Regina v Reirei [1979] KIHC 18; 1979 KILR 57 (29 May 1979)

[1979] KIHC 18; [1979] KILR 57

HIGH COURT OF THE GILBERT ISLANDS

Criminal Case No 26 of 1979

REGINA

v

KATIOTIO REIREI

(O'BRIEN QUINN C.J.)

Betio: 26th 29th May 1979

Criminal law - murder - section 193 Penal Code (Cap 8) - self-defence - provocation - section 177 and 198 of Penal Code (Cap 8) - proportionality of retaliation to provocation - no evidence of intoxication - malice aforethought implied - section 195 of Penal Code (Cap 8) - guilty of murder.

The accused on 19th February 1979 at Bikenibeu near the King George V School had an argument with Tiaon Tebenea, a policeman off-duty, during which an "affaire" between the accused and the policeman's wife came up. The accused was struck a blow by the policeman's fist and then he stabbed the policeman 16 times with a kitchen-knife which he was carrying in his pocket. The accused then left the wounded man who was later found and taken to hospital where he died from shock and haemorrhage from the wounds received.

HELD: (1) That the accused did not act in self-defence in stabbing the deceased;

(2) That the accused was provoked by the deceased's having given him a fist-blow to the head which knocked him to the ground;

(3) That the retaliation was not proportionate to the provocation received and was not sufficient to make a reasonable man do as the accused did;

(4) That the accused was not drunk and that malice aforethought was implied by the fact that the accused well-knew or must have known that the multiple stab-wounds inflicted on the deceased would cause his death or at least grievous bodily harm;

(5) That the accused would be convicted of murder and sentenced to life imprisonment.

Authorities referred to:-

R v Lobell (1957) 1 Q.B. 547

R v Duffy (1949) 1 All E.R. 952n

Mancini v. D.P.P. (1942) A.C. 1 at 9

R v Brown (1972) 2 Q.B. 228

Archbold, 38th Edition, paragraphs 2503, 2504

R v Stedman, Fost. 292

Kel. (J) 135

4 B1. Com. 191

Holmes v D.P.P. (1946) A.C. 588 @ 601; 31 Cr App R. 123 @ 142

M. Takabwebwe, Crown Counsel, for the Crown
David Kirton, next friend, for the Accused

O'BRIEN QUINN C.J.:-

In this case the accused, Katiotio Reirei, is charged with the murder of Tiaon Tebenea on 19th February 1979 at Bikenibeu Village, Tarawa Island, contrary to section 193 of the Penal Code (Cap 8).

2. On arraignment the accused pleaded not guilty to the charge of murder but wished to plead guilty to the lesser charge of manslaughter, which plea the Crown refused to accept and I entered the accused's plea as one of "Not Guilty".

3. The Crown then outlined the facts it intended to prove and called its first witness. This witness, Tekea Kaokatekai, a 15 year old schoolboy at the King George V School, Bikenibeu, near where the incident alleged took place, had been sent on an errand by one of the teachers and, on going to the Staff-room at about 7.30 pm on the evening of 19th February 1979, he saw the accused with others having a conversation. He said that the accused was with the deceased, Tiaon, and that Tiaon was sitting on his motor-cycle with the accused standing facing him. The witness, on returning from his errand, saw that both the accused and the deceased were still there, and said that he heard part of what they were talking about. He also said that he saw the accused getting his knife out and that at that point the deceased, Tiaon, got off his motor-cycle. The part of the conversation the witness heard was the deceased saying "Why do you have an affaire with my wife?" and the accused replying "Don't you know that I am one of the fighters from Beru?" After these words were said a fight started between the accused and the deceased, the accused using a knife which the witness recognized while the deceased fought with his bare hands. The witness said he was afraid, ran away and hid himself in a dark place from where, a minute or so later, he returned to the school dormitory and alerted the boys. With some boys he later returned to the scene and found that the accused had departed leaving the deceased lying on the ground.

4. This witness was closely cross-examined particularly on his previous relations with the accused in 1978 when the accused was the centre of a strike organized by the boys at King George V School. The accused was in charge of the food for the School and the strike was a protest on account of the food. The witness denied that the strike was intended to have the accused removed from his job. Under cross-examination this witness was not shaken on the question of the identity of the accused and the deceased nor was he shaken on the words he had heard spoken by them.

5. The second witness for the Crown was Alan Robert Wood, a teacher at the King Goerge V School, who, on the evening of 19th February 1979, at about 7.30 pm, had sent the first Crown Witness to the Staff-room on an errand and who, on the witness's return in an agitated state, and on being informed that there was a man lying on the ground covered with blood near the old tennis courts, went to the scene where he found the deceased who was wounded but still alive and trying to speak. This witness left the deceased with some senior boys, asked the driver of a passing car to go to the hospital, went to the Police Station and thence to the Tungaru Central Hospital himself to get an ambulance. While he was at the hospital a Police vehicle arrived with the deceased and the boys he had left with him.

6. The next witness, PW.3, was Bio Kaimauri, the School Cook, who heard the accused talking to a woman on the evening in question and who later saw the accused with blood-stains on his shirt and on his forehead and with a knife in his hand. The knife he recognized as one that the accused often used to peel potatoes and to cut onions in the kitchen. This witness, under cross-examination, admitted knowing the deceased's wife whom he said was not on good terms with the accused. This witness also told the Court that the accused had told him that evening that Tiaon, the deceased, had been lying in wait for him. It was not unusual, Bio said, for members of the kitchen staff to bring knives to and from work.

7. The fourth witness was Toom Tanirga who was related to the accused and said that on the evening in question the accused came to his house and told him that he had had a fight with a man called Tiaon and that Tiaon was dead. This witness said that when he asked the accused why the accused and the deceased fought the accused told him that the deceased had lain in wait for him and that as he, the accused, could not run away he hard no alternative but to fight the deceased. This witness saw the knife with the accused and said that it was blood-stained. He said he was given the knife by the accused and later handed it over to the Police.

8. The fifth witness was P.C. Kaitinang Nabwere who went to the scene with other Police officers on the evening of 19th February 1979 and found the deceased still alive lying in a pool of blood near the King George V/Elaine Bernacchi School Dining Hall. He took the deceased in the Police Landrover to the Tungaru Central Hospital but, on arrival there, the deceased was found to be dead. This witness said that the deceased had a severe wound on the right side of his neck and had about twenty or more puncture wounds on his back. This witness and another policeman later went to the accused's house and the accused accompanied them to the Police Station. The accused, on being cautioned replied "Yes" and was then locked in the Police Station. This witness also took a pair of blood-spattered shorts from the accused and received the knife from Toom. All these exhibits were properly produced by this witness.

9. Medical evidence was then given. Dr John Tekanene stated that he was on duty on the evening of 19th February 1979 when the deceased was admitted to the hospital but that he had died before he could examine him or do anything for him. Dr. Tekanene also examined the accused later on the same evening and made a report on his findings. He read and produced the report in Court. No injuries were found on the accused but blood-stains were found on his chest, his left forearm, his feet and on his clothes. On the following morning a post-mortem examination was carried out on the deceased by Dr Harry Tong who read and produced his report thereon in Court. In all, there were 16 wounds on the body which were caused by a sharp instrument and death was due to Hypovolemic Shock secondary to haemorrhage from the wounds. Dr Tong explained that shock was a state where the blood circulation fails to regularly supply nutrients to the body to support the normal functions of life. None of the major blood vessels was cut and no major artery but the wounds were all over the body and death resulted from shock. In reply to a question by me Dr Tong said that the life of the deceased could have been saved if he had been taken to the hospital immediately.

10. Police evidence was then given to the effect that the accused, on being cautioned on 22nd February 1979 at Bairiki Police Station, made a voluntary statement in which he admitted having words with the deceased on the evening of 19th February 1979 but that the deceased had aimed one fist blow at him that missed and then struck him a fist-blow on the side of the head which caused him to lose control and not know what he did later on. He said he realized that he had his knife in his hand only when he saw Tiaon lying on the ground with blood on his body and asking him not to hurt him any more but to call his wife Tetarabure. The accused's statement went on to show that the accused then left the deceased to look for Tetarabure and that on his returning later the deceased asked him to finish him off as he was dying of pain, but that he, the accused, left the deceased there while he went to look for his own wife and children.

11. This, then, concluded the case for the Crown and, having found that the accused had a case to answer, I explained the choices open to him under section 194 of the Criminal Procedure Code Cap 7.

12. The accused elected to give evidence on oath and started by saying that he did not wish to alter or change anything in his Statement to the Police. He said that he was not afraid of Tiaon and that he got angry when the second blow landed on his head and lost control of his mind. He said he was defending himself and was angry. He said that he had had sexual intercourse with Tiaon's wife in 1977 but that he was given to understand by her that she was divorced at the time. He said that during the argument with Tiaon he had walked away twice from Tiaon and that when Tiaon went to his motorcycle he thought he was going to get some sort of weapon or stick and he followed him to his motor-cycle and that was when Tiaon struck him. Under cross-examination the accused said that when he was struck the fist-blow on the head he fell down but got up quickly. He denied that lie knew what he was doing and maintained that he did not become aware of the fact that the deceased was wounded until the deceased asked him to call his wife. It was only then, he said, that he noticed that he was holding the knife.

13. The accused elected not to call any witnesses.

14. I then heard closing speeches by Crown Counsel and Mr Kirton.

15. In my opinion, or the evidence, there is no doubt that the accused, Katiotio Reirei, killed Tiaon Tebenea on the evening of 19th February 1979 some time between the hours of 7 and 8. There is no doubt in my mind either, on the evidence, that the death of Tiaon was the result of the wounds he received even though the immediate cause of death was shock.

16. The main points left for decision are, therefore:-

(1) Did the accused, Katiotio, act in self-defence in stabbing the deceased?

(2) Was the accused, Katiotio, provoked into killing the deceased either by the words or actions of the deceased?

(3) If Katiotio were provoked by the deceased were his actions in stabbing the deceased proportionate to the provocation received?

(4) Did Katiotio act with malice aforethought, as defined in section 195 of Cap 8, in stabbing the deceased?

17. Before answering these questions, I must direct myself that the burden of proof beyond a reasonable doubt lies squarely on the Crown throughout particularly where the defence of self-defence is raised and, unless the Crown has established its case beyond a reasonable doubt, the accused is entitled to be acquitted or found guilty of a lesser offence. I must also bear in mind that, while the accused was ably defended by Mr Kirton, Mr Kirton, although legally qualified, is not a member of the Bar or a Solicitor and has very little experience in murder trials.

18. In answer to the first question, that of self-defence, I find, on the evidence, that at no time was the accused afraid of the deceased and that at no time was the life or limb of the accused in any serious danger. I accept that the accuses walked away from the deceased but, on his statement, reiterated in evidence, the accused followed the deceased to the motor-cycle when he thought that the deceased was looking for a weapon after he had said the words "It is useless to talk further about it as it is time for it." These actions, to my mind, are not consistent with the actions of a man who wishes to avoid a fight. Further when the deceased, as the accused said, swung a blow at him he avoided it and when the deceased swung a second blow he was struck on the head and fell to the ground. There is no evidence either for the Crown or for the defence as to whether or not the deceased intended the fight to continue further, except that of the first prosecution witness whose evidence gives the lie to the accused's version. Weighing the evidence of the first Crown witness against that of the accused I find that I believe that of the witness in preference to that of the accused, and I find that in no way was the life or limb of the accused threatened in any serious way. But even if the accused's version is accepted following Toom's evidence on the point, there is nothing in his evidence to show that his life was in jeopardy and he could have left at any time and have refused to fight. Accordingly, I find beyond any doubt that the accused did not act in self-defence in stabbing the deceased and I have bore in mine the decision in R v Lobell (1957) 1 Q.B. 547 on the point.

19. In answer to the second question, that of provocation, the accused himself said in evidence that he was at no time afraid of the deceased and that he got angry when he was struck by the deceased's fist on the head and lost control of himself. Provocation is dealt with in the Penal Code (Cap 8) at section 198 as follows:- "Where on a charge of murder there is evidence on which the Court can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be determined by the court, and in determining that question there shall be taken into account everything both done and said according to the effect which it would have on a reasonable man", and at section 197(a) as follows:- ".......that he was deprived of the power of self-control by such extreme provocation given by the person killed.........." Further, in R v Duffy (1949) 1 All E.R. 952n, Devlin J said "Provocation is some act or series of acts done or words spoken by the deceased to the accused which would cause in any reasonable person and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him for the moment not master of his mind." Also, in Mancini v D.P.P. (1942) A.C.1 at 9, it was stated by Viscount Simon that in considering whether the killing upon provocation amounts to murder or manslaughter the instrument with which the homicide was effected must also be taken into consideration. In R v Brown (1972) 2 Q.B. 228 it was said that the jury should be instructed to consider the relationship of the accused's act to the provocation when asking themselves question: was the provocation enough to make a reasonable man act as the accused did? Thus, I must first decide whether or not the accused was provoked by the deceased. There are before me two versions of what happened at the crucial time. The first is that of the first Crown witness who said that the accused had his knife in his hand aimed at the deceased when the fight started and that the deceased fought with his fists only. The second version is that of the accused who says that he was knocked down by a fist-blow to the head by the deceased causing him to lose his self-control. Of these two versions I am inclined to accept the first rather than the second but, as it was dark at the time and as the boy may not have seen and heard everything that transpired, I am willing to give the accused the benefit of the doubt on this matter and to believe him on the point of his having been struck first by the deceased. In those circumstances I must hold that the accused was provoked by the deceased, and answer the second question in the affirmative.

20. On the third question, that of the proportionality of the retaliation to the provocation I must advert to what I have said above on the matter of provocation and, in particular, to section 198 of Cap 8. The question of the relationship of the retaliation to the provocation has always been a difficult one for Courts to decide as every case must turn on its own peculiar facts. In this case the question for decision is: was the use of a knife proportionate retaliation to a fist-blow? Referring to Archbold at paragraph 2503 in the 38th Edition, an example is given of a soldier being struck a blow by a woman and his being provoked into killing her, leading to his conviction for murder, until it was learnt that the woman's blow was not a mere fist blow but one with an iron patten when the offence was reduced to manslaughter (R v Stedman, Fost. 292). Likewise it is mentioned at paragraph 2504 of the same edition of Archbold that "It is stated by the old writers that if a man pulls on other's nose; or offers him any other great personal indignity, and the other thereupon immediately kills him, it is Manslaughter only: Kel. (J) 135; 4 B1 Com 191, but it is open to considerable doubt whether the same view would now be taken in the case of a minor physical assault: Holmes v D.P.P. (1946) A.C. 588 at p. 601; 31 Cr App 123 at p. 142." Taking these cases into account particularly Mancini v D.P.P. (1942) A.C.1 at 9 and taking into account the fact that the deceased was not drunk and was not armed and the fact that the accused was not drunk and that his knife was in his pocket and had to be taken out, but I cannot find that the retaliation was not proportionate to the provocation received and that the provocation was not enough to make a reasonable man do as the accused did. In so finding I have taken into account the marital and sexual background to this matter and the fact that the deceased was waiting for the accused to leave his work and I have weighed them up carefully against the multiple stab-wounds given by the accused to the deceased and I have come to the conclusion that the retaliation was indisputably disproportionate to the fist-blow given by the deceased to the accused.

21. On the last question I must say that there is no evidence that the accused was drunk or in any was under the influence of alcohol and the evidence points in a similar way to the deceased. Malice aforethought is defined in section 195 of Cap 8 as follows:-

"Malice aforethought may be expressed or implied and express malice shall be deemed to be established by evidence proving either of the following states of mind preceding or co-existing with the act or omission by which death is caused, and it may exist where that act is unpremeditated -

(a) an intention to cause the death of or grievous bodily harm to any person, whether such person is the person actually killed or not; or

(b) knowledge that the act which caused death will probably cause the death of, or grievous bodily harm to, some person whether such Person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused."

In this case there is no question of pre-meditation in the sense of the killing having been planned in advance but, within the meaning of section 195(b), that malice aforethought was implied was established, I find beyond a reasonable doubt, by the obvious knowledge of the accused that the acts which caused the death, namely multiple stab wounds, would probably cause grievous bodily harm to Tiaon and that such knowledge was accompanied by indifference as to whether death or grievous bodily harm was caused or not. I do not believe that the accused lost control of his mind, as he said he did, and I find beyond a reasonable doubt, that, although he had received some provocation, the accused well-knew what he was doing when he was doing when he drew his knife and stabbed Tiaon. I am strengthened in this belief by the callous attitude of the accused in not rendering assistance to the deceased when he passed him later as he lay on the ground.

22. On the whole of the case, therefore, I find beyond reasonable doubt that the Crown has established that Katiotio Reirei murdered Tiaon Tebenea at Bikenibeu Village, Tarawa Island on 19th February 1979 in that, with malice aforethought, Katiotio caused the death of Tiaon by the unlawful act of stabbing him with a knife many times, and I, accordingly, convict him of murder contrary to section 193 of the Penal Code (Cap 8) as charged.