Tongaia v Republic [1979] KIHC 32; 1979 KILR 111 (13 November 1979)

[1979] KIHC 32; [1979] KILR 111

HIGH COURT OF KIRIBATI

Criminal Appeal No 29 of 1979

MORITI TONGAIA

v

THE REPUBLIC

(O'BRIEN QUINN C.J.)

Betio: 13th January 1979

Criminal appeal - appeal against conviction and sentence - unlawful wounding - self-defence - appellant not the aggressor - right of self-defence exceeded - appeal against conviction dismissed - procedural irregularities - no finding of guilty and no conviction - cured by section 290(1) of Cap 7 - previous convictions read out before judgment - wrong procedure - sentence reduced.

The appellant was stabbed by the victim, Tebwerea, and then took out his knife and stabbed him in return. He pleaded self-defence but the Magistrates' Court sentenced him to 6 months' imprisonment for unlawful wounding. The Magistrates' Court did not find him guilty and did not convict him but the Police prosecutor read out the appellant's previous convictions before the judgement was given.

HELD: (1) That the appellant by not retreating or taking other similar action and then stabbing the victim exceeded his right of self-defence and stabbed his assailant by way of revenge rather than in self-defence;

(2) That, although there was no finding of guilty and no conviction, it was obvious what the Magistrates' Court intended and the irregularities would be cured under the provisions of section 290(1) of Criminal Procedure Code (Cap 7);

(3) That the previous convictions of the appellant should not have been read out in Court prior to judgment but, as it was obvious from the evidence that the appellant was guilty, this irregularity was curable but as it may have affected the sentence, the sentence would be reduced from 6 months' to 3 months' imprisonment.

Authorities referred to:-

Archbold, Criminal Pleading, Evidence and Practice, 39th Edition, pgh 2648 and 2648a

R v Julien (1969) 53 Cr App R 407

R v Iran Manaua 1977 G.I.L.R. 103

R v Driscoll, Car & M 214

R v Morse (1910) 4 Cr App R 50

Tanentoa Beiatau v R 1978 G.I.L.R. 42

Criminal Procedure Code (Cap 7) Section 290(1)

O'BRIEN QUINN C.J.:-

This is an appeal against the judgment and sentence passed by the Magistrates' Court for the Tabiteuea North Magisterial District sitting at Bakokoia on 25th October 1979.

2. The appellant was charged with the unlawful wounding of Tebwerea Bakoa on 12th July 1979 near the Eita Village Maneaba with a knife and, after hearing the evidence, the Magistrates sentenced him to 6 months' imprisonment for unlawful wounding.

3. The appellant's defence throughout was that he was not the aggressor and had stabbed Tebwerea only in self defence after he had first been stabbed by Tebwerea. His grounds of appeal are to the same effect.

4. There is no doubt on the evidence that the appellant was not the aggressor; even the evidence of the first Police witness was to the effect that the appellant did not take out his knife until after he had been stabbed by Tebwerea and that the wounds found on Tebwerea were consonant with a knife blow aimed at the right arm of the assailant and cuts on the fingers of the assailant's left hand which he used to ward off the blow.

5. In the defence of self-defence it is necessary that a person claiming to exercise his right of self-defence should have demonstrated by his action that he does not want to fight. He must demonstrate that he is prepared to temporise and disengage (R v Julien (1969) 53 Cr App Rep 407). The whole question of self-defence is set out clearly at paragraphs 2648 and 2648a of Archbold 39th Edition and an important case in point is R v Iran Manaua High Court Criminal Case No 4 of 1977 in which the defence of self-defence was successfully raised in this Court. In short, a person is entitled to defend himself from attack by another person but all the circumstances of the case must be considered and the force used in defence must be only such as was necessary for the defence of the accused but if it was greater than was necessary for mere defence, or if it was after all danger from the assailant was past and by way of revenge, the prior assault will be no justification (R v Driscoll Car and M 214; R v Morse (1910) 4 Cr App R. 50.).

6. In this case the Magistrates did not give any reasons for their decision and in effect never actually found the appellant guilty nor convicted him but merely passed sentence.

7. On the facts of the case as they appear on the Record it would appear that although the appellant was struck first with a knife his actions in not retreating, not calling for help or using some other mode of defence, and actually taking out his knife and stabbing his assailant go far beyond self-defence. It may be that in I-Kiribati custom the appellant felt obliged to attack rather than retreat but no such evidence was given and the three I-Kiribati Magistrates who heard the case made no allusion to such a custom but treated the appellant's retaliation as an offence.

8. In these circumstances I must find that the appellant exceeded his right of self-defence and that he stabbed his assailant by way of revenge rather than defence.

9. I find that the appellant was slightly drunk as was his assailant and this may have affected his judgment.

10. In another case Tebwerea Bakoa, the assailant, was sentenced on his own plea of guilty to 9 months' imprisonment in respect of the same incident and this sentence I confirmed, on appeal, today. The Magistrates in passing a sentence of 6 months' imprisonment on this present appellant must have taken into account the reality of the situation in awarding the appellant a lesser sentence.

11. However, there were certain procedural irregularities on the face of the Record, the most important being that at the end of the defence case there was no finding of guilty and no conviction but the facts were given by the Police, to which the appellant agreed, and on his previous convictions having been read out, sentence was passed. I have said it many times before that there must be a judgment and a finding of "guilty" or "Not Guilty" and that previous convictions should not be made known to the Court before conviction except in special circumstances. Please see for example my observations in Tanentoa Beiatau v R (HC Cr App No 19 of 1978). The absence of a finding of guilty or a conviction are curable under section 290(1) of Cap 7 but, as the appellant may have suffered by his convictions becoming known before judgment, I consider that his sentence ought, in all fairness, to be reduced and, accordingly, I set aside the sentence of 6 months' imprisonment and substitute a sentence of 3 months imprisonment to run from 25th October 1979.

12. The appeal against conviction is, therefore, dismissed but the appeal against sentence is allowed insofar as the sentence of imprisonment is reduced from 6 months to 3 months.

13. This judgment must be communicated to the Prison Authorities without delay.