Kauone v Republic [2004] KICA 8; Criminal Appeal 08 of 2004 (23 August 2004)

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

Criminal Appeal 8 of 2004

BUREBATI KAUONE
Appellant

v.

THE REPUBLIC
Respondent

Coram: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel: Taoing Taoaba for appellant
Pole Tebao for respondent

Date of Hearing: 18 August 2004
Date of Judgment: 23 August 2004

JUDGMENT OF THE COURT

Introduction

[1] On 19 February 2004 in the High Court of Kiribati the Appellant was found guilty of murder and sentenced to life imprisonment. He now appeals against conviction.

Factual background

[2] On the night in question the appellant was drinking outdoors with two friends, Ioreme and Tangitaua. The deceased approached them and challenged the appellant to a fight. He was angry because the appellant had interfered with his eel trap.

[3] Ioreme told the deceased not to fight. When the deceased persisted, a fight initially broke out between the deceased and Ioreme. The two fell over with the deceased on top. The appellant intervened. Ioreme was able to free himself from the deceased and walk away. At some point the appellant hit the deceased on the head with one or more objects.

[4] The deceased's body was examined later by a medical assistant. She found three wounds to the head and bruises to the back. She described the location of one wound as the "frontal right to the parietal bone". It was about 4-5 cms long and 2-3 cms deep. Another wound to the same area was about 6-7 cms long and 2-3 cms deep. The third wound was to the left eye and was about 2 cms long and half cm deep. The medical assistant described the cause of the first two wounds as "excessive force" and the cause of the third wound as "sufficient force". She also found small bruises on his back. She attributed the cause of death to "excessive blood loss from his head wounds".

The trial

[5] At a trial before the learned Chief Justice, the prosecution contended that the appellant struck the deceased at least twice with a rock and several times with a stick. The prosecution accepted that the deceased might have been attacking Ioreme when the appellant first intervened but contended that the deceased was alone, and lying on the ground, when the fatal blows were struck.

[6] In support of that contention the prosecution relied upon two main sources of evidence. One was the account which the appellant later gave to a friend, Taebo. Taebo's evidence was that "Burebati mentioned he had a fight with Kauaii and after that may be Kauaii had fallen down and then he took hold of a rock and then he hit Kauaii's head with it. Then he got hold of a coconut tree trunk and Burebati hit Kauaii with it." The other significant source was the medical assistant's evidence as to the nature of the wounds on the deceased's head.

[7] In his own evidence the appellant admitted hitting the deceased with a stick four times and admitted that he had hit him on the head. However he said that "It was not my intention to hit him but my friend was nearly dying. Ioreme had cut on nose and bleeding." He denied that he had hit the deceased with a rock. He said that he was telling lies when he told Taebo otherwise.

[8] In his judgment the learned Chief Justice accepted Taebo's evidence and had no doubt that the account the appellant gave him had been an accurate one. He noted the extent and nature of the wounds and considered that they were likely to have been caused while the victim was lying down.

[9] The Chief Justice concluded that at some point after Ioreme had freed himself from the deceased the deceased was lying on the ground, probably on his back with the appellant standing over him. He concluded that the appellant had then hit him with a rock, causing the wounds, and then with a piece of wood. Given the use of a rock, and the nature of the wounds, he found it impossible to believe that the appellant had not intended to cause grievous bodily harm. He rejected the argument that the appellant was acting in defence of Ioreme given his finding that the appellant had inflicted the injuries after Ioreme had freed himself.

The appeal

[10] In support of the appeal Mrs Taoaba advanced essentially two grounds. The first was the argument that the prosecution had not excluded the possibility that the appellant was acting in defence of another.

[11] We accept that in principle it is a complete defence to a charge of this nature if the accused was acting in defence of another and used no more force than was reasonable in the circumstances. The defence is unavailable if the appellant used more force than was reasonable in the circumstances. Nor is it available if the accused was activated by some motive other than the defence of another such as retaliation, anger or revenge. Plainly the conditions necessary for the defence could not be satisfied if any threat to the third party had ceased before the appellant struck the fatal blows.

[12] In the present case Mrs Taoaba submitted that the onus was on the prosecution to satisfy the Court beyond reasonable doubt that defence of another was not available as a defence in this case. She submitted that there was no evidence to support the Chief Justice's finding that Ioreme had already escaped the deceased's attentions before the appellant struck the fatal blows.

[13] We accept Mrs Taoaba's submission that Ioreme's evidence does not show that the accused struck the deceased after Ioreme had disentangled himself from the deceased. It is silent on that point. Ioreme's evidence merely takes matters to the point that after he had walked away he looked back and saw the appellant standing over the deceased.

[14] However the Chief Justice was not reliant upon Ioreme's evidence for his conclusion on this point. He relied primarily upon the evidence of Taebo. In our view Taebo's evidence, which we have quoted earlier, fully justifies his conclusion. And once one accepts the conclusion that Ioreme had left before the fatal blows were struck, there is no room for the argument that the appellant's acts were justified on the ground that he was acting in defence of another.

[15] Mrs Taoaba's other ground was the submission that the requisite intention for murder had not been proved. Intention to cause grievous bodily harm is sufficient for this purpose. We agree with the Chief Justice that the use of a rock to strike a man's head while he is on the ground justifies the inference that he intended to cause grievous bodily harm. In this case that evidence is reinforced by the grievous nature of the injuries caused. This ground, too, must fail.

[16] The appeal is dismissed.

Hardie Boys JA
Tompkins JA
Fisher JA