Republic v Tekanene - judgment [2001] KIHC 7; Criminal Case 40 of 2000 (26 January 2001)

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

Criminal Case No. 40 of 2000

THE REPUBLIC

v.

ATAAKE TEKANENE

FOR THE REPUBLIC: Mr Kirata Komwenga
FOR THE ACCUSED: Mr Banuera Berina

Date of Hearing: 26 January 2001

JUDGMENT

It was a misunderstanding. Ataake believed that the victim, Rotau, had been in a fight with his son. In fact Rotau had not been in the fight: it was Rotau’s cousin Tenangiraoi. Rotau is now 25, Tenangiraoi is 18 and Ataake 40.

It happened on 26 November 1998 at Buota. About 7 o’clock in the evening Rotau and Tenangiraoi were walking home to Abatao. They realised a man (it turned out to be the accused) was following them: they began to run: the man ran after them. They separated: Tenangiraoi went one way and Rotau another. Tenangiraoi did not see what happened to Rotau after that.

What precisely did happen is not clear. Rotau says that the accused “torched” him (that means shone a torch in his face), went to hit him with the torch, missed but hit him with a “spear” which he was carrying. Rotau was the only witness to say the accused had a spear. The accused denied it and Tenangiraoi said, “I only saw him carrying a torch”. Nei Anna Bangao who came on the scene and told the accused he had the wrong man said, “I saw Ataake carrying nothing apart from a torch.” I find that the accused had only a torch, no spear.

Mr Berina, for the accused, used this inaccuracy of Rotau’s to challenged his whole account. I do not accept Mr Berina’s argument. I expect Rotau was terrified by what was happening: to be chased, in the dark, by a man unknown is a terrifying thing. I do not blame him for making the mistake: I believe it was a genuine mistake on his part. I thought Rotau an honest witness doing his best to tell of events as he believed them to have happened: I do not reject the rest of his evidence for this mistake.

This is Rotau’s account in evidence in chief:-

.....about 7 o’clock I was at Buota. I was on my way back to Abatao. We were chased by the accused. He had a torch. I was with a male cousin, Tenangiraoi. Accused carrying something with a sharp point, think a spear, about as long as my arm. I looked back at him and ran away and hid myself in a pit. He was going to kill me – he said that the second time when he caught me. Nei Anna and other members of his household came and restrained him. When I first ran away he caught me – shone torch on me and went to strike me but luckily I was not hit. He wounded me with the other thing he was carrying: the right side of my chin and chest. I felt pain. Nei Anna took me away and dabbed wound on chin with kerosene. (My note).

Whether the accused threatened to kill Rotau I do not know. Rotau was insistent that he did: according to the accused all he said was, “Why did you attack my son” and Rotau denied it.

One thing is certain. Rotau was injured:-

......taken to hospital. Treated me – wound on jaw stitched: one on chest treated. Given some pills for the pain. About a month to heal.

Nei Anna confirmed an injury:-

On Rotau’s chest a minor injury – seemed like a scratch which was bleeding – on the chin the same: not a cut.

Unfortunately no one from the hospital was called so that is all the evidence of the injury I have.

I find that Rotau suffered abrasions on his chin and on his chest: they were not serious.

Later in the evening a young police officer took an “open” statement from the accused. Had Mr Berina objected to its tender I would have refused to receive it: the accused had not been cautioned before it was taken. However Mr Berina was anxious for me to see it: his client gave evidence and confirmed its accuracy. The relevant part:-

The two boys were walked on the road. Rootiabine said to me that one of the boy was Tenangiraoi which is the one that thrown my son to the ground. I got and we went after those two boys. But they ran away so I followed them and they disappeared near the sisters home at Buota. I followed them but when I almost reach that boy he suddenly stopped. That when I bumped into him and fell face down and I fell down facing upward. We fell down among the bushes and closed to the pits. That boy got up first and came toward me and hit. I have a torch with me so I torched this straight at him. Then I struck back and I ducked the blows intended for me and it must been hit on his chin. I asked him How come he hit my son. He answered and said that he was not the one.

In cross examination by Mr Kirata Komwenga, prosecuting, Ataake said:-

I ran when they started to run. I didn’t catch them. I bumped into one of them. I shone torch on him when he went to attack me and I put out my hand to save myself from him: my hand connected with his body and we fell into the pit ......I was not informed by anyone else that it was not the boy, the boy himself informed me after I said, “Why did you fight with my son”. That was after he fell into the babai. I got up and left. It never occurred to me to apologise. I did not chase them to fight them – intended to teach them what was acceptable.

Ataake admits he struck the victim but said it was in self defence.

Four things are certain:-

The accused chased Rotau

The accused hit Rotau

Only after having hit Rotau did the accused find out he had the wrong man

Rotau sustained abrasions

When the accused gave his evidence my impression was of a man trying to put his own case in the best possible light, “gilding the lily”. He played down too far his responsibility for what happened: his unwisdom in chasing after these men without knowing the facts. He was the aggressor believing Rotau had fought with his son. I have to find the case against the accused proved beyond reasonable doubt before he may be convicted. Despite his saying that he hit Rotau in self defence I find beyond reasonable doubt that the accused hit Rotau without justification, after having chased him and in the mistaken belief that Rotau was the culprit. When he did find out he did not even apologize: just walked away.

When Rotau sustained the abrasions is not clear. I doubt if it were a direct result of the hit, probably the hit caused him to fall and the fall led to the abrasions.

According to Archbold (1992 edition, volume 2 at 19-198) the test is whether the injury is “the natural result of the defendant’s action or words, in the sense that it was something that could reasonably have been forseen as the consequence of what he was saying or doing....”

Archbold cites Regina v Roberts (1972) 56 Cr.App.R. 95) as authority: Roberts (at 102 per Stephenson LJ) is authority for the proposition. I am satisfied beyond reasonable doubt that Rotau’s injuries were “the natural result” of the accused’s blow.

The accused has been charged with assault occasioning actual bodily harm and with common assault.

The prosecution must prove four elements before the accused may be convicted of assault occasioning actual bodily harm:-

It was the accused who

(1) assaulted the victim

(2) applied physical force to him

(3) The assault was unlawful in the sense there was no justification for the accused to assault the victim

(4) The victim suffered some bodily injury.

I am satisfied beyond reasonable doubt that the prosecution has proved all four elements.

After the accused had given evidence and before the close of his case, Mr Berina applied for an adjournment to find and probably to call another witness. By then it was nearly 3 o’clock in the afternoon. I refused the application. This is my note:-

I refuse to adjourn to allow Mr Berina to find a witness whom he believed the prosecution was going to call but whose name was not on the amended list served last Friday who would have said she saw the victim beating the accused: she came from Makin yesterday. She was at court this morning but Mr Berina did not speak to her. Now she has gone to Teaoraereke.

Before the hearing the Court had been assured by both prosecution and defence that the trial would finish within a day. The Court had no more than a day within which to hear the case. There just was not time to fetch a witness from Teaoraereke, for Mr Berina to take instructions and then to call the evidence and finish by 4 o’clock. Mr Berina with his customary and admirable frankness admitted his mistake in not speaking to the lady at the court before the hearing began. Nor had he cross examined any witness to foreshadow the evidence this lady may have given. There comes a time when, with regret, the court must refuse an application of this kind.

I find the accused guilty of assault occasioning actual bodily harm. I need not, therefore, consider the count of common assault.

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE