with both hands. He says that Alphida Hitu was not facing him but was side on. He then said that he first noticed the Defendant when the Defendant pushed Alphida Hitu over. On the Defendants version this would have been after the first aggressive response from Alphida Hitu. Mr Aturama said that he had heard nothing before except the first man and Alphida Hitu storying in Marovo language.

It is possible then that something was said by Alphida Hitu to the Defendant. The prosecution has not proved beyond reasonable doubt that nothing was so said. The independent witness was not fully focused on what was going on and it is not too fanciful to conclude that he might have missed an exchange of words. If an aggressive response was forthcoming from Alphida Hitu then it would have been very provocative to the Defendant, on his evidence it caused a kind of black rage where he cannot remember anything for half an hour. I do not accept the Defendant’s evidence on the period of time that he “blacked out” it is simply too convenient. However I do accept that he flew into a blind rage and during that period of time he stabbed the unfortunate victim Alphida Hitu.

All that had led up to the stabbing was enough to provoke the Defendant and the final straw was possibly something said by Alphida Hitu. I am therefore of the opinion that the answers to the matters I am required to consider by s.205, namely was there provocation and was it sufficient to cause the Defendant to lose his self control are yes. As stated earlier, it is not for the Defendant to prove these things, it is for the Prosecution to prove otherwise beyond reasonable doubt.

As I am of the opinion that the Defendant was provoked and that the provocation was sufficient to cause him to lose his self control when he stabbed Alphida Hitu I find him not guilty of murder and guilty of manslaughter.

I do not mean this verdict in any way to support the contention that custom can in some way justify the taking of a life or indeed justify any other kind of unlawful behaviour. The death of Alphida Hitu at the hands of the Defendant in a blind rage is just as grotesque and abhorrent as it would be if the Defendant had killed in cold blood. The difference is that although Justice may be blind she is not insensitive to the frailties of human nature and allows sometimes that man’s weaknesses can lead him down a path he should not tread and that when he steps along that fateful path he will be judged as human with all that that implies.

Before leaving this judgment I must, for the sake of completeness, mention one other matter. In 1981 an Act of Parliament was passed called the Language of the Courts Act. That amended s.3 of the Criminal Procedure Code so that where it says in that section that the language of the Court shall be English it goes on to say that English shall include Pidgin English. Throughout this trial both Prosecution and Defence Counsel had the benefit of an interpretation from Pidgin into English provided by Magistrate Mr Davis Vurusu. I did not ask Mr Vurusa (or indeed Mr Adrian Koilo who stepped in for a while) to take the interpreters oath. My reason was that Messrs Vurusu and Koilo were assisting Counsel and were not interpreting for the Court. The notes of evidence I took were made up of my own interpretation of the evidence in Pidgin. If I am wrong and Messrs Vurusu and Koilo should be considered as “Court” interpreters then I am confident that they would have faithfully and honestly interpreted the answers they heard from the witnesses and there were just two, possibly three occasions where I queried their interpretation over my own on very minor differences. In any event both men are officers of the Court in their own right and would not have deliberately misled the Court in any way. In this regard I bore in mind the case of Suinakawala. [14] That case was decided before the 1981 Act but would no doubt be decided differently now for the reasons that are apparent in that decision.

This matter is adjourned for mitigation and sentence to Honiara.

R D Chetwynd
Commissioner of the High Court

ENDNOTES:

1. s.200 Penal Code [Cap.20]
2. R. -v- Zamagita and Others 1985/86 SILR page 227
3. s.204 Penal Code
4. s.205 Penal Code
5. Loumia -v- DPP (1986/86) SILR page 158
6. R. -v- Gilbert (1978) 66 Cr. App. R. 237 C.A
7. R. -v- Jones (Robert James) [2003] Archbold News 2, C.A
8. R. -v- McPherson (1957) Cr. App R 213
9. R. -v- Duffy [1949] 1 All E.R 932 C.A
10. R. -v- Whitfield (1976) 63 Cr. App. R 39
11. R. -v- Camplin [1978] UKHL 2; [1978] A.C. 705 HL
12. R -v- Smith (Morgan) [2000] UKHL 49; [2001] 1 A.C. 146
13. Lord Slynn at page 155F-G
14. R -v Doughty [1986] EWCA Crim 1; 83 Cr.App.R. 319 CA and R -v- Davies [1975] Q.B. 691