Tabuariki v Republic [2004] KICA 1; Criminal Appeal 06 of 2004 (17 August 2004)

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

Criminal Appeal No. 6 of 2004

BETWEEN:

TAOKAI TABUARIKI
Appellant

AND:

THE REPUBLIC
Respondent

Coram: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel: Aomoro Amten for appellant
Pole Tebao for respondent

Date of hearing: 17 August 2004
Date of judgment: August 2004

JUDGMENT OF THE COURT

Introduction

[1] The appellant was charged with murder in that on 19 October 2001 at Temakin, Betio he unlawfully killed Kaiea Toto (the deceased). The appellant pleaded not guilty. Following a defended hearing before the Chief Justice in August 2002, he was found guilty and convicted. He was sentenced to imprisonment for life. He has appealed against his conviction.

The facts

[2] We take the following factual summary from the skeleton argument of counsel for the appellant:

On 19 October 2001 the appellant with some other young friends went to a night club to have a drink. They drank beer at the club until the dance was over after midnight. They returned to their place and again continued drinking sour toddy. There were two groups of drinking, the appellant's and the deceased's groups.

At about late evening the appellant began to cause trouble. He chased away a cousin who tried to get drink with them. The cousin ran to the deceased's group. The appellant followed her and upon reaching the deceased's group the deceased himself stood up and stopped the appellant from getting to the cousin. It was then that the fight broke out. The appellant struck the deceased many times and when the deceased fell he stamped on his neck.

Having stamped the deceased the appellant stood for sometime and then ran away when his father came to the scene.

The deceased was taken to the hospital and was examined by two doctors who both confirmed that the deceased had a fractured skull at the base which caused internal bleeding. The fractured skull was caused from a violent force.

Findings not supported by the evidence

[3] Counsel for the appellant submitted that the Chief Justice's factual findings were not supported by the evidence. More particularly, he submitted that the Chief Justice erred in his finding of fact that the deceased received multiple hard blows from the appellant and also that when the deceased collapsed the appellant continued kicking and stamping on the deceased's neck. Though there is evidence that the deceased received many blows, counsel submitted that there was no evidence as to the nature of such blows or punches. He submitted that the evidence dos not justify the conclusion that such blows were in fact hard blows as the Chief Justice found.

[4] In his judgment the Chief Justice reviewed in detail the evidence of witnesses called by the prosecution and also the evidence given by the appellant. On this evidence he made the following factual findings:

"There is ample evidence that, apart from the multiple hard and repeated blows which the accused inflicted on the deceased's head etc., the accused not only inflicted multiple hard and repeated blows all over his head, face, neck etc. but that he also kicked the deceased when he fell on the ground and also stamped very hard with his boot on the deceased right hand side of his upper neck as he lay there helplessly. After the accused kicked and stamped on his neck the deceased was seen gasping for breath and bystanders had to come to his help to hold up his body, his head and neck in order to breathe freely."

[5] Later he added the following further findings:

"Further the prosecution has established that the accused had kicked and stamped very hard on the neck of the deceased on the upper right hand side. Therefore a kick and the stamping on the neck very hard with boots while a person is lying on the ground as the deceased was when attacked by the accused makes the deceased more vulnerable to being kicked and stamped at the base of the skull rather than when standing up protecting himself as the deceased did in the instant case."

[6] Later in his judgment he said he was satisfied beyond reasonable doubt that the kick and stamping on the neck of the deceased by the accused had caused the fracture of the base of the skull of the deceased which in turn killed him.

[7] We have reviewed the passages in the evidence to which counsel for the appellant referred us, and also the passages to which counsel for the respondent referred. The nature and extent of the injuries the appellant inflicted on the deceased are entirely factual matters. We are satisfied that there was ample evidence to justify the findings the Chief Justice made. No grounds have been made out that would justify an appellate court reversing those factual findings. This ground of appeal cannot succeed.

Cause of death

[8] Counsel for the appellant submitted that there was insufficient or no evidence of the cause of death. He accepted that the cause of death was bleeding from the brain and that the doctors confirmed that the cause was from a violent force. Relying on his earlier submission that there was no evidence to support the Chief Justice's finding that the deceased received hard blows, counsel submitted that there was insufficient evidence to justify the finding of the cause of death made by the Chief Justice.

[9] This is entirely a question of fact. There was considerable medical evidence on the nature of the injuries the deceased sustained, and that these injuries could have been caused by violent blows to the head and neck. When regard is had to the extensive evidence of the assault by the appellant on the deceased, in particular the blows on the head of the deceased and, after he had fallen to the ground, the kicking and stamping on the deceased by the boots of the appellant, there was in our view evidence to justify the finding the Chief Justice made that these actions by the accused had caused the fracture of the base of the skull of the deceased which resulted in his death. This ground of appeal cannot succeed.

Intention

[10] Counsel for the appellant submitted that the Court should have found that the appellant had no intention to cause grievous bodily harm, that he only intended to wound the deceased.

[11] The Chief Justice, on this issue, concluded that the intent to cause at least grievous bodily harm if not death was clear from his actions even though the appellant had stated that he did not intend to kill the deceased.

[12] A person's intent can be proved by direct evidence of what the person said he or she intended, or by inference from what the person is proved to have said or done. It is seldom that there is direct evidence of intent. But often intent can be proved by the actions of the person. In the present case, the actions of the appellant provide convincing evidence of his intention at the relevant time. The severity of his attack when he was punching the deceased followed by his even more violent attack when he was kicking the deceased and stamping with his boot on the neck of the deceased provides convincing evidence that he intended to cause grievous, that is really serious, bodily harm to the deceased. The Chief Justice's conclusion that the appellant intended to cause the deceased grievous bodily harm is clearly justified by the evidence. This ground of appeal cannot succeed.

Result

[13] None of the grounds of appeal against conviction has been made out. The appeal against conviction is dismissed.

Hardie Boys JA
Tompkins JA
Fisher JA