Republic v Tabuki [2001] KICA 5; Criminal Appeal 03 of 2000 (5 April 2001)

IN THE KIRIBATI COURT OF APPEAL
CRIMINAL JURISDICTION
HELD AT BETIO, KIRIBATI

Criminal Appeal No. 3 of 2000

BETWEEN:

THE REPUBLIC
Appellant

AND:

TEMAUA TABUKI
TIARE TABUKI
Respondents

Before: Casey JA
Bisson JA
Tompkins JA

Counsel: Ms P Tebao for the appellant
Mr N Allen for the respondents

Date of Hearing: 28 March 2001
Date of Judgment: 5 April 2001

JUDGMENT OF THE COURT

The respondents are brothers who were charged with murder. On arraignment Tiare Tabuki pleaded guilty to manslaughter which the prosecution accepted. Ms Tebao explained that this plea was accepted because of difficulties facing the prosecution, this accused being deaf and dumb. Temaua Tabuki pleaded not guilty. He was found guilty of wounding with intent to cause grievous bodily harm. Both respondents were sentenced to four years' imprisonment.

There the matter would have ended but the Republic has sought the opinion of this Court under s.20(1) of the Court of Appeal Act 1980, which reads-

20. (1) Where the High Court has acquitted a person or confirmed the acquittal of a person by a magistrates' court (whether in respect of the whole or part of any charge) the Attorney-General may, if he desires the opinion of the Court on a point of law which has arisen in the case, refer that point to the Court and the Court shall, in accordance with this section, consider the point and give their opinion on it.

It is to be note that by subsection (2) "A reference under this section shall not affect the trial or appeal in relation to which the reference is made or any acquittal in that trial or appeal."

The Notice of Referral states the following points of law to be considered:

'.....the learned Chief Justice having found:

(i) the two accuseds were involved in a joint enterprise (at Judgment page 3);

(ii) the accused Temaua intended to and did cause grievous bodily harm to the victim, the accused stabbing him in the neck and chest with a knife; and Temaua was not acting in self defence (at Judgment page 3);

(iii) the wounds inflicted by one or both of the accuseds caused the death of the victim - he died on the road where the accuseds attacked him, the death being within moments of the attack but it could not be determined which blow, by which accused caused the death (at Judgment page 2);

did the learned Chief Justice err in failing to find the accused Temaua guilty of either murder (s.193) or manslaughter (ss 197, 198), by operation of section 195 of the Penal Code?'

It is necessary in considering this Referral to make a careful analysis of the judgment. Starting with the facts as they appear in the judgment,

The first and only eye witness was the widow of the deceased. She said she and her husband had been walking along the road when the two brothers attacked her husband. This accused had a knife (it is an exhibit and is a fearsome weapon): the brother attacked the deceased too, she said also with a knife: the second witness Riaua Kautu described the brother's weapon as a metal spear. The deceased gave her his back-pack and she picked up a piece of building timber lying about and gave it to the deceased but it was rotten and broke. The two attacked the deceased and this accused stabbed him: her husband fell down and died. She called out and ran for help.

Mr Allen submitted that there was no case to answer as there was no expert medical evidence of the cause of death, the doctor who examined the body of the deceased not being available to give evidence. The Chief Justice then made the following finding,

I could not find beyond reasonable doubt that the injuries caused by the accused were the cause of death: they may have been the injuries inflicted by the brother. I accept Mr Allen's argument and said as much in discussion in court.

Having said that, the Chief Justice appears to have then reached the following conclusion, (after properly ruling out any relevance in the brother's plea of guilty to manslaughter),

I told Mr Allen that as the evidence stood I thought, subject to argument, that his client was guilty at least of wounding with intent to cause grievous bodily harm but the prosecution had not proven either murder or manslaughter.

Mr Allen had argued at the trial that there was no evidence beyond reasonable doubt of what the two brothers intended sufficient to prove that they were involved in a joint enterprise. To this submission the Chief Justice replied,

"actions speak louder than words". Here we had two men, both armed, together attacking another man who at first had no weapon with which to defend himself and then only a piece of rotten wood. The assailants kept on attacking until the victim fell down. That is sufficient to convince me beyond reasonable doubt that this was a joint enterprise between the two.

The implications of holding that there was a joint enterprise are not pursued in the judgment. The Chief Justice proceeded to reach the verdict that the accused was guilty of wounding with intent to cause grievous bodily harm.

The submission of Mr James for the Attorney General is that having found there was a joint enterprise, and that grievous bodily harm was intended and death ensued, there should have been a verdict of guilty of murder (s. 193) or manslaughter (ss 197, 198) by operation of s.195 of the Penal Code. These do seem to be verdicts properly open to the trial judge. The law has been already clearly stated in authorities such as those cited to us by Mr James. (Archbold 43rd Edn para 20-16a, 16c; R v Reid (1976) 62 Cr.App.R. 109). In Chan Wiung-Siu and Others v. The Queen [1984] UKPC 27; [1984] 3 All ER 877 guidance was given by the Judicial Committee of the Privy Council as to the tests of guilt in crimes alleged to arise from a joint enterprise. In the words of Sir Robin Cooke (as he then was),

Public policy required that where a man lent himself to a criminal enterprise knowing that potentially murderous weapons were to be carried, and in the event they were in fact used by his partner with an intent sufficient for murder, he should not escape the consequences by reliance upon a nuance of a prior assessment, only too likely to have been optimistic.

In this case there was no nuance. The accused did not give evidence. We have read the evidence. There was bad blood between the deceased and his two assailants. They both were armed and both attacked with their weapons. The deceased endeavoured to fight back. This is not a case where one used a weapon not known to the other. This case comes within one of the principles enunciated by Beldam LJ giving the judgment of the Court of Appeal, Criminal Division, in R v. Uddin [1998] EWCA Crim 999; [1998] 2 All ER 744 at p. 752,

In a case in which after a concerned attack it is proved that the victim died as a result of a wound with a lethal weapon, e.g. a stab wound, but the evidence does not establish which of the participants used the weapon, then if its use was foreseen by the participants in the attack they will all be guilty of murder notwithstanding that the particular participant who administered the fatal blow cannot be identified (see R v Powel). If, however, the circumstances do not show that the participants foresaw the use of a weapon of this type, none of them will be guilty of murder though they may individually have committed offences in the course of the attack.

The qualifications in the final sentence does not have any bearing on the position of the accused who not only foresaw the use of the weapons he and his brother carried but both intended to use them in their assault on the deceased.

We do not need to take this opinion further. What we have said should serve the purpose of the Attorney General in making his Referral to this Court. We were not referred to any authorities requiring the Chief Justice to return a verdict of guilty of murder or manslaughter in these circumstances, and cannot say he was obliged to do so. He chose to find the accused guilty of the lesser offence. We are not in a position to say he erred in returning that verdict. As with the verdicts of some juries who see and hear all the witnesses, a compassionate verdict may be returned.

Casey JA
Bisson JA
Tompkins JA