IN THE KIRIBATI COURT OF APPEAL 	   ]  	Criminal Appeal No. 1 of 2019
 CRIMINAL JURISDICTION		   ]
HELD AT BETIO				   ]
REPUBLIC OF KIRIBATI			   ]

BETWEEN	TAMUERA BEBEUNGA			APPELLANT			

AND	THE REPUBLIC			          RESPONDENT

Before:	Blanchard JA		
Handley JA 
Heath JA

Counsel:		Reiati Temaua for appellant
Ateti Tekawa for respondent

Date of Hearing:	15 August 2019
Date of Judgment:	21 August 2019	

JUDGMENT OF THE COURT

The Facts
[1]	The appellant, Tamuera Bebeunga, a 48 year old man, stood trial before Lambourne J for the murder of Tiaeki Tieem.  He accepted by formal admission that he had killed Tiaeki by stabbing him in the chest with his toddy knife.  He did not give evidence but it was said on his behalf that on account of provocation he should be convicted of manslaughter only.  Lambourne J found, however, that he had not lost his self-control and that, in any event, any provocation he had received was not capable of causing a reasonable person with his characteristics to lose self-control.  He was therefore found guilty of murder.  His appeal to this Court was out of time but the respondent does not oppose leave and it is granted.

[2]	It was also formally admitted that the appellant was drunk at the time of the relevant events, which occurred at his house at Eita, but it has not been suggested, nor does the evidence show, that he was incapable of forming a murderous intent.

[3]	Late on the evening of 9 February 2018 the appellant, a seller of sour toddy, was drinking toddy on his buia with two youths, the victim Tiaeki and a friend of Tiaeki.  The appellant’s 15 year old nephew, Uritaake Bwatii, arrived.  He was also drunk.  Uritaake was hungry and the appellant gave him some money to go and buy food.  He bought a tin of fish (mackerel).  On the way back to the house he dropped some of the change he had received for the appellant’s money.  After he was back at the house he argued with the appellant about the change.  The appellant became angry.  Uritaake then used the appellant’s toddy knife to open the tin of fish.  This was offensive to the appellant who became even angrier.  He scolded Uritaake and hit him with his fist.  Tiaeki and his friend intervened and told the appellant to desist.  The appellant got angry with them too for interfering in a family dispute.

[4]	The appellant told Tiaeki and his friend to leave his house.  Tiaeki thought the appellant owed him some change.  The appellant refused to give it to him.  That made Tiaeki angry.  He said “Ko na nora te I-Onotoa” which the Judge translated as “You will see a person from Onotoa”.   Tiaeki then hit the wall of the buia with his fist but that did no damage to the wall.  The appellant and Tiaeki then had a fist fight.  The Judge said that Uritaake’s evidence was that Tiaeki was the aggressor and threw the first punch.  (We note, however, that on our reading of his evidence the “first punch” he was referring to was when Tiaeki hit the wall.  Uritaake was quite equivocal about whether Tiaeki was the aggressor).  As the fight continued the appellant and Tiaeki moved outside the fence that was the boundary of the appellant’s land.  The appellant retreated from the fight and went to the buia where he picked up the toddy knife.  It had a keenly honed blade 17cm in length.  The appellant returned to Tiaeki, who had remained outside the fence, and stabbed him once in the chest with the knife.  Tiaeki walked away a short distance and collapsed.  He was found to be dead on arrival at hospital.

[5]	A neighbour, who had not witnessed any of these events, gave evidence that afterwards the appellant was drunk but seemed to be in control of himself.

The Penal Code Provisions
[6]	Sections 197 and 198 of the Penal Code (Cap 67) reads as follows:

“197. 	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; ….

198. 	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”.

[7]	As Lambourne J was well aware, despite the language of s.197 (“proved on his behalf”), for conformity with the presumption of innocence in the Constitution of Kiribati  the language of the section must be read in a modified way so as to throw upon the prosecution throughout the burden of negating the defence of provocation: see s.10(2)(a) of the Constitution of Kiribati, s.5(2) of the Kiribati Independence Order and Republic –v- Bakaatu [1996] KICA 1 which followed Vasquez –v- R [1994] UKPC 26; [1994] 1 WRL 1304 in which the Privy Council discussed how similar provisions in the Belize Criminal Code required modification to conform with the presumption of innocence in the Constitution of that country.

The judgment below

[8]	Lambourne J directed himself in accordance with this Court’s decision in Bakaatu:

“First, was the accused actually provoked into losing his self-control as a result of which he committed the act which killed the deceased?  Secondly, was the provocation such that it was capable of causing a reasonable person to lose self-control and to act in the way that the accused did?”

[9]	It is convenient to interpolate here that the judgment in Bakaatu continues:

“When the law speaks of a reasonable person in this context, it refers to an ordinary person – a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused.  The test is an objective one, in that the jury or judge trying the facts has to consider whether an ordinary person would have reacted as the accused did.  However the gravity of the conduct said to constitute the provocation must be assessed by reference to the relevant characteristics of the accused…..

Sometimes it is said that the retaliation must be proportionate to the provocation.  That simply means that the reaction of the accused must not have exceeded what would have been the reaction of a reasonable man, or, in the words of s.198, that the provocation was enough to make a reasonable man do as he did.
In applying these tests it is necessary to have regard to the entire factual situation – the whole of the deceased’s conduct.  Acts and words which considered separately could not amount to provocation may, in combination, or cumulatively, be enough to cause an ordinary person to lose his self-control and resort to the act of violence that caused the death”.

[10]	Lambourne J said that counsel for the appellant had submitted that he should be satisfied that the appellant was provoked into losing his 
self-control by the following:

(a)	Tiaeki interfered in a private dispute between the accused and his nephew;

(b)	Tiaeki persisted, even after having been told that it was none of his business;

(c)	Tiaeki said “Ko na nora te I-Onotoa” which, while not a threat, could be understood as him telling the accused that he should not disrespect a person from Onotoa;

(d)	Tiaeki hit the wall of the buia;

(e)	Tiaeki was the aggressor, and threw the first punch (but see our qualification of this at [4] above);

(f)	Tiaeki did not leave when the accused returned to the buia to get the knife.

[11]	However, while the Judge had no difficulty in finding that Tiaeki did and said all of these things, he did not accept that the appellant actually lost self-control:

On consideration of the evidence, I am satisfied beyond reasonable doubt that the accused, while drunk and no doubt angry, remained in control throughout his altercation with Tiaeki.  He engaged in the fight as a willing participant, and only broke away to arm himself.  Returning to the buia to retrieve the toddy knife was a deliberate act, and not the act of a man who was out of control.  Uritaake thought that Tiaeki was getting the better of the accused in the fight, and arming himself was the accused’s way of ensuring that he did not lose.

[12]	But even if he was wrong on this point, and the appellant had in fact lost his self-control, Lambourne J said that he was satisfied that Tiaeki’s words and deeds were not such as would be capable of causing a reasonable person to lose self-control.  The prosecution had negatived the defence of provocation.

Analysis
[13]	It was submitted to us that before Tiaeki intervened the appellant was already very angry with his nephew, Uritaake, and that this should have been, and was not, considered by the Judge as an element in the overall provocation that caused the appellant to lose his self-control.  Section 198 of the Penal Code required that everything said and done must be taken into account and that this included what was said and done by a third party.  An instance of a third party’s contribution to provocation is found in R v Titiulu [2005] SBCA 10, a decision of the Solomon Islands Court of Appeal.

[14]	We accept that submission but it is plainly the case that Lambourne J took account of what he called the “private dispute” between the appellant and his nephew into which Tiaeki intervened.  The Judge was well aware of the earlier events which he had carefully described in his judgment.

[15]	Notwithstanding the able submissions made to us in writing and orally for the appellant, and making allowance for the fact that some matters (the use of the toddy knife to open the tin of fish, the words uttered by Tiaeki and his disrespect shown to an older man) may have some cultural significance giving rise to particular offence, we are unpersuaded that the Judge’s assessment was in error and that the Judge was therefore wrong to conclude that the prosecution had negatived provocation.  The appellant chose very deliberately to break off from the fist fight when Tiaeki was winning it and to go from outside his property to the buia in order to get the toddy knife, with which he returned and delivered the single fatal blow.  That was no doubt a decision influenced by his intoxication but it does not appear as the act of a man who has lost his self-control.

[16]	And even if the Judge’s assessment and our own is wrong, and the appellant had lost self-control, we cannot accept that such provocation as existed would have made a reasonable I-Kiribati man of the appellant’s mature age do as the appellant did.  He had no special characteristics making him especially susceptible to such provocation.  He cannot point to the influence of his drunken condition as part of the characteristics of the hypothetical reasonable man.  Lord Simon of Glaisdale rather colourfully explained why that is so in Director of Public Prosecutions v Camplin [1978] AC 705 at 725; (1978) 67 Cr. App R 14 at 27:

“The potentiality of provocation to reduce murder to manslaughter was, as Tindal CJ said in Hayward (1833) 6 C & P. 157, 159, “in compassion to human infirmity”.  But justice and common sense then demanded some limitation: it would be unjust that the drunk man or one exceptionally pugnacious or bad-tempered or over-sensitive should be able to claim that these matters rendered him peculiarly susceptible to the provocation offered, where the sober and 
even-tempered man would hang for his homicide”.

Or, as the Judge put it to counsel during the High Court trial, “The test is not how a reasonable drunk person responds”.

[17]	Moreover, the appellant’s actions were, even for an intoxicated man, out of all proportion to any provocation he had received: the question is whether the reasonable person with the appellant’s characteristics would, in like circumstances, be provoked to lose self-control but also whether he would react to the provocation as he did.  Lord Diplock commented in Camplin (at 717; 201):

“A crucial factor in the defence of provocation from earliest times has been the relationship between the gravity of the provocation and the way in which the accused retaliated, both being judged by the social standards of the day”.

[18]	And earlier in his judgment he had endorsed the statement in 
R v Mancini [1942] AC 1 where the House of Lords had laid down a rule of law that:
…. “the mode of resentment, as for instance the weapon used in the act that caused the death, must bear a reasonable relation to the kind of violence that constituted the provocation”. (pp 714; 18)

Here a retaliation using a very sharp and deadly knife was out of all proportion to such provocation as had been given that had culminated in a fight with fists only.

[19]	Accordingly the appeal against conviction for murder must fail and is dismissed.

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	Blanchard JA

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	Handley JA 

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	Heath JA