IN THE SOLOMON ISLANDS COURT OF APPEAL

Nature of Jurisdiction:	
Appeal from Judgment of the High Court of 
Solomon Islands (Pallaras J.)

Court File Number:	
Criminal Appeal Case No. 25 of 2013 (On Appeal 
from High Court Criminal Case No. 47 of 2011)

Date of Hearing:
	
7 MAY 2014	

Date of Judgment:
	
9 MAY 2014	

The Court:	
Justice Goldsbrough JA, President
Justice Williams JA
Sir Gordon Ward JA,

Parties:	
Walter Mani Appellant

 -V – 

Regina Respondent
	
Advocates:

Appellants:
Respondent:	

Mr. D. Hou, Public Solicitor Office Appellant
Ms. A. Driu, DPP Office Respondent

Key words

Ex Tempore/reserve:
	Reserved
	
ALLOWED/DISMISSED
	dismissed
	
PAGES
	1-	7	

JUDGMENT OF THE COURT

[1] The appellant was charged with the murder of one Moffat Saueha on 9 June 2010. He pleaded not guilty and was convicted on 4 September 2013. He appeals against conviction on four grounds:

1. The verdict is unsafe or unsatisfactory on the basis that it is unreasonable or it cannot be supported having regard to the evidence and occasioned a miscarriage of justice by reason of the failure of the learned trial judge to take into account the totality of all the circumstances or evidence and relevant inferences open thereto pertaining to provocation.

2. The learned trial judge erred in law in failing to recognise the fact that provocation in pursuance of subsection 204(a) and section 205 of the Penal Code does not require the defendant to have acted from such terror of immediate death or grievous bodily harm as a precondition.

3. The learned trial judge erred in law in holding that there was no provocation since the appellant had the intention because he knew that what he did would probably kill or cause grievous bodily harm.

4. The learned trial judge erred in law and/or in fact in holding that the appellant did not stab the deceased under provocation to reduce the murder conviction down to manslaughter pursuant to sections 204 and 205 of the Penal Code. 

With leave, counsel has added another ground:
 
That the learned judge erred in ruling out excess self-defence or harm in excess of justified harm by failing to direct himself and give any weight to whether the defendant is entitled to use some force at all to repel his assailant (deceased) in self-defence but for the use of excessive force and failed to consider that in such circumstances a conviction of manslaughter pursuant to section 204(b) of the Penal Code is open rather than murder. 

[2] The appellant was a taxi driver and he was approached in the evening by three men who had been drinking and who entered his taxi. The appellant asked them to get out, which they did. Two went and stood at the back of the taxi looking for another taxi whilst the deceased stood by the driver's window. The appellant's case was that the deceased struck him twice in the face and the appellant stabbed him in the chest once with a knife, which he kept in his taxi for his protection. The appellant then drove off and the deceased was taken to hospital by a passer-by where he was pronounced dead. 

[3] The defence raised self-defence and provocation. The original grounds of appeal challenged the Judge's rejection of self-defence. That ground was abandoned but has now effectively led to the additional ground.

[4] Apart from the first ground, to which we will return, the appeal relates to two of the extenuating circumstances provided by section 204 of the Penal Code:

"204. 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; or

(b)	that he was justified in causing some harm to the other person, and that, in causing harm in excess of the harm which he was justified in causing, he acted from such terror of immediate death or grievous harm as in fact deprived him for the time being of the power of self-control; ..." 

(It is convenient to refer to the matter of extenuation in paragraph (b) hereafter as excess harm.)

[5] It was clear from the judgment that the learned judge was aware of all three lines of defence. Having dealt with the evidence he passed on to consider the defence:

"It was the defence case that the accused was acting in self-defence at the time he stabbed the deceased and should be acquitted. Even if the accused had used excessive force in defending himself, it was further submitted that the provisions of section 204 (b) of the Penal Code applied and that the accused could only be convicted of manslaughter

It was also submitted that a conviction for manslaughter was also open on the basis of section 204(a) of the Penal Code in that the accused acted under such extreme provocation as to be deprived of the power of self-control."

[6] Passing to the actual killing of the deceased, the judge continued:

"Leaving aside the issues of self-defence and provocation for the moment, I find beyond reasonable doubt that under the provisions of section 202(a) of the Penal Code, when the accused stabbed the deceased he intended to cause the death of or grievous bodily harm to the deceased." 

[7] By section 17 of the Penal Code, criminal responsibility for the use of force in defence of a person or property shall be determined according to the principles of the English common law but subject to any express provision of the Penal Code or any other law in Solomon Islands. One such provision in the Penal Code is section 204. 

[8] Self-defence is a true defence to a charge and, if accepted, will result in the acquittal of the accused person. Section 204 provides extenuating circumstances, which, if accepted, will reduce the charge of murder to a conviction for manslaughter.

[9] The judge directed himself on self-defence in accordance with the dictum of Lord Morris of Borth y Gest in Palmer v The Queen [1971]AC 814 and his rejection of such a defence is not challenged on this appeal. However, the judge set out in some detail his findings on the evidence in respect of self-defence. His conclusion is also relevant to the issue of fear of death or serious injury in respect to excess harm:

"[The accused] was beside himself with anger, had been angry from the beginning of his contact with the deceased, and I cannot find that he either believed or had reasonable cause to believe that he was in imminent danger of death or grievous bodily harm. There was an attack on him to be sure. The passengers in his taxi may all have been behaving obnoxiously fuelled no doubt by the alcohol that they had consumed. The deceased himself appears to have behaved in a bullying and aggressive manner towards the accused in a way that leaves the impression that he was putting on a display for his friends. However, the attack on the accused by a drunken man using fists alone, while the accused was inside the locked taxi and the deceased was standing outside the taxi, in my judgment, is not an attack that either was, or caused the accused to reasonably believe that it was, an attack threatening the accused with death or grievous bodily harm."

[10] That finding that the accused did not believe he was in imminent danger of death or grievous harm, although addressed in relation to self-defence is equally relevant to the judge's consideration of excess harm in section 204 (b). 

[11] The judge passed on to consider the effect of paragraphs (a) and (b) and continued:

"The defence have argued that even if the accused used excessive force in killing the deceased, the provisions of section 204 of the Penal Code allow for him to be acquitted of murder and convicted of manslaughter. Subsections (a) and (b) of that section both [original emphasis] require that the accused acted from "such terror of immediate death or grievous bodily harm" that he was deprived of the power of self-control."

[12] That was a misdirection and both counsel agree that it is incorrect. It confuses the ingredients of the two paragraphs in section 204. For extenuation to be established under paragraph (b) the evidence must show that the accused was justified in causing some harm to the deceased, that the violence he used exceeded that which was justified but he used that force because he was so terrified of immediate death or grievous harm and that terror actually deprived him of the power of self-control at the time he used the excessive force.

[13] The error by the judge was to attribute the requirement that the accused acted from terror of immediate death or grievous harm also to the determination of provocation. He reminded himself correctly that the onus was on the prosecution to prove beyond reasonable doubt that there was no provocation but then continued his error by stating in continued reference to provocation, "That is, it is upon the prosecution to establish beyond reasonable doubt that the accused did not act out of such fear and that he did not lose the power of self-control."

[14] The effect of that misdirection was effectively to suggest an added obstacle to a finding of provocation. In strict terms, as the burden was on the prosecution to disprove provocation, it added to the elements they had to disprove but in reality it 'raised the bar' to the accused's hope of relying on provocation in extenuation of the murder charge.

[15] Ground 2 is therefore upheld. However, as will be seen, the learned judge's findings on the remaining ingredients of paragraphs (a) and (b) are sufficient to deny the accused the benefit of either as matters of extenuation of the charge of murder.

[16] The first of those is the issue of loss of self-control. It is a necessary ingredient to a finding of both provocation and excess force. Provocation only arises when the provocation by the deceased is so extreme that it deprives the accused of the power of self-control. Excess harm similarly requires the terror of death or grievous harm to be such that it deprives the accused of the power of self-control.

[17] The judge found that there was no evidence that the accused had reached the point of losing his power of self-control. When dealing with the accused's evidence, he referred to the accused's account of his feelings at the time. There were repeated references to the accused's anger. He was, he said, 'extremely angry', 'so angry that I got carried away by anger', 'so angry I could not control my thinking' and 'extremely angry'. Counsel for the appellant has drawn our attention to some variations between the pijin answers in the transcript and the English translation. We have noted counsel's concern but do not consider they add anything to the English version used by the judge.

[18] What is clear is that the judge was satisfied that there was no loss of self-control. A finding of such loss of self-control is necessary under both paragraphs (a) and (b) and that finding that it had not occurred was sufficient to prevent either being available to the accused as extenuation under section 204.

[19] The judge accepted the accused's evidence and found that his responses throughout emphasised 'time and again' that his actions were driven by him becoming increasingly enraged to where he ultimately 'got carried away'. He found that was insufficient to demonstrate loss of self-control and we accept that he had the evidence on which to reach that conclusion.

[20] Mr Hou has submitted that the use of the word 'as' in the phrase used in paragraph (b), "he acted from such terror of immediate death or grievous harm as in fact deprived him for the time being of the power of self-control" does not mean that loss of the power of self-control is a necessary ingredient under paragraph (b). Alternatively, he submits that passage is ambiguous and so must be read in the appellant's favour. We see no ambiguity and are satisfied that such terror is an essential ingredient of both provocation and excess harm.

[21] The judge's finding that there was no loss of the power of self-control is fatal to any claim of extenuation in respect of both provocation and excess harm and the judge was correct to hold that the accused did not stab the deceased under provocation (ground 3) and did not fail to direct himself properly on excess harm (additional ground).

[22] The requirement that the accused be in such terror of death or grievous harm is a necessary ingredient only of excess harm but, as has been shown, the judge's finding that there was no such fear in respect of self-defence must apply equally to excess harm. The concluding passage of his judgment summarises the findings he had made in the body of the judgment in respect of provocation. It includes the error made previously but we are satisfied that the finding that there was no loss of self-control is clear:

"A deadly strike with an eight inch knife made in angry retaliation to two punches does not of itself constitute self-defence in this case. In my judgment, there was no immediate threat of death or grievous bodily harm to the accused and there was no basis for him to reasonably fear that there was. While being punched by an assailant can easily be understood as provocative in its ordinary meaning, the section requires far more than a provocative act. The accused was acting and reacting throughout to the boorish and aggressive behaviour of his passengers with anger, impatience and possibly some fear as he claims. But that was not a fear of death or grievous bodily harm and there was no reasonable basis for him to fear so. It was also not a fear that caused him to lose the power of self-control. He knew what he was doing, he chose to do what he did ignoring other available options and he knew that what he did would kill or probably kill the deceased.

I am satisfied therefore beyond reasonable doubt that the accused was not provoked within the meaning of sections 204 and 205 of the Penal Code. That is, I am satisfied beyond reasonable doubt that the prosecution have proved that the accused did not act out of a fear of imminent death or grievous bodily harm and that he did not lose the power of self control. I am also satisfied that a reasonable man in the position of the accused would not have acted in a manner in which the accused acted." 

[24] We have considered the submissions on ground 3 in which it is suggested that the judge held that there was no provocation because the appellant had formed the intention to kill or cause grievous harm. If he had reached such a conclusion, he would have been in error. Provocation under section 204 (a) is only available in charges of murder and, if found, reduces the conviction to one of manslaughter. Clearly, the case would not amount to murder unless the requisite intent for murder was proved and so the suggestion in this ground would be an error. However, we have studied the passage upon which this submission is based and we do not find that is supports the contention in counsels submission on ground 3.

[25] The first ground of appeal was that the verdict was unsafe and unsatisfactory because it is unreasonable or cannot be supported by the evidence. Despite the judge's misdirection, this was a case where the evidence of the accused's guilt of murder was so overwhelming and the evidence to support the accused's claims of reasonable self-defence, provocation and excess harm so lacking that he could come to no other conclusion.

[26] We are satisfied that, apart from the misdirection, the judge clearly applied the right tests and was correct to find that the prosecution had proved that neither provocation nor excess harm were available as extenuation of the offence of murder. The judge's finding on the lack of loss of self-control and the consequent effect on both provocation and excess harm also negates any incorrect effect on the verdict of the misdirection.
 
[27] The appeal against conviction is dismissed. 

………………………
Goldsbrough P
President of the Court of Appeal

………………………
Williams JA
Member of the Court of Appeal

………………………
Ward JA
Member of the Court of Appeal