IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC0001 of 2005S

STATE

v.

RUSILA VUKI; and
SUSANA WATI SIVO

Hearing: 3rd August 2005
Ruling: 4th August 2005

Counsel: Mr. P. Bulamainaivalu for State
Ms B. Malimali for Accused Persons

RULING

State counsel submits that the defences of provocation and self-defence should not be put to the assessors. He says this because he submits that the evidence led by the defence is insufficient to lay the factual basis required to show that there was the sudden loss of self-control by the 1st Accused caused by the provocative act of the deceased, or to show that the use of the knife was necessary to protect herself from actual or anticipated attack.

Defence counsel asks that both defences be put to the assessors. In relation to provocation, she points to evidence that there was a history of hostility between the families of Monika and the 1st Accused for two days and that the 1st Accused was angry when she used the knife. In relation to self-defence, she says that there is evidence that the 1st Accused was being attacked by four women outside Mekemeke’s house, that three of them had sticks, and that the 1st Accused said she only used the knife to protect herself from the attack. She says that the necessity of the use of the knife, and proportionality of the retaliation was a question for the assessors.

Provocation

Provocation is defined by sections 203 and 204 of the Penal Code. It depends on evidence of death being caused in the heat of passion caused by sudden provocation. Provocation itself is a wrongful act or insult done to the accused by the deceased which, if done to an ordinary person, would deprive him or her of the power of self-control and to induce him or her to commit an assault of the type committed in the case.

As I said in the case of State v. Akash Ashwin HAC0027 of 2003S, the questions for me in relation to this application are:

1.	Is there any evidence of specific provoking conduct?
2.	Is there evidence that the provocation caused the accused to lose self-control?

If the answer to both these questions is “yes” then the issue should be put to the assessors. If the question of the accused acting under provocation is only speculative, the issue should not be left to the jury (R v. Acott (1997) 2 Cr. App. R. 94).

In R v. Acott, the appellant was charged with murdering his mother. His version of the facts was that she had died as a result of two falls. The evidence of two pathologists called for the Crown, was that she died as a result of a sustained attack. The defence called a pathologist to say that she could have died in the way the appellant described it. The appellant gave evidence and denied losing his self-control after years of mental abuse of him by her, and suddenly attacking her as a result. The trial judge did not leave the issue of provocation to the jury. The appellant was convicted. He appealed eventually to the House of Lords, saying that the provocation should have been put to the assessors.

The House of Lords (per Steyn LJ) said that under section 3 of the English Homicide Act 1957, provocation required some evidence of the provoking conduct, the resulting loss of self-control, and an objective test of whether the conduct was reasonable. The only relevant provocative conduct is that of the deceased. It was the duty of the judge to decide whether there was evidence of provoking conduct which resulted in the loss of self-control. If so, the remaining question was one for the jury. His Lordship said:

“A loss of self-control caused by fear, panic, sheer bad temper or circumstances (eg. a slowdown of traffic due to snow) would not be enough. There must be some evidence tending to show that the killing might have been an uncontrolled reaction to provoking conduct rather than an act of revenge. Moreover, although there is no longer a rule of proportionality as between provocation and retaliation, the concept of proportionality is nevertheless still an important factual element in the objective enquiry. It necessarily requires of the jury an assessment of the seriousness of the provocation. It follows that there can only be an issue of provocation to be considered by the jury if the judge considers that there is some evidence of a specific act or words of provocation resulting in a loss of self-control.”

The court went on to say that the source of the evidence is irrelevant, as long as it has arisen at trial. The speculative possibility of an act of provocation is not enough. The court dismissed the appeal.

In this case, the 1st Accused’s evidence is that she stabbed the deceased to protect herself. The record shows that in examination-in-chief she said:

“At the time they were hitting me, I did not know how to escape. I knew something would happen to me as they were hitting me with a stick. I was falling down. I just used the knife on Siteri. She was standing. She kept on swearing at me. I used the knife on her because I was concerned for my safety and I did not know what else to do.”

Under cross-examination, she reiterated her reason for the stabbing. She said in answer to a question that she had intended to kill Siteri:

“I did not mean it. I was only concerned about the safety of my life. I used it to protect myself.”

Clearly, an alternative version, that the 1st Accused was provoked by Siteri to kill her by stabbing her, as a result of a loss of self-control, is quite inconsistent with the Accused’s own evidence.

There is other evidence that the 1st Accused was angry, and that there was a history of provocative behaviour allegedly from Monika. However, Monika was not the deceased. Siteri was the deceased. The only act pointed to by the defence as provocative conduct by Siteri Momoivalu, is the evidence of the Accused persons that Siteri punched the 1st Accused first. I cannot accept that a punch is sufficient to justify the issue of provocation being put to the assessors. Further, there is no evidence of a sudden loss of self-control. There is evidence of general hostility on the 14th and 15th of October, in relation to Monika of the 1st Accused carrying a knife in her waistband for the whole of the 15th and of a conversation before the final fight where she declared that she would use the knife if there was any further trouble. That declaration was made before any act at all was done by Siteri. The caution interview of the 1st Accused contains the following questions and answers:

“Q.76:	What was the intention of your stabbing Siteri?
A:	I had been aiming Monica but when we met she had cooled down so we then fought with Siteri.”

And later:

“Q.81:	Which particular place did you aim at Siteri when you stabbed her/
A:	Right on the neck.

Q.82:	Why the neck and not any other part of the body?
A:	I had wanted to kill her.

Q.83:	Why did you want to kill her?
A:	I was very angry.”

There is no evidence that the 1st Accused’s anger was specifically directed to Siteri because Siteri had done something to her, or said something to her. Thus, there is no evidential link between any act of the deceased, and the stabbing. Nor is there evidence of a loss of self-control. Acting in anger, or in a fit of temper, is not enough to bring into being, the defence of provocation.

In the circumstances, I consider that provocation should not be put to the assessors.

Self-defence

The law of self-defence is governed by the common law. There must be some evidence that the accused acted to defend herself from attack. The question of what is reasonable self-defence, and what force is necessary and proportionate to defend oneself, is a question of fact for the assessors. It is for the judge to decide whether the evidence discloses the issue sufficiently to allow the matter to be put to the assessors.

In this case, the 1st Accused has specifically raised the issue in her evidence. Of course her account of the incident, and the prosecution accounts differ significantly. However if her account is accepted, then there is evidence that whilst fighting with Siteri she was herself attacked by three women wielding sticks at least a metre long and 5 centimetres thick. She said she only used the knife to save her own life.

This is an alternative version of the incident that the assessors are entitled to accept. If they do accept these facts, then they must go on to consider whether the use of the knife was necessary, and whether an ordinary person of the Accused’s height, build and gender would have reacted in that way. The test is both objective and subjective and the question of what force is excessive, is one for the assessors. The burden of proof in relation to self-defence is on the prosecution. The standard of proof is one of proof beyond reasonable doubt.

The 1st Accused has specifically raised the issue. The 2nd Accused corroborated that version of the fight. State counsel submits that this version was never put to the prosecution witnesses, but I find on a perusal of the record, that it was put to several witnesses including Rosa Tawake and Paula Navunisaravi.

I therefore consider that self-defence is an issue in this trial and that it must be put to the assessors.

Nazhat Shameem
JUDGE

At Suva
4th August 2005