Tanaea v Republic [2013] KICA 14; Criminal Appeal 05.2013 (23 August 2013)

IN THE KIRIBATI COURT OF APPEAL
CRIMINAL JURISDICTIONHELD AT BETIOREPUBLIC OF KIRIBATI

Criminal Appeal No. 5 of 2013

BETWEEN

TONY TANAEA
APPELLANT

AND

THE REPUBLIC
RESPONDENT

Before: Paterson JA
Blanchard JA
Handley JA Counsel: Nancy Walker for appellant
Pauline Beiatau for respondent
Date of Hearing: 19 August 2013
Date of Judgment: 23 August 2013

JUDGMENT OF THE COURT

1. The appellant, aged 23 at the time of the offence, and another young man, Tonana, were both convicted of murder after a trial by the Chief Justice. Tonana, who undoubtedly struck the fatal blow or blows, has not appealed his conviction. The death of the victim occurred as a result of a sustained assault carried out by Tonana, the appellant and two other men, Roroa and Tamton. The latter two were less involved and were not participating when the fatal injury was caused. They were not charged but gave evidence for the prosecution.
   
2. The appellant was convicted on the basis of s.22 of the Penal Code Cap 67 which reads:
   

"22. When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence".

He contends on this appeal that he should not have been convicted of murder because he did not share with Tonana a common intention to prosecute an unlawful purpose of such a nature that the murder committed by Tonana was a probable consequence. He says that it came as a surprise to him when Tonana began to strike the victim on the head with a big stone and thereby killed him.

3. It is not in dispute that the four men, who were all under the influence of alcohol, executed a plan to lure the victim to accompany them and teach him a lesson by assaulting him with their fists. Their grievance against the victim was that he had been creeping about at night and peeping at girls who were asleep, in particular members of Tonana's household.
   
4. After the five men had walked to a place not far from a beach, the appellant began the attack. All of the four punched the victim and the appellant took hold of the victim around the neck from behind with the effect that he could not avoid blows from the others, especially from Tonana. The victim was dragged to the beach where the attack continued.
   
5. Both the victim and the appellant then fell over backwards and were lying on their backs facing upwards with the appellant still holding the victim's neck and head. It was then that Tonana picked up the stone, stood over the victim and delivered the first of three blows to the victim's head. The uncontroverted medical evidence was that the injury which caused death must have resulted from a blow with a hard object like a stone. It could not have been caused by a fist.
   
6. The factual issue which we regard as critical to the resolution of this appeal is whether, when Tonana used the stone in the attack on the victim departing in that respect from the original plan or purpose of punching the victim as explained by all four men, the appellant continued to hold the victim's neck and so exposed his head to the blows with the stone. That would plainly evidence a sharing by the appellant of Tonana's intended purpose to strike the victim's head with the stone. On the account of Tamton, the appellant was holding the victim's neck throughout, but neither Roroa, who said he turned away before the first blow with a stone, nor Tonana who in his evidence claimed that he struck one blow only and with a small stone, confirmed Tamton's testimony in this respect.
   
7. For his part, the appellant said that after the first blow with the stone, which hit one of his hands and surprised him, he released the victim and he was dragged away by Roroa and was no longer holding the victim when the further blows were struck with the stone. Roroa said that he had dragged the appellant away from the attack but he was not asked about when that occurred. There was no evidence of a hand injury suffered by the appellant.
   
8. Having given his reasons for convicting Tonana of murder, the Chief Justice recorded a finding that the appellant had continuously held the neck of the victim, thereby pinning him down to enable Tonana to continue to hit him. He said that the appellant could not have failed to realise that his part in "locking the deceased's neck" would have resulted in serious consequence to the victim.
   
9. Then, in a passage which was central to his conclusion of guilt of the appellant, the Chief Justice said:
   

"It is undisputed that the common unlawful purpose conceived by the four boys in this case was to teach the deceased a lesson for peeping at girls in houses while they were sleeping. In executing that plan the two accused and their two friends set upon the deceased by assaulting him, hitting him, kicking him, punching him and hitting him with a stone. The second accused's part, after he first hit the deceased, was to hold his neck, which he did throughout the rest of the fight. The nature of the plan to teach the deceased a lesson was by way of an assault on him and to which the second accused lent his support throughout the attack on the deceased. In my judgment the second accused could not have failed to realize that the probable consequence of his and his friends' action in this case would be some grievous or really serious bodily harm to the deceased".

10. It is to be noted that the Chief Justice there made a finding that the appellant had held the victim's neck "throughout the rest of the fight", i.e. while all of the blows to the head with the stone were inflicted. That was consistent with the evidence of Tamton.
    
11. The Chief Justice then referred to Ms Walker's submission, made again in this Court, that the use of the stone was never part of the plan. He did not answer that point directly, saying only that the appellant "conceived a plan to teach the deceased a lesson, the nature of which involved an assault on the deceased", which plan was executed; and that the magnitude of the assault was that the appellant could not have failed to realise its probable consequence of some really serious bodily harm to the victim. Importantly, however, he had already made the crucial finding that the appellant had held the victim by the neck "throughout the rest of the fight" and that the plan included hitting with a stone. If the Chief Justice meant that the original plan was of that intent or nature, we would have to say that there was no basis for this in the evidence. However, we are of the view that when the relevant passages of the judgment are read as a whole, what he actually meant was that at the point when Tonana used the stone to strike the victim and the appellant continued to hold the victim exposed to those blows, the appellant must have shared Tonana's intended purpose of continuing the assault with the stone, with the obvious probable consequence of so doing. Implicit in this is a rejection of the appellant's evidence that he was pulled away from the fight by Roroa after the first blow with the stone against his hand.
    
12. It is of course possible for an original purpose to be changed or extended in the course of its prosecution and for the changed or extended purpose then to be prosecuted by all or some of those who formed the original purpose. In the present case the finding of the Chief Justice was, in effect, that Tonana and the appellant went beyond the original purpose by continuing the assault using a stone and that the appellant was thus responsible in law for the probable consequence of that use by Tonana. On the totality of the evidence that conclusion was open to the Chief Justice.
    
13. The other points taken on behalf of the appellant by Ms Walker can be shortly disposed of as they raise matters which in our view could not establish that the decision of the Chief Justice was unreasonable or insupportable. Counsel said that the Chief Justice should have warned himself about evidence concerning whether the victim was unconscious at a certain stage of the attack. He had failed to consider Tonana's evidence about what the appellant had done in light of Tonana's failed defence that death had occurred from strangling.
    
14. The submission was that Tonana had good reason to lie and that the Chief Justice should have exercised caution before accepting Tonana's uncorroborated evidence as proof. However, it does not appear that the Chief Justice placed any weight on the evidence about unconsciousness as he appreciated that any notion of death by strangulation was completely dispelled by the medical evidence; and there was evidence from Tamton of the appellant's continued role in the fight at the time the fatal blows were inflicted.
    
15. Next it is said that the Chief Justice failed to take account of the appellant's evidence that he released his hands from the victim's neck when a stone hit his hand and was then pulled away by Roroa. But it is clear that the Chief Justice disbelieved that evidence, which was not confirmed by any other witness, including Roroa.
    
16. Ms Walker referred also to what she contended were an inconsistency in the evidence of Tamton about where he was standing when the stone was first used by Tonana and an inconsistency in his evidence and that of Roroa about whether the place where that event occurred was moonlit or dark. We are unpersuaded that these matters were material to the Chief Justice's findings of fact, which were based on the evidence as a whole. He had the benefit of seeing and hearing the witnesses and was entitled to prefer the evidence of Tamton about what he was able to see.
    
17. It was further submitted that the Chief Justice made an incorrect finding in relation to the disposal of the victim's body, namely that both the appellant and Tonana dragged it to the sea and weighted it down with a stone. That appears to us to have been open to the Chief Justice, but even if it were incorrect it was, again, not something central to the case against the appellant.
    
18. None of these findings, taken individually or collectively, go anywhere near establishing the appellant's general ground of appeal asserting unreasonableness of the decision or its insupportability having regard to the evidence.
    
19. Finally, the appellant submitted that the Chief Justice erred in failing to make reference to the fact that the appellant was "fully drunk", as was Roroa. But, as it is not suggested that the appellant was incapable of forming an intent or purpose, that would have added nothing.
    
20. All appeal grounds having failed, the appeal against conviction for murder is dismissed.
    

Paterson JA

Blanchard JA

Handley JA