Republic v Bename [1989] KIHC 6; Criminal Case 13 of 1989 (20 March 1989)

IN THE HIGH COURT OF KIRIBATI

High Court Criminal Case No. 13/89

THE REPUBLIC

-vs-

KATIOUA BENAME

SENTENCE

20.3.89

MUHAHAMMAD J:-

Katioua Bename (hereinafter referred to as "the accused") is charged with, and he has pleaded guilty to, Manslaughter Contrary to Section 192 of the Penal Code (Cap 67). The particulars of the offence allege that the accused on 27 August 1988 at his house on Abaokoro unlawfully killed Nei Toabo Kawaitu, (hereinafter referred to as "the deceased").

Prosecution called eight witnesses and the accused, who is represented in this case by the Peoples Lawyer Mr. Koaru, himself gave evidence on his own behalf.

It is common ground that on 27 August 1988 at about 6pm the deceased had called at the house of the accused and asked for sour toddy to drink. She was drinking this brew for some hours. It is also agreed that the daughter of the deceased PW2 called twice to persuade her to go home with her but the deceased refused to go and that on the third occasion when she came together with PW3 with a hand cart (expecting her mother to be drunk and incapable of walking) to take her home, they found her lying dead. It is an undisputed fact that the deceased is dead and died in the company of the accused and at the house of the accused. I find all these matters proved beyond any doubt.

The questions remain, how did the deceased die? and if she came to her death at the hands of some other person, who did so cause her death? if it was the accused who was so responsible did he have any lawful justification for doing so?

Prosecution called Dr. Takeieta Kienene, a medical practitioner working at Tungaru Central Hospital since 1982, who had performed the Post Mortem, on the body of the deceased, on 29 August 1988. He produced his report as an exhibit in the case (marked Ex P1). He was asked about his findings in his report as to the probable causes of death which he had given as:-

a) Cerebral hemmorrhage,

b) Respiratory arrest following fracture and collapse of thyroid bone and adjacent tracheal rings, and

c) Old age.

He explained that the 'old age' he had included on the basis that a younger person would have resisted force, if it was used, better than the deceased whom he estimated to be between 60 to 70 years of age. In the Doctor's view death resulted from cerebral hemmorrhage which was caused by impact over the left eye with a blunt object either coming towards her or she falling over it (a blow from a fist could have caused it). Alternatively death would have resulted anyway from the fracture of thyroid bone, which in his view could have resulted from a strangulation or by use of a blunt instrument. Both or either of these two causes could have been a probable cause of death.

The Post Mortem was performed on 29 August at around 9.30 am and the body was, according to the Doctor, in its early stage of decomposition, there was dirty smell, swelling and early marbling of the skin. Therefore his examination was somewhat restricted.

In his cross examination witness agreed that hemmorrhage could have resulted from Respiratory arrest. Accused in his evidence challenged Doctor's evidence in two ways:-

a) that since he himself had been training as a nurse he knows that fracture of thyroid can be caused by prolonged coughing, and

b) regarding the bruise on deceased's eye the doctor had made it up.

As the suggestion under (a) above was introduced for the 1st time and the Doctor had not had the opportunity to comment on it he was recalled and he considered the suggestion so ridiculous that he had never heard of it before. As regards the suggestion (b) the Doctor was asked in cross examination details of the injury to the eye and he told the court there was a bruise in a small area of 1 to 2 inches.

I am satisfied beyond any reasonable doubt that the injuries to the deceased happened in the way PW1, the Doctor, described them and that he did not make up anything. In fact due to the state of the body he did not notice injuries which other witnesses had observed on her nose and right eye. I also find that the death of the deceased was a direct result of those injuries.

How did the deceased come to have those injuries? Prosecution allege that the accused used violence against the deceased and caused those injuries. The only eye witness account as to what happened is that of PW8 - the wife of the accused and of the accused himself. PW8's evidence is to the effect that on 27 August her husband, the accused, and the deceased were drinking sour toddy, the daughter of the deceased came to fetch her but she refused to go. She was really drunk and when her relatives came to fetch her she became very angry and got out of control and was "hitting at anything". They, the accused and the deceased were both sitting and drinking and then she started pouring toddy on the ground. The accused got angry and hit the deceased with the back of the hand on top of her nose, she later accepted that she had said, nearer the time when she made her statement to the police, that he had used his fist and said her memory now is not as good as it then was. However she says as a result of being hit by the accused she quietened down and after a while the accused said it is good now she is under control and suggested that she should be layed down lest she should get out of control again. She says she went to feel her stomach to see if she was still alive. She described how the blood was pouring out of her nose on to her cheeks. She says it was quite a lot of blood. They decided to clean her up and she says she heard her breath whilst they were doing so. She says the only person crying at the house was their child who always cries when the accused gets drunk and looses his temper. In her cross examination she agreed that Ekita and Marawa came to fetch the old lady, she chased them away and in the process fell twice but there was no injury to her and she was angry after this and was throwing things around. She was asked about her vomiting, 1st she said there was no vomiting then she said she vomited once but it was before her husband had hit her.

The accused's version is much the same other than he disagrees with his wife about his own condition or that the child cried because he was drunk. He does not accept that there was blood out of the deceased's nose but says she vomited blood. He also claims that the vomiting was when she was lying down and not before he hit her as his wife claimed. He says his wife is wrong in saying he punched the deceased he says it was a slap rather than a punch. The wife had indicated they were sitting next to each other side by side but the accused says they were sitting facing each other when the deceased tried to reach his cup of toddy and he took his hand with the toddy back and pushed her hand away and somehow his hand slipped and hit her on the cheek. In cross examination however he admitted losing his temper and hitting the deceased once. He also said that he struggled with the deceased in a grappling manner for some 15 to 20 minutes so that she would not fall over the children.

I don’t believe that either P.W. 8 or the accused have been entirely frank or truthful in their evidence. I found P.W. 8 not very bright nor consistent. She did not seem to be sure of herself or of her recollection. She said there was no vomiting then there was vomiting. She was asked if she had been shown her statement by the police to refresh her memory before she came into court she denied that the policeman saw her and when the police officer was brought into court she agreed that he did see her. She said that her statement was more correct because she could not remember things now. There is undoubtedly some truth in her evidence but certainly not the whole truth. I would accept the parts of her evidence which are consistent with common sense and the evidence given by other witness.

There is evidence of P.W 4 and P.W.5 that they heard cries of a woman, they described these as wailing and groaning noise, coming from the house of the accused. P.W. 5 had told P.W. 3 that night about these cries yet both the accused and P.W.8 did not hear any cries other than those of their own child. I have no doubt that the cries were of a grown up woman as the witnesses described. I find it strange that deceased had such serious injuries and considerable loss of blood, even accused's wife saw the blood, yet the accused denies there was any blood or injury. The accused says he saw her fall down twice then two persons came to fetch her, his wife supports him on this but nobody else saw them and the accused did not call them or either of them to confirm what he claimed. Ofcourse the accused has no duty to prove or disprove anything but it would assist the court in establishing the truth. However even if she did fall that did not cause her injuries because accused or his wife would have seen them. On the contrary she was hitting at things and pulling the mat and drinking - hardly the actions of a fatally injured person. Nor I believe one blow from the accused was enough to cause those injuries. P.W.8 says she only saw him strike the deceased once. It is often said that circumstantial evidence sometimes is the best evidence. In this case we have the deceased drinking with the accused and obviously enjoying herself, and some hours later still in the company of the accused she is found dead, with blood all around her and with injuries which caused her death and I am sure to her nose and right eye which witnesses who saw her body soon after the death saw. Accused admits to limited violence. In the absence of any explanation the inescapable conclusion is that those injuries resulted from great deal more violence than he admits.

I have no doubt that the accused caused the injuries which resulted in the death of the deceased. The accused's own admission that he hit her once only would be enough to convict him if that was unlawful act, but I have no doubt that there was greater violence than that. I do not consider even one blow to be justified act to protect a cup or sour toddy let alone the violence which must have been more than that.

In view of the aforesaid I am satisfied beyond any reasonable doubt that the accused caused the death of the deceased and there was no lawful justification for doing so. I therefore convict him of the offence of Manslaughter as charged.

FAQIR MUHAHAMMAD
JUDGE