Terawati v Republic [2001] KICA 7; Criminal Appeal 02 of 2001 (5 April 2001)

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

Criminal Appeal No. 2 of 2001

BETWEEN:

ARAM TERAWATI
Appellant

AND:

THE REPUBLIC
Respondent

Before: Casey JA
Bisson JA
Tompkins JA

Counsel: The appellant in person
Ms Pole Tebao for the respondent

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

JUDGMENT OF THE COURT

[1] The appellant was charged on a count that on 18 July 2000 he murdered Tiribo Tereetio. Following a trial before Commissioner Lambourne on 15 and 16 January 2000 he was found guilty of the charge. He has applied for leave to appeal against conviction.

[2] On 18 July 2000 the appellant and the deceased were members of a work team clearing some ground on the site of a school. Others were working with them. One of them testified that the appellant handed him a cigarette and asked him to light it for him. The witness Bataka turned away to light the cigarette and when he turned back he could see a knife stuck into the left side of the chest of the deceased. He did not see the knife enter the body of the deceased but he could see that the appellant held the handle of the knife that was embedded in the deceased's chest. Another witness gave evidence that, although he did not see any contact between the appellant and the deceased, when he came out of a room at the school, he saw the appellant holding a long bloodied knife. The deceased died later that day. A doctor gave evidence that he died as a result of a deep stab wound to the left side of the chest.

[3] The accused gave evidence. He said that the deceased in coming to relieve Bataka rushed at the deceased and pushed him away, using only his hands. The appellant denied being in possession of a knife. The witnesses who saw him with a knife were mistaken. He could not explain how the deceased came to be stabbed.

[4] The Commissioner rejected the appellant's evidence as incredible and completely unbelievable. Although nobody saw the appellant actually insert the knife into the chest of the deceased, the only inference that can reasonably be drawn from the evidence of Bataka is that it was the appellant who stabbed the deceased. The Commissioner concluded that unless the prosecution were unable to negative either provocation or self defence, a conviction for murder was inevitable. The Commissioner considered the defence of self-defence. He held that the action of the deceased in wielding an axe to chop at a tree stump could not be construed as a threat. Even if the accused believed that the deceased was going to strike him with the axe, that was not a reasonable belief to hold. The Commissioner pointed out that the appellant testified to a loss of control which was inimicable to the defence of self-defence, which requires a considered response to a threat. He held that the defence of self-defence had been negatived by the prosecution.

[5] In his submissions to this court, the appellant said that he had reacted to defend himself from the attacker who had first raised his axe to strike him. He said that without a second thought, as the attack was so sudden, he immediately pulled out his knife and lunged at the deceased. In effect therefore the appellant is again raising the defence of self-defence. We note that the submission the appellant has made in this court is completely at odds with the evidence he gave at the trial, when he expressly denied that he had a knife that morning.

[6] We are unable to accept the submission the appellant has made in this court. Particularly having regard to the Commissioner's finding on credibility and the evidence from other witnesses of the events that occurred that morning, the Commissioner was clearly entitled to find that the prosecution had negatived the defence of self-defence. Accordingly, this ground of appeal cannot succeed.

[7] The appellant also submitted that the sentence of life imprisonment should be reduced. As we pointed out to him at the hearing of the appeal, this submission cannot succeed because s 193 of the Penal Code (Cap 67) provides that any person found guilty of murder shall be sentenced to imprisonment for life. The court has no jurisdiction to impose any lesser sentence.

[8] For the reasons we have expressed, the application for leave to appeal must be dismissed.

Casey JA
Bisson JA
Tompkins JA