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Regina v Awa [2004] SBCA 19; CA-CRAC (10 November 2004)

COURT OF APPEAL OF SOLOLOMON ISLANDS
Criminal Jurisdiction
Criminal Case No. __ of __
10 November 2004
REGINA
-v-
AWA & ORS
EX TEMPORE REASONS PER WILLIAMS JA
[1] The three appellants were convicted by the High Court of one count of murder which was alleged to have occurred on the 13th of March of 2001 at Afio, in the Malaita Province.
[2] In the Notices of Appeal against conviction a number of points are raised. In particular issues were raised with respect to the medical evidence as to the cause of death, as to inconsistencies as between the Prosecution witnesses and finally as to the degree of participation of each of the appellants. Because the Court has come to the conclusion that, because of another matter referred to subsequently, there has to be a retrial the Court does not propose to comment on those three submissions.
[3] The issue on which the Court has come to the view that the learned trial judge erred is that with respect to provocation. Provocation was referred to on a number of occasions throughout the reasons for judgment and it is desirable to refer to some extracts therefrom.
[4] The learned judge noted that, though the appellants admitted being involved to some extent in an altercation with the accused, two of them denied kicking at all and the other admitted only a negligible kick. That was important in the judge’s mind because in his view it was the kicking which was the most likely cause of death. Immediately after that, he went on to say: “In view of that, I can see no ground for them to raise provocation or self-defence as an excuse so as to reduce murder to manslaughter under section 204 of the Penal Code Act.”
[5] In my view the learned trial judge erred in so saying. If provocation was available as a defence on the evidence then it was a matter to be negatived by the prosecution, and it was not sufficient to say that it could be ignored because it was not specifically raised by all or any of the appellants.
[6] Shortly after that, the learned trial judge dealt with a statement made by the deceased directed to the appellants or some of them. It is sufficient to say the learned trial judge described those words as a kind of swearing that is a challenge to fight. He also described that sort of language as a powerful weapon to incite a fight. He then went on to say that because that behaviour, that is inciting a fight, constituted an offence under s 178(n) of the Penal Code Act, it could not be converted into a defence of provocation. In other words, the learned trial judge was saying that a criminal act could not constitute provocation for the purposes of sections 204 and 205 of the Penal Code. In saying that he again erred, and that error has been conceded by the prosecution on the hearing of this appeal. Some form of threat is probably the most frequently recognised source of provocation.
[7] A little later in the judgment, the learned trial judge referred to other possible provocative conduct on the part of the deceased. He said, “Mr Lavery also argued that the conduct of the deceased towards the accused after he disembarked at Afio Wharf up to point B comprised a series of provocation as well. There is evidence of that but I do not think any of them could be regarded as extreme provocation under section 204(a) of the Act.” That was clearly referring to provocative conduct other than the swearing and this court is now not directly concerned with that.
[8] Then in the judgment, some passages appear which are of significance. In the first, the learned trial judge said: “Those who were chasing the deceased were the accused and they were doing so because the deceased had sworn at them at point B. This is not disputed.” Then: “Whereas the accused thought they had a good reason to fight the deceased and fought him. Obviously, they overreacted and overdid it and thereby caused the death of deceased.” And finally: “What happened here, though contradicted by other evidence, was that the deceased committed a number of provoking acts against the 3rd accused and his companions commencing at point A, culminating in his swearing at them at point B. The swearing at B provoked the accused to attack the deceased. They behaved in a retaliating manner towards the deceased and killed him.”
[9] Those passages amply demonstrate that the issue of provocation was properly raised on the evidence and ought to have been fully addressed by the learned trial judge in his reasons. It is clear from a reading of s 204 and s205 of the Penal Code Act that, when provocation is raised, the court must consider the response of a reasonable man having the characteristics of the accused to that provocation. That is the matter which the learned trial judge did not specifically address in this case. It is not sufficient to say that there was an overreaction because that is an element on every occasion when provocation is raised in a criminal trial. The question is whether that overreaction is consistent with the conduct of a reasonable man having the characteristics of the accused.
[10] Whilst some observations made by the learned trial judge, particularly at the bottom of p 4 of his reasons, when dealing with the defence case, do have some relevance to the response of a reasonable man, that is not sufficient in the circumstances to establish that he directed his mind to the appropriate test under sections 204 and 205 of the Penal Code Act.
[11] The test for provocation in the Solomon Islands laid down in Loumia v DPP adopted the test laid down by the House of Lords in DPP v Camplin [1978] UKHL 2; [1978] AC 705. It is that test which was not applied.
[12] It is not possible for the Court of Appeal to substitute its assessment of whether the response here was that of a reasonable man to the provocation in question here. That is a matter for a trial judge. That is why the court could not of its own motion invoke s 24(2) of the Court of Appeal Act and substitute a verdict of manslaughter. When this issue was raised in the course of argument, counsel for both sides indicated that the appropriate order in the circumstances was that there be a retrial on the charge of murder. It will be for the DPP to have regard to the evidence of provocation which is available to the appellants and determine whether or not the retrial should be for murder or limited to a charge of manslaughter.
[13] In the circumstances, the appeals should be allowed, the convictions quashed and a retrial on the charges of murder ordered.
Lord Slynn and Justice Goldsbrough agreed.