Ueanteiti v Republic [1997] KICA 2; Criminal Appeal 05 of 1996 (21 March 1997)

IN THE COURT OF APPEAL OF KIRIBATI
CRIMINAL JURISDICTION

CRIMINAL APPEAL NO. 5 OF 1996

BETWEEN

TOVIA UEANTEIT1
Appellant

AND

THE REPUBLIC
Respondent

Date of Hearing: 17 March 1997
Delivery of judgment: 21 March 1997

Mr T Teiwaki for the Appellant
Mr T Tabane for the Respondent

JUDGMENT OF THE COURT
(Gibbs VP, Connolly and Ryan JJ.A)

This is an appeal from a judgment of the High Court of Kiribati by which the appellant was convicted of the murder of Arawatau Atanibora in February 1995.

The grounds of appeal are that the verdict was based on unreliable circumstantial evidence, that the learned trial judge misdirected himself in relying upon the circumstantial evidence, and that the verdict was unsafe and unsatisfactory. Particulars of the ground that the verdict was unsafe and unsatisfactory were provided. These are:

(a) There was no direct evidence that the appellant stabbed the deceased.

(b) There was no direct evidence that the appellant was armed at the relevant time.

(c)There was no medical evidence that the deceased died from the wounds.

Evidence was adduced by the prosecution that on a night in February 1995 Arawatau and his cousin Ieie were drinking in the National Bar at Betio. At one stage Arawatau went outside. According to a witness, Bouamatang Rui, who is a cousin of the appellant, fight developed between Arawatau and the appellant Tovia. He separated them. Arawatau went back into the hotel. Later he saw Arawatau come out of the hotel with Ieie. After some minutes Tovia arrived. Ieie came forward to fight with Tovia, but Arawatau moved ahead of Ieie and fought with Tovia. Arawatau fell down, and then Ieie hit Tovia. The witness came forward and restrained Ieie. He then led Tovia away. He heard someone shout out that Arawatau was injured. He went to him and saw that he was lying down, facing upwards. His stomach had been covered with a cloth. He gave evidence that he did not see Tovia with a knife that night.

Ieie gave evidence, that on the night in question he and Arawatau had been drinking for some hours at the Seamen’s Night Club and later at the National Bar. Arawatau went outside, and when he returned he told Ieie that he had been fighting with Tovia. Ieie went outside, but did not see Tovia. Shortly afterwards Tovia arrived. Ieie went forward to fight with Tovia. He did not immediately, but Tovia fought with Arawatau. Arawatau fell down with the appellant on top of him, and then Ieie fought with Tovia, in order to get him away from Arawatau. Eventually he released Tovia who was led away. Ieie said that he noticed blood coming from his leg. He then saw that Arawatau had two injuries to his stomach and that his intestines were coming out of one of his wounds.

He was still breathing. He took Arawatau to the hospital at Betio and later to the central hospital where lie was examined by Doctor Kautu who told him that Arawatau was dead.

Ieie said that he did not see a knife when he fought with Tovia. He gave evidence that he examined the ground where the fighting had occurred later that night and found no broken bottles or large stones.

Another witness, Mr Boota Otea, saw Ieie and Arawatau drinking at the National Bar. He was told that Arawatau had been injured. He went outside, and saw the wounds on the right and left of Arawatau's stomach. He covered them with a cloth. He saw intestines coming out of the wounds.

The appellant Save evidence that he went to the National Bar with some friends where he drank a few beers. He had been there earlier and also at other places where he had consumed alcohol, but he denied that lie was drunk. Outside the National he got into a fight with a person whom he had not seen or known before. After the fight he went home to look for his wife, but she was not there and he returned to the place where the fight had occurred. Upon his return he was confronted by a group of five people who attacked him, and he had to fight. He got into a fight with the deceased and also with Ieie. Two other people also attacked him one of whom struck him on the forehead with a stone. He said that he was rescued by Bouamatang Rui. He continued looking for his wife, and found her at the home of his father in law. He stayed there until he was arrested.

The appellant denied that lie had a knife that night, and that he cut Ieie's leg and stabbed the deceased.

There had been no suggestion in the cross-examination of Bouamatang Rui or leie that people other than the appellant, Ieie and Arawatau had been involved in the fight outside the National Bar. They were recalled and said that this had not occurred.

The learned trial Judge accepted the evidence of Ieie and Bouamatang as to what happened and rejected the evidence of the accused. That was a conclusion that was clearly open to him. It was submitted for the appellant that the injuries to the deceased may have been caused by one of the persons who witnessed the fight or by Ieie but there is nothing in the evidence to suggest that this may have occurred.

Section 193 of the Penal Code provides that any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder. The first question which requires consideration is whether the evidence established beyond reasonable doubt that the appellant caused the death of Arawatau. No medical evidence was adduced as to the cause of death as Dr Kautu was not available, but while medical evidence is usually highly desirable, it is not always essential to establish the cause of death. It was suggested that the possibility could not be excluded that the deceased may have died from some cause other than the injuries to his stomach such as a heart attack. But the evidence as to the severity of the injuries to the stomach of the deceased and as to the deterioration in his condition as he was taken first to the hospital at Betio and later to the central hospital excludes any reasonable hypothesis that he may have died from any other cause than the injuries to his stomach There can be no reason to doubt that death was caused by injuries sustained when a sharp object penetrated the stomach of the deceased and resulted in the exposure of his intestines.

There was also evidence from which the learned trial judge could conclude beyond a reasonable doubt that the accused inflicted these injuries. Though no knife or other sharp object was seen in the possession of the accused, the learned trial judge was entitled on the basis of the evidence of Ieie as to the injury to his leg which drew blood in the course of the struggle with the accused, his evidence as to the condition of the surface of the ground where the struggle occurred, the evidence as to the nature of the injuries which were seen have been suffered by the deceased immediately after the fight, and the opportunity available to the accused to dispose of the knife or the sharp object, to infer beyond a reasonable doubt that the cause of death was the infliction of injuries by the accused to the deceased by a knife or other sharp instrument.

There is nothing to suggest that if the accused caused the death of the deceased, his act was not unlawful. The question which remains is whether the learned trial judge was properly satisfied on the evidence beyond a reasonable doubt that the accused caused the death of malice aforethought. He concluded that the accused deliberately inflicted the wounds to the deceased's stomach with a sharp object which had been concealed on his person, and that he acted with intent to cause at least grievous harm to the deceased.

That inference was clearly open to the learned trial judge on the evidence. There is no reason to think that the verdict was in the circumstances unsafe and unsatisfactory, or that on any of the other grounds of appeal the verdict should be set aside.

The appeal is dismissed.