Republic v Takamwe [1987] KIHC 5; Criminal Case 30 of 1986 (18 June 1987)

IN THE HIGH COURT OF KIRIBATI
CHRISTMAS IS.

High Court Criminal Case No.30/86

REPUBLIC

-v-

ANTONIO TAKAMWE

18th June 1987.

JUDGMENT

The accused person Antonio Tekamwe stands charged with the offence of Murder c. to s. 193 of the Penal Code. The particulars allege that Antonio Takamwe on the 11th March 1986 at London Kiritimati murdered Meeria Kieura.

As in all criminal trials it is for the prosecution to prove the charge against the accused person beyond a reasonable doubt and it is not for him to establish his innocence. The burden of negativing the possible defences of self defence and provocation is also on the prosecution to the same standard.

The accused person denied at one stage that he had killed Meeria and the first question to be considered is does the evidence establish that the accused person killed Meeria the deceased?

There can be no doubt that the accused person did kill the deceased by stabbing him with a long sharp knife. He was seen to do so by many eye witnessess and there can be no possible doubt about this. The accused stabbed the deceased on the head so that the knife penetrated the deceased's skull for some distance. PW1 the doctor who examined the deceased at 1100 a.m. on the day of the incident says in his report Ex A that when he saw the deceased he was unconscious and that he had two wounds one of which was superficial. The patient died at about 2 or 3 o.p.m. The case of death was increased intercranial pressure and the wound was caused by a sharp object. This caused bleeding into the brain cavity itself.

There is no doubt that the stab wound caused the death of the deceased. Murder is committed when a person kills another person with what is called "malice aforethought". This malice aforethought is defined in the Penal Code Section 195 as:-

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

(a) an intention to cause the death of or grievous bodily harm to any person.......

(b) or 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 addition to the requirement that the act which causes death should be done with malice aforethought section 193 requires that the act be an unlawful one.

It may be lawful for a person to kill another person if he is acting in self defence and there are also circumstances set out in section 197 of the Penal Code which can reduce the offence from one of murder to manslaughter.

Section 198 deals with the question of provocation.

All these subjects are inter related and cannot really be considered in isolation. In the instant case the transaction which resulted in the death of the deceased although a rapid one was seen by a number of eye witnesses. As may be expected after a gap of more than one year between the commission of the offence and the trial itself, recollections of what the witnesses saw were not always as sharp as they might have been.

The general picture as to what happened is however clear. The deceased person was a man of authority down at the wharf and had power to direct the loading of the boats which were to convey cargo and passengers to the M/V Momi which was anchored in the lagoon prior to departure. The accused was to be a passenger on that ship. The prosecution witnesses (except for the doctor and the policeman) were working under the deceased who gave them directions as to what they were supposed to do. Before the deceased came to give directions the accused was seen and was heard to be inquiring about the ship. When the deceased came he gave directions to his workers and left. After he had gone a short way only the accused called to him. The deceased turned and a dispute occurs as to what happened then.

The prosecution case is that the accused person intended to revenge himself upon the deceased for an old quarrell on which occasion the accused lost the sight of an eye. To this end he armed himself with a knife Ex B and waited for the deceased to come and then, at a convenient moment when the deceased was not attended by his workers, he called him and stabbed him on his head with the knife thereby killing him. If this version is accepted then clearly no question of self defence arises and it is doubtful if any question of provocation would arise for it would simply be a deliberate premeditated killing.

The defence case is that the accused person was at the wharf. He wanted to go out to the ship early to reserve a place for himself and his family as he suffered from sea sickness and he wanted a comfortable place. He knew the deceased was in charge of the transport out to the ship and he therefore approached him. The deceased threw his tobacco box at the accused knocking out one of his teeth. The accused, incensed by this unprovoked attack, went towards the deceased and took out his knife from the red tobacco box he was carrying intending to teach the deceased a lesson by stabbing him in a non fatal place. As I understand the defence when the accused saw the deceased putting his hand near the pocket of his shorts he feared that the deceased might produce a knife and stab him. He then lost his self control and stabbed the deceased. He did not intend to kill the deceased.

It is obvious that there is a basic contradiction between these two lines of defence which is difficult to resolve. But as I read the defence it involves the questions of intention, self defence and provocation.

The evidence of PW2 Tetabo was to the effect that he met the deceased at the wharf at about 10.00 am. and the deceased left after about three minutes. When he had just left the accused approached deceased and talked to him. The witness said he could hear their conversation and the accused said to the deceased "Are you Meeria" and the deceased said "Yes I am". The accused then took hold of his knife and they struggled. Meeria threw his smoking box at the accused and it struck him on the face slightly. The deceased retreated and the accused followed. The deceased clearly tripped for he fell down and the accused drew nearer to the deceased and stabbed him. The witness was six or seven paces away and it is clear that he was in a good position to see what happened. He said that the accused was not drunk and seemed normal but agitated and angry. He did not see where the accused got the knife from. The knife was in the accused's grip before the deceased threw the tobacco box according to this witness.

Cross examined he said that the tobacco box hit the accused before the struggle and that he would be provoked if someone threw his tobacco box at him. He was asked if he was sure that he heard the conversation between the accused and the deceased as he related in his evidence and he said that he was sure. However the statement to the police which the accused gave does not contain a report of such a conversation and when this was put to the witness he said that maybe he forgot to tell the police about the conversation. He said that a tobacco box contained tobacco and matches but no knife. People could shred the tobacco with their nails and if they had none they could still use their fingers. He described the deceased as wearing shorts with pockets but denied that the deceased had put his hands in his shorts pockets. He said that deceased hands were by his sides. He was shown a circular tobacco box about 8' by 4 to 5" in diameter and said that the box thrown at the accused was like that. It is what I might for convenience describe as the traditional Kiribati tobacco box. He said that before the deceased threw the box he saw the knife. He said in re-examination "May be he lost his self control after the box was thrown but then he (the accused) already had the knife in his hand". He had said in cross examination that the deceased had thrown the tobacco box forcefully at the accused.

PW3 Ritiata was also at work on the wharf. He said he first saw the accused at the wharf standing beside them. Accused later left the workers and went and sat elsewhere. The deceased came and spoke to them and as he left the accused followed him and caught up with him and they were struggling. The witness was about twenty paces away at this time. He says they began struggling when accused was heard to say to the deceased "Hey you stand there". The deceased is said to have replied "Why you want a fight?" Witness said the accused had something in his hand wrapped in a brown paper. Meeria threw his tobacco box at the accused and it hit the accused on the forehead. The deceased was retreating backwards when he fell down. The accused was on top of him and the next thing that the witness saw was that deceased stood up with a knife blade protruding from his head.

Cross examined he agreed that the deceased wore shorts and that the accused had a red tobacco box. He said that the box thrown by Meeria hit the accused in the centre of his forehead, not the side of his face. He said the accused called out to the deceased "You take hold of this". Meerias reply was "Well you want a fight?".

He was cross examined as to what he said in his police statement on 30 March 1986 and agreed that the conversation was not there but that he only heard a cry of "A fight goes on".

He said that if a tobacco box was thrown at him he would be angry and if one of his teeth was knocked out he would loose his self control. Re examined he said that after the statement of 30 March he gave a further statement to the police on 28 July containing what he said in evidence in court.

PW4 Maunana was also a worker at the wharf and confirmed the visit of the deceased to give instructions to the workers. He saw the accused at about that time near to them asking about the boats. He was with PW2 but didn't hear what passed between the deceased and accused from a distance of about 20 paces. He saw the accused and the deceased fighting and he saw the start of the fight. He said the accused approached the deceased and the deceased turned round and chased the accused. He said they were punching each other and that he saw a knife with the accused when they fought.

Deceased was not armed but threw his tobacco box at the accused and the accused stabbed the deceased. Cross examined he said that the knife Ex B was not good for cutting tobacco and he said that tobacco boxes were for carrying tobacco a light and a knife. He said that when the deceased retreated before the accused he did not put his hands in his pockets and that he first saw the knife when it was sticking in the deceased's head. The throwing of the tobacco box happened before the stabbing and he said that if someone threw a tobacco box at him he would not be angry but he would be provoked. This is difficult to understand. He described the accused's tobacco box as short, a foot long. He said he did not know if the knife Ex B would fit in it. The deceased was unarmed. PW5 Toai ti Kaitu was also at the wharf and at 10.00 am. he saw 2 people who he described as "sort of boxing". He was about 20 yards away. He came to assist and said that they were boxing and retreating. One of them punched the other and the other punched back. One of them fell. The person who was retreating was the deceased. He was fighting the accused. The deceased retreated backwards about six yards and fell. By this time the witness had come nearer and was about 10 yards away. When the deceased started to get up from where he fell the accused person came and positioned himself between the deceased persons legs. He seemed to be going to punch the deceased on the eye. He didn't see either the accused or the deceased carrying anything. When he arrived at the scene he found the deceased had both hands to his head and the accused's hand was on top of the deceaseds. He said he told them to stop it and got hold of their hands. When he removed the accused's hand he saw the knife. He locked the deceased's hands between his knees and tried to pull out the knife from the deceased's head but without success. The knife was so far in he could only see the handle. Deceased got up to join the fight with the accused but the witness grabbed him and catching hold of his head he pulled out the knife. The deceased collapsed.

PW6 PC Tiraim went to the scene of the crime and arrested the accused person and took possession of the knife, which he produced in court.

The accused gave evidence on oath in which he described how he went to the wharf to get a good place on the ship travelling to Tarawa. He inquired about when the boat would go to the ship and was told that it depended on the man in charge. As he recognised no one he sat further away alone. The deceased came and went to the workers. The accused was still watching for a boat and when he saw the deceased walk away he knew there would be no boat, so he went after the deceased and called him by his name Meeria. So far the accused's version of events agrees in general with that of the prosecution.

However after this the accused says that the deceased just turned back and threw his tobacco box at him hitting him in the face on the nose so that one of his teeth fell out. He got angry when he found he had lost a tooth and because he was so furious he approached the deceased who retreated backwards and his hand reached towards his pocket. The accused was afraid of his right hand and opened his tobacco box which he carried under his arm and took out his knife which he used to cut his tobacco. He continued to approach the deceased who fell down and the accused went between his legs intending to stab him on the shoulders so that he would not be killed but when he did the stabbing he lost his self control because he wanted to protect his life against the deceased.

In cross examination he explained that the tobacco box which could have contained the knife had been lost. It was a large box which was in length from the accused's longest fingertip to the middle of his forearm and it opened like any ordinary tin box with the lid attached. It had no method of ensuring that it stayed closed as the lid shut firmly enough not to require this. It came from the Americans at Canton. He was asked about the size of the knife which he carried in the box and he said he carried it because he had no smaller one and that he used it for getting food as well.

He said he had worked on Christmas for 10 or 12 years and he knew the deceased well. He denied a prior fight with him as a result of which he lost his eye but he admitted that at one time he had got drunk and that his eye had been injured but he didn't know how. He was drunk. He said he did not know if the deceased did this to him. He said "I challenge the evidence that I killed him". He said he said he was not the deceased's enemy even though he knew him before. He said he did not want to take out his knife but he was afraid when he saw that Meeria was furious, and when he saw him touch his pockets. He was afraid because the deceased had injured him previously by throwing his box and he got angry when he was injured by the deceased. He explained that he followed the deceased when he retreated and then lost his self control after he had been hit by the tobacco box and lost a tooth. He didn't know what he did. He intended to stab the deceased in a place where he would not be killed but he lost control when he was stabbing him. He also claimed to be trying to defend himself.

Could the accused's version of events reasonably be true? I have carefully examined it in the light of the evidence of the prosecution witnesses who were there, and who may be fairly regarded as independent. If the evidence of the prosecution witnessess is accepted then the deceased's evidence could not be true. The knife was out before the deceased threw his tobacco box (see PW2s evidence). The deceased was unarmed and none of the prosecution witnessess saw the deceased make any move to put his hand in his pocket. The deceased was retreating and no question of self defence could possibly arise as the deceased was unarmed and if the evidence of the prosecution witnessess is believed the accused had nothing to fear as the deceased did not attempt to put his hand in his pocket so that no reasonable ground existed for the accused to fear that the deceased was reaching for a knife.

The question which causes me the most difficulty in accepting the accused's evidence is this. Why should the deceased who according to the accused had no grudge against him and who had known him for some time suddenly attack the accused while he himself was unarmed?

The deceased was not drunk or mad and no one gave evidence that he was in a bad temper. He seems to have been unarmed. Again the prosecution witnesses were not asked directly whether in fact the accused lost a tooth as a result of the box hitting him. The questions were put on the basis that the accused had lost a tooth but none of the prosecution witnesses spoke to this effect. Indeed the general tenor of their evidence on this point was that the tobacco box had hit the accused on the upper part of his face or the side of his head. No one except the accused has spoken of any injury to him. Moreover I am bound to ask myself why the prosecution witnesses who are not related to the deceased should lie about the events. They might of course have been mistaken. It is true there are conflicts between what they said in court and what they told the police a year ago. This is not surprising but in substance there is not much disagreement amongst them and they gave their evidence well. PW2 was convincing. These contradictions do not seem to me to be very material and certainly are not vital to the prosecution cases. The accused on the other hand seems to me to be running several inconsistent lines of defence. On the one hand he wants the court to believe that he did not intend to kill the deceased but that he was provoked and lost his self control. On the other hand he wants to rely on self defence. He says that he lost his self control as he stabbed the deceased but was apparently in control right up to that very moment intending to stab the deceased in a place which would not be fatal right up to the very last moment. He had the deceased on the ground and the knife raised. The deceased was unarmed and defenceless. It is difficult in these circumstances to see how the accused could rely on self defence. Even if what the accused said about the start of the fight were to be taken as true and accused was then the aggressor the deceased having retreated six yards and fallen down, why did the accused not leave him alone and go? The reason is if the accused is right in what he says that he had made up his mind to stab him. These are not the actions of a man suddenly provoked to fatal violence. They are the cool calculating actions of a man whose enemy is down and defenceless and who intends to injure him seriously. No other construction of the accused's evidence seems to me possible. However I do not believe the accused is telling the truth. It seems clear that the evidence of the prosecution witnesses must correct and I find that they have spoken the truth in substance although through lapse of time conflicts as to detail may have crept in. PW2 says the accused had the knife out before the fight began and I believe him. PW3 says accused was carrying something in a brown paper. I believe this may have been the knife. Again the accused's version of how he came to have the knife is not easy to believe. The knife is a very long one which might well be used for cutting toddy but is not the sort of knife most people would find convenient to carry around. The accused would need to open the box which he had under his arm, take out the knife, close the box and advance upon the deceased, a cumbersome and deliberate process. When the deceased saw the knife and recognised the accused who he knew, he threw his tobacco box at him and retreated to preserve himself. No other possible explanation accords with the proved facts. Why else should he throw the box unless he feared an attack. The only words proved as spoken were "are you Meeria?" these words could not possibly provoke anyone to throw a tobacco box. There must have been a reason which caused the deceased to act as he did. He must have seen the accused was armed as PW2 says he was. The accused's defence is in part that he did not intend to kill the deceased only to teach him a lesson by stabbing him in a non fatal place. I have to consider whether deceased's injury was a natural and probable consequence of the accused's voluntary action in stabbing the deceased with a knife.

I have to ask myself also whether the defendant forsaw the death of the deceased as being the natural and probable consequence of his act. The defendant must have been aware that in stabbing the deceased at random it was highly likely that death or serious bodily injury would result. There cannot by any real doubt that the defendant embarked on a course of action which was fraught with extreme danger to the deceased person. He well knew as everyone must know in Kiribati that a stab wound with a knife in any part of the body is a serious and dangerous matter. The knife produced in court is clearly a deadly weapon. The accused has said that he intended to stab the deceased but not to kill him. An intention to wound the deceased with such a weapon, though not fatally, is an intention to do an inherently dangerous act likely to cause the deceased grievous harm, because any knife wound with a weapon like this would be likely to injure health or cause permanent injury of a serious nature to an internal organ. Accused must have realised that the stab with such a knife was a serious matter. He acted with malice afore thought and without lawful excuse. He must have forseen that his stabbing of the accused would be likely to cause serious injury or grievous bodily harm and to have intended to cause serious injury to the deceased. Any stab wound in this island with its lack of medical facilities is serious. For these remains I accept the evidence of the prosecution witnesses and I reject all the accused's evidence, and in particular that he did not intend to kill the deceased. He is accordingly guilty of murder unless the circumstances set out in section 197-195 apply. The prosecution must negative these.

S. 195(a) allows a defence of loss of self control by extreme provocation given by the person killed, as set out in section 198.

S. 195(b) provides a defence in cases where the accused was justified in causing some harm to deceased and that in causing this harm in excess of the harm which he was justified in causing he acted from such terror of immediate death or grievous harm as in fact deprived him for the time being of his self control, or s.195(c) that in causing death he acted in the belief, in good faith and on reasonable grounds, that he was under a legal duty to cause the death or do the act which he did.

It is for the prosecution to negative these possible defences where raised. Clearly the evidence of the prosecution witnesses if accepted excludes all these points as this was cold blooded killing carried out without any provocation or extenuating circumstance.

A defendant charged with murder is entitled to an acquittal at least if he honestly believed on reasonable grounds that his life was threatened by the deceased and that his response was a reasonable response to that threat. I have already rejected the accused's evidence but even assuming that the accused's own evidence is correct while there may be something to suggest that the deceased was the aggressor and that something in the nature of boxing may have passed between the deceased and the accused as described by PW5, yet the fact is that the deceased was unarmed and eager to retreat. Accused did not in his evidence mention any actual fighting between himself and the deceased. At the time of the stabbing the deceased had fallen down and was trying to get up. The accused person was never in any danger from the deceased nor did he have any reasonable ground for supposing that he was in such danger or might be coming into some danger.

Even if the deceased had moved his hands towards his pockets and the evidence shows clearly that he did not, the accused could still have run away, but instead he chose to attack the deceased who was down. The deceased had no weapon. The accused was armed with a formidable weapon. What sort of answer to that weapon could the deceased possibly have had in the pocket of his shorts? This is not, in my view, a case where he was entitled to use force of any sort against the deceased, or used force mistakenly. The accused was never in any danger from the deceased and could not reasonably have believed that he was and no question of self defence can arise. As to the question of provocation it must be asked whether the deceased's conduct towards the accused would have provoked a reasonable man of the accused's community to act in the way that the accused did. Section 198 of the Penal Code requires that 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 done and said according to the effect it would have on a reasonable man.

Certainly it is arguable that the savage nature of the wound itself might indicate that it was inflicted in a frenzy caused by loss of self control, but perhaps it is also significant that the wound was on the head near to the left eye which is the same eye which the accused lost. Possibly this is coincidental. Accused said in cross-examination "I stabbed then I completely lost control". But earlier in cross-examination he had said "I didn't lose self control because I decided to stab him where it would not kill him". Was the accused provoked? Accused's evidence was that he was provoked to attack the deceased according to his own evidence when the tobacco box hit him and he immediately lost his self control. There was evidence before the court that the throwing of the tobacco box by the deceased could amount to provocation, but in view of the finding already reached that the accused already had his knife out before the box was thrown I do not see how the throwing of the box could amount to a provocation as this throwing of the box was clearly an act by the deceased to defend himself. Even if I am wrong about this I do not believe that the accused's action in stabbing the deceased with a large knife bears any reasonable relationship to the act of the deceased in throwing the tobacco box at the accused. I do not believe that to a reasonable man of the accused's Community sober as the accused was, this act would have been enough to make a reasonable man do as the accused did and stab the deceased to so as to cause his death. The deceased had retreated six paces since he threw the box. Accused was armed at that stage and on the offensive with a knife and the deceased was lying defenceless. Did the accused in fact lose his self control? He claims that he did but his answers in cross - examination cast considerable doubt on this. If the accused's case is assumed to be true, what could have caused him at that last moment to lose his self control? No further act by the deceased to provoke accused took place. If the sole provocation was the throwing of the tobacco box it could not in my view have caused a reasonable man to do as the accused did and stab a defenceless man who was trying to get up.

While the throwing of the box might be a provocation to anger I do not believe it would be a sufficient provocation to cause a reasonable man of deceased's community to kill. I am satisfied that the prosecution version of events is true and not the defence version and that the prosecution have negatived self defence and provocation, and the accused killed the deceased with a knife on purpose. He had no lawful excuse or provocation for so acting and the accused is found guilty of murder as charged and convicted.

R.G. TOPPING
JUDGE