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R v 'Ake [2005] TongaLawRp 37; [2005] Tonga LR 424 (20 December 2005)

IN THE SUPREME COURT OF TONGA

R

v

'Ake

Supreme Court, Nuku'alofa
Webster CJ
CR 140/05

12-14 and 16 December 2005; 20 December 2005

Criminal law – murder – provocation – murder proved

There was a public holiday on 4 May 2005 and the accused, 'Alekisanita 'Ake, spent a large part of that day drinking homebrew with some companions in a drinking party, which included the eye-witnesses, and also at a later stage the victim Fekumi. They were drinking from a bucket which initially contained around 20 litres of homebrew. When the victim was drunk his behaviour sometimes provoked people to anger, in the sense that he was very hard to control. During the course of the day the victim attacked the accused at least twice and possibly up to four times. Later that night the accused was very angry with the victim and used an iron bar to hit him about the head. The victim was taken to hospital and died without regaining consciousness about two hours later. The accused was charged with murder, and alternatively manslaughter and grievous bodily harm. He pleaded guilty to the alternative count of manslaughter, but that plea was not accepted by the prosecution, so the case came to trial on the count of murder.

Held:

1. In a case of murder the Court was not entitled to find the necessary intention, unless it was sure that death or really serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the actions of the accused, and that he appreciated that such was the case. The prosecution only had to prove that the accused had the necessary intention at the time of the alleged offence: it need not have been a long-standing intent and it was sufficient for it to have been formed in a matter of seconds, for example in a sudden flash of temper.

2. It was not murder if it was proved that the accused was deprived of the power of self-control by an extreme degree of provocation given by the victim which was of such a kind either by reason of its violence or of accompanying words, gestures or other circumstances of aggravation, as to be likely to deprive any person of ordinary character being in the circumstances in which the accused was, of the power of self-control.

3. Provocation was not a complete defence; it reduced what would otherwise be murder to the lesser offence of manslaughter by reason of provocation.

Because the prosecution must prove the accused's guilt, once the issue of provocation was raised, it was for the prosecution to establish beyond reasonable doubt that this was not a case of provocation, and not for the accused to establish that it was.