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Regina v Kamikamica [2012] TVHC 4; Criminal Case 03 of 2011 (21 January 2012)

IN THE HIGH COURT OF TUVALU
AT FUNAFUTI
Criminal Jurisdiction

HC. Crim. Case no. 3/11

Between:

Regina

V

Epeli Yasava Kamikamica,
Samuela Dolesau and
Taniela Gaunavou
Defendants

BEFORE THE HIGH COURT

S Talu for prosecution
I Isala for all defendants

Hearing: 16, 17 and 18 January 2012
Judgment: 21 January 2012

Judgment

[1] On 28 February 2011, a Fijian registered fishing vessel, the K Camelia, was arrested for fishing within the Tuvalu fishery limits with an expired fishing licence. The vessel was brought to Funafuti and secured at the Old Deep Sea Wharf. There were 14 crew on board; seven Fijians (including the three defendants), three Indonesians, and three Chinese serving under a Korean Master. The vessel was detained and the crew prevented from leaving Tuvalu.

[2] One of the Chinese on board was the Chief Engineer. It is clear from the evidence of the three defendants that they resented the manner in which this man acted. Their principal complaints were that he was 'bossing' everyone in the crew and interfering in the management of the vessel rather than confining his attentions to the engine room and that he treated the crewmen unpleasantly and, in particular, frequently used foul and insulting language to them.

[3] On 14 April 2011, he was killed during a fight on the wharf and the three defendants are charged with his murder.

[4] The evidence shows that, on that day, the first defendant, Epeli Kamikamica, was drinking with others, including some members of the crew of a vessel from Papua New Guinea. During the day the drinking party consumed a substantial amount of wine and spirits. The second defendant, Samuela Dolesau joined them at lunchtime and shared in the drinking. The third defendant, Taniela Gaunavou, started the day by drinking with a Tuvaluan friend at the wharf from 5 until 10 in the morning. He then went to sleep on the ship and woke up at 5 in the afternoon. He went to look for the others and found them by the airstrip drinking. He told the Court he did not seek them out in order to join in their drinking but to take them back to the ship. All three left together and were given a lift to the wharf by a friend..

[5] Epeli and Samuela had with them a partly consumed carton of wine the contents of which they finished at the wharf.

[6] When they arrived at the wharf, Taniela went on the ship to collect their food. It had for some time consisted of nothing but boiled rice and bait fish. The Fijians resented the fact that they were being fed with bait fish - the more so because the Chinese members of the crew and the captain were being fed better food.

[7] The first and second defendants went onto the vessel to speak to the Captain whom they had seen entering the wheelhouse. Epeli complained about the food and also asked when they were likely to be able to return to Fiji -- a question they had been anxiously asking almost daily.

[8] Whilst this was going on, the chief engineer arrived at the wharf on a motorcycle, parked it and boarded the ship. After a few minutes in his cabin he came out and demanded to know why the accused were in the wheelhouse. He told them to come away and swore at the Fijians using, in particular, the vulgar abuse of "Magaitinamu" (Fuck your mother or motherfucker).

[9] The chief engineer then left the ship and went to his motorcycle. The first accused, who had followed him off the vessel after following his offensive comments, called to him 'Chief, Chief' but the only acknowledgment was a repetition of the swearing accompanied, this time, by an obscene finger sign. Epeli then reached him, slapped him on the head and he came off his motor cycle.

[10] A fight ensued involving, initially, only Epeli and the chief engineer but was soon joined by Samuela. Immediately prior to Samuela's involvement, the chief engineer fell to the ground (described by one witness as appearing to have tripped) where he was kicked and stamped on by the two accused. Witnesses described most of the kicks and stamps being to the head and the upper part of the body. He was seen to be trying to protect his head at first but, as the kicks continued, he stopped moving and was eventually lying motionless on his back with this eyes open. The number of kicks was described as being 'more than ten' and 'a lot of times'.

[11] The fight was stopped by some bystanders holding the two accused. One, who held Epeli, found he was very aggressive and contimued trying to attack the chief engineer. He was able to break free and went to throw the chief engineer's motorcycle into the sea. He was prevented from doing this but, later, tried again successfully.

[12] The two accused were told to leave the wharf but, shortly afterwards, were involved in an attack, together with another Fijian crew member, on the second engineer.

[13] It was apparent to some witnesses that, during the attack on the chief engineer, he received injuries to his head and face. By the end of the struggle he remained still, apparently unconscious. More than one person checked his pulse or his chest and he was still alive. An ambulance was called and took him to hospital but he was pronounced dead on arrival. All three defendants were arrested and charged.

[14] The fight was witnessed by four civilian witnesses. Not all saw the start of the fight but all were consistent in describing the first and second accused kicking and stamping on the chief engineer as he lay on the ground. They described the kicks been principally to the head of the victim and the upper part of his body. They referred to a number of kicks by each defendant and described how they had to be stopped and, effectively, pulled away from their victim. I do not intend to set out their evidence in any detail. I found, from the manner in which they gave evidence and the confirmation each gave to the others, that their evidence was credible.

[15] Samuela made a statement to the police under caution. He described the earlier events of the day and of how, on their return to the boat, he heard the chief engineer swearing at Epeli. He explained how he saw Epeli punch him and, when the chief engineer fell to the ground, gave him some kicks with his right foot. He continued:

"From there I ran to them and gave some kick on the chief engineer with my right foot and all my kicks land on his right side below his arm. At that time the chief engineer was lying down and face upwards and he did not respond or moving and I saw his eyes were open."

[16] He later added:

"At the time I ran towards Epeli and the chief engineer, the chief engineer was lying down and I saw some bloodstained on the right side of his face and his eyes were opened. I am full drunk and I understand what I did last night."

[17] That statement was not denied and also, in respect of Samuela, is consistent with the evidence of the civilian witnesses. It is not, of course, evidence against his co-accused.

[18] All the defendants gave evidence. Epeli and Samuela admitted the attack on the chief engineer and kicking him on the ground. Each told the court that he did not intend to kill the chief engineer and did not realise he was dead until the police told them later.

[19] One of the prosecution witnesses described the third accused as also being involved in kicking the deceased on the ground. No other witness agrees with that. In fact, three prosecution witnesses positively state that Taniela only became involved when he assisted in stopping the other two accused. In his evidence, Taniela said the same; he only went in to stop the attack. I note the similarity of his account to the evidence of the majority of the prosecution witnesses. He described how Epeli and Samuela were on opposite sides of their prostrate victim and, in order to stop them, he stood with a foot either side of the deceased and pushed both defendants away, managing to hold them both at arm's length.

[20] Whilst he was doing this, both accused were still trying to kick the chief engineer and Taniela received a number of kicks to his own legs in consequence. I am satisfied that the suggestion by one prosecution witness that he was involved in the fight is likely to be an inaccurate observation of that moment.

[21] I am quite sure, on the evidence, that Taniela's involvement was as described by the majority of prosecution witnesses and the accused himself. I consider the evidence positively establishes that his only part was to try and stop the fight. He was not involved in any aggressive acts against the victim nor did he cause any of his injuries.

[22] The third defendant, Taniela Gaunavou is not guilty of the charge of murder and is acquitted.

[23] The surgeon, who examined the victim on arrival at the hospital, pronounced him dead. He recorded multiple head contusions and excoriations, bleeding through both ears, closed head trauma, a superior maxilar fracture and, from a consideration of those injuries as a whole, diagnosed a medial basal fracture of the skull. Those injuries were the cause of death and all resulted from a serious head trauma. He did not perform an autopsy.

[24] Two of the prosecution witnesses and Taniela described the victim falling face downwards so that his face hit the wharf. Although he considered it unlikely, the doctor could not rule out the possibility that the maxillary fracture may have been caused by the fall. However, the doctor did not accept that, even if that was so, it would have forced the head back in such a way as to cause the basal fracture of the skull. That basal fracture was the result of a direct blow and would, in his opinion, undoubtedly have been fatal.

[25] Both Epeli and Samuela, in their evidence, admitted kicking the chief engineer. Epeli did not attempt to deny that his kicks landed on the head. Samuela described his kicks being confined to the ribs on the right side as he had also stated in his caution statement.

[26] I am satisfied so I am sure that these two men were involved in an attack on the chief engineer which resulted in fatal injuries. I am equally satisfied that Samuela gave a number of kicks and was involved jointly in that attack on the deceased. During that attack, injuries were caused to the victim which were the direct and sole cause of his death and both accused are equally liable.

[27] The offence of murder is defined in section 193 of the Penal Code:

Any person who of malice aforethought causes the death of a normal person by an unlawful act ... is guilty of murder ...

[28] Both accused denied any intention to kill this man and the defence has submitted that the prosecution has failed to prove malice aforethought. By section 195, malice aforethought may be established by proof of either:

(a) an intention to cause death of or grievous bodily harm to any person, or

(b) knowledge that the act which caused death will probably cause the death of, or grievous bodily harm to some person ... although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused.

[29] I accept that the two accused did not intend to cause the death of the chief engineer. However, I am satisfied beyond any reasonable doubt that any person who repeatedly kicks another man on the ground in an attack with another assailant almost certainly intends to cause that person grievous bodily harm. That would not be sufficient to satisfy the burden of proof under the first limb of section 195. However, I am satisfied beyond any doubt that they both knew that such an attack would probably cause grievous bodily harm to their victim and continued in the joint attack with indifference to the likelihood that it would do so and continued attempting to attack him violently even after others had intervened to stop the attack. That attack resulted in grievous injury which caused his death. That is murder.

[30] In those circumstances, the defence asks the Court to consider the possibility that they were both so provoked by the actions of the deceased that they lost their self control as defined in section 198:

Where on a charge of murder, there is evidence on which the court finds 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 it would have on a reasonable man.

[31] Section 197 further provides:

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 [ it is] proved on his behalf that he was deprived of the power of self-control by such extreme provocation given by the person killed as is mentioned in [section 198].

[32] The reference in that section to proof on the accused's behalf does not mean the defence must prove it to the criminal standard. In practical terms, the burden remains on the prosecution to prove beyond reasonable doubt that he was not so provoked.

[33] Provocation will only provide a defence to a charge of murder. As I have stated, I have found the actions of these two accused amount to murder. If I consider they may have been provoked to the degree described, they are entitled to be acquitted of murder and convicted instead, of manslaughter.

[34] Although section 198 simply refers to losing his self control, for it to be sufficient to reduce a charge of murder, it has to be extreme such that it deprives the accused person of his self control, as stated in section 197. I accept the definition of provocation stated in R v Duffy [1949] 1 All ER 932:

"Provocation is some act, or series of acts, done by the dead man to the accused, which would cause in any reasonable man, and actually causes in the accused, a sudden and temporary loss of self control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind."

[35] Defence counsel's submission is that the cumulative effect of the repeated and continuing offensive conduct by the chief engineer to the Fijian crewmembers, and in particular these two accused, meant that each time such conduct re-occurred, it was likely to have an increased provocative effect. The result was that, on this occasion, that effect was extreme and would have caused any reasonable person in the same situation to lose all power of self-control.

[36] The first accused, to whom the insult 'magaitinamu' was directed that evening, told the Court that he had been brought up in a home where such language was not used and so he was particularly susceptible to the offensive effect. I accept his evidence of his background but the evidence is that, once it had been said to him, he used it himself in response. It was also clear on the evidence that it is a word frequently used Fiji as an insult but often in a relatively light-hearted way. Whilst I accept that Epeli found the comments insulting and was angered by them, I do not accept he was so badly offended as to lose his self control to the extent described in Duffy's case.

[37] More significantly, the test for the court is to measure the effect of the provocation by the effect it would have on a reasonable man. It is quite clear that neither of these men fitted that description at the time of this attack. Both were drunk. No doubt the drink made them more susceptible to insult and more likely to take offence but that is not the test. A reasonable man is not a drunken man. I do not accept that the sort of offensive comment and conduct by the chief engineer that evening would be such as to deprive a reasonable man of the power of self-control even if, as I accept was the case here, he had repeatedly suffered similar unpleasant treatment from the deceased for a considerable time previously and had a degree of accumulated resentment.

[38] I am satisfied so I am sure that this was simply an attack by two drunken, angry men involving repeated kicks and stamping which resulted in the injuries which were the cause of their victim's death. The initial attack was by the first accused but the second accused joined in with full knowledge of the nature of the other man's attack and with the clear intention to support him. At that time the deceased was alive. From then, it was a joint assault and both men are equally responsible for the result irrespective of who actually caused the basal fracture to the skull. I am equally satisfied that they knew full well that the kicks they used on the man on the ground would cause grievous bodily harm and continued regardless. I am satisfied that they were angered by the words and actions of the deceased but his conduct fell far short of the type of provocation described in section 198.

[39] Both the first defendant, Epeli Kamikamica, and the second defendant, Samuela Dolesau are convicted of murder.

Dated 21st day of January 2012

Hon. Gordon Ward
CHIEF JUSTICE