Kamariera v The Republic [2005] KICA 2; Criminal Appeal 01 of 2005 (8 August 2005)

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

Criminal Appeal 1 of 2005

BETWEEN:

MAREWENTEBUKE KAMARIERA
Appellant

AND:

THE REPUBLIC
Respondent

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel for Appellant: Taoing Taoaba
Counsel for The Republic: Olga Guillen

Date of Hearing: 2 August 2005
Date of Judgment: 8 August 2005

JUDGMENT OF THE COURT

[1] Marewentebuke Kamariera, a 17-year-old youth, was charged with the murder of Nei Buraieta Note, aged 13, who was his aunt by I-Kiribati custom. He had been willing to plead guilty to manslaughter, but the Republic would not accept that plea. After a two-day trial, the Judge found him guilty of murder and sentenced him to life imprisonment. He has appealed against his conviction.

[2] It is a strange case. The child had cycled to her aunt’s house to borrow a lamp, and had not returned. Instead some children brought her bicycle to her own house. It was bloodstained. Her father set out to look for her. He found her lying dead under a pandanus tree. Medical evidence was that the child had died from loss of blood from “two fairly long and deep straight and clean cut wounds” to her neck. One vertical cut, to the right side, was 8cm long and 4cm deep; the other, a horizontal cut across the throat, was 10cm long and 4cm deep. There were also some small cuts to her hands.

[3] Interviewed by a Police Officer, the appellant acknowledged that he had caused these wounds with his toddy knife. His caution statement reads:

On Tuesday 24/08/04 sometimes after seven in the evening I was drinking sour toddy. At that time, I wanted to smoke, so I took my toddy knife (the exact one which DC 236 Mareko has shown to me). On my way to look for a pandanus leaf (rauara), I saw Nei Buraieta cycling towards the north carrying a lamp in one hand. I hid myself from her in order to scare her off. When she got nearer, I ran to her and cut her neck with the toddy knife. I cut her throat first and then the side of her neck. I was only playing (pretending) to her thinking that I was using the blunt side of the knife. I was surprised when she fell to the ground shaking and blood was scattered everywhere. I was surprised when I held her from behind to see blood bleeding from her neck which soaked my black T-shirt (the one shown to me by DC 236 Mareko). It was at that moment that I realised that had wounded Nei Buraieta. I took off to Buraitan carrying my knife to seek assistance from the Police. I took a bath in the sea before heading for the Police Station. On my way I saw that a group of people had formed at the place that I left Nei Buraieta at, so I decided to go to Temao to hide at Nei Terooti’s house. I left my black T-shirt and toddy knife which I used on Nei Buraieta. I was arrested by the police at Nei Terooti’s place.

[4] In response to further questioning, he said:

Q4: What did you do to Nei Buraieta?

A: I cannot really recall.

Q5: When you first cut Nei Buraieta’s neck, did you check whether or not it was the sharp end of the knife?

A: Yes I touched and felt it I thought that I was using the blunt side.

Q6: When you cut Nei Buraieta’s neck for the first time, it must have been bleeding, why then did you cut it the second time?

A: I have no idea that she was wounded the first time that is why I cut her again.

Q7: Was there any dispute between you and Nei Buraieta for the last few days?

A: No. We have no dispute.

Q8: Were you drinking sour toddy at that time? According to your recollection, how much did you drink?

A: To my recollection I think I drank eight cups.

Q9: Were you so drunk at that time?

A: I was drunk but my mind was not affected.

[5] The appellant elected to give evidence at his trial. It was in most respects to the same effect as his caution statement, as these passages show:

“When I saw her I ran and started cutting away with the knife; cutting away the neck of Buaraieta. I thought I used the blunt side of the knife. I was just playing”.

“After I cut her throat I knew her throat was cut. I held her shoulder with my left hand and with the right hand I cut her throat and when I let her go she fell down on the ground. Then I ran to Buraitan to report to the police but did not make it to Buraitan and the police station and instead I went to Temao”.

[6] In cross-examination he said he had been drinking sour toddy since about 5 pm (the incident occurred about two hours later), but although he was drunk he knew what he was doing.

[7] Two prosecution witnesses mentioned that the appellant had been drinking as they could smell it on his breath, but neither suggested that he was drunk.

[8] Defence counsel did not raise intoxication as an issue, and the Judge therefore said:

Beyond reasonable doubt I am satisfied that the accused did consume some alcohol in the form of sour toddy but he was not so drunk as to be incapable of knowing what he was. It is not an issue and I will say no more about it.

[9] It was not an issue on the appeal either.

[10] As the Judge correctly stated, the central issue in the case was whether the appellant intended to cause death or grievous bodily harm to the deceased. For proof of that intention, in the absence of any evidence or even suggestion of motive, and in the face of the appellant’s claim that it was a dreadful mistake, the Republic had to rely on the cumulative force of the evidence in its totality. For his part, the Judge found the force of that evidence such as to negate, beyond reasonable doubt, the truthfulness of the appellant’s explanation. It is this finding that is challenged on this appeal.

[11] The notice of appeal as originally filed gave only one ground of appeal, namely that the Judge had “erred in law in convicting the accused when there was clear evidence showing that the accused had no intention to kill or cause grievous bodily harm”. The evidence referred to is of course that of the appellant himself. But that could be described as “clear” evidence only if its truthfulness were to be accepted as at least a reasonable possibility, and so this ground of appeal fails to address the essential issue, namely the truthfulness of that evidence.

[12] In this Court, Ms Taoaba advanced another ground, that the verdict was against the weight of evidence. But so expressed, that is not a valid ground of appeal. The true test is clearly set out in section 22(1) of the Court of Appeal Act. It is whether the verdict is unreasonable or cannot be supported having regard to the evidence. That is quite a stringent test. It recognises that decisions on questions of fact and credibility are the proper province of the trial court, and that it is only in exceptional circumstances that an appellate court will be entitled to interfere with the trial court’s findings on such questions. This topic is discussed more fully in this Court’s judgment, delivered on the same day as this judgment, in Nenebati Terara v The Republic, Criminal Appeal 4 of 2005.

[13] The evidence on which the Judge relied for his rejection of the appellant’s explanation and consequently for his guilty verdict was sixfold. First, there was the nature of the injuries, both of which would have bled profusely. The deceased and the appellant were both soaked in blood. The Judge said “.....it would be against common sense that after the accused cut the throat of the deceased for the first time he would not know, nor even feel he had wounded her”. Secondly, there were the minor cuts to the palms of both the deceased’s hands, suggesting that the deceased had put up some resistance to what the appellant was doing. Thirdly, the Judge saw the appellant’s behaviour after he had realised what he had done to be inconsistent with there having been a mistake: for rather than doing anything he could to help her, he abandoned her and left her lying alone on the ground. This was not, the Judge said, “the normal behaviour of a close relative who has mistakenly seriously wounded an innocent harmless girl of 13 years old”.

[14] Fourthly, (and this should be read in the light of the appellant’s answer to the question 5 quoted at paragraph [4] above, the Judge said:

Had the accused really been playing why didn’t he check properly and carefully that he really use the unsharpened edge especially as he was cutting with what I-Kiribati know very well as the sharpest and well kept and rarely used knife but for cutting toddy only knife called a toddy knife.

[15] The Judge also put weight on a statement the appellant made under cross-examination when he said that after he had cut the deceased’s throat the first time she did not shout out or cry. This, the Judge commented, was “against common sense”. In other words, it diminished the credibility of the appellant’s explanation.

[16] Finally, the Judge observed:

Taking the whole of the evidence into account I am satisfied that the prosecution has proved beyond reasonable doubt that the accused has seriously wounded the deceased. He killed her. The intention to cause grievous bodily harm if not death is clear from his actions. The wounds of the deceased supported it.

[17] In some respects these factors may be equivocal. But the evidence must be looked at in its totality. Looked at in that way there are only two possible explanations for what happened: either the appellant was so affected by liquor that he did not appreciate what he was doing; or, for some unknown perhaps inexplicable reason, he did in fact intend to do at least serious bodily harm. The first possibility is negated by the evidence.

[18] As to the second, proof of intent is often a matter of the inference to be drawn from the other proved facts. If a person commits a dangerous act, its very commission may be evidence of an intent to bring about its consequences. Counsel referred us to decisions of the House of Lords in R v Hancock [1956] AC 455 and of the Court of Appeal in R v Nedrick [1986] EWCA Crim 2; [1986] 3 All ER 1 which both considered the directions to be given to a jury, but which of course are equally applicable to a trial by Judge alone. The crux of both cases is perhaps to be found in the judgment of Lord Lane CJ in the second of them at page 3:

When determining whether the defendant had the necessary intent, it may therefore be helpful for a jury to ask themselves two questions. (1) How probable was the consequence which resulted from the defendant’s voluntary act? (2) Did he foresee that consequence?

The second question is to be answered by taking a practical common sense view of the evidence.

[19] While the onus of proof beyond reasonable doubt lay upon the prosecution throughout the case, the credibility of the appellant was obviously at its heart. Without any credible explanation from him, the Judge was entitled to take the view that the facts spoke for themselves. Only if the appellant’s caution statement and his evidence were accepted as true, or at least as possibly true, could there have been an acquittal. But the Judge, who heard all the evidence and also observed the appellant as he gave his evidence, rejected that evidence. Only where there has been a manifest error is an appellate court entitled to overturn such a finding of credibility. We can find none in this case.

[20] Tragic and inexplicable though the case is, we are not persuaded that there is any ground upon which the appeal can succeed. It is accordingly dismissed.

Hardie Boys JA
Tompkins JA
Fisher JA