Republic v Kaokia - judgment [2002] KIHC 84; Criminal Case 20 of 2002 (18 September 2002)

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

High Court Criminal Case 20 of 2002

THE REPUBLIC

vs

BOUATOA KAOKIA & TERAKE TAAKE

For the Republic: Ms Pole Tebao
For the 1st Accused: Ms Batitea Tekanito
For the 2nd Accused: Mr Aomoro Amten

Date of Hearing: 11 September 2002

JUDGMENT

Bouatoa Kaokia and Terake Taake both pleaded not guilty to manslaughter. Particulars of the charge against them:-

Bouatoa Kaokia and Terake Taake on the 17 of March 2002 at the Labour Line Camp Takoronga Betio around 15-1600 hrs by an unlawful act namely assault causes the death of Timon Ting Sung.

At the close of the prosecution Mr Amten, for the second accused, submitted that his client had no case to answer. I accepted the submission and discharged Terake. Ms Tekanito made the same submission for her client but I did not accept it. He gave evidence and was the only witness in his defence.

About 8 o’clock in the morning on last 17 March, a Sunday, the two accused and Timon began drinking sour toddy at Terake’s house where Bouatoa also lived. Timon lived close by. Bouatoa acknowledged that he became drunk. He said Terake was drunk too. Bouatoa went to sleep and woke some time between 3 o’clock and 4 o’clock in the afternoon to find Timon in the house and making a nuisance of himself to the family. Bouatoa’s evidence:-

Drank in my house. Stopped 1000 or 1100. I slept and my companions. Woke up around 1600. Timon had come and caused trouble. Told him to go home and sleep. He leapt at me: we had a fight. He hit me. I also hit, his shoulder. Half hour to 20 mins. Terake woke up outside and led man away, gently. Fell on bed outside: then jumped up to fight again. Terake pushed him again outside door. We again fought outside: only Timon and I. He trespassed into my house: when he refused to leave we fought. Punched his forehead. After my blow to his head he staggered away and then fell on his hands and knees, got up and walked away.

Bouatoa had already given a narrative statement to the police, to similar effect. The narrative was followed by questions and answers:-

Q. 29: There was a statement that you Bouatoa and Terake Taake, you both attacked Timon to punch him with your fists when he was on the front door of your house or near the road. What would you say in response?

Ans: Yes, I was very certain that I punched with my fist may be two times more with Timon near the road or the front door of our house. This was his back (Timon) during the time when Terake Taake was pushing him twice. He was punching me also. Timon at that time I believed that Timon received my punch at that time..............

Dr Taketiau Beriki found Timon dead on arrival at the Central Hospital. He had an x-ray taken and made a report. He told me the cause of death was, in layman’s language, a broken neck. His notes on the x-ray report:-

X-ray of the neck shows evidence of dislocation (displacement of 3^rd cervical vertebra) due to impact of strong blunt force, direct or twisting.

He found “bruise marks on both sides of neck with left side slightly swollen”.

In evidence Dr Beriki said the “blunt force” could have been a fist. A blow had caused the partial dislocation of Timon’s neck. Death was not instant but occurred within a short time when the partial dislocation became complete.

In cross examination the doctor said that a patient cannot live a normal life with a partial dislocation.

The prosecution called Taaburi Taia. I now know that Taaburi (the son of Bouatoa’s wife and the nephew of Terake) was called to give evidence of the fight the three men had. He had made a statement to the police. When he was in the witness box he behaved like the three monkeys – he had seen nothing, had heard nothing and he said nothing.

Ms Tebao applied to have Taaburi declared hostile. At first I refused. Ms Tebao renewed the application later. In his evidence Taaburi had alleged the police told him “there’d be repercussions, he might go to gaol” if he didn’t make the statement. Being the finder of fact I was unwilling to look at the statement as I would have done when sitting with a jury. Eventually I decided I must look at it but did so only to check that the witness had signed it. I did not read the contents.

Ms Tebao referred me to Archbold. I looked at paragraphs 8-81 et seq in the 1992 edition and read The Queen v Fraser et anor ((1956) 40 Cr. App. R 160). It was obvious even without my having read the statement that Taaburi had described to the police the fight of which in evidence he said he knew nothing. I therefore allowed him to be treated as a hostile witness. Ms Tebao immediately applied to tender the statement. I refused the application. She cross examined the witness but did not succeed in bringing out any more evidence than she already had. Ms Tebao did not apply again after cross examination to tender Taaburi’s statement. Had she done so I had made up my mind I would refuse the application relying on Archbold (1992) para 8-84.

At the close of the case of the Republic there was no evidence at all against Terake but the prosecution had got in through the Investigating Officer Bouatoa’s statement and that was sufficient to make a case for him to answer.

Bouatoa is a lightly built man and partly crippled: he has a gammy leg: it was an injury during the War when he was a child of nine. [He said he was now “about 64” but if he were nine in 1942 or 1943 he must be 67 or 68 now.] He said there was not much force in his blows. In her address Ms Tekanito argued that a blow from him could not have been hard enough to dislocate Timon’s neck. I suggested it was the case of the man with the eggshell skull. Timon already had a sore neck (Bouatoa had been giving him massage). However soft or hard Bouatoa’s blow it was enough to cause the partial dislocation.

I go back to what Dr Beriki said in cross examination: a patient cannot live a normal life with a partial dislocation. Timon was living apparently “a normal life “at least until after he had been ejected from the house: he was able to drink, be a nuisance and fight. Having been ejected he seems to have fought again. After Bouatoa’s “blow to his neck he staggered away ------”. I have no reasonable doubt that this was the blow which partially dislocated Timon’s neck: up to then he was living “a normal life”: after it he was not.

Ms Tekanito also argued novus actus interveniens (although she did not use the phrase). Taaburi, trying to help and comfort Timon, caused the complete dislocation. In answer to my question Ms Tekanito submitted that it was Taaburi who should be in the dock. Apart from it being a monstrous suggestion that a man who tries to help another in distress and unwittingly causes his death should be charged, Timon’s death was, beyond reasonable doubt, the consequence of Bouatoa’s blow to Timon’s forehead. Taaburi’s intervention did not amount to a novus actus interveniens.

I suggested to Ms Tebao during her address that perhaps Bouatoa was using no more than necessary force to get Timon out of the house. Ms Tebao accepted that would be so if Bouatoa had not, after Timon had been ejected from the house, come outside and hit him again: that could not be regarded as necessary to eject Timon from the house: it was the blow which did the fatal damage. I accept Ms Tebao’s argument. Beyond reasonable doubt the blow to the forehead which Bouatoa inflicted on Timon outside the house caused the partial dislocation of Timon’s neck. This was an unlawful blow. It led to Timon’s death soon after.

Bouatoa is guilty of manslaughter.

Dated the day of September 2002

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE