Kaiuea v Republic [1997] KICA 21; Criminal Appeal 07 of 1996 (25 March 1997)

IN THE COURT OF APPEAL OF KIRIBATI
CRIMINAL JURISDICTION

CRIMINAL APPEAL NO. 7 OF 1996

BETWEEN:

KAKIATAAKE KAIUEA
Appellant

AND:

THE REPUBLIC
Respondent

Date of Hearing: 17 March 1997
Delivery of judgment: 25 March 1997

Appellant in person
Ms T Beero for the Respondent

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

During the morning of Sunday 3 March 1996 the appellant was drinking sour toddy with the deceased Borau. Kaamoua and others at Buota Village, Marakei. He went away to inspect a babai pit and on his return noticed that his hammock had been cut down and that the deceased was no longer there. This led him to blame the deceased for the damage to his hammock.

During the afternoon the appellant went to the house of one Bakatokia taking with him a basket containing a bush knife. He sent a passing boy to fetch the deceased who came to join him. The appellant asked him who had cut down the hammock. The deceased denied having done it. However the appellant took out the bush knife and repeatedly attacked the deceased, who was unarmed causing him severe injuries and exposing his intestines. A special constable came to the scene and saw many cuts to the deceased's hands, head and body. He was unable to restrain the appellant who said that he wanted to finish off the deceased, who, in fact died later that day in hospital as a result of the injuries he had received, although he had been given an intra-venous drip.

The applicant was charged with murder on 19 April 1996 and was convicted of that offence oil 20 June 1996 in the High Court at Betio before Lussick C.J. He sought leave to appeal oil 26 September 1996 and the application was heard as all appeal by this Court.

It was not disputed in argument that the accused caused the death of the deceased but it was contended that the Republic had failed to prove that lie intended to kill and to exclude provocation beyond reasonable doubt.

So far as intention is concerned the continued attack shortly described above on ail unarmed man for whom he had sent and his statement to the special constable that he wanted to finish the deceased off make the conclusion inevitable that he had formed an intention to kill. It is true that the accused had obviously been drinking sour toddy and that by virtue of s.13(4) of the Penal Code intoxication shall be taken into account for the purpose of determining whether lie had formed an intention to kill but, giving full effect to his intoxication, one is left with no doubt as to his intention.

Provocation is the subject of s. 198 which reads:-

"198. 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 to the effect which it would have on a reasonable man."

There is ample evidence that the accused was provoked by his suspicion that the deceased had cut his hammock down and that lie continued to brood on this suspicion despite the attempts of others to calm him There is also evidence that immediately before the attack he was still obsessed with the suspicion although the deceased denied it. The first point which may be thought to arise is whether this was provocation at all. The accused had no real reason to suppose that it was the deceased who had cut down the hammock but s.198 does not in terms require that the acts or words referred to in the parenthesis be those of the victim. However, assuming without deciding that in an appropriate case provocation may be occasioned by words or conduct of a person other than the victim, the question for the court posed by s. 198 is whether the cutting down of the hammock was enough to make a reasonable man do as he did. To this must be added two further allegedly provocative acts by the deceased.

The first of these was a statement attributed to the deceased by the applicant in his statement to the Police- "Don't you know Tem Borau?" which is contended to be the equivalent of a challenge to the effect, "I Borau (the first name of the deceased) can do what I like". The second was that Nei Karubea (prosecution witness No. 3), the wife of Bakatokia in describing the attack at her house when the accused had taken the knife from the basket spoke of the deceased running towards the accused.

As to the alleged cutting down of the hammock there was evidence that it is contrary to custom to enter the property of another and damage his hammock and that the owner would be entitled to get angry and challenge the offender but that it was not something to kill over.

As to the alleged "Tem Borau" challenge Lussick C.J. did not accept that it was ever made; and as to running of the deceased towards the accused he was of the opinion that in the circumstances it was more likely to have been defensive than provocative.

These conclusions of the learned Chief Justice seem to us to be amply justified. It follows that, on the evidence there is no basis for a conclusion that the alleged cutting of tile hammock or the act of the deceased in running towards the accused when threatened by him were enough to make a reasonable man do as the accused did, while the "Tem Borau" challenge is simply not made out. It follows that the Republic's case successfully excluded provocation to the required degree.

The applicant will have leave to appeal but the appeal must be dismissed.

Vice President
Judge of Appeal
Judge of Appeal