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Regina v Mani [2013] SBHC 129; HCSI-CRC 47 of 2011 (4 September 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
PALLARAS J

Criminal Case Number 47 of 2011

Regina

V

WALTER MANI

Coram: PALLARAS J
Crown: Mr. R.B.Talasasa and Ms S. Ngava

Defence: Mr D. Hou
Hearing Dates: 19 August – 21 August 2013
Verdict Delivered: 4 September 2013

VERDICT

1. Mr Walter Mani ("the accused") was charged that on the 9th June, 2010 he did murder Mr Moffat Saueha ("the deceased") contrary to Section 200 of the Penal Code. To this charge, he pleaded not guilty and the trial took place between 19th and 21st of August 2013.
   
2. Having pleaded not guilty, the onus of proving the case rests entirely upon the Prosecution. The accused does not have to prove his innocence. Indeed the accused, if he so chooses, may remain silent throughout the entire trial as there is no onus on him to prove anything at all. He is entitled to sit back and see whether the Prosecution are able to prove these charges against him by the evidence they present to the Court.
   
3. This being a criminal trial, the Prosecution have the task of proving their case to the criminal standard of beyond reasonable doubt. If at the end of the evidence there remains a reasonable doubt in my mind as to the guilt of the accused in respect of the charge, he must be given the benefit of that doubt and be acquitted. It is only if and when the Prosecution satisfies me beyond reasonable doubt as to the guilt of the accused that he may be convicted of this offence.
   
4. By way of a document headed "Agreed Facts" and signed by the Prosecution and the Defence, it was agreed that the deceased and two other men William Kaipua (PW1) and Willie Kaunga (PW2) hailed a taxi being driven by the accused and entered the taxi.
   
5. The deceased sat in the front seat next to the accused while the other two men sat in the rear passenger seat.
   
6. The deceased, PW1 and PW2 had been drinking together for some time and between the three of them had consumed most of a carton of 24 cans of beer. It was clear that they were all affected by the alcohol they had consumed.
   
7. The three men decided that they wished to purchase more beer and it was for this purpose that they hailed the taxi driven by the accused. It was their intention to travel in the taxi to a nearby bottle shop to purchase the beer.
   
8. At approximately 5 p.m. the three men got into the taxi. Upon doing so, the accused asked for their destination and when he was told, ordered the men to get out of his taxi. On the Crown case, this was because the distance to the bottle shop was short and on the Defence case, it was because he did not want to carry passengers whom he judged to be drunk.
   
9. The men got out of the taxi and the two back seat passengers moved towards the back of the taxi intending to hail another taxi. What the deceased did is a matter of contention and the witnesses for the Prosecution gave conflicting accounts as to his movements.
   

The Prosecution Case:
William Kaipua (PW1)

10. PW1 went with the deceased to collect PW2 from a ship where he was staying. He said that PW2 was asleep when he got there and that he had to wake him up. The three men took a taxi to where they sat on a grassed area and drank their beer. After drinking their beer supply, the men decided to purchase some more. They got into the taxi being driven by the accused. The accused asked them where they wanted to go and he was told that they wanted to be taken to a bottle shop. The accused told them to walk to the shop because it was close by. PW1 said that the driver told them to get out of the taxi and that they did so. He said that when he and PW2 got out from the rear of the taxi, they shared a pair of headphones and were listening to music playing on the same MP3 player. He said that the two of them were singing along with the music that was playing. He said that as he and PW2 were doing this, they were looking out for another taxi. When he looked back at the accused's taxi, he saw the deceased talking to the accused and leaning against the taxi with his left elbow resting on the roof of the taxi at the driver's door.
    
11. The next thing that PW1 saw was that the taxi drove away leaving the deceased standing where he was. He called out "let's go" to the deceased but received no response from him. The deceased was holding his ribs and standing quietly. He went over to the deceased who said "that man stabbed me." Looking down, PW1 saw blood on the deceased.
    
12. PW1 said that he then called PW2 over and told him that the driver had stabbed the deceased. Together they took off the deceased's shirt and saw that he had been wounded in the chest. The deceased did not respond when they spoke to him. A bystander approached and after asking what had happened, offered to and did take the deceased to hospital in his truck.
    
13. PW1 said that after a short while at the hospital he was informed that the deceased had died.
    
14. In cross examination, PW1 said that he could not remember if the taxi driven by the accused was the first taxi to come past the three men. It was put to him that another taxi had come past but did not stop. The witness could not recall if this happened. He also could not recall how long the men were waiting before the taxi driven by the accused came by and could not recall whether the driver said that he did not want to carry drunken people in the cab. He did however recall the accused saying "get out of the car and walk there, the distance is very short". He said he felt no anger whatsoever towards the driver when he said this and simply got out of the taxi. He said that he did not see the deceased get out of the taxi and saw him for the first time at the driver's window. He and PW2 were standing approximately two to four meters away from the taxi. He did not know if the deceased was happy or angry as he had his back to PW1. He did not know if any part of the deceased's body was inside the cab through the driver's door window, did not see any punches thrown, did not realise that anything was wrong and agreed with the suggestion that he was "too busy" to see what had happened. He claimed that he was not "very drunk".
    

Willie Kaunga (PW2)

15. PW2 gave quite a different version of events to that given by PW1. He said that he was talking to the ship's crew when PW1 called for him, that is, he was not asleep as PW1 claimed. He agreed that the three men had about seven cans of beer each and that they decided to buy more beer once they had almost finished the carton. He said that he got into the back seat of the taxi and was the last to get in as he had been looking at his mobile phone while the others boarded the taxi.
    
16. He said that when he boarded the taxi, the accused was already scalding the men and telling them to get out of his taxi. He said that the driver said "get out, I don't want anyone to say anything else". He asked the deceased "what's happening?" and was told by the deceased that the accused wanted them to get out of the taxi.
    
17. PW2 said that the accused then got out of the taxi first and that the three passengers alighted soon afterwards. He said that he and PW1 got out first and walked towards the back of the taxi. The deceased was the last to alight. As the deceased alighted from the front passenger seat of the taxi, he walked behind PW2 towards the back of the taxi but then continued around the taxi and walked to the driver's door, in the opinion of PW2, "to apologise". The deceased had not said that he was going to apologise and this evidence was merely a gratuitous opinion offered by the witness. It was disregarded by the Court.
    
18. When the deceased went around to the driver's door, PW2 said that the accused had already returned to the taxi. Apparently, he had done this as soon as the passengers had alighted from the vehicle. At that time, PW2 was about six meters from the taxi. The next thing that this witness noticed was the sound of people from across the road shouting and looking in the direction of the accused and the deceased. PW2 saw the deceased jump back from the driver's door. PW2 ran over to where the deceased was standing, grabbed him by the shoulders and swung him around. He said to the deceased "what did he do?" The deceased said in dialect, "the driver stabbed me".
    
19. At this stage, the taxi had not moved off. PW2 tried to open the taxi door but it was locked. When asked why he had tried to open the door PW2 said "because he had stabbed my brother". When he swung the deceased around, PW2 only then saw PW1 near the taxi.
    
20. He said that he at no stage ever heard the accused give any reason as to why he wanted them to get out of the taxi, that he neither saw nor heard anyone argue with the driver or fight with the driver. He also said that at no time was he ever listening to music with PW1.
    
21. In cross examination, PW2 said that when he got into the taxi his two friends were already aboard. The driver was "shouting and telling the two of them off". From the time he got into the taxi, he did not hear the deceased say anything to the accused. The deceased did however say to him in dialect that the driver was angry and wanted them out of his taxi. PW2 said to the deceased "let's get out" and they did. When it was put to him that the passengers insisted that the accused take them in his taxi, PW2 said that no one refused to get out or insist on being carried. He agreed that the reason that the accused got out of the taxi was because he did not want to take the three men. PW2 said that the deceased neither said nor did anything in the taxi to show that he was angry. PW2 said that he did not see the deceased kick the taxi and did not see the deceased punch the accused. He said he was ten to fifteen meters away (not six to seven meters away as he said in evidence in chief) when he saw the deceased move back from the taxi.
    
22. In response to a question from the Court, PW2 said that when the driver was scalding the three men, none of them said anything to him in reply.
    
23. I find both PW1 and PW2 to be most unsatisfactory witnesses. Their evidence was characterised by dissembling, inconsistencies and implausible explanations. They both claim to have been the first to run to the deceased when he was stabbed while the other stood by the roadside, both claim that they did not see the deceased kick the taxi, neither saw him punch the accused and were both blissfully unaware that there was anything at all amiss. From PW1's account he saw nothing of the accused getting out of the taxi and saw nothing of PW2 trying to open the taxi door. PW1's agreement to the suggestion that he was "too busy" to notice what was going on only some two to four meters away is absurd. Far from being too busy, he was doing nothing other than waiting for another taxi to come along and, according to him, listening to music. His evidence left me with the strong impression that he was attempting to hide the truth about the conduct of his friend, the deceased, from the Court.
    
24. It might be suggested that their evidence was so inconsistent because they had significantly understated their state of sobriety on that day. The best light that can be placed on their evidence is that they were incapable of observing or accurately remembering what happened due to the simple fact that they were drunk.
    
25. Another view of their "hear no evil, see no evil" accounts is that they were blatantly dishonest and were doing their utmost to put the best possible complexion on the behaviour of the deceased. A stark example of this is found in the evidence of PW2 who volunteered that the deceased was probably going to speak to the accused to apologise. When asked how he knew that, he said "It's his character whenever there's a small argument he does that."[1] He later admitted that he just guessed that this is what the deceased was going to do.
    
26. Their evidence also stands in sharp contrast to the observations made by PW3 who had no difficulty whatsoever in hearing and seeing the argument and fight between the deceased and the accused from some distance away on the other side of the road.
    
27. It is clear from these remarks that I place very little weight upon the unreliable and barely credible evidence given by PW1 and PW2.
    

Rilenta Suala (PW3)

28. PW3 was walking across the old Mataniko bridge near Chinatown, Honiara. As she was approaching the end of the bridge she heard a banging noise which sounded like someone closing a car door. It was coming from in front of her and across the road. When she looked across the road in the direction of the noise, she saw the accused's taxi parked off the roadway on a gravel area. She saw and heard a person arguing with the taxi driver at the driver's window. The two were arguing in a loud voice audible from across the road. Two other men were standing behind the taxi.
    
29. The man who was arguing with the driver kicked the rear driver's side tyre of the taxi. Initially she said that it was the rear passenger side tyre, but claimed confusion as to the two sides of the taxi. After the tyre was kicked, she heard the accused swear at the deceased in Pidgin. The deceased then turned back and approached the driver's door again and leaning in through the window, punched the driver twice and pushed at the accused. The deceased then backed away and just stood beside the taxi. She heard the driver call out "is that what you wanted?" as he drove off. As the taxi drove away the deceased fell to the ground. She then crossed the road and went to the fallen man. The two men who had been standing behind the taxi then came over. The deceased was not holding anything and no-one was holding an MP3 player or earphones.
    
30. In cross examination, PW3 said that when she first heard the sound she did not know what had caused it and that it was only when she got closer did she believe that it had come from the taxi. It sounded like someone closing the door of a car. She said that she was approximately 12-15 meters away when she saw the man kick the taxi. The first thing that happened was that the man kicked the tyre, then the driver swore at him and then the man went back and punched the driver twice. She could not see into the taxi and did not know where the punches landed.
    
31. It is significant that PW3 heard and saw these events from some 15 meters away while neither PW1 nor PW2 heard or saw anything of them from a much closer distance. I found PW3 to be a credible and reliable witness.
    

Cindy Nidi (PW4)

32. PW4 knew the accused as he was employed by her husband as a taxi driver. Her evidence was simply that although she could not remember the date or even the year, on one occasion the accused had returned to her home from work earlier than usual.
    
33. In cross examination she said that on that day she thought that the accused may have been sick or that there was something wrong with the car. She did see that he had swelling to the right side of his face. She noticed that the weather shield on the driver's door was broken and was on the front seat but that she had not inspected the taxi at any time prior to noticing that fact. She said that the accused had never spoken to her about that day and had never told her what had happened.
    

Obrey Nidi (PW5)

34. PW5 said that the accused was a taxi driver employed by him. He remembered that on 9th June 2010 sometime after 5 p.m. he received a telephone call from the accused on his mobile telephone. He said that the accused's telephone number was showing on his telephone and that he recognised the accused's voice. The accused said to him "if anyone asks you anything, say you don't know anything". PW5 asked the accused "who do you mean is going to ask me?" The accused said "if the police ask you".
    
35. Later in his evidence, the witness said that the accused did not ring him just once but rang him on three occasions that evening. In the first call, the accused said to him to say nothing to anyone who might ask him about that day. The witness said nothing to the accused in response. The accused then rang a second time when the witness was in the shower and could not take the call. Later that evening the accused rang for the third time and repeated what he had already told PW5. It was on this occasion that the witness asked the question and got the response concerning the police. PW5 said that he at no stage asked the accused what he had meant by those calls and he did not want to know what he had been involved in although he had assumed it related to a fight of some sort.
    
36. The Prosecution tendered a number of witness statements by agreement and then closed their case.
    
37. The accused decided to give evidence on oath in his own defence. He called no other evidence.
    

The Defence Case

38. The accused testified that he was 43 years of age, could not read or write and was originally from Malaita. He said that at around 5 p.m. to 6 p.m. on 9th of June, 2010, he was working as a taxi driver in the Chinatown area of Honiara. He was hailed by a man at the western end of the old Mataniko Bridge near Bobo's Field.
    
39. He stopped his taxi and a man got in and asked him to wait for two other men who were approaching to board his taxi. One of the two men was holding a can of beer. The first man (the deceased) sat in the front while the other two sat in the back of the taxi. The accused said "Sorry, I'm not taking you, you are drunk." The deceased then struck the dashboard and said "Let's go get beer." The accused said that he became frightened at that stage and got out of the taxi, leaving the men inside. The accused then stood beside the car with his back to the men waiting for them to leave.
    
40. Hearing the taxi door close and seeing that the men had left the taxi, the accused got back into the taxi and closed the driver's door. He said that all three men then came around to where he had been standing and just before he got into the taxi, one of them swore at him. The accused boarded the taxi and sat there with the taxi keys in his hand. The engine had been turned off. While he was sitting, the deceased kicked the car and then came over to his window and punched him once to the face and once to the head.
    
41. He was extremely angry at being punched and retrieved a knife that was in a cavity of the driver's door and while struggling with the deceased, stabbed him in the chest. He said that he wanted to use the knife so that he could get away. The knife was sharp, about eight inches long and he had used it earlier while working on the car. When he stabbed the deceased, he thought that nothing would happen. He said that he was very angry and got carried away and that he was not thinking properly when he did it.
    

Cross Examination of the Accused

42. The accused was asked why he faced the road when he alighted from the car if, as he claimed, he was frightened of the three men. He replied that he didn't know what would happen and was frightened because the deceased had banged the dashboard and had threatened him. By "threatened" it became clear that what he meant was that he felt that he was being pressured to drive the men to get more beer. He confirmed that he had made the telephone calls as described by PW5. He said that PW4 had asked him what had happened and that he had replied that someone had hit him and that he wanted to go the Clinic as he had a headache.
    
43. He said that he went to the Clinic but that it was closed and although he had said to PW4 that he would return to her house, he went home instead. He said that he knew that the police would arrest him because he had stabbed someone and that was why he had told PW5 to say nothing to anyone. When asked why he did not simply drive off when the car was kicked, he replied that he was still holding the keys in his hand at that time. He agreed that only one of the three men was arguing and fighting with him. When asked why he used the knife he said that it was so that he could escape as he was in pain.
    
44. It was put to him that he could have used his hands instead of a knife. He replied that there was not much space in the car and that he was still being held by the deceased. He said that was the reason why he stabbed the deceased and did not drive away. He was extremely angry at the time. When he drove away, he threw the knife into the river as he crossed over the bridge. He was still very angry at this stage. He knew that there was a police station nearby in Chinatown but did not think to go there.
    
45. When it was put to him that he had sworn at the man who had kicked his car, he agreed and said it was because he was very angry. When asked why he had sworn, the accused said, "That one if at that time when I was so angry I got carried away by anger."[2] He also agreed that as he drove off he said to the deceased "Is this what you wanted?"[3] He testified that he said this because he was very angry and that he was referring to the stabbing.
    
46. It was put to him that he acted throughout out of anger and not in self-defence. The accused replied that he stabbed the deceased because he was so angry, that he couldn't think properly and that he wanted to avoid the deceased. He said that he was cross and so angry that he could not control his thinking and that is why he stabbed the deceased. Throughout his evidence in chief, cross-examination and re-examination, the accused did not say that he was in fear of losing his life or in fear of suffering grievous bodily harm. His responses throughout emphasised time and again, that his actions were driven by him becoming increasingly enraged and where he ultimately "... got carried away."[4]
    
47. In response to questions from the Court, the accused said that the knife had been kept in the car in case he needed it to protect himself and that he was prepared to use it where necessary. He also said that he was angry with the men before he got out of the taxi because they had wanted him to take them to a bottle shop which was close by and that they could have walked to the shop. When asked about his earlier evidence that he "did not expect anything to happen" when he stabbed the deceased, he said that if he was to thrust an eight inch knife into the chest of someone, then that person would die.
    
48. The Defence then closed its case and submissions were later made by counsel for both parties.
    
49. 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.
    
50. 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.
    
51. The questions that fall to be considered include –
    
    • Have the prosecution proven beyond reasonable doubt that the accused killed the deceased?
    • Was the killing done with the intention to kill or cause grievous bodily harm?
    • At the time the accused killed the deceased was he acting in self-defence?
    • If he was acting in self-defence, did the accused use excessive force in defending himself?
    • Was the accused provoked into acting the way he did in terms of the provisions of Section 204(a) of the Penal Code?
      
52. It was not disputed that the death of the deceased was caused by the accused stabbing him in the chest with an eight-inch knife. The knife entered the left chest cavity between the 4th and 5th ribs creating an opening into the chest wall of 30 x 10mm. The knife passed through the ribs and the chest cavity and entered the anterior pericardium covering the heart leaving an opening of 20 x 10mm. The knife then entered the left ventricle of the heart, penetrated through it and exited at the back of the heart, incising but not penetrating the postero-inferior pericardium. The Pathologist, Dr.R.Maraka, in his report of the 14th June 2010, described the cause of death as "Haemopericardium due to or as a consequence of a stab wound to the heart."
    
53. As the accused openly admitted that he stabbed the deceased in the chest, it is beyond doubt that the accused's actions in stabbing the deceased caused the death of the deceased. The prosecution have proven beyond reasonable doubt that the accused killed the deceased.
    
54. Was the killing intentional? There is no doubt in my mind, nor was it ever suggested otherwise, that the accused intended to take hold of the knife, which I find had been kept in the taxi at least partly for the purpose of it being accessible to the accused should he have cause to use it, and stab the deceased with it. 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. Although it may not be strictly necessary given that finding, I further find beyond reasonable doubt under the provisions of Section 202 (b) of the Penal Code, that the accused well knew that in stabbing the deceased so, that he would probably cause the death of or grievous bodily harm to the deceased.
    
55. I am satisfied beyond reasonable doubt, and therefore find that the accused intended to kill or cause grievous bodily harm to the deceased.
    

Self-defence

56. Section 17 of the Penal Code provides that –
    

Subject to any express provisions of the Code, or any other law in operation in Solomon Islands, 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.

57. In the case of Palmer v The Queen[1970] UKPC 2; [1971] A.C. 814, Lord Morris of Borthy Gest articulated self-defence as follows:
    

It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do but may only do, what is reasonably necessary. But everything will depend on the particular facts and circumstances...... It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation...[5]

58. Later, His Lordship observed that:
    

If there has been an attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken. .....the defence of self-defence, where evidence makes it's raising possible, will only fail if the prosecution show beyond reasonable doubt that what the accused did was not by way of self-defence .... The defence of self-defence either succeeds so as to result in an acquittal or it is disproved in which case as a defence it is rejected.[6]

59. I am satisfied that the evidence produced in this trial does raise the issue of self-defence and the possibility that the stabbing was done in self-defence and that therefore the burden fell upon the prosecution to prove beyond reasonable doubt that the stabbing was not done in self-defence. Once the issue of self-defence falls to be determined, the prosecution must establish beyond reasonable doubt that the ultimate facts, which establish that plea, are not present.
    
60. Therefore the Prosecution must establish either:
    
    • That the accused had no belief that it was necessary in self-defence to stab the deceased with his knife or
      
    • That there was no reasonable ground for such a belief.
      
61. A failure to establish either of these two alternatives by the prosecution will result in the acquittal of the accused.
    
62. Has the Prosecution proven beyond reasonable doubt that there was no reasonable necessity for the killing or at least no honest belief in the accused based upon reasonable grounds that there was such a necessity?
    
63. The degree of lawful force allowable to be used by an accused has been described as follows:
    

The person using force in self-defence is entitled to use any force which is reasonably necessary to preserve himself from death or grievous bodily harm if (1) the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm and (2) the person using the force by way of self-defence believes on reasonable grounds that he cannot otherwise preserve the person defended from death or grievous bodily harm.[7]

64. In the High Court of Australia, Mason J in Viro's case, said that the finder of fact must consider:
    

Whether the force in fact used by the accused was reasonably proportionate to the danger, which he believes he faced.[8]

65. Clearly, this approach requires the Court to examine the response by the accused to determine whether it went beyond what was reasonably necessary in the light of the danger, which he reasonably believed he faced.
    
66. It emerged in the evidence at trial, and I so find, that the deceased punched the accused while the latter was sitting in his taxi. The deceased neither carried nor used any weapon other than his fist. The accused was struck twice by the deceased through the open window of the locked taxi door. The accused had been holding the keys in his hand when he got back into his taxi and at a time when the deceased kicked the tyre at the rear of his taxi. While there is no requirement for the accused to have retreated before attempting to defend himself, whether he did in fact retreat is a circumstance to be considered with all the others in determining whether the accused believed on reasonable grounds that what he did was necessary in self-defence.
    
67. Here the accused had already locked his taxi doors. There was nothing to prevent the accused from driving away before the deceased reached his window, or at least closing the window. He did neither.
    
68. The accused might have chosen to use his arms to protect himself or move further inside the taxi away from the reach of the deceased. He did neither.
    
69. He had been very angry with the deceased for some time before the assault on him. Indeed, he was angry even before he and the others alighted from the taxi. He was angry that they wanted him to take them such a short distance and he was angry that, in his view, they were drunk. He became even angrier when the deceased kicked the tyre of his taxi. He responded by engaging with the deceased by swearing at him. When the deceased struck him, the accused's anger was such that he said that he stabbed the deceased because he was angry and that he was not thinking properly.
    
70. In that situation the accused did not retreat or attempt to do so by driving away, he swore insultingly at the deceased, he did not move across the car away from the reach of the deceased or close the window as the deceased was walking towards him, he did not use his fists to protect himself from the fists of the deceased but chose rather to arm himself with a knife and stab the deceased through the heart.
    
71. I cannot find in that scenario that the accused reasonably believed that what he did, namely stab the deceased in the full realisation that he would probably die, was necessary in self-defence. He 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.
    
72. 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.
    

Excessive Force and Provocation

73. Section 204 of the Penal Code provides that where an intentional and unlawful act causes the death of another person the offence committed shall not be murder but only manslaughter if any of the following matters of extenuation are provided on his behalf, namely –
    
    1. 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
       
    2. That he was justified in causing some harm to the 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 bodily harm as in fact deprived him for the time being of the power of self-control: or ....
       
74. 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. Sub-sections (a) and (b) of that section both 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.
    
75. The wording of the section requires that those matters of extenuation "are provided on his behalf". I take this to mean that the issue of provocation must arise on the evidence before a court will consider it. Once raised however, the onus is on the prosecution to prove beyond reasonable doubt that there was no 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.
    
76. Section 205 of the Penal Code provides that –
    

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.

77. 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 judgement, 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.
    
78. 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 proven 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 the manner in which the accused acted.
    
79. As a result of these findings, the Prosecution have satisfied me beyond reasonable doubt of the guilt of the accused as charged. He is convicted of one count of murder contrary to Section 200 of the Penal Code.
    

.......................................
THE COURT

^[1] Transcript, Day 1, page 52.
^[2] Transcript, Day 3, page 29
^[3] Transcript, Day 3, pp 30-31
^[4] See Footnote 2
^[5] Ibid 831.
^[6] Ibid 832.
^[7] R v Muratovic [1967] Qd. R 15
^[8] (1978) 141 CLR 88 at 147