Obaia v Republic [2003] KICA 1; Criminal Appeal 01 of 2003 (16 August 2003)

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

Criminal Appeal No. 1 of 2003

BETWEEN:

RAKAITI OBAIA
First Appellant

KOBUTI RAKAITI
Second Appellant

AND:

THE REPUBLIC
Respondent

Coram: Hardie Boys JA
Tompkins JA
Penlington JA

Counsel: John O'Sullivan for first appellant
Aomoro Amten for second appellant
Tion Nabau for respondent

Date of hearing: 12 August 2003
Date of judgment: 16 August 2003

JUDGMENT OF THE COURT

Introduction

[1] The first and second appellants and their co-accused were charged with the murder of Tebarerei Itaia between 11 and 12 pm on 22 July 2002 at Kabuna village on Tabiteuea North. After a defended hearing before the Chief Justice, the appellants were, on 27 February 2003, found guilty. The appellants have appealed against their conviction. The second appellant has appealed against sentence. Their co-accused, Batiua Obaia, was found not guilty.

[2] The first appellant is the father of the second appellant and the brother of the co-accused.

The trial

[3] The events relevant to these charges commenced on 12 July 2002. The co-accused entered the deceased's house' at night in search of a nurse who was at the time residing with the deceased. Unaware that the intruder was the co-accused, the deceased struck the co-accused on the head. After he was struck, the first appellant was called to the scene. The deceased apologised to the first appellant. He replied that it served the co-accused right as he should not have been there. The first appellant then sent the co-accused to another village.

[4] It was the case for the prosecution for that on 22nd July 2002 between 11 and 12:00pm at Kabuna village the two appellants and the co-accused caused the death of the deceased by striking him with weapons. This account was supported by 3 witnesses to the fight that had taken place at that time and place, namely the deceased's widow and two neighbours. The Chief Justice found that each of these were good and reliable witnesses.

[5] The widow of the deceased, Nei Tekaennang, said that she was asleep when she heard a blow, looked out and saw the deceased jump off his buia. There was a fight between the deceased and the co-accused. The deceased was on top. She then recognized the first appellant who struck the deceased when the witness was about 10 metres away. Later she saw the second appellant strike the deceased when he was about 15 metres from her. She saw that the first appellant was carrying something, but didn't say what it was. Later, the deceased told her to hide with their son and granddaughter and added that "these people had killed him anyway".

[6] The neighbour Iuka Teloiti saw two people come out from the first appellant's house and head towards the house of the deceased. He said it was a bright moonlight night with no clouds. The first appellant was holding a bush knife. After going back to his house for a torch, he saw the first appellant running towards him with the bush knife, the first appellant went to hit him but he dodged. The first appellant ran back to the fight and the witness followed. Standing 20 paces from the deceased's house, he shone his torch and saw the deceased with the co-accused on the ground, the deceased on top and a spear in his back. The second appellant was holding the other end of the spear in his left hand, with his right hand he drew out another knife and stabbed the deceased with it. The first appellant then approached with his bush knife and struck the deceased on his back.

[7] His wife Nei Teakoiti Teroutaki gave similar evidence. She saw two people on bikes whom she identified as the co-accused and the second appellant. They parked the bikes at the first appellant's house. Later she saw the first appellant coming towards her and her husband with a bush knife in his hand. The deceased and the co-accused had fallen to the ground, the deceased on top. She saw the first appellant strike the deceased on the back with the bush knife. After that the deceased was no longer moving. She did not see the second appellant do anything.

[8] The co-accused was injured. He was taken to Tarawa where he was hospitalised. He had two serious injuries on the side of his chest and a broken rib. He was in hospital until 29 July, after which he attended as an out patient.

[9] The Chief Justice also held that the prosecution case was strengthened by evidence from Pastor Bauro Kaitu. He had visited the first appellant at his house. He said that the first appellant told the witness that he, the first appellant, was going to seek revenge for what had been done to his brother, the co-accused. This was apparently a reference to the events that had occurred 10 days earlier on 12th July 2002 that we have described in paragraph [3] above.

[10] The pastor went to the scene of the fight after it was over and saw there a spear, two knives and a lavalava.

[11] Another witness saw the co-accused and the second appellant riding their bikes, the latter was carrying a bush knife which he recognised as the same as one of the exhibits.

[12] The medical assistant who examined the body of the deceased at 1.20 in the morning described a wound that in her opinion was caused by an object with a point. In her opinion that wound was fatal but the other wounds, in combination, could have caused death apart from the particular wound she described.

[13] The Chief Justice commented on this evidence in the following passage:

"It is difficult to see how these wounds, most on the deceased's back, could have been caused in any other way than described by Nei Tekaennang, Iuka and Nei Teakoiti. [The co-accused] and the deceased were grappling on the ground: the deceased was lying prone, on top of [the co-accused]: his back was exposed. Counsel for one of the accused suggested faintly that perhaps [the co-accused], lying under the deceased, had somehow reached over with a weapon and inflicted the wounds. I replied that [the co-accused] would need to be an acrobat, the better word is contortionist. The suggestion is fanciful."

[14] Both appellants gave evidence. The first appellant said that apart from throwing a coconut at the neighbour Iuka, he only went to have a look at the fight between the deceased and the co-accused. He denied that he had told the pastor that he was going to take revenge on the deceased.

[15] The second appellant said that he went to watch what seemed to be a fight. He saw people fighting. He was a long way from the fight. He saw the neighbours Iuka carrying a bush knife and Tekaennang carrying a spear. They ran to the lagoon side. He denied that he had been in the fight - those who said so were lying. He didn't do anything, just stood and watched. After the fight he said he returned home and told his father, the first appellant, that his brother, the co-accused, was dead.
The witnesses who said he was carrying a spear were lying.

The Chief Justice's conclusions

[16] After reviewing the evidence, including other evidence called by the appellants which we need not relate, the Chief Justice expressed his conclusion relating to the two appellants in these terms:

"Neither Rakaiti [the first appellant] nor Kobuti [the second appellant] had to prove anything. The onus of proof of their guilt beyond reasonable doubt rested throughout on the prosecution. The prosecution has proved beyond reasonable doubt that Rakaiti and Kobuti carried out a concerted attack on [the deceased]. The attempt to cause at least grievous bodily harm if not death is clear from their actions. Rakaiti and Koputi killed Tebarerei. I accept the evidence of Nei Tekaennang, Iuka and Nei Tekoiti as to how they did it. Their evidence is confirmed by the wounds. Both are guilty of murder"

[17] Concerning the co-accused, the Chief Justice found that he could not be satisfied beyond reasonable doubt that the co-accused was part of the plan with the first and second appellants, which led to the death of the deceased. Hence he was not part of the joint enterprise and was not guilty of murder.

The findings of fact

[18] The first ground of appeal challenges the Chief Justice's findings of fact as set out in paragraph [16] above. Mr O'Sullivan for the appellants submits that the Chief Justice was not justified in making the findings of fact that he did and in rejecting the evidence of the first appellant.

[19] On the approach the court should adopt to an appeal challenging a finding of fact, Mr 0' Sullivan referred to the recent judgment of the High Court of Australia in Fox v Percy [2003] HCA 22. On the general approach to be adopted, McHugh J referred to the following passage from Devries v Australian National Railways Commission (1993) 177 CLR 472, 478:

"More than once in recent years, this court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because the appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown at the trial judge "has failed to use or has palpably misused his advantage"(SS Hontestroom v SS Sagorporack [1927] AC 37, 47) or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable." (Brunskill [1985] HCA 61; (1985) 62 ALR 53, 57.)"

[20] McHugh J observed that there was nothing novel about these statements. They derived from principles in decisions of the High Court of Australia and the House of Lords, stretching over the best part of a century.

[21] On the ability of an appellate court to draw its own inferences, the judgment of the majority in Fox cited the following passage from Wa1:ren v Coombes (1979) 7 CLR 531,551:

"[I]n general an appellate court is in as a good a position as the trial judge to decide on the proper inferences to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it."

[22] Callinan J in Fox at paragraph 142 had this to say about the advantages of the appellate court:

"Statements made by appellate judges about findings of fact by trial judges repeatedly emphasise the advantages attaching to an opportunity to hear and see witnesses. They tend to understate or even overlook that appellate courts enjoy advantages as well: for example, the collective knowledge and experience of no fewer than three judges armed with an organised and complete record of the proceedings, and the opportunity to take an independent overview of the proceedings below, in a different atmosphere from, and a less urgent setting than the trial."

[23] Finally, a somewhat different emphasis is to be found in the comments of Thomas J in the Court of Appeal of New Zealand in Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190, 199:

"It may not be fully appreciated that the deference of an appellate Court to the findings of fact of the Court at first instance is founded on a number of pragmatic considerations which make it inappropriate for the appellate Court to intervene. The advantages possessed by the trial Judge in determining questions of fact are manifest. Of paramount importance, of course, is the fact the trial Judge hears and sees the witnesses first hand over a matter of days, or even weeks, of taking evidence. He or she can form an impression of the reliability of witnesses and, where necessary, their credibility - although in deference to the witness's feelings the Judge may not always express an adverse conclusion in that regard. As the evidence unfolds the trial Judge gains an impression from the evidence which is not necessarily or usually apparent from the cold typeface of the transcript of that evidence on appeal. The Judge forms a perception of the facts in issue from which he or she adds or subtracts further facts as witnesses give their evidence, and so obtains as complete a picture as is possible of the events in issue. The Judge perceives first hand the probabilities inherent in the circumstances traversed in the evidence and can obtain a superior impression of those probabilities as a result.

An appellate Court has none of these advantages and must acknowledge that the Court at first instance is far better placed to determine the facts. Indeed, it would be an arrogance for an appellate Court to assert the capacity to be able to "second-guess" a trial Judge's findings of facts when it does not share those advantages. Exceptional caution in departing from the trial Judge's findings of fact is therefore regarded as imperative."

[24] We approach the appellant's challenge to the Chief Justice's findings of fact with these principles in mind.

[25] Mr O'Sullivan submitted that the Chief Justice made his credibility findings for three reasons to which Mr O'Sullivan directed his submissions. While the Chief Justice made reference to each of these three reasons, it does not follow that his acceptance of the evidence of the prosecution witnesses, and rejection of the evidence of the appellants, was for these three reasons only. In the course of a lengthy trial, the Chief Justice had the opportunity of assessing the overall probabilities in the light of all the evidence given. Having heard the whole of the evidence, he is in a better position to assess those probabilities than is this court.

The intervention by Taekennang and Iuka

[26] The Chief Justice said:

"Iuka and Nei Teakoiti are both in their 60's. They are elderly. Rakaiti is 41 and the other two defendants are young men, I should say in their late teens or early twenties. It is unbelievable that Iuka and Nei Teakoiti, the wife of the deceased, took part in the fight which killed the deceased."

[27] Mr O'Sullivan submitted that it was not the first appellant's evidence that the deceased's wife and Iuka were confronting the three young men. That is only partly correct, In his evidence in chief the first appellant said that the co-accused was fighting with the deceased, the deceased's wife and Iuka. He also said that the deceased's wife had a spear in one hand and a torch in the other and was thrusting at the co-accused with the spear.

[28] In making the observation that he did, the Chief Justice was expressing his view of a probability, based on his assessment of the witnesses and the circumstances as they were that night. We do not find in this observation grounds for differing from the Chief Justice's conclusions on credibility.

Co-accused stabbing the deceased

[29] Mr O'Sullivan submitted that the Chief Justice was not entitled to draw the inference expressed in the passage we have set out in paragraph [13] above, that it was fanciful to suggest that the co-accused had inflicted the wounds to the deceased's back, given the deceased was lying on top of him whilst both men were on the ground. Mr O'Sullivan submitted that it does not offend logic or common sense to suggest that the co-accused could have stabbed the deceased in the back. This is particularly so given there was no detailed evidence of the exact position of the co-accused or the deceased whilst on the ground nor was there any medical or biomechanical evidence led by the prosecution to negate the proposition.

[30] We have examined the medical report submitted. It shows that the deceased suffered wounds in six areas, namely, two small cuts on his lower lip, cuts on the fore finger and middle finger of the left hand, wounds on his left back to which we later return, a six-inch wound on his right posterior shoulder four inches deep, a wound on his right elbow three inches long penetrating as far as the elbow bone, wounds to his right thigh five to six inches long and three inches deep and two small wounds one-and-a-half inches long and half an inch deep.

[31] There were two wounds on the left back. One was six inches deep as far as the ribs where two ribs were broken, the other was close to the backbone two inches long and two and a half inches deep as far as the lung. The second third and fourth ribs were broken.

[32] The medical assistant concluded that the cause of death was the wound on the left back close to the backbone plus some haemorrhaging from the other wounds.

[33] Mr O'Sullivan submitted that the conclusion reached by the Chief Justice was an inference in respect of which this court is in as good a position as he was to determine whether the inference is justified. This is so to some extent, although the Chief Justice had the opportunity of observing the physique and character of the co- accused, an opportunity we do not have.

[34] Several witnesses spoke of the deceased lying on top of the co-accused face downwards. Even if the co-accused had his hands free - which is unlikely if they were struggling - it is difficult to see how in that position he could have inflicted wounds of the number and severity inflicted on the deceased. It is correct, as Mr O'Sullivan submitted, that the co-accused also suffered injuries which are largely unexplained. Taking all these factors into account we are not able to conclude that the inference drawn by the Chief Justice was unjustified.

The evidence of Pastor Bauro

[35] We have referred in paragraph [9] to the evidence of this witness that the first appellant told the witness that he, the first appellant, was going to seek revenge for what had been done to his brother, the co-accused. Mr O'Sullivan submitted that the Chief Justice should not have had regard to this evidence.

[36] Mr O'Sullivan explained that he wished to interview the first appellant's wife because he understood that she would say that she was present at the discussions between Pastor Bauro and the first appellant, and would say that the first appellant did not make the statement attributed to him by Pastor Bauro.

[37] He was prevented from interviewing her in the circumstances that occurred. The trial had been advanced to an earlier date than that initially fixed. When the first appellant's wife arrived from the island where she lives and came to Mr O'Sullivan's office, she was about to give birth. She was immediately taken to the hospital. Mr O'Sullivan thus having been unable to interview her at that time, he asked the Chief Justice for an adjournment. The Chief Justice indicated that he was reluctant to accede to this request. There were discussions between counsel. Unfortunately the outcome of those discussions is uncertain. Mr O'Sullivan thought that he had reached an agreement with Mr Nabau, the prosecutor, to the effect that the discussion with Pastor Bauro would be ignored. This is apparent from the transcript of what occurred when Mr O'Sullivan advised the court that he had agreed with the prosecutor that the Chief Justice should ignore the content of the conversation. The Chief Justice replied that he could not ignore the evidence that he had heard. The transcript records a comment by Mr Nabau that the prosecution would dispute the claim by the first appellant's wife that the first appellant had not made the statement attributed to him by Pastor Bauro. This passage makes it clear that the prosecutor had a completely different understanding of the discussions with Mr O'Sullivan.

[38] In the absence of a clear unequivocal agreement with the prosecutor that the conversation should be ignored, we consider the Chief Justice was correct in holding that he cannot ignore evidence that had been given. This ground for challenging the Chief Justice's conclusion on credibility cannot succeed.

Conclusion on credibility

[39] We have carefully considered the detailed and thorough submissions advanced by Mr O'Sullivan. We find no grounds for concluding that the Chief Justice failed to use or misused the advantage that he had in seeing and hearing the witnesses. It is our conclusion that on the evidence before him, he was entitled to conclude that the prosecution had proved beyond reasonable doubt that the injuries suffered by the deceased were inflicted by the first and second appellants. There was clear evidence to support this finding - evidence that the Chief Justice was entitled to accept. The appellants did not challenge on appeal the Chief Justice's finding that in inflicting these injuries, the appellants had the necessary murderous intent.

Defence of another

[40] Mr O'Sullivan submitted that the Chief Justice erred in failing to find that the prosecution had failed to negative the possibility that the appellants were acting in defence of the co-accused. He submitted that whenever there is material which is capable of amounting to defence of another, however tenuous it maybe, it should be considered.

[41] Section 17 of the Penal Code provides that criminal responsibility for the use of force in the defence of person shall be determined according to the principles of English common law. These principles are set out in the leading case of Palmer v R [1970] UKPC 2; [1971] AC 814. It is unnecessary to cite in full the statement of Lord Morris, delivering the judgment of the Privy Council. Applying what he said to the defence of another, where a person is attacked, another may defend that person. He may do, but may only do, what is reasonably necessary. Everything will depend on the particular facts and circumstance. The force used in defence of another must be reasonable. The act of retaliation must be in proportion to the necessities of the situation.

[42] The possibility of the appellants acting in defence of the co-accused was raised in Mr O'Sullivan's closing submissions at the trial, although it certainly was not put in the forefront of his submissions. However we accept that whether or not defence of another was raised on behalf of the appellants, the Chief Justice was required to consider it if there were material capable of amounting to the appellants acting in defence of another.

[43] The Chief Justice, in his reasons for verdict, makes no reference to the possibility that the appellants were acting in defence of the co-accused.

[44] Mr O'Sullivan submitted that even accepting the evidence of prosecution witnesses that the first appellant had earlier in the evening expressed an intention to cause trouble, when he arrived at the scene he was confronted by the deceased and the co-accused fighting with the deceased on top of the co-accused. That, he submitted, was evidence sufficient to give rise to the possibility that the first appellant was acting in defence of the co-accused.

[45] In our view there was no sufficient evidence to require the Chief Justice to consider this issue. Of all the witnesses present only the first appellant claims that the deceased had a weapon. The evidence of the witnesses certainly establishes that the appellants attacked the deceased when he was on top of the co-accused, but there is no evidence, apart possibly from the injuries the co-accused suffered, to suggest that the actions of the deceased were sufficient to justify the appellants attacking the deceased in the way they did, inflicting multiple and life-threatening injuries. The evidence does not establish that it was the deceased who caused the injuries suffered by the co-accused. Even if the circumstances justified the appellants intervening in the fight between the deceased and the co-accused, the conclusion is inescapable that the degree of force used was grossly excessive and far beyond what was reasonable in the circumstances.

[46] There is a further aspect. Although it is for the prosecution to negative defence of another if there is an evidential basis for that defence, here neither of the appellants suggested that they acted in defence of the co-accused. On the contrary, they claimed that they took no part in the fight between the deceased and the co-accused.

The second appellant

[47] Mr Amten adopted the submissions of Mr O'Sullivan, submitting that they applied with equal force to the second appellant.

The appeal against sentence

[48] Mr Amten submitted that the sentence of life imprisonment imposed on the second appellant was excessive. At the time of the offence, the second appellant was under 17 years of age. He referred to s 26 (4) of the Magistrates' Court Ordinance (Cap. 52) providing that no imprisonment of a young person, i.e. a person between 14 and 17 years, shall exceed 1 month in duration.

[49] The appeal against sentence cannot possibly succeed. Section 193 provides that any person found guilty of murder shall be sentenced to imprisonment for life. That is a mandatory sentence, to which there are no exceptions.

Result

[50] None of the grounds advanced in support of the appeals against convictions by the appellants have been made out. Those appeals are dismissed.

[51] The appeal by the second appellant against sentence is dismissed.

Hardie Boys JA
Tompkins JA
Penlington JA