Republic v Terakoro [1999] KIHC 6; HCCrC 23.98 (25 January 1999)

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

Criminal Case No. 23 of 1998

THE REPUBLIC

vs

UEANTEITI TERAKORO

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

Date of Hearing: 18, 19 January 1999

JUDGMENT

The accused has pleaded not guilty to a charge of manslaughter contrary to section 192 of the Penal Code (Cap. 67) in that on the 25th day of June 1998 at Bubutei Village, Maiana Island, he unlawfully killed a man named Baaka Taburi.

The accused has admitted killing the deceased, both in a cautioned statement given to the police and in his sworn evidence before this Court. The only real issue is whether or not the accused was acting in self-defence. The prosecution concede that the actions of the deceased towards the accused constituted provocation sufficient under the law to reduce the charge to manslaughter. However, the prosecution's case is that the force used by the accused was not reasonably necessary to defend himself.

The following facts are not in dispute.

The deceased was a large man, over 6 feet tall and solidly built. He was much bigger than the accused. The deceased was a very heavy drinker who, when drunk, became overbearing, aggressive and violent. He had a very bad criminal record of 42 convictions between the years 1967 and 1995. Those convictions included crimes of violence and a serious sexual offence, i.e. defilement of a girl under 13 years of age. He had served at least 16 terms of imprisonment.

On the other hand, the accused had never been known to be violent, had never caused trouble, was always happy and was trusted by the people. In fact, he had been elected by the unimane of the village to be the village warden. He had no criminal history. Epilepsy had left him with a weakened left arm.

The deceased had been living with the accused and his family. In the early evening of 25 June 1998 the deceased came home drunk. He ordered the accused to bathe him and massage his shoulders, which the accused did. The deceased then commenced drinking an alcoholic drink called bingo. A couple who were neighbours visited the house. He told the man to fan him, which the man did, and suggested to the woman that she go to bed with him that night.

He then ordered the accused to go and buy some tins of food so that they could have a feast. The accused did not do this, telling the deceased that the shop would be closed and it would be better to postpone the feast. The deceased flew into a rage, produced a bayonet and threatened to cut the accused, his wife and child into pieces and use them as fertilizer for his babai. The deceased then struck out at the accused many times with the bayonet, but the accused was able to avoid the blows. One blow hit the floor, another hit the beam of the house and others hit a mat which the accused held between them.

In the meantime the accused's wife had run screaming to the neighbours' house with her baby. The accused also managed to run away to another house. The deceased got a torch and chased him, still holding the bayonet. When the accused reached the other house he found a fishing spear which he used to ward off the deceased's strikes with the bayonet.

The deceased threw the bayonet at the accused, nearly hitting the lady who lived there. She grabbed her child and ran away. The accused then threw the spear at the deceased and ran away, not knowing whether the spear had hit him or not.

The prosecution did not produce any witnesses who were able to say what happened after that. Instead, the accused's cautioned statement was put into evidence. Other witnesses called by the prosecution were a detective corporal to prove the voluntariness of the statement and a medical assistant to prove the cause of death, which was loss of blood from two large wounds, one to the throat and one to the abdomen. There was a third wound to the chest which could not have caused death.

After I had found that a prima facie case had been established, the accused elected to give evidence. He testified that after he had run away, he kept the deceased in view because he was afraid for his wife and child. He saw the deceased walk some distance and then sit down on the road. The deceased was still uttering threats against the accused. The accused heard the deceased then call out for the accused's wife – who was the niece of the deceased – to come and help him. He was shouting to his niece that her husband had wounded him. The wife was not there. The accused, remembering that he had thrown a spear at the deceased, felt sorry for him and regretted what he had done. The deceased was uttering repeated threats of what he would do to the accused. Nevertheless, the accused thought he needed help and went to look at him, but did not go within reach. He remembered seeing the deceased earlier with a bayonet and a hunting knife. He knew the deceased no longer had the bayonet but he suspected that he still had the hunting knife. The accused therefore went home and got his toddy knife to protect himself if need be. Having done that, he went to the accused with the intention of helping him.

Suddenly the deceased stood up and leapt at him. The accused was frightened. He thought that the deceased had only been pretending to be injured, and he suspected that the deceased was carrying the other knife. They struggled. The accused ducked under the right arm of the deceased, got behind him and they both fell down. He remembered making 2 strikes with his knife. He did not realize that the deceased had been unarmed until he saw the body the next morning.

Before considering the evidence I directed myself that eh 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 a reasonable doubt and if it fails to do so then the accused is entitled to be acquitted. There is never any onus on the accused to prove his innocence. To satisfy that burden in the present case the prosecution must prove that it was the accused who caused the death of the deceased and that such death was caused by an unlawful act or omission. It is this second element which forms the central issue of the present case.

An act causing death is not unlawful if it was done in self-defence. The law is that a person who is attacked may defend himself, and in doing so may do what is reasonably necessary to defend himself. The onus lies on the prosecution to negative self-defence beyond all reasonable doubt.

I accept the accused's evidence of how the death occurred.

In considering whether the accused did only what was reasonably necessary to defend himself, the court must take into account the motives of the accused. Thus, in the Privy Council case of 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 attacked 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 it raising possible, will only fail if the prosecution show beyond doubt that what the accused did was not by way of self-defence".

On the question of whether the force used was reasonable, all the circumstances may be considered. The matter is one of fact and not one of law (Halsbury 4th Edit. Vol. 11 para. 1180).

In the present case, the facts relevant to that issue are as follows:

1. The deceased was a large, powerful man with a violent history.
   
2. The deceased had threatened to kill the accused and his family with a bayonet.
   
3. The deceased had followed up that threat by making numerous attempts to stab the accused.
   
4. When the accused approached the deceased on the road the deceased was still making threats to kill him.
   
5. The deceased owned a hunting knife as well as a bayonet, and the accused had seen him with the hunting knife earlier that day.
   
6. The deceased had suddenly leapt at the accused, indicating that he may have been pretending to be injured.
   

As it turned out, the deceased had not been armed. However the law, as enunciated by the Privy Council in Beckford v. The Queen [1987] UKPC 1; (1988) AC 130, is that a person may use such force as is reasonable in the circumstances as he believes them to be. The accused, in view of the earlier events, had good reason to suspect that the deceased may have still had a knife, and I accept his sworn evidence that he in fact held that belief. In the light of such belief, coupled with the actions of the deceased, I do not think it can be said that what the accused did was unreasonable.

It follows that the prosecution have failed to eliminate any reasonable possibility that the act was done in self-defence.

The accused is therefore found not guilty of the charge of manslaughter and is accordingly acquitted.

Dated the 25th day of January 1999

THE HON R B LUSSICK
CHIEF JUSTICE