Auatabu v Republic [1989] KICA 3; Criminal Appeal No 2 of 1987 (16 March 1989)

IN THE COURT OF APPEAL OF KIRIBATI

Criminal Jurisdiction

Criminal Appeal No 2 of 1987

BETWEEN:

TENTOA AUTABU
Appellant

AND

THE REPUBLIC

Mr. Koaru for Appellant
Mr. Tabane for Respondent

Date of Hearing: 15th March 1989
Deliver of Judgment: 6th March 1989

JUDGMENT OF THE COURT
(Gibbs V.P., Frost, Donne, Dillon and Mitchell J.J.A.)

Before the court are an application for leave to appeal and a notice of appeal against the conviction of the appellant for the murder on 23rd October 1986 of one Tererei Tekieru.

Briefly stated the facts were that on 23rd October 1986 the appellant and the deceased were working on the construction of the causeway. For that purpose the appellant was using a shovel, with a wooden handle and a sharp and pointed metal blade. The appellant was for some reason enraged by something the deceased did then or had done in the past, and struck, or as one witness said stabbed, the deceased with his shovel. The blows were described as being caused by a stabbing forward motion. One witness, Mikaere Teeoro, said that the deceased was stabbed on the upper chest, and once on the side of his head and once on his chin. Another witness, Kiaua Birimaere, said that the injury to the chin was not very serious; it was about 1¹/₄ inches long. The deceased collapsed unconscious and was taken to hospital still breathing but died before the arrival of a doctor.

A medical witness, Dr Baua, saw the deceased after his death. He saw wounds on the deceased's body; he said that they were on his jaw, above the left nipple and on his chest and that they were caused by something not sharp but solid. He did not however describe the nature of the wounds. He said, "As I didn't know why he died I sent him for post mortem." No post mortem report was given in evidence, apparently because the doctor who should have made the report was no longer in Kiribati. It is accordingly somewhat surprising that Dr Baua went on to say "This is a classical case of extra dural haemorrhage and this is common in boxers. He must have had a blow to his head." It is not possible to accept the doctor's opinion that this was a case of extra dural haemorrhage, since that opinion was formed when he did not know the result of a post mortem and did not know that there had been a blow to the head.

It was claimed on behalf of the appellant that he had been provoked by the actions of the deceased causing him to lose his self control and do what he did. The appellant gave evidence that the deceased had wounded him (apparently accidentally) on a previous occasion, although it is by no means clear whether that occasion was a day, a week or a month before the relevant date. He also said that on the day of the death the deceased had made fun of him, and had insulted him by baring his backside towards him. There was no other evidence that supported the appellant's statement that the deceased insulted the appellant in that way, although there was some evidence that suggested that the deceased was a trouble maker and one witness had seen the deceased bending over, while another had heard the deceased say, after he had been struck, "Tentoa. I'm sorry". The appellant had not mentioned that the deceased had bared his backside when he gave his statement to the police. The trial judge did not believe the evidence of the appellant on this matter.

The first ground of appeal was that on the evidence it was unsafe and unsatisfactory to find that the appellant caused the death of the deceased. Certainly, the medical evidence was quite inadequate for that purpose. However, although medical evidence of the cause of death is in general highly desirable, it is not in every case essential to establish the cause of death by medical evidence. In the present case the deceased fell unconscious immediately after he received the blows and died soon there after. In these circumstances it is safe to infer that the blows were a cause of the death; no other conclusion can rationally be reached.

The second ground of appeal relied on raises the question of provocation. However the finding of the trial judge was that he did not believe that the deceased had bared his backside to the appellant. Although a number of other persons were present at that time, none saw the deceased do so, and the appellant did not tell the police, when he made a statement to them, that this had occurred. In these circumstances it is quite impossible to disturb the finding of the judge who had seen and heard the witnesses and whose judgment rested on his assessment of their credibility. It is clear that in a case where there is evidence to be considered on the issue of provocation the onus lies on the prosecution to prove beyond reasonable doubt that there was no provocation. In the present case, once the finding that the deceased did not bare his backside is accepted, there is no evidence on which the judge could have found that the appellant was provoked within the meaning of section 198 of the Penal Code. That is not to say that if the deceased had bared his backside there would have been sufficient provocation; a question of that kind cannot be decided without regard to all the circumstances but it does not now arise.

The final ground of appeal is that the learned trial judge misdirected himself on the issue of malice aforethought. By section 193 of the Penal Code, any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder. Section 195 deals with malice aforethought as follows:

"Malice aforethought may be expressed or implied and express malice shall be deemed to be established by evidence proving either of the following states of mind preceding or coexisting with the act or omission by which death is caused, and it may exist where that act is unpremeditated -

(a) an intention to cause the death of or grievous bodily harm to any person, whether such person is the person actually killed or not; or

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

"Grievous harm" is defined in section 4 of the Penal Code:-

""Grievous harm" means any harm which amounts to maiming or dangerous harm, or seriously or permanently injures health, or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, membrane or sense."

The trial judge in the present case misdirected himself as to the cause of death. He said that the doctor said that the deceased must have had a bad blow to the head and he found that the deceased died from an extra dural haemorrhage caused by a blow to his head by a shovel. The doctor spoke only of a blow, and not of a bad blow, and there was no evidence at all that the blow which the deceased received to his head was a severe one. The finding that the cause of death was an extra dural haemorrhage was insupportable, as has already been pointed out. In these circumstances we are required to look with particular care at the finding that the appellant struck the blow with malice aforethought. It is important to notice that there is no evidence that any of the blows struck was particularly severe. There is no evidence that the blows in fact caused serious wounds. The only wound described is that to the chin and that was said not to be very serious. The appellant appeared to have acted on the instant, in a fit of anger, using the tool that he already had in his hand, and it is impossible to be satisfied beyond reasonable doubt that he actually intended to kill the deceased or to cause grievous bodily harm. Further, although a blow from a shovel is obviously likely to cause bodily harm, and in some cases to cause serious bodily harm, there is no evidence that the blows or stabs delivered by the appellant were sufficiently severe to be likely to cause death or grievous bodily harm, or that the appellant had knowledge that they would probably do so. The conclusion open on the evidence is that the deceased was suffering from some unknown weakness which rendered him particularly susceptible to the blows which he received, and that the actual effect of the blows was neither intended nor foreseen. Certainly it is not possible to be satisfied beyond reasonable doubt on the evidence that the appellant, when he struck the blows, acted with malice aforethought within the meaning of the Penal Code.

On the evidence the appellant should have been convicted, under the power given by section 157 of the Criminal Procedure Code of the lesser offence of manslaughter. The appeal will therefore be allowed and the conviction and sentence of murder will be set aside and a conviction of manslaughter will be substituted. The case will be remitted to a judge to impose sentence upon the appellant for manslaughter. Since the trial judge, Topping J, is no longer available, that duty must be performed by another judge.

Vice President
Judge of Appeal
Judge of Appeal
Judge of Appeal
Judge of Appeal