Republic v Beiata - judgment [1996] KIHC 13; HCCrC 22.95 (7 June 1996)

IN THE HIGH COURT OF KIRIBATI
(BEFORE THE HON R LUSSICK C.J.)

HCCrC 22/95

THE REPUBLIC

versus

1. ITIMATANG BEIATA
2. EKENIMAN TOAURU
3. NABUTI TOKAMAITARAWA
4. KATANGA TATIRENGA
5. TAKAUA TOMINIKO
6. TAKABWEBWERE BEIATA
7. MWAERENNANG MOOTE

Mr T Tabane and Ms T Beero for the Republic
Mr D Lambourne for Accused Nos 1, 2, 4, 5 & 6
Mr B Berina for Accused No. 3
Mr T Teiwaki for Accused No. 7

THE REPUBLIC

versus

BARAAM IORIM

Mr T Tabane & Ms T Beero for the Republic
Mr D Lambourne for the Accused

JUDGMENT

In the first indictment, the seven accused have been charged with causing grievous harm to Boiannang Boaata on the 8th day of November 1995 contrary to section 218(a) of the Penal Code Cap. 67.

In the second indictment, another accused, Baraam Iorim, is charged with the murder of Boiannang Boaata on the same date at Buariki Village, North Tarawa.

As regards the first indictment, although it is not shown in the particulars of the offence, counsel for the Republic advises that the prosecution's case is that the accused Itimatang Beiata and Takabwebwere Beiata were the principal offenders aided and abetted by the other five accused.

After the hearing had commenced, the charge against the accused Ekeniman Toauru and Katanga Tatirenga was amended to one of assault occasioning actual bodily harm contrary to section 238 of the Penal Code. They have both entered pleas of guilty and are to be sentenced at the conclusion of the trial.

The prosecution's case is that on the day of his death Boiannang had been drinking sour toddy with his brother-in-law Tangira and a person named Kababara Buakaua, who gave evidence for the prosecution. When they had finished drinking their sour toddy they went in search of more, which led them to the house of the accused Mwaerennang. Tangira challenged him to a fight. Two other persons came out of the house, Matibei and the accused Baraam, and the three of them fought with Tangira. Boiannang fled and he was chased by a group of people which included the accused Itimatang, Nabuti, Takabwebwere, Mwaerennang and Baraam. Boiannang ran onto the reef mud where he was caught by the accused Itimatang, who hit him on the back with a stick, knocking him down onto his face. He was then attacked by all of the accused including Takaua, who had joined the group by then. The accused Baraam hit the victim's head with a stick causing his death from head injuries. The victim had also sustained two broken legs.

What emerged from the evidence was that a large group of people from the village - men, women and children - followed the chase of Boiannang and went to watch the attack on him. Apparently no one tried to intervene. Boiannang had not been a popular man in the village. He was known to become violent at times and had on several occasions used a stick to attack people.

Boiannang's behaviour on the day before his death no doubt precipitated the fatal attack upon him. He caused a disturbance in the Catholic Church maneaba in which he broke some lights and injured the accused Mwaerennang by hitting him in the eye with a coconut. Feelings in the village were therefore running high against Boiannang.

The first prosecution witness (PW1) was Tamoa Ritang, a man aged 21. He testified that he saw many people chasing the victim, including the accused Mwaerennang. The witness joined in the chase and became a front-runner with the accused Itimatang and Takabwebwere. They were the first to reach the fleeing victim.

Itimatang hit the victim twice on the back with a fighting stick causing the victim to fall face downwards onto the reef mud still clutching his bottle of sour toddy. Takabwebwere then hit the victim twice with the same stick, once on his hands and once on his leg. These two accused then returned to the beach. At this stage the victim was crying with pain.

Many others then came. Amongst them the witness recognised the accused Baraam. He saw Baraam beat the victim and then return a second time to hit the victim on the forehead with a stick.

The witness later saw the victim's dead body and saw that there were cuts on the forehead and legs.

In cross-examination he conceded that the blow to the victim's leg struck by Takabwebwere was quite soft and would not have been strong enough to break a bone.

He also amplified what he had earlier said about Baraam's first attack on the victim. He said that Baraam hit the victim many times until Baraam thought he had done enough. However, later on in cross-examination he admitted that he could not remember how many times Baraam had hit the victim or where. It could have been once or more than once.

I thought this witness was quite convincing. He did not try to exaggerate, was prepared to concede that there were things he could not remember, and was not shaken in cross-examination.

PW2 was a lady named Tebabo Tebukaiti. All she saw of the incident was a large group of people - men, women and children - chasing the victim. She was able to identify accused Takabwebwere and Mwaerennang as being among that group. She noticed that Takabwebwere was in front of Mwaerennang.

PW3 was Biribi Bwatee, a 32 year old man who is a councillor on the North Tarawa Council. Like the previous witness, he did not see the attack on the victim. His testimony was that the victim had called at his house to ask him to apologise to the villagers on his behalf for some offensive words he had said to them. The witness advised him to leave Buariki.

Later, the witness was having a shower when he saw some people running past his house. He also saw the victim running towards the house of a person named Tabutoa. One of the people chasing the victim came over to him. It was the accused Mwaerennang. He was carrying a small stick and asked the witness if he could give him a better one but the witness told him he had none.

The witness then went with another councillor, Taau, towards the tip of Buariki where they could watch what was happening. From there he saw a group of people, saw one person fall down and saw a hand going up and down in a beating motion.

Police later brought the body back to Taau's house and the witness could see injuries to the legs, forehead and head.

PW4 was Kababara Buakaua, a young man aged 18 who was a friend of the victim. He testified that on the morning of the incident he had been drinking sour toddy with Tangira and the victim. Later they went looking for some more sour toddy. As they were passing the house of the accused Mwaerennang, Tangira shouted out a challenge. There followed an altercation with the accused Itimatang, Takabwebwere, Mwaerennang and Baraam. The witness saw them chase the victim and eventually stand around him beating him with a stick.

The witness went into details of the attack on the victim but what he said could not be believed because he was completely discredited in cross-examination. He admitted that he had lied about seeing the chase and had lied about seeing the beating. He said that the truth was that he had been drunk at the time and that all he really remembered about that morning was drinking with the victim and Tangira.

PW5 was Teaitoki Tokatetaake, a man aged 36. He gave evidence that he was cycling towards the sea when the victim ran up to him carrying a bottle of sour toddy and asked for help. He told the victim to run into the bush. He then joined in with the other people who were chasing the victim.

He saw the accused Takabwebwere run to a nearby house and grab a knife and saw the owner take it away from him. Takabwebwere then grabbed a marang (a fighting stick) and ran after the victim. That fighting stick is in evidence marked exhibit "H".

The witness followed the crowd of people to see what would happen. When they reached the reef mud he saw the accused Itimatang hit the victim with the fighting stick on the back and left upper arm as he was running. Itimatang then gave the fighting stick to Takabwerebwere who hit the victim on both arms just above the elbow. The victim then fell down on his stomach on the reef mud. While the victim was down, Takabwebwere gave the fighting stick to Itimatang who used it to hit the victim's legs, although the witness was unable to say how many times he hit him. Itimatang and Takabwebwere then went back to the beach. On their way back Takabwebwere met Baraam and gave him the fighting stick, at the same time taking Baraam's toddy knife away from him.

The witness then saw Baraam hit the victim but he could not see what part of the victim's body was hit. Baraam stayed beside the victim for about 10 minutes. There were many people beside the victim. The witness saw that the victim had been turned on his back but he did not see who did it. The victim was still being beaten but he could not see by whom.

As the witness was about to go back he saw the accused Takaua, Mwaerennang and a person named Matibei arrive together. They all had sticks with them and he saw Takaua hit the victim although he could not see where. He also saw Mwaerennang hitting the victim but all he could see was the stick going up and down three times.

In cross-examination he agreed that the first people to reach the victim were the accused Itimatang and Takabwebwere, but he did not see Tamoa (PW1) with them. It will be remembered that Tamoa testified that he was with these two accused when they reached the victim.

The witness also admitted that he had given three different statements to the police. In his first statement he did not mention anything about seeing the victim being beaten. He admitted that in giving that statement he had lied to the police. He also admitted that in his second statement he had said that he did not see what part of the victim's body Takabwebwere had hit with the stick whereas he told the court that he had seen Takabwebwere hit the victim's arms. Again, he agreed that he had lied to the police.

He further agreed that his second statement to the police made no mention at all of seeing the accused Takaua.

The witness also admitted that in his third statement to the police he had said that he did not know whether Takaua had managed to reach the victim, whereas he told the court that he had seen Takaua hitting the victim.

While I appreciate that a witness who tells a lie in an unsworn statement to the police might not be prepared to tell a lie under oath, in the case of this witness he has given three statements to the police recounting different versions of facts which are quite material and which are different yet again from the version told to this court. In the circumstances it is difficult to know where the truth lies and I must regard the evidence of this witness as unreliable.

PW6 was Ueantaake Barekiau, a man aged 47. When he saw the victim running on the main road followed by many people he also followed. As he neared the reef mud he was able to make out the accused Itimatang, Takabwebwere and Baraam. They had one stick between them and they hit the victim with it although he cannot recall what part of him they hit. He approached the victim and saw that he was still alive and that he had injuries to his face and legs. Although many other people were present he was unable to recognise any of them.

Cross-examination left me in doubt as to the accuracy of this witness' evidence. He agreed that when the events he described were taking place he was quite some distance away. The victim was on the reef mud about half a mile from the shore and the witness was closer to the shore than he was to the victim. There was also a large group of people, perhaps 30, between himself and the victim and he agreed that this obscured his view, or at least whatever view he had, for he admitted he has bad eyesight which is affected by sunlight and that on that day the sun was very bright. He conceded that it is possible that he was mistaken in what he said he had seen.

PW7 was a nurse and PW8 was a doctor who both examined the victim's body. I shall return to their evidence presently.

PW9, PW10 and PW11 were police officers who produced cautioned statements and records of interview taken from all of the accused except Mwaerennang. There were no objections to any of these documents being admitted into evidence and I am satisfied beyond reasonable doubt that they were given voluntarily. Some of the accused recount in their statements what was done by other accused. In this regard, I remind myself that a statement made to the police by one accused is not evidence against a co-accused.

Itimatang gave three statements to the police. In his first two statements he denied attacking the victim at all and claimed that he was just one of those who had gone along to watch. However, in his third statement he admitted that he struck the victim once on the back and once on the left arm with a stick. His description of the stick matches exhibit H. He claimed that the victim was not injured but after being struck fell on his stomach. He then quickly left because he was afraid the victim might get up and come after him. He also admitted that the previous statements he had given to the police were incorrect.

The accused Takabwebwere gave two statements to the police. He admitted that he was one of the first persons to approach the victim and that he hit the victim's left leg twice with a fighting stick. The victim was still alive after he had hit him and was moving about. Takabwebwere told the police that he went back soon after this.

The accused Baraam gave two statements to the police. In his first statement he admitted being among those who assaulted the victim. He said that he used a stick to hit the victim on the upper part of his hands and knees, but only his left hand was injured. He did not know how many times he hit him but it was many times. He said that when he reached the victim he was lying face downward and he turned him over on his back before hitting him. Prior to hitting him, the victim had said to him that if he happened to live he would seek revenge and kill him. He agreed that he had originally been armed with a knife but that it had been taken away from him while he was still on the beach.

In his second statement he said that the stick used to hit the victim was a fighting stick. When he turned the victim over onto his back the victim was still breathing. He saw that his face was swollen and there was blood on his head. He also saw that the flesh of his ankles was in shreds and the bones were broken. He admitted that when the victim said to him that he would catch him and kill him he hit the victim's head and eyes and face; he did not recall how many times. He also kicked the victim's left side and hit the upper part of his left hand, intending to break it. The victim was still breathing but he did not say anything after that. He said that he had assaulted the victim for about 20 minutes. When he left, the victim was still alive.

The accused Nabuti admitted in his statement to the police that he had been one of those chasing the victim. He was armed with a piece of wood "about over a foot in length". When he reached the victim he was lying on his back. His face was badly wounded with blood all over it; he was still, not breathing and was dead. He then struck the victim's legs with the stick two or three times. He did this just to imitate the others but he could see that the victim had serious injuries on the head and legs and was already dead.

The accused Takaua also claimed in his statement to the police that the victim was already dead when he beat him. The victim was lying on his back not breathing with serious injuries to his head, which was thick with blood, and to both his legs below the knees. Takaua admitted that he used a stick to beat the victim's right ankle and left leg below the knee. He did this, even though the victim was already dead, because he was afraid of the people who had already beaten the victim.

That concluded the evidence for the prosecution. I found that there was a case to answer and the accused Mwaerennang gave evidence and called two witnesses. The rest of the accused elected to remain silent and called no evidence.

Mwaerennang testified that on the day of the incident he was woken up by Tangira who was shouting a challenge to him from the main road. Mwaerennang went to him and, when he would not stop shouting, punched him in the mouth. Baraam arrived with a toddy knife but Mwaerennang told him not to use it. Tangira then ran away chased by Baraam. Mwaerennang followed them and, in the vicinity of Terutabu's house, saw that the victim Boiannang was running away with Baraam now chasing him. As he followed them, Mwaerennang picked up a small stick but when he reached PW3 Biribi's house he asked Biribi for a stronger stick which was not given to him. Mwaerennang claimed that he wanted a stick for self-protection in case Boiannang and Tangira put up a fight. He threw the stick away before he reached the beach. From there he was able to see many people on the reef mud so he went over to them. He saw the victim lying dead on the reef mud. Although many people were there he could not recall any of their names. He denied being among those who had chased the victim; he said he was only following Baraam to take the knife away from him. He denied having a stick and beating the victim and said that Teaitoki (PW5) was lying in his evidence about this.

Bwebwetara Takabwebwere, a man of 28, testified that he met Mwaerennang on his way to the scene. Mwaerennang was heading in the same direction. When the witness arrived at the reef mud he saw that the victim was dead. He also saw Mwaerennang on the reef mud. Mwaerennang was not carrying a stick and did not do anything to the victim.

In cross-examination the witness gave evidence of the victim's unpopularity in the village and his behaviour on the day before his death to which I referred earlier.

Mwaerennang's next and last witness was Buakawa Kababara, a man aged 43. All he was able to say was that he went to the scene to see what was happening and on his way he met Mwaerennang, who was on his way back from the scene. He saw that Mwaerennang was not carrying a stick.

That concluded the evidence for the defence. I then heard closing speeches from Mr Teiwaki (for Mwaerennang), Mr Tabane (for the Republic), Mr Berina (for Nabuti) and the People's Lawyer Mr Lambourne (for the rest of the accused) in that order.

Before addressing the issues, I remind myself that the onus of proof beyond reasonable doubt remains upon the prosecution from first to last. The Republic must prove the charge and each element of the charge beyond reasonable doubt and if it fails to do so then the accused are entitled to be acquitted. There is no onus on an accused at any stage to prove his innocence.

I shall deal first with the charge of murder against the accused Baraam. One element of that charge which the prosecution must prove beyond reasonable doubt is that the accused caused the death of the deceased.

Medical evidence of the cause of death came from PW7 Riita Bio, a nurse, and PW8 Dr Neete O'Connor. PW7 testified that she examined the deceased at 6pm on the day of his death. The body had been cleaned and she saw no blood. She saw four injuries to the head with the skin broken, one on either side, one to the forehead and one to the back. She measured the wounds and found that they were all 3 inches in length. The left eye was black but not swollen. Both legs were broken at about the middle of the shin. There were also some bruises under the left armpit.

Her opinion that the head injuries had been caused by a strong stick was, I suspect, probably based on something she had been told. Nevertheless, I accepted her conclusion that those injuries would not have been caused by a sharp instrument.

What I did not accept was her opinion that the legs had not been broken by a blow but by twisting them. She formed this view after observing that no skin was broken on the legs, nor was there any bruising. Her evidence on this point is so at variance with the other evidence that I am convinced that she did not make a careful examination. PW1, PW3 and PW6 all gave evidence that they saw injuries to the victim's legs. Moreover, the cautioned statements of Nabuti, Takaua and Baraam all describe injuries to the victim's legs.

There was nothing in the evidence of this witness which was conclusive as to the cause of death. All that she was able to say about the head wounds was that they were three inches long and that the skin was broken. She was not able to estimate a time of death.

She said in cross-examination that the eye injury she referred to was superficial and that she had not seen any injury to the left wrist.

Dr Neete O'Connor gave evidence that the body was brought to him by the police to determine the cause of death on the 9th November 1995 (i.e. the day after the victim's death). He prepared a report which is in evidence as exhibit A. That report reads as follows: "9/11/95 11.15 am. The body of the above dead body was brought in by a big truck by Police to OPD TCH. O/E: The body is all stiff and smelly. The head sustained several deep lacerated cuts with blood clots from mouth and nose. Cause of Death - Assaulted with serious head injuries".

Dr O'Connor testified that the head injuries were caused by a blunt object and were very serious. The body was in a bad condition and the wounds were decomposed but not swollen. He was unable to take any measurements. He gave the opinion that the wounds were caused by a blunt object because they were lacerations with no clear edges, consistent with being caused by a stick or piece of wood. The doctor estimated that the body had been dead for two days before it reached him. This estimate is wrong of course. The victim had been killed only the day before, so the doctor was very wide of the mark.

In cross-examination he agreed that his examination of the body had taken only a couple of minutes. In fact he examined the body while it was still on the back of the truck. Apart from looking at the head injuries he made no other examination whatsoever. He did not even know that both legs had been broken.

The doctor expressed the opinion that there were two main causes of death: brain damage and loss of blood from the head wounds. Neither of these causes was specified in his written report and I had the impression that they were an afterthought.

I am unable to understand how the doctor came to either of these conclusions. He had looked at the body for only a couple of minutes and had not gone past the head to see whether there were any other wounds which could have proved fatal. No tests of any kind were done, no post-mortem was conducted and no X-rays of the skull were taken. There had been no attempt to measure the depths of the head wounds nor to ascertain whether there were any palpable indentations in the skull.

In fact the doctor was not asked to explain how he arrived at those conclusions. Nor was he asked whether one of the head injuries alone was capable of causing death or how many of such injuries would be required to cause death. He was asked whether the victim would have died immediately upon receiving the head injuries (and the question assumes that all the head injuries were received at the same time) and he agreed that while it was possible he really could not say one way or the other.

The doctor's conclusion that one of the causes of death was loss of blood could only have been based on the finding of blood clots in the mouth and nose. If there was some other basis then it was not given in evidence. Since the doctor had no way of knowing how much blood had been lost I do not consider his conclusion was justified.

It goes without saying that I do not regard as satisfactory the medical evidence of the cause of death. The possibility is left open that the victim died from some other cause, for instance shock, heart attack or an injury undetected in what was at most a very cursory examination.

In his two statements Baraam admitted to hitting the victim's hands, knees, head, eyes, and face with the fighting stick. But he also claims in his statement that the victim already had very serious injuries to his legs and that his face and head were already injured before he hit him. He also said that the victim was still alive when he left. There is no evidence from the prosecution to contradict any of this. Had there been evidence that the victim died immediately or soon after being struck by Baraam then the only reasonable inference would have been that the victim was killed by Baraam's blows. But there is no such evidence. There were many people involved in the attack and the possibility has not been excluded that a fatal blow was delivered to the victim after Baraam had departed. Further, because of the state of the medical evidence, it is impossible to say with any certainty what caused the victim's death.

Counsel for Baraam submits that even if the court were to find that Baraam killed the victim or caused him grievous harm, there is evidence to show that he was acting in self-defence and therefore what he did was not unlawful. Counsel argues that because the victim threatened to kill him if he survived, Baraam was only doing what was necessary for his own protection. For obvious reasons, counsel has not cited any authorities in support of the principle that it is lawful to kill a person who threatens one's life even though one is in no immediate danger, if the possibility exists that at some time in the future that person may carry out that threat. With the victim lying helpless before Baraam disabled by the serious injuries described by Baraam himself, I find counsel's submission that Baraam was acting in self-defence to be entirely without merit. I am satisfied on the evidence that the prosecution have proved beyond reasonable doubt that Baraam was not acting in self-defence.

However, I am not satisfied that the prosecution have proved beyond reasonable doubt that Baraam caused the death of the victim. In saying that I bear in mind that the prosecution are not alleging that there was any joint criminal enterprise to which Baraam was a party.

On the other hand, Baraam admits to hitting the victim many times on the legs and head and I am satisfied beyond reasonable doubt that he caused some of the injuries to the victim's legs as well as at least one of the serious head wounds described by Dr O'Connor. I am also satisfied that the head wounds suffered by the victim fall within the definition of "grievous harm" contained in section 4 of the Penal Code, as do indeed the leg injuries.

Under section 157(2) of the Criminal Procedure Code Cap. 17 I am entitled to convict Baraam of a lesser offence if the facts establish that it was committed. The facts clearly establish that Baraam did grievous bodily harm to the victim. By section 218 of the Penal Code a person who, with intent to maim, disfigure or disable any person, or to do some grievous harm to any person, unlawfully does any grievous harm to any person is guilty of an offence. In the present case the inference is inescapable that in striking the victim many blows with a fighting stick Baraam intended to disable him or to do him grievous harm.
I therefore find the accused not guilty of murder but guilty of an offence against section 218 and he is convicted accordingly.

I now turn to the charge brought against the other five accused of causing grievous harm contrary to section 218(a) of the Penal Code.

It is clear on the evidence that the first of the accused to reach the victim were Itimatang and Takabwebwere and that they assisted each other in beating the victim.

It has already been seen that the injuries constituting grievous harm were those to the victim's head and legs. The evidence of PW1 Tamoa Ritang was that he did not see Itimatang hit the victim on either of these parts of the body. He did see Takabwebwere hit the victim once on the leg but it was a soft blow and a court would not be entitled to infer that it caused grievous harm.

PW5 Teaitoki also did not see Itimatang hit the victim in either of the areas where grievous harm occurred but he did see Takabwebwere strike the victim's legs a number of times. As mentioned earlier, I found this witness' evidence to be unreliable. However, even if I were to accept his evidence it would not prove beyond reasonable doubt that Takabwebwere caused grievous harm to the victim because the witness did not describe the force of the blows. It is possible that the blows were of a nature described by PW1 i.e. too soft to cause grievous harm.

The only other witness to see the two accused strike the victim was PW6 Ueantaake and he did not know where the blows landed.

Itimatang himself made no admissions to police about striking the victim in the areas where grievous harm was caused.

Since the evidence does not show that Itimatang struck the victim on the parts of his body where grievous harm occurred such evidence is incapable of proving that Itimatang caused grievous harm to the victim.

The only other evidence against Takabwebwere were his statements to the police in which he admitted striking the victim twice on the left leg with a fighting stick. PW1 Tamoa said that the blow he saw Takabwebwere deliver was quite soft and incapable of breaking a bone. There is no evidence that either of the blows admitted to by Takabwebwere was any stronger than that.

I am therefore not satisfied that the prosecution have proved beyond reasonable doubt that Itimatang and Takabwebwere caused grievous harm to the victim.

However, there is indisputable evidence that they both hit the victim with the fighting stick, which is a very solid weapon, and I have no doubt that a hit from it would cause at least some harm. The blow that Itimatang delivered to the victim while he was running was sufficient to knock him down and after both accused had hit the victim with the stick he was lying on the ground crying in pain. I am therefore satisfied that the facts prove beyond reasonable doubt that the two accused have committed the lesser offence of assault occasioning actual bodily harm contrary to section 238 of the Penal Code. As mentioned previously, section 157(2) of the Criminal Procedure Code entitles me in such circumstances to convict them of that lesser offence.

The accused Itimatang and Takabwebwere are therefore found not guilty of causing grievous harm contrary to section 218(a) but guilty of the offence of assault occasioning actual bodily harm contrary to section 238 and are convicted accordingly.

As regards the remaining three accused, Nabuti, Takaua and Mwaerennang, the prosecution's allegation that they aided and abetted Itimatang and Takabwebwere has not been proved. There is no evidence that any of them were even there when Itimatang and Takabwebwere attacked the victim. In fact the evidence establishes the contrary. PW1 and PW5 testified that Itimatang and Takabwebwere left the scene after attacking the victim and this was before anyone else had arrived. This evidence is consistent with what Nabuti and Takaua say on this point in their cautioned statements.

Since there is no evidence that the three accused gave assistance and encouragement to Itimatang and Takabwebwere at the time they committed their offence, the three accused cannot be convicted of that offence as aiders and abettors. However, this does not mean that the court cannot convict each of the three accused as a principal for a separate offence he may have committed during the incident.

As regards the accused Nabuti, there is no evidence whatsoever against him apart from the statement he gave to the police in which he admitted that when the victim was dead he struck his legs two or three times with a stick. In the absence of any evidence to the contrary I cannot be satisfied beyond reasonable doubt that Nabuti intended to do, and did, grievous harm to the victim. The accused Nabuti is therefore found not guilty of causing grievous harm contrary to section 218(a) of the Penal Code and he is acquitted accordingly.

The accused Takaua also claimed in his statement to the police that the victim was already dead when he hit his legs with a stick. The only other evidence against Takaua was that of PW5 Teaitoki who said that he saw Takaua hitting the victim but did not see what part of the body was hit. As I have said, I did not regard Teaitoki as a reliable witness, but in any event his evidence does not prove that the victim was not dead when Takaua hit him. Again, in the absence of any evidence to the contrary I am not satisfied beyond reasonable doubt that Takaua is guilty. He is therefore found not guilty of the offence of causing grievous harm contrary to section 218(a) of the Penal Code and is acquitted accordingly.

I now come to the last accused, Mwaerennang. There was ample evidence to prove that he was one of those chasing the victim, but the evidence that he actually hit the victim is not strong. PW4 Kababara testified that Mwaerennang was one of those who beat the victim but, as I have already mentioned, his evidence was completely discredited by cross-examination. The only other evidence against Mwaerennang was that of PW5 Teaitoki. He testified that all he saw of Mwaerennang hitting the victim was a stick going up and down. As already mentioned, I did not accept the evidence of this witness but, even if I did, it would not be sufficient to prove the offence to the required standard. On top of that Mwaerennang gave sworn evidence denying that he hit the victim and he called two witnesses to give evidence in support of his testimony. Having considered all of the evidence, I find that I am left with a reasonable doubt. The accused Mwaerennang is therefore found not guilty of causing grievous harm contrary to section 218(a) of the Penal Code and he is acquitted accordingly.

THE HON R B LUSSICK
CHIEF JUSTICE
(07/06/96)