Taborau & 2 others v Republic [1990] KICA 1; Criminal Appeal No 3 of 1989 (27 March 1990)

IN THE COURT OF APPEAL OF KIRIBATI

Criminal Jurisdiction

Criminal Appeal No 3 of 1989

BETWEEN:

TEWEIA TABORAU & 2 OTHERS
Appellants

AND

THE REPUBLIC
Respondent

Mr. Koaru for Appellant
Mr. Tabane for Respondent

Date of Hearing: 27th March 1990
Delivery of Judgment:

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

Teweia Taborau, Karekennatu Atanibeia and Arawatau Riaben were charged along with eleven others with the murder of one Ten Ringata Timea. At the conclusion of all the evidence, with the exception of the evidence of a witness for one of the accused who was not available, the case against that accused was adjourned to the next session and the charge against each of the other accused proceeded. The learned trial judge found ten accused not guilty and the three appellants guilty of murder. The appellants were convicted on the 27th March 1987 and sought leave to appeal on 27th September 1989. The Court was satisfied that in this case notwithstanding the lapse of more than two years from the date of conviction until the application for leave to appeal, there are circumstances which make it appropriate to extend the time within which the application for leave to appeal might be made and an order was made accordingly. We then proceeded to hear the application for leave to appeal.

The evidence disclosed that the deceased, who had lived for some time at Nabeina village in North Tarawa, was known as a drunkard and a trouble maker. On 21st September 1986 at a meeting of villagers at the village maneaba, Ringata and one Taaua Toaba, both being absent from the meeting, were fined $75 for excessive drinking of alcohol.

When Ringata heard this he was very angry, he became drunk and wished to fight those who had fined him. That night he visited the houses of several of them and called out to them but they did not answer his call. He then went back home and was followed by a large number of people who threw stones at him and beat him with sticks. It appears that he was felled and then carried to the beach. On 23rd September Ringata's body was found floating in the sea. His hands and legs were tied and were weighted with stones. The body was taken to the Tungaru Central Hospital where Dr. Eritane performed a post mortem. He found contusions on the head, a lacerated eye and eyelid, lacerated nose, multiple fractures of the bridge of the nose, and a cut on the lower third of the right leg. He conducted a test for drowning by immersing a piece of lung tissue in water. It sank. He said that the cause of death was drowning with head injuries a major factor.

The learned trial judge said, after referring to the medical evidence,

"From the above evidence it seems certain that the deceased was beaten, tied and thrown, possibly while unconscious, into the lagoon where he died from drowning."

He reviewed the evidence against each of the accused. With regard to all but the three appellants he either was not satisfied with the evidence identifying them as being present when the deceased was attacked or was not satisfied that they had taken part in the attack. As far as the three appellants were concerned he said:-

"It can be concluded from the circumstances that accused one two and four (the appellants) had a common purpose and intended to cause grievous bodily harm or death to the deceased......"

The evidence which was accepted by the learned trial judge supported the finding that the appellants intended to cause grievous bodily harm to the deceased. But that evidence stopped short when the deceased had been beaten and was lying on the ground outside his house. It did not prove beyond reasonable doubt that the appellants were implicated in the carrying of the deceased to the beach or throwing him into the lagoon.

The learned trial judge accepted as correct the medical evidence as to the cause of the death of the deceased and it followed that the person or persons who tied and weighted the body of the deceased or who caused this to be done murdered him. There was no finding, nor could there properly have been upon the evidence, that the appellants or any of them had tied or weighted the body of the deceased or caused this to be done or approved of its being done. It was clear that there were persons other than the appellants who were in some way involved in the attack upon the deceased. They or some one or more of them could have been responsible for tying and weighting his body and putting it into water, thus causing his death.

It follows that the finding that the appellant murdered the deceased cannot stand. But the learned trial judge's finding that they intended to cause grievous bodily harm to the deceased was justified on the evidence which he accepted. Section 157(2) of the Criminal Procedure Code Cap 17 provides:-

"Where a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence although he was not charged with it."

Upon the finding properly made by the learned trial judge the appellants were guilty of unlawfully doing grievous harm to the deceased with intent to do him grievous harm contrary to section 218 of the Penal Code 67 which carries a maximum penalty of imprisonment for life. In our opinion the appellants should have been convicted of that offence. It was a serious offence and merited a substantial penalty.

The decision of the Court is that

(1) Each appellant is given leave to appeal against his conviction for murder.

(2) In the case of each appellant the conviction for murder is set aside and the sentence of imprisonment for life quashed.

(3) Each appellant is convicted of the offence of unlawfully doing grievous harm to Ringata Timea with intent to do him grievous harm and is sentenced to imprisonment for nine years from the 23rd September 1986.

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