Republic v Collins [1998] KIHC 45; HCCrC 04.98 (21 September 1998)

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

Criminal Case No. 4 of 1998

THE REPUBLIC

vs

RATEUEA COLLINS
DAVID COLLINS

For the Republic: Ms Pole Tebao
For the Accused: Mr David Lambourne

Date of Hearing: 31 August, 1, 14 September 1998

JUDGMENT

The two accused, who are husband and wife, have pleaded not guilty to a charge of doing grievous harm contrary to section 220 of the Penal Code Cap. 67, in that on 16 July 1997 between 1200 hrs and 0100 hrs in the Betio Saloon Bar at Betio, South Tarawa, they unlawfully did grievous harm to Tania Temeta, namely, biting off a piece of her right ear.

In addition, the husband, David Collins, has pleaded guilty to a charge of common assault contrary to section 237 of the Code, in that on 16 July 1997 between 1200 hrs and 0100 hrs at the Betio Saloon Bar he did unlawfully assault Tiaon Iosefa.

The case for the prosecution, in a nutshell, is that the accused Rateuea Collins attacked the complainant and, in the course of the attack, bit off most of her right ear. The co-accused David Collins aided and abetted her by encouraging her and preventing others from interfering.

The victim, Tania Temeta, and two companions who were with her that night, Terenga Schutz and Bwaebwae Kamwawa, gave evidence for the prosecution.

Tania Temeta is a woman aged 30 who works as a bank officer. She is quite solidly built and a much larger person than the accused Rateuea Collins who, by any standards, is quite small.

Tania Temeta's evidence was that earlier that night she had been at Terenga's house helping with the cooking for a function that was being held there. She and Terenga were drinking wine and Bwaebwae was drinking beer. After the function, at around midnight, the three of them went to the Royal Saloon. She and Terenga bought a drink each, which they carried with them to the Betio Saloon. In the Betio Saloon the accused Rateuea came up to her and wanted to know why Rateuea's sister had been angry with her a few days earlier. While she was explaining what happened, Rateuea leapt at her. They fell to the ground where they struggled and pulled each other's hair.

She said that she was lying on her left side with Rateuea on top when she felt Rateuea bite her cheek and, later, her ear. At that stage she heard a man's voice saying that nobody was to restrain them. She recalls being pulled out of the bar with her hand still grabbing Rateuea's hair. Before that, however, she had been kneeling with Rateuea standing above her and that was when she realized part of her right ear was missing.

Tania said that when outside a lady separated them. They let go of each other's hair and Tania then went home. She woke her sister and they went to the hospital. Someone had found her ear and taken it to the hospital. All that remained was a tiny part of the lobe at the bottom. The doctor at the hospital sewed the ear back on but the operation was not a success. She went to New Zealand for an operation in which the dead ear was removed and she was fitted with a prosthetic ear.

Tania added that her cheek was bruised where Rateuea bit it, and that her right eye was inflamed after being poked by Rateuea.

In cross-examination Tania agreed that in an earlier incident that she had bitten the husband of Rateuea's sister. She denied boasting to Rateuea how good she was at fighting and biting. She also denied telling Rateuea how she had bitten a person named Nei Meeri in a fight. When asked whether she had in fact fought Nei Meeri she neither greed nor disagreed, but simply answered, "I don't know". She denied that after they had fallen to the ground she had complained to Rateuea that she had not been ready and that Rateuea then stood up to give her time to prepare. She was not sure whether her ear was bitten off while she was lying on her left side with Rateuea on top but she felt pain in her cheek and later her ear. It was put to her that when she was kneeling down and Rateuea was standing her teeth were deep inside Rateuea's forearm. She replied that she did not know if she bit her or not. It was put to her that her teeth would not have let go of Rateuea's forearm had not Rateuea bitten her. She replied that she would not know. In re-examination, she was asked whether she had bitten Rateuea that night and she replied that she could not remember.

The second prosecution witness was Terenga Schutz, a woman aged 26. She said that after the three of them had arrived at the Betio Saloon Tania left their company to go and talk to some women near the bar, one of whom was Rateuea. She went over to Tania and told her it was time to go home but Tania wanted to finish her conversation with Rateuea. The witness said that she then went to sit at the bar with Nei Toka. A fight broke out between Tania and Rateuea. When she first saw them they were standing up pulling each other's hair, then they both fell to the ground. She went over to restrain them but Rateuea's husband David would not let her, saying that "You have nothing to do with these people. It is my wife who is fighting". The bouncer then dragged them both outside. When she got outside she saw them both standing. Rateuea was leaning against a wall with Tania facing her. They were pulling each other's hair.

David was standing beside them. A man named Tiaon Iosefa came up and said to David, "Why are you making these two fight like that?" David replied, "Have you anything to do with these people?" David then punched him in the eye. After that she saw a woman leading Tania away. Tania was bleeding from her hair down to her shirt. She asked her what had happened but Tania did not answer.

The third and last witness for the prosecution was Bwaebwae Kamwawa, a woman aged 47. She said that when the three of them arrived at the Betio Saloon, Tania went off to talk to some other women. She later heard that a fight had broken out and she went to watch. She saw Tania lying on her left side with Rateuea on top of her. She looked around for someone t stop them. Later, when she looked at them again she saw Rateuea standing up. Rateuea made a spitting motion towards her and she saw that Rateuea's mouth was full of blood. Tania was in a sitting position. As she watched them fighting on the floor, she saw that Tania's right ear was missing. Rateuea was sitting on top of her holding up her hair and she could see that the right side of Tania's head was covered in blood. She had thought at first that Tania had been stabbed in the neck. Some people tried to restrain them and a big fight started. Tania and Rateuea were still fighting as they were pulled outside. She did not see them outside as she was watching other fights. She later left with Nei Terenga.

In cross-examination she was confronted with a statement she had made to the police on 15 September 1997. In that statement she had told the police that she had not seen Tania injured that night but had heard later from Terenga that Tania had been injured. She agreed that she gave the police two more statements in August 1998. She at first attempted to explain the discrepancy between her first statement and her sworn evidence by saying that the statement was not complete. She said that when her statement was taken she told the policeman not to take all of it down because she could not clearly recall all of what happened that evening but that she would try to remember. The policeman said he would come back later but never did. She later telephoned the police and offered to give another statement. However, later on in cross-examination she admitted that when she gave her first statement to the police she was lying because she did not want to be involved. She agreed that while walking back home with Terenga they had discussed the fight but that they both did not know what actually happened and they did not want to be involved.

The only other evidence for the prosecution was a medical report dated 16 July 1997 from Dr Kautu Tenaua, which was admitted as a formal admission by the accused pursuant to section 126A of the Criminal Procedure Code Cap. 17. The report shows that the following injuries were noted on Tania Temeta:

1. The right auricle (pinna) was completely detached, consistent with avulsion.
   
2. There were teeth marks on the right cheek.
   
3. Swollen right upper and lower eyelids with haemorrhagic conjunctiva.
   
4. Bruising and swelling on the forehead.
   

At the close of the case for the prosecution I found that there was a case to answer. The accused Rateuea Collins elected to give evidence. She was the only witness called for the defence.

Rateuea Collins is aged 25 and works for the Development Bank. She said that before the fight started, she had a conversation with Tania in the Betio Saloon. She asked Tania what had occurred between Tania and Rateuea's sister. Tania answered that Rateuea's sister was angry because Tania had bitten her husband. More words were said on this subject. Rateuea said that she spoke softly but Tania spoke rudely. She said that during the conversation Tania claimed that she had fought and bitten Nei Meeri who had touched Tania's husband and had also fought Nei Ioanna for the same reason. She said to Tania that that shows that Tania is really tough, Tania answered yes, and that's when the fight started.

They pulled each other's hair and then both fell over. Tania was angry that Rateuea had not given her a chance to prepare herself, so Rateuea felt ashamed, stopped fighting and stood up. When Tania was ready they commenced fighting again. While they were pulling each other's hair they fell over. Rateuea was worried because Tania is a very experienced fighter who has been involved in many fights and is much bigger than she is. They were both pulled outside, she by her husband David and Tania by the bouncer.

When outside they stood pulling each other's hair but then both fell over, with herself on the bottom. After a struggle, she managed to get Tania off her. Tania got up and they again began pulling each other's hair. Again they fell over. She got to her feet and Tania, who was in a half-sitting position, then bit her arm. Rateuea showed the court a circular scar on her right forearm near the elbow. Parts of her flesh around the scar were indented. There was very prominent scarring at the top of this circle and slightly less prominent scarring at the bottom. Rateuea said that she tried to pull Tania's head away with her left hand but Tania dug her teeth in deeper. Rateuea explained that that was why she had been left with two scars. She said that she was in great pain and her attempts to move Tania's head were making Tania bite deeper. Tania's right side was facing her with Tania's head next to her chest. Rateuea said that at that stage she had lost control and just bent over to bite Tania. She did not have time to think what part of Tania's body she was going to bite. When she bit Tania she at first could still not free her arm. Much later, while she was still biting Tania, she felt Tania's teeth release her arm. She did not realize at the time that she had bitten Tania's ear, but found out about two days later.

Rateuea said that after Tania had taken her teeth from her arm, she, Rateuea was lifted up and taken outside the circle of spectators. That was the end of the fight. Blood was running from hera rm and a friend tied a cloth around it. Rateuea said that it never occurred to her to report the matter to the police and she did not think that Tania would do so. Accoridng to Rateuea, she should have been the one to report it because Tania bit her first. She said that Bwaebwae was lying when she testified that Rateuea had bitten Tania while she was on top of her and had spat out blood.

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

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 this burden in respect of the charge of doing grievous harm, the prosecution must prove beyond reasonable doubt:

(i) that an injury amounting to grievous harm was done to the victim, and

(ii) that it was done by the accused, and

(iii) that it was done unlawfully.

Counsel for the accused concedes that the injury caused to the complainant's ear amounted to grievous harm and I am satisfied beyond any doubt that such an injury falls within the definition of "grievous harm" provided in section 4 of the Penal Code.

The real issue in this case is whether or not the first accused, Rateuea Collins, in causing the grievous harm, was acting unlawfully. The law is that a person who is attacked may defend himself, and in so doing may do what is reasonable necessary to defend himself. The onus lies on the prosecution to negative self-defence beyond all reasonable doubt.

The defendant's case is, of course, that Rateuea, in biting Tania's ear. Was doing no more than was necessary to defend herself.

The prosecution's case is that Rateuea's biting of Tania's ear was an act of aggression, not self-defence. Alternatively, if it was an act of self-defence then the force used was not reasonable.

On Tania's version of the facts, she was having a conversation with Rateuea when the latter suddenly attached her and eventually bit off her ear.

On Rateuea's version, a fight started between them which at first consisted of no more than struggling and pulling each other's hair. But then Tania sunk her teeth into her arm. The more tateuea struggled, the deeper Tania bit. She was in pain and her efforts to free her arm were not successful so she bit Tania to make her let go.

As to the question of whom started the fight, I am satisfied that the answer must be Rateuea. She admitted in her evidence that she had felt ashamed when Tania accused her of not giving her a chance to prepare herself, and that she consequently stopped fighting so that Tania could do so. The only reasonable conclusion to be drawn from this is that Rateuea must have been the initial aggressor. However, having found that, I accept that Rateuea did stop the fight to enable to prepare herself. I am satisfied that from that point on, if not before, they were both willing participants in the fight.

On the issue of the act alleged to constitute the doing of grievous harm, there are only the competing versions of Tania and Rateuea to consider. The second prosecution witness, Terenga Schutz, did not see the biting incident, and I regarded the evidence of the third prosecution witness, Bwaebwae Kamwawa, as completely unreliable. I formed the impression that Bwaebwae would not hesitate to tell a lie if it suited her convenience. I was unable to tell from her evidence where the lies ended and the truth began, if it ever did.

I should emphasise here that it is not just a question of making a choice between one version and the other. To put the matter that simply would be to substantially reduce the significance of the prosecution's burden of proof. After considering the whole of the evidence, I must be satisfied that the prosecution have proved the charge beyond a reasonable doubt, notwithstanding the sworn denial of the accused, and it is not absolutely essential that I believe that the accused was telling the truth before she is entitled to be acquitted. There is no burden of proof imposed on the accused to establish an issue affording justification or excuse at common law, such as self-defence. It is for the prosecution to eliminate any reasonable possibility that the act was done in self-defence.

There is done point of law which should be mentioned here. Counsel for the Republic in his submissions relied what was said by the Court of Appeal (Criminal Division) in R.v. Julien (1969) 53 Cr.App.R. 407) (41^st Edit.) para. 20129 that "it is necessary that a person claiming to exercise his right of self-defence should have demonstrated by his action that he does not want to fight. He must demonstrate that he is prepared to temporise and disengage". This was subsequently held, in R. v. Bird [1985] EWCA Crim 2; (1985) 81 Cr.App.R 110, to be too restrictive. It is not "necessary" to demonstrate by one's actions an unwillingness to fight and a defendant is entitled to rely on a plea of self-defence even though he is unable to so demonstrate. Failure to demonstrate unwillingness to fight is merely a factor to be taken into consideration in determining whether the defendant was acting in self-defence, although evidence that he tried to call off a fight is likely to be the best evidence to cast doubt on a suggestion that he was the attacker, retaliator or acting in revenge and was thus not acting in self-defence. (See also Archbold 1992 para 19-40; Blackstone 1991 para A3.34).

In my view, Tania's evidence relating to the biting incident did not exclude the possibility that Rateuea was telling the truth. Rateuea had a very clear memory of the incident, whereas Tania did not. Tania did agree that there was a time in the fight when she had been kneeling with Rateuea standing above her. It will be remembered that this was the occasion on which Rateuea claimed she had been bitten by Tania. It was suggested to Tania in cross-examination that she had first bitten Rateuea. She did not deny it, but said that she did not know whether she had bitten her or not and, later, that she could not remember. I found it curious that Tania would not remember doing something of that nature. Her reluctance to deny it and the fact that biting opponents is not something new to her, when considered alongside Rateuea's very positive recollection of the incident, with the scars to prove it, led me to prefer Rateuea's evidence on that issue. I am quite satisfied that when Rateuea bit Tania's ear she was motivated by self-defence and not by aggression or revenge.

The question left to be decided is whether Rateuea used no more force than was necessary for mere defence or did she go beyond that?

Where an accused relies on self-defence the test is that the force used must be reasonable in the circumstances. In deciding whether the force used was reasonable, all the circumstances may be considered. The matter is one of fact and not one of law (Halsbury 4^th Edit. Vol. 11 para 1180).

As has been seen, the circumstances in the present case, according to Rateuea's evidence, were that she was fighting a much larger opponent who changed the nature of the fight from merely struggling and pulling hair to biting. She unsuccessfully tried to pull her arm away from Tania's mouth and tried to push Tania's head away with her other hand. Her attempts to free her arm were causing Tania to bite deeper. She was in pain and had lost control. It would be nonsense to suggest that she was obliged to remain in that position until either she had devised a way to extricate her arm from Tania's mouth without hurting Tania, or until Tania had tired of biting her. Obviously stronger measures were called for. It was clear from her evidence that she did what she did, in the agony of the moment so to speak, because she believed it was necessary to protect herself. With the benefit of hindsight there may possibly have been something else she could have done, kicking perhaps. But her evidence was that what she did do was all that she could think of doing at the time. In defending herself by returning a bite for a bite, she in fact did not use any weapon not already used by Tania.

There is no question that her bite inflicted more damage than Tania's bite. However, in the circumstances, she was hardly in a position to weigh up with any exactitude the degree of injury she was going to have to inflict in order to free her arm. Thus, in the classic pronouncement upon the law relating to self-defence, that of the Privy Council in Palmer v. R [1970] UKPC 2; (1971) 55 Cr.App.R. 223, Lord Morris of Borth-y-Gest said (at p.832):

"it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attached had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken. A jury will be told that the defence of self-defence, where the evidence makes its raising possible, will only fail if the prosecution show beyond doubt that what the accused did was not by way of self-defence".

In my opinion, the degree of force used was reasonable in the circumstances. It is therefore my judgment that the prosecution have not satisfied the burden of negativing self-defence beyond all reasonable doubt or, to put it another way, the prosecution have failed to eliminate any reasonable possibility that Rateuea acted in self-defence.

It follows that Rateuea Collins and the co-accused David Collins must be found not guilty of the charge of doing grievous harm contrary to section 220 of the Code, and they are acquitted accordingly.

THE HON R B LUSSICK
CHIEF JUSTICE
(21 SEPTEMBER 1998)

SENTENCE

As had already been mentioned, the accused David Collins, had pleaded guilty to a charge of common assault. The accused is a first offender and has pleaded guilty. He will be given the appropriate credit. No evidence has been placed before me the victim suffered any physical injury, although it was elicited during the course of the trial that he struck the victim with sufficient force to knock him to the ground.

In all the circumstances he is convicted and fined $100 which must be paid on or before the 21^st October 1998 in default 1 month's imprisonment.

THE HON R B LUSSICK
CHIEF JUSTICE
(21 SEPTEMBER 1998)