Republic v Toawea [1998] KIHC 33; HCCrC 05.98 (10 August 1998)

IN THE HIGH COURT OF KIRIBATI
CRIMINAL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

Criminal Case No. 5 of 1998

THE REPUBLIC

vs

KAIRAKU TOAWEA

For the Republic: Mr Titabu Tabane
For the Accused: Mr David Lambourne

Date of Hearing: 27, 28, 29 July 1998

JUDGMENT

The accused has pleaded not guilty to the following two charges:

Count 1

Statement of Offence

MURDER contrary to Section 193 of the Penal Code (Cap. 67)

Particulars of Offence

KAIRAKU TOAWEA on the 27^th February 1998 at Borotiam village, Abaiang, wilfully murdered Kabunare Tebakatu.

Count 2

Statement of Offence

ASSAULT CAUSING ACTUAL BODILY HARM contrary to section 238 of the Penal Code, Cap. 67.

Particulars of Offence

KAIRAKU TOAWEA on the 27^th February 1998 at Borotiam village, Abaiang, committed an assault by using a knife onto Raratu Kabunare and causing actual bodily harm at the back of his head.

The prosecution called 10 witnesses to prove the charges.

The first was a sour toddy seller named Kareimoa Teuea, a man aged 53. He testified that on the day in question at about 1 pm the accused came to his house and drank 5 cups of sour toddy. He then went out with the accused looking for coconut crabs. When they returned, the accused drank another 4 cups of sour toddy. While the accused was drinking the deceased arrived. According to the witness he looked as though he had already been drinking. (The witness elaborated upon this when cross-examined by saying that the deceased had been fully drunk). The witness knew the deceased as Kabunare, the brother-in-law of the accused. The accused is married to Kabunare's younger sister.

The accused and the deceased drank together. The witness said that he heard the deceased claim to know black magic and say to the accused that if he put his finger on him he would die. (In cross-examination, the witness agreed that the deceased repeated several times that he had the power to kill the accused). The accused told the deceased that his magic was useless. The deceased thereupon punched the accused in the face.

The witness said that a fight did not take place because he pulled the accused away from the deceased and held onto him, even when the deceased went outside and challenged the accused to come and fight him.

The deceased's sister then arrived and took him home. The time at this point was around 5 pm.

The witness said that when the deceased left, the accused ran after him to try to ambush him, but they never got to fight because they were restrained. (In cross-examination the witness said that he was able to see two people from another house restraining the accused).

After about 5 minutes the accused returned to fetch his knife. The witness said that when the accused first arrived he had stuck the knife in the thatch of the house. However, after the altercation with the deceased, the witness said that he had hidden the knife under some mats. However, when the accused asked for the knife he gave it to him.

In the early evening the witness set out to watch a movie at the maneaba. He said that on his way he met the son of the accused, a boy named Raratu, who was bleeding from a head wound. Raratu was with his sister Nei Benetea. The witness said he stopped a passing truck which took them to the clinic at Taburao.

The witness said that on his way home from the movie he went to see the deceased, who was lying close to the accused's house waiting for transport to the clinic. The witness saw the right side of his neck had been cut open. He said that the deceased was complaining as he lay there and appeared to he helpless. The witness waited until a vehicle arrived to take the deceased to Taburao.

The second witness for the prosecution was Raratu Kabunare, the son of the deceased. He gave his age as 14 but agreed when cross-examined that he is probably 16 or 17.

He testified that he went to have a wash before going to see the movie. He used a well near the accused's house. The accused lived on the eastern side of the road and the witness lived with his family on the western side. On his way back the witness said that he heard an argument coming from the accused's house. He could hear the voices of the accused and Kabunare, but he could not hear what they were arguing about. The argument went on for quite a while and then his father went back to his house. He then heard his father say: "If you come here I'll kill you". The accused did not reply.

The witness said that his grandmother Rebeka had been at the accused's house visiting her daughter, who is married to the accused. He said that he saw her come crawling out of the accused's house with a lantern. She was an old lady who was unable to walk. His father went over to help her to stand up and hold onto his shoulder so that he could lead her to the house.

According to the witness, the accused came from behind and struck his father on the back of the neck with a stick. His father fell to the ground and the accused then stabbed him. He ran over to help his father and struck the accused once on the back with a stick. The accused then turned on him and stabbed him in the neck with a knife, whereupon he ran away.

The witness said that he was treated at the clinic at Taburao where his injury was sutured. He showed the court a scar on the left side of his neck about 1 inch long.

When cross-examined, he readily agreed that he hated the accused for what he had done to his father, that he wanted the accused to spend the rest of his life in prison and that he would make sure his evidence achieved that. He at first denied that his father had been armed, but after being confronted with a statement he had made to the police he admitted that his father came back to the house and got a knife. He also agreed that his father was in a very bad temper. He denied, however, that his father had used the knife on the accused, although he agreed that the next day he had travelled to Tarawa in the same plane as the accused and had seen that the accused had two wounds on his left shoulder and one in the abdomen. He also admitted that he had not seen the accused hit his father with a stick. He denied that he himself had hit the accused with a bush knife, not a stick.

The third witness was Benetea Kabunare, a girl aged 16 and the sister of the previous witness.

She testified that on the day in question she was at home with her brother Raratu and her cousin Kantaake. Her father came home drunk and went to sleep, but half an hour later he woke up and went to the house of the accused. She could hear them singing for a short while and then her father returned. Her grandmother had gone to the house of the accused and was about to crawl back home, so her father went to help her. He was not armed. From the accused's house she heard a blow, as though something had been struck, like wood. She and Raratu saw the accused on top of her father hitting him with a stick. When the accused saw them he chased them. She ran away towards the village.

When cross-examined she too agreed that she hated the accused for what he had done to her father. When she was reminded of a statement she had given to the police she was prepared to admit that when her father left the house for the last time she was not sure whether or not he was carrying a knife. She did not know if her brother Raratu was carrying a bush knife when he went up to the accused but she agreed it was possible.

The fourth witness was a woman aged 18 named Kantake Binoka, who is the cousin of the previous two witnesses.

Her evidence was that she was in the house when the deceased came home drunk and tried to sleep. He could not sleep so he went over to the house of the accused. She could hear them singing for a while but then they started arguing about black magic. The deceased came back to the house to get a knife and he was given one by Raratu. The deceased then went to stand under a breadfruit tree and began shouting to the accused.

She said that she saw the deceased, with a knife held in his right hand, go to the accused's house to take his mother home. In contrast to the previous evidence, the witness said that the old lady came out of the accused's house walking normally without any difficulty. The old lady was carrying a lamp and the witness said that the accused knocked it out of her hand. She said that the accused then struck the deceased on the side of his stomach with a stick. After that she did not see what happened as she went back into the house. Whilst inside the house she heard the accused say that he would kill the deceased.

In cross-examination this witness likewise agreed that she hated the accused. She also agreed that when the deceased came back to get his knife he was angry, saying: "Where's my knife? Where's my knife? Give it to me and I'll go and kill him".

She agreed that she had told the police that when the deceased went to stand under the breadfruit tree he had yelled out to the accused: "Come over here. We will kill you". She further agreed that those words were used by the deceased.

She denied that the deceased had stabbed the accused in the side and did not know whether or not the accused had suffered any injuries.

The fifth witness was Mautaake Kekeia, a man aged 47. He comes from the village of Aonibuaka, which he estimated was about half a mile from Borotiam, where the incident occurred.

He testified that he saw the accused after the fight. The witness said that he was sitting in his house when the accused called out to him that he wanted a smoke. He knew the accused and invited him to come in. He saw that the accused had been injured. There were wounds to his left side and left upper arm which were bleeding. He said that the accused carried a knife in a sheath which he wore in a belt around his chest. The accused also carried a stick with two prongs at one end. He said that he asked the accused what had happened and the accused replied that he had stabbed Kabunare's neck. He said that the accused left after having a smoke and he did not know where he went.

The sixth witness was Binoka Tenano, a man aged 58 from the village of Koinawa, which is the next village to Aonibuaka where the previous witness lives. He testified that the accused visited him between 8 and 9 pm on the day of the incident. The accused had a knife and a stick with two prongs with him. He took them from the accused and hid them. Later he handed over the knife to the police, but the stick had been lost. He noticed that the accused's shorts were covered in blood. After the accused had told him that he was afraid of Kabunare's relatives he took the accused to the special constable.

The seventh witness was Detective Constable Tion Nemia. He obtained the accused's knife (which he produced in evidence) from the previous witness Binoka. He also produced a sketch plan of the scene of the incident.

The eighth witness was Special Constable Rikitaa Tamitong. His evidence was that on the night of the incident, at the request of Binoka, he arranged transport to take the accused to the hospital. He noted an injury to the left side of the accused and two injuries to the left upper arm.

The ninth witness was Medical Assistant Beneta Tokanang. He testified that on the night of the incident he treated the deceased's son Raratu at the clinic at Taburao. Raratu had suffered a cut to the back of his head on the left side near the ear, measuring 3 inches in length and ¼ inch in depth. The cut was sutured.

The witness also treated the deceased Kabunare. He had suffered 6 wounds. One was to his mouth, which was bleeding, and two teeth were broken off. There was a deep neck wound running from beneath the left ear around to the right ear. There was a wound to the back near the right shoulder blade two inches long and one inch deep. Beneath this was another wound 4 inches long and 3¼ inches deep. Underneath this again was another wound 2 inches long and ½ inch deep. Finally, just under that wound was another wound 4 inches long and ¾ inch deep. The witness closed off the veins and sutured the wounds, with the exception of the last-mentioned wound, which could not be sutured because he did not know where the blood was coming from. At that stage Kabunare was able to talk and smelled of sour toddy.

The witness said that he also treated the accused for two injuries. One was to his left upper arm and was 2½ inches long and ¾ inch deep. The other was to his left side and was 2 inches long and ¾ inch deep. Both injuries were sutured.

The tenth and last witness for the prosecution was Police Constable Kaitangare Toka. On the night of the incident he went to the hospital at Taburao where he saw Kabunare, Raratu and the accused. They were flown out to Tarawa the next morning. The witness then went to the scene, located witnesses and took statements. He looked for potential exhibits around the area of the incident but did not find any, although he did see a lot of blood on the ground.

When cross-examined he agreed that the relatives of the deceased had gathered at the clinic and were angry and wanted revenge. He said that he had seen injuries on the accused and had asked Benetea whether she had seen Raratu with a knife. He said that when he went to the scene he saw Kantake and 4 other people at the deceased's house but they were not willing to assist him with his enquiries.

The last piece of evidence for the prosecution was a report from Dr Pritt Melnik, of Tungaru Central Hospital, which was put into evidence as a formal admission on behalf of the accused under section 126A of the Criminal Procedure Code Cap. 17. The report states that the deceased died on 2 March 1998 of breathing failure caused by the collapse of his left lung (pneumothorax).

That completed the case for the prosecution. I found that there was a case to answer whereupon the accused elected to give evidence.

The accused, Kairaku Toawea, aged 32, told of going to Kareimoa's place for a drink of sour toddy on the day of the incident. He had with him two coconut crabs, a stick with two prongs on one end which he had used to dig for and hold the crabs, and a knife in a belt around his chest, which he used to prepare coconuts for drinking. He gave the knife to Kareimoa because it would have been rude to be armed with a knife when drinking with another person. The accused gave evidence of the deceased, Kabunare, telling him about how he could kill him with black magic and later punching him in the face. He told of how Kabunare kept challenging him to come out and fight. When Kabunare left, the accused said that he ran after him intending to ambush him, but he was restrained by a man named Nauma. The accused said that he was angry but Nauma calmed him down. He went back to Kareimoa's place, finished his drink and picked up his knife and stick.

The accused said that when he arrived home he was surprised to find Kabunare at his house. He told Kabunare he was not happy about being punched and Kabunare replied: "What do you know, you who knows nothing on Borotiam, what are you talking about?" Nei Rebeka, who was Kabunare's mother and the mother-in-law of the accused (she died in March 1998) told them to stop arguing and they did. He and Kabunare then obtained some more sour toddy and started drinking and singing. However, the deceased soon got back onto the subject of black magic, saying things like: "If I want to kill you now you are dead. If I use black magic you are dead". The accused said that he himself was not angry or hostile but he was not sure about Kabunare.

According to the accused, they left his home intending to get more drink at Kabunare's house. Kabunare was walking ahead. When they reached a breadfruit tree near the side of the road, Kabunare turned around and said: "Hurry up. As soon as you get here I'll kill you". The accused said that he was surprised at this and stopped in the middle of the road. Kabunare then called out: "Don't waste time. Hurry up. Are you afraid". The accused said he did not answer but returned to his home. As he went he heard Kabunare shout: "Benetea, give me that knife".

When he reached his house Nei Rebeka was just leaving. The accused said that although she was an old lady she was capable of walking. He told her to take a lamp with her to light her way.

As Nei Rebeka was leaving the accused said that he saw Kabunare coming straight towards his house. The accused said that after hearing Kabunare ask for his knife and recalling his other actions, he knew that Kabunare had come to fight. The accused said that as soon as he stepped outside Kabunare stabbed him in his left side with a knife. The accused said that he moved away and grabbed his stick, and as Kabunare came at him again he hit him with the stick. He was not sure where he hit him but thinks it might have been on the back of the neck on the right side. Kabunare fell but got back to his feet and came at him again, still with the knife in his hand.

According to the accused, Kabunare's son Raratu approached from behind and struck him on the left upper arm. At the time, the accused did not know whether Raratu used a stick or a knife, because he was concentrating on Kabunare, but he felt his arm begin to ache. As Kabunare came towards him again the accused struck him with the stick and Kabunare fell to the ground, dropping the knife. The accused bent to pick up the knife and saw Raratu about to strike him again. It was then that he saw that Raratu was armed with a bush knife. The accused said that Raratu struck him again on the left shoulder and he struck out at Raratu. He hit him and Raratu ran away. The accused said that he did not know when the struck out at Raratu whether he held the knife or not, as he had lost control of his mind. He said that at that stage Kabunare was back on his feet and he thought that the two of them were going to kill him.

The accused said that he then fought with Kabunare. The knife was in his hand and he was angry and in pain from the blows he had received. He had lost control of his mind.

He next heard Nei Rebeka calling: "Enough, enough, enough". He was lying on top of Kabunare. When he stood up he saw that Kabunare had been severely injured and he began to feel afraid. He looked at the old lady and began to cry. He then walked away without knowing where he was going. He took his stick with him and was still wearing his own knife, which he had not used, in the belt around his chest. He left Kabunare's knife on the ground.

The accused then told of reaching Mautaake's house covered in blood and of later going on to Binoka's house. He said that he was in anguish and asked Binoka for help. He was taken to the hospital where his wounds were sutured. He showed the court a scar about 2¼ inches long on the top of his left shoulder, a scar about 3 inches long on the left upper arm behind the bicep and a scar about 3 inches long at the bottom of his ribs on the left side. All of the scars were quite prominent.

The accused said that he was taken to the hospital on Tarawa the next morning and spent about a week there.

That was the close of the case for the accused. I then heard addresses from counsel for the prosecution and counsel for the accused in that order.

In relation to the charge of murder, it is contended by the prosecution that the question is who is to be believed at the end of the day? If the prosecution witnesses are believed then the accused was the aggressor and was not provoked. The deceased went to the accused's house simply to pick up his mother and was attacked by the accused.

The prosecution argues, however, that even if the court were to find that there had been provocation, a reasonable man would not have lost his self-control.

As regards the second charge of assault occasioning actual bodily harm to Raratu, the prosecution submit that if the evidence of Raratu is believed then the accused is guilty but that if the accused is believed then he is entitled to be acquitted.

Counsel for the accused in relation to the charge of murder, correctly concedes that the defence of self-defence is not available, pointing out that the accused admitted losing self-control and that the nature of the injuries suffered by the deceased is inconsistent with a controlled response. However, it is argued for the accused that the appropriate verdict is one of not guilty of murder but guilty of manslaughter on the basis of provocation.

In respect of the second charge, it is argued that the prosecution have failed to prove beyond reasonable doubt that the accused was not acting in self-defence and that the accused should therefore be acquitted.

Before considering the evidence I direct myself that the burden of proof beyond reasonable doubt remains upon the prosecution from first to last. The prosecution must prove the charge and each element of the charge beyond reasonable doubt, and if it fails to do so then the accused is entitled to be acquitted. The accused is never under any obligation to prove his innocence.

In the present case, to discharge its burden in respect of the charge of murder, the prosecution must prove beyond reasonable doubt that the accused caused the death of the deceased by an unlawful act, with malice aforethought.

On the issue of provocation, the effect of section 197 of the Penal Code in that where the person causing the death by an intentional and unlawful act was deprived of the power of self-control by such extreme provocation as is mentioned in section 198, the offence committed is not murder but only manslaughter.

Section 198 provides as follows:

"198. 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".

The Kiribati Court of Appeal has held in several cases that section 198 requires the court to apply a dual test for provocation. First, was the accused actually provoked into losing his self-control as a result of which he committed the act which killed the deceased? Secondly, was the provocation such that it was capable of causing an ordinary person to lose self-control and to act in the way that the accused did? The burden of negativing provocation beyond all reasonable doubt lies on the prosecution.

In my view the accused's testimony had the ring of truth about it. He was certainly not shaken in cross-examination. His evidence of being taunted by the deceased at Kareimoa's place that he could kill him by black magi, of being punched in the face by the deceased and of being challenged to a fight by the deceased, was consistent with what was said in evidence by Kareimoa, the first prosecution witness.

The accused's claim that when he arrived at his house to find the accused there he was again insulted by the deceased and subjected to further threats of death by black magic was supported to some extent by Kantake, the fourth prosecution witness, who said that she could hear an argument about black magic coming from the hose of the accused.

The accused said that when the deceased came to his house he had come to fight. The evidence of the deceased's son Raratu and the deceased's daughter, Benetea, was that the deceased had gone to the accused's house merely to bring his mother home, because she could not walk. However, I did not accept that evidence. Their cousin Kantake stated that the deceased's mother was able to walk normally, and this was consistent with what the accused said in evidence.

It must also be considered that both Raratu and Kantake stated that they had heard the deceased threaten to kill the accused not long before the fight took place. Kantake stated that when the deceased went to the accused's place, the deceased went armed with a knife. Raratu was compelled to admit the same thing under cross-examination. Benetea gave evidence that her father was not armed but had to admit in cross-examination that she had told the police that she was not sure whether the deceased had been armed or not. Benetea also admitted that she was not sure whether Raratu had gone to the accused's house armed with a bush knife but conceded that it could have been possible. I am quite satisfied on the evidence that the deceased went to the accused's house armed with a knife to fight with the accused and not merely to bring his mother home as claimed by the prosecution witnesses.

Having found that the evidence of the accused that he was stabbed by the deceased and stabbed from behind by Raratu becomes all the more credible. And the accused had the wounds to prove it. In relation to those wounds, I am convinced that the Medical Assistant was mistaken when he said that he saw a wound to the left side of the accused but only one would to the left upper arm. Apart from the accused's evidence, Raratu and Special Constable Rikitaa both testified that they had seen two wounds to the accused's left upper arm. The mistake can be explained by the fact that the Medical Assistant had no independent recollection of the injuries, and relied on what was recorded on his report, which was put into evidence. This report was composed about a week after his examination from notes he had made at the time. Obviously either the original notes or the report, or both, were incorrect.

Taking into account everything done and said by the deceased, I am not satisfied beyond a reasonable doubt that the accused was not provoked into losing his self-control, nor that the provocation was not capable of causing an ordinary person to lose self-control and act in the way the accused did.

There is no question that the accused caused the death of the deceased by an unlawful act, but having found that there was extreme provocation within the terms of section 197 and 198 of the Code I cannot convict the accused of murder but only of manslaughter.

The accused is accordingly found not guilty of the charge of murder but guilty of the offence of manslaughter.

I come now to deal with the second charge of assault causing actual bodily harm to Raratu.

The law is that a person who is attacked may defend himself, and in so doing may do what is reasonably necessary to defend himself. The onus, of course, lies on the prosecution to negative self-defence beyond all reasonable doubt.

I preferred the version of event given by the accused to that given by Raratu, Benetea and Kantake. In my view the prosecution evidence fails to eliminate any reasonable possibility that the accused was acting in self-defence when he struck out at Raratu. He is therefore found not guilty of that charge and acquitted accordingly.

SENTENCE

The accused is a 32 year old man who, prior to this offence, led a subsistence lifestyle on the island of Abaiang. He is married with a 6 month old son and has the responsibility of bringing up another child from a previous relationship. His education is limited having left high school after a very short period.

I accept that the accused has always been willing to plead guilty to a charge of manslaughter and I am prepared to regard him as having made a timely plea. He is a person of previous good character.

Taking all of those matters into account as well as the fact that the provocation was of a very high degree, I think that the appropriate sentence is as follows. The accused is convicted of the offence of manslaughter and sentenced to imprisonment for a term of 4 years, which term shall commence from 28 February 1998 which was the date on which he was taken into custody.

Dated the 10^th day of August 1998

THE HON R B LUSSICK
CHIEF JUSTICE