Republic v Tabuariki [2003] KIHC 141; Criminal Case 27 of 2001 (11 November 2003)

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

Criminal Case No. 27 of 2001

THE REPUBLIC

vs

TAOKAI TABUARIKI

For the Republic: Ms Ereta Bruce
For the Accused: Mr Aomoro Amten

Date of Hearing: 19, 20, 21, 22 August 2002

JUDGMENT

Taokai Tabuariki – the accused is charged with murder contrary to section 193 of the Penal Code (Cap. 67) in that on 19^th day of October 2001, at Temakin, Betio he unlawfully killed Kaiea Toto (the deceased). On arraignment the accused pleaded not guilty to the charge.

There are two main issues involved in this case. They are intoxication and provocation.

As regards to the issue of intoxication the question as whether the accused at the time he killed the deceased was substantially affected by drink and had no recollection of the events in question: consequently he was incapable of forming the intent to do the criminal act, namely to attack the deceased.

Regarding provocation however the question is whether the accused was deprived of the power of self-control by such extreme provocation given by the deceased.

The incident giving rise to the charge of Taokai (the accused) with murder of Kaiea (the deceased) occurred at Betio, at Temakin side on the night of 19 October 2001 at about 10 pm. During that night in question the accused and the deceased fought over a woman called Tekimaua. The accused claimed that Tekimaua is his cousin sister. The fight took place on the premises of a drinking place (similar to a bar) where sour toddy and an admixture of yeast, sugar and water were on sale to the public. This place is a private home owned by one called Tematang.

The accused and the deceased went there to Tematang's drinking place in separate groups (all men) of their own to enjoy the drink and the place generally.

The fight broke out between the accused and deceased because the accused was deeply ashamed of his cousin sister, Tekimaua, who was in the deceased's group which she didn't know, so the accused claimed, and was also the only woman amongst them.

So the accused went over to the deceased group to chase Tekimaua away from that group but then suddenly the deceased stood up in front of him, with Tekimaua sheltering herself behind the deceased and asked him not to chase the poor woman away.

The accused then questioned the deceased whether he was going to stand for (defend) the woman. The deceased simply nodded his head without saying anything else back to the accused whilst still standing up facing the accused and then, according to the accused, the deceased punched the accused on the right hand chin. And after he was punched by the deceased the accused attacked the deceased by punching him very hard with multiple repeated quick hard blows all over and everywhere on the deceased's head, face, temple, neck, throat and chest and as the result the deceased fell on the ground. And as the deceased lay helplessly on the ground the accused however continued attacking the deceased by kicking him and also by stamping on the right hand side of the deceased's upper neck on the right hand side at the base of the head. Apart from the first blow which the accused alleged the deceased to have first punched the accused with the accused said that the deceased never in any way retaliated against or ever fought back the accused at all throughout the fight. The accused also stated that he was substantially affected by drink during that night in question.

About an hour after the fight had stopped the deceased was confirmed dead by a nurse on duty that night at Betio hospital and later by a doctor at Nawerewere hospital at about 3.15 am on 20 October 2002.

In order to prove its case the prosecution called seven witnesses. The first prosecution witness was Dr Zhang Yu Ping (PW1). She testified that she has been employed as a doctor for the last 12 years and she is presently employed at Tungaru Central Hospital, Nawerewere as gynaecologist and obstetrician since December 2000. She recollected having examined the body of the deceased at Nawerewere hospital. The deceased was a male of over 60 years of age, who was already dead when it was brought in to hospital to be examined. She said that she examined the body of the deceased from head to toe following the Police's request that the body of Kaiea Toto (the deceased) be medically examined for the purposes of the police investigation.

The doctor was shown the report and she confirmed that it is the report she made after she examined the body of the deceased on the early morning of 20 August 2001 at about 3.15 am.

Her findings are that the patient had suffered a severe broken jaw bone (mandible severe fracture); blood was coming out from the right ear (right external acoustic meaters had (blood clots) external ear laceration about 2 cm long. From all these findings the doctor concluded that a very strong force or blow more powerful than just a punch had been applied to the head which fractured the base of the skull of the deceased which caused internal bleeding (haemorrhaging) of the brain which in turn caused the death of the deceased.

The report of Dr Zhang was produced into evidence and marked as Exhibit P1. Dr Zhang asked another doctor to assist her in diagnosing the cause of death of the deceased. He is the next witness of the prosecution. The second prosecution witness is Dr Gong Huai Qiang (PW2).

In his evidence he testified that he is a surgeon of 27 years standing and he is presently employed as a surgeon at Tungaru Central Hospital, Nawerewere since December 2000.

He also said that he, with Dr Zhiang on 19 October 2001, examined the body of the deceased at Nawerewere hospital and he agreed with the opinion of Dr Zhang that the cause of death of the deceased was "intra brain bleeding" (internal brain bleeding) which in his opinion was caused by violent force with a blunt instrument being applied to the base of the skull of the deceased on the right hand side with no cut marks on the skin surface of the jaw bone, which again, the doctor says, suggests that violent force with a blunt instrument must have been applied to such right jaw bone.

Dr Gong also testified that it is an established surgical principle that if the head and its surrounding area of the patient has been subjected to such violent force during a fight like the deceased in this instant case and after the fight the head is examined and no bruise or cut marks are seen on the skin surface of the head etc., but blood is seen oozing out of or clotting on the orifice of the ear of the patient as it happened with the deceased in this instant case then medically and surgically this is proof of the fact that there is an 'intra brain injury or damage to the brain which causes internal brain bleeding (intra brain bleeding), and then caused the death of the deceased.

Dr Gong as Dr Zhang had also testified, also testified that a punch by itself is not sufficiently powerful enough to be able to cause severe fracture of the base of the skull as it happened with the deceased but something more powerful is required and he called this 'violent force' with a blunt instrument. And when he was asked by the Court whether a powerful kick like a 'karate' kick would cause such severe fracture of the base of skull and he said that it could but it has to be with such 'violent force'. At this point in time no evidence has been adduced yet by any of the prosecution witnesses that the accused had also kicked the deceased and stamped on the upper right hand side neck at base of the head of deceased when he fell helplessly on the ground. It will be seen later on in the testimony of prosecution witnesses of PW3, PW4 and PW7 that the accused did in fact attacked the deceased by kicking him as he lay helplessly on the ground and also stamped on the right hand side of the upper neck at the base of neck.

The next and third prosecution witness is Tekerua Kaitu (PW3).

Tekerua testified that on the night of 19 October 2001 at Betio at about 10.00 pm he together with Nei Karewenang and Tebaara went to a sour toddy place to drink. The place was a private house on Betio near Tekaotitaeka Church. When the witness and his two companions got there they bought some sour toddy and stayed and enjoyed themselves there drinking.

The witness said that there were some other group of drinkers who were already there before the witness and his group came, also enjoying their sour toddy there at the same place. The witness also testified that the accused was also there with them that night in question drinking sour toddy with them. The witness also said he never knew nor had ever met the accused before that night in question.

As the witness and his group including the accused were enjoying their drink he observed the accused was getting drunk and he started to irritate other drinkers who were there.

The witness further stated that he saw the accused going over to another group of drinkers of which group the deceased was with, and started to chase away the only woman who was with that group. That group of the deceased was about 6 metres away from the accused. When the accused approached the deceased's group, the deceased stood up, faced the accused and prevented him from chasing the woman away. The woman was standing behind the deceased. Then the accused asked the deceased whether he was going to stand (defend) her. Then the deceased responded and ask the accused not to get cross with the poor woman. The accused also warned the deceased three times not to fight with him (with the accused) as he (deceased) is an old, taller and bigger man than the accused. In the meantime the witness saw the deceased who kept on standing up facing the accused. When the accused saw the deceased thus the accused first struck the deceased by punching him many times. The deceased in the meantime never fought the accused back or retaliated against or returned a single blow to the accused. He merely stood there protecting himself by covering his face with his hand against the multiple hard blows which the accused struck so hard and quickly against him and staggered back on his feet several times as each of the blows landed on his head, back of neck side of the eye, throat, face and chest. Then the deceased collapsed on the ground and the witness saw the accused continuing attacking the deceased by kicking and stamping on the deceased's right hand side of his neck. After this the accused stopped attacking the deceased and stood beside the deceased as he was lying on the ground.

After the fight stopped the witness moved closer to the deceased who was lying on the ground and saw dust print marks of a boot on the right hand side of the deceased's neck. The witness also saw the nose of the deceased bleeding which also covered a bit of the upper lip. The witness also said that the deceased never stood up again after he collapsed on the ground after he was attacked by the accused.

The ambulance was called and eventually came and took the deceased's body to the hospital.

The next and fourth prosecution witness is Tebaara Kabiriera (PW4). He testified that on the night of 19 October 2001 at about 10 pm he was at Betio and went with Marewenang and Tekerua to Max's house where sour toddy was on sale, to have some drink there.

The witness and his companion bought some drink and drank them there. After they finished their drink they then moved on to Tematang's house where sour toddy (kaokioki) was also on sale and being served there to customers. Tematang's house is very close to Max's house. At Tematang's house the witness and his companion again bought some more drink for themselves and drank them there. And as the witness and his group were enjoying their drink at Tematang's house they met up with Taokai (the accused) and his group who just came also that night to that same sour toddy place to also enjoy themselves, shortly after the witness's group came. The witness saw that the accused has companions but could remember only one by the name of Mwea.

Both the accused's group and the witness's group joined together as one group that evening and enjoyed their drinks together.

Apart from the witness's group and the accused's group which has now amalgamated into one single group apparently there was another group of drinkers who were about two and half metres away from the witness's and the accused's group, also enjoying their drinks. As the two groups were enjoying their drinks and chatting amongst themselves the witness saw and heard the accused urging one of boys from the group to shout out aloud and told him that if any member of the other group is annoyed or irritated by the noise then the accused told him that he would be prepared and ready to fight him.

In the meantime the witness fell asleep and shortly afterwards he woke up and he then saw the accused and the deceased (an old man of about 50 years old) standing up and facing each other. Then Taokai – the accused struck the first blow against the deceased, a very hard one indeed, followed quickly by many other repeated very hard blows on face and jaw, on the temple and side of the eyes, the shoulders and head near the left ear, on the chest and throat.

The witness also said that when the deceased fell on the ground, he saw the accused kicking the deceased and stamping on his neck. That kicking and stamping of the deceased's neck by the accused caused the deceased to suffer some breathing difficulty as the witnesses saw the deceased gasping for breath and the spectators (bystanders) came along and assist the deceased by holding up his head and chin so as to enable him to breathe. The witness also saw the deceased suffering some bleeding from the nose and mouth.

By this time the father of the accused came and when the accused saw his father the accused ran away. Then an ambulance was called and when it came it took the body of the deceased to the hospital.

The witness also said that during that night in question the accused appeared to have drunk much sour toddy as the witness's and the accused's group were buying toddy by the basinful.

The next and fifth prosecution witness is Baamaere Tira (PW5). He is a police corporal in the Kiribati Police Force. He testified he is the investigation officer in this case (Taokai Tabuariki) and he is one who took the statements of the witnesses, drew up the plan of the scene of the crime.

On 21 October 2001 at Betio Police station he took the caution statement of the accused (Taokai) and followed the normal and required procedures for taking such statements.

After he took the caution statement of the accused he put to the accused a number of questions of which questions and answers were put into writing and were put into evidence as Exhibit P2.

In the accused's caution statement he admitted that he had fought with the deceased but didn't know why he did. In the accused's caution statement he admitted that he had fought with the deceased but didn't know why the deceased died.

From the questions and answers which corporal Baamaere Tira put to the accused, the accused stated he fought with the deceased because the deceased had prevented him from chasing Tekimaua away from sour toddy drinkers by blocking his way to Tekimaua. And when the accused saw that he asked the deceased thrice: "Are you going to fight with me?" The deceased nodded his head thrice in succession when so asked by the accused. So the accused punched him.

The accused also stated that the deceased first punched him so he punched him too and because he didn't move he gave him many quick punches and then he (deceased) fell on the ground and he (accused) continued punching him for a little while and then his father, Tabuariki came and shone the torch at him which made him ran away and he followed the side road from the main road till he reached Tematang's house. Shortly afterwards his father came to Tematang' house and took him back to their own house and told him that the deceased is dead. The accused stated also that he knew the deceased as Kaiea whom he often saw drinking sour toddy.

He again stated he recollected having been at the spot between the Tematang and Nei Mangarita house drinking in the early morning of Saturday 20 October 2001. And he fought with the accused near Nei Tematang's house.

The accused was shown a rough sketch plan of the scene of the crime and indicated on the plan that he fought with the deceased at the end of Tematang's house and opposite Terouta's house. The accused further stated that he wore long pants and black boots, when he fought with the deceased at the night in question. He stated also that he was drunk but was capable to walk when he fought with deceased during the night in question.

The next and sixth prosecution witness is Bakaia Aberam (PW6) who is also one of the police officers in the Kiribati Police Force. He was also involved in this instant case as witnessing officer countersigning the caution statement of the accused and also the questions and answers which the investigating officer put to the accused.

The seventh and last prosecution witness is Nei Karewenang Beru who is a married woman and lived at Betio. The witness testified that on the night of 19 October 2001 she was at Betio and during the earlier evening of the night in question she went with her two cousin brothers Tekeerua and Tekiaba to the Night Spot where they stayed for a little while and then left at about 10 pm. The witness and her two cousins then went to Tematang's house where sour toddy was on sale and bought themselves some sour toddy there.

As the witness and her companions were enjoying their drink there at that place then the accused who was accompanied by Bwebwetake, Max, Mwea and some others whom she did not know, came and took her two cousins away with them to join their group and had drink together with them.

The witness in the meantime was left by herself and so she went to Mangarita's house which is very close to Tematang's house where she had been with her cousins before she moved to Mangarita's house. The witness said that while she was at Mangarita's house she could hear clearly and distinctly people when talking at Tematang's house.

And as the witness was sitting down enjoying a quiet drink with some friends she heard the voice of a woman crying from Tematang's house which she just left few minutes ago. The witness went over to Tematang's house whence the cry came to ascertain the identity of the person who was crying.

The witness found out that the woman involved is Tekimaua and the accused had attacked her by hitting her on the shoulder because he wanted her to leave that sour toddy place because he was ashamed of her as she was the only woman amongst the men who were drinking there.

When the accused struck Tekimaua on the shoulder she went away to the deceased's group and sheltered herself there behind the deceased. The deceased's group came about half an hour after the witness's and the accused's group came. In the meantime the witness went back to Mangarita's house where she was before she heard the cry of a woman and continued enjoying her drink with her friends there.

While the witness was drinking she heard a bang sound of a blow coming from the other house, Tematang's house. The witness then went over again to inquire and there she saw the accused and deceased standing up and facing each other. The witness said that the accused and deceased were about eight metres away from her.

Then she heard the accused questioning the deceased whether he (deceased) was going to stand for (defend) her (Tekimaua). The deceased replied and told the accused that he is not going to stand (defend) the woman but that he (the accused) should stand for her but as she has asked them to help her the deceased then asked the accused not to chase the poor woman away. The deceased was the only person speaking to the accused and confronting him. When the accused heard this, the witness saw the accused starting to attack the deceased first by punching him with a very hard blow on the chin followed simultaneously with multiple repeated very hard blows all over and everywhere, on the head, left side of the head, chest and side of the neck. As the accused was attacking the deceased thus then the deceased fell and as he was lying on the ground helplessly the accused continued attacking the deceased by kicking him and stamping on the upper right hand side of his neck with his boot at the base of the head. According to the witness's estimate the fight between the accused and the deceased went on for about half an hour. During the fight the witness saw the deceased merely protecting his head and face by holding up his hands in front of his face and head whilst the accused attacked him with multiple hard and violent blows.

The witness said also that when the accused attacked the deceased she didn't see the deceased retaliating at all by attacking or returning a blow to the accused. The witness also said that the deceased is an old man and alcoholic.

The witness also said that she saw the accused wearing white shoes on the night in question.

Shortly after fight stopped Tabuariki, the father of the accused came and the witness called him to see his son Taokai (the accused) who had attacked Kaiea (deceased). The witness said also that when the accused saw his father and heard what the witness said to Tabuariki the accused ran away from the scene of the crime and vanished altogether. Then Tabuariki shone his torch around to look for his son, the accused, but could not find him so the witness led Tabuariki to Kaiea who was still being held up and assisted by some bystanders or spectators. Then the witness asked these people as to how the deceased was and told her that the deceased could no longer breath. The witness then moved these people aside and went closer to the deceased and then she saw blood oozing out from the nose, ear and mouth and head of the deceased which she could not stop from bleeding. Then the witness told Tabuariki that the deceased was going to die.

Then Tabuariki replied and told the witness that he was going to look for his son (accused) and when he found him he is going to give him a good beating. Then he left. Then the ambulance was called to take body of deceased to hospital and whilst the witness was waiting for the ambulance she went to check the condition of Kaiea (deceased) and she was told by Tekimaua that Kaiea was really dead. On hearing this from Tekimaua the witness told Tekimaua that she too must go (die) with deceased as she is responsible for his death. Then she grabbed hold of Tekimaua and threw her down to the ground. Then someone by the name of Max came and led Tekimaua away.

Eventually the ambulance came and the body of deceased was taken to Betio hospital. The witness with a young man accompanied the body of the deceased to Betio hospital where it was examined by a nurse. The nurse confirmed to the witness and the relatives of Kaiea (deceased) that Kaiea was really dead by then.

So the nurse asked the witness and others to go on the ambulance and accompany the body of the deceased to Nawerewere hospital.

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

Taokai Tabuariki – the accused testified that he lives at Temakin, Betio, with his father Tabuariki and knows the deceased Kaiea as he used to drink with him around the area or neighbourhood.

He also testified that in the early evening of 19 October 2001 he was having some social drink with friends at Kauma's house of distilled alcohol and sour toddy. And when the accused and his companions finished their drink they then went to the Night Spot and Gateway drinking beer and dancing away and left when the dance was finished.

Then after this the accused and his companion by the name of Max, Bwebwetake, and Mwea went to a sour toddy drinking place at Mangarita's house and bought themselves some sour toddy and home-made brew of yeast, sugar and water in measured amount being mixed together and then left to brew for a little while before it is drunk. The Kiribati name for it is "tekakaraoi". It is an admixture of yeast, sugar and water. And as the accused and his companion were enjoying their drinks then Tekimaua, the cousin sister of the accused came. When the accused saw Tekimaua the accused was annoyed and he ordered her to leave them and that drinking place. Tekimaua then left and shortly afterwards the accused heard the voice of Tekimaua singing with another group of drinkers. Then the accused went over to that group to chase Tekimaua away. The group of drinkers with which Tekimaua was, was the group of the deceased. And the accused explained that he wanted Tekimaua to leave that group because she didn't know them and she was the only woman amongst them and being his cousin sister he was ashamed of her doing that.

So then the accused approached the deceased group to chase Tekimaua away from that group and then he was surprised when the deceased sprang up on his feet from where he was sitting and faced the accused and Tekimaua sheltered or hid herself behind the deceased. So whilst the deceased stood up and faced the accused as if he was going to fight, the accused asked him (deceased) thrice whether he was going to defend her (Tekimaua) and he said nothing except nodding. Then the accused said that after the deceased nodded he (deceased) struck the accused on the left hand chin. The accused then retaliated by returning a blow back to the deceased on the right chin with his (accused) left hand. The accused said that when he struck the deceased on right cheek the deceased staggered back on his feet and then came back and steadied himself up again on his feet and then the accused punched him again very hard and he (accused) didn't know how many punches he threw and where the blows landed on body of deceased but he just punched the deceased as hard and as many and quickly as possibly to prevent him from retaliating against him and then the deceased fell on the ground and as he thus fell the accused asked him whether he could defend himself. The deceased said nothing.

The accused also said that he hit the deceased very hard and as quickly and as many blows as possible because he thought the deceased would fight back but he never did.

The accused also stated that the deceased, apart from the first blow or punch which the deceased threw at accused at the beginning of the fight, he never ever afterwards threw other punches at nor ever attacked the accused during the fight.

When cross-examined the accused admitted that he was drunk that night in question and he confirmed that the deceased started the fight first by punching the accused first.

The accused also confirmed they (deceased and accused) fought for a little while and when the accused's father came and shone the torch on him (accused) he then ran away from him because he was afraid of his father as he had forbidden him to drink alcohol and that during that night in question he had been drinking.

The next and only witness called by the accused is Max Tioti. He testified that the deceased is his uncle. He also testified that on 19 October 2001 he was at Temakin, Betio in his house. Then in the earlier evening of the night in question he, along with the accused, Bwebwetake, Tenamaiti, Akereba and Mwea were drinking sour toddy at Aibure's house and when the witness and his same companions finished their sour toddy they then went to Tematang's house and bought more drinks and enjoyed their drinks there.

Then he fell asleep and when he woke up later he saw the accused being chased by his father.

When the witness first came to Tematang's place he met Karewenang (PW7) and her two cousins Tekerua and Tebaara (also known as Tebakai) because she with her two cousins came near them but went away later with two men.

The witness testified also that when he woke up and apart from having seen the accused being chased by his father he with his same companions went to see the deceased who was lying on the ground and being attended to and assisted by some of the bystanders (spectators) he didn't see Karewenang with the deceased when he came near him there. She however came shortly afterwards and then asked the persons who were assisting the deceased as how the deceased was and then attacked Tekimaua by pulling her to the ground.

The witness however admitted in cross-examination that he didn't see all that went on from the beginning and/or during the fight between the accused and the deceased because he fell asleep and when he woke up the fight had already finished. The witness therefore admitted when he was cross-examined that he wouldn't really know whether or not Karewenang was there watching the fight from the beginning to end as he was still asleep then.

That completed the case for the accused. I then heard addresses from counsel for the prosecution and counsel for the accused in that order. Then counsel for the prosecution submitted that the prosecution had proved beyond reasonable doubt the charge of murder and each of its element. On the issue of provocation however, counsel for the prosecution submitted that there is no evidence that the accused was deprived of the power of self control by such extreme provocation given by the deceased.

And as regards the issue of intoxication counsel for the prosecution submits that the accused at the time he killed the deceased was not substantially affected by drink and therefore had recollection of the events in question (i.e. fight between the accused and deceased) consequently he was capable of forming the intent to do the criminal act (i.e. fight between the accused and deceased) which led to the killing of deceased.

Counsel for the accused on the other hand submits that the prosecution had failed to prove beyond reasonable doubt the charge of murder and each of its elements against the accused because it has failed to prove beyond reasonable doubt one of the elements of the charge of murder namely the cause of death in that it treats the punches and the kicks which the accused had inflicted on the deceased as being sufficient when in fact were insufficient to constitute violent force and blunt instrument which, according to medical evidence of both Dr Zhang and Dr Gong, had caused the fracture of the base of the skull of the deceased which in turn caused internal bleeding of the brain which is actually the cause of the death of the deceased.

Counsel for the accused further submits that the prosecution has also failed to prove beyond reasonable doubt the third element of the charge of murder of malice aforethought as the accused did not intend to cause the death of the deceased nor to start the fight as the deceased himself started the fight in the first place by punching the accused first.

And the only evidence as to the state of mind of the accused is that he was surprised to hear about Kaiea's death and he could not understand how he died.

Counsel for the accused also raised the defence of intoxication and submitted that the accused was so drunk during that night in question that he was incapable of forming the necessary intention required of offence or the charge of murder in this case.

Counsel for the accused also raised the defence of provocation and submitted that the accused was provoked by the deceased into doing what he had done to the deceased.

Finally counsel for the accused also raised the issue of credibility of the evidence of Tekerua (PW3), Tebaara (also known as Tebakai) (PW4) and Karewenang (PW7) and submitted that their evidence before the fight broke out is contradictory especially their alibi. Further Karewenang (PW7) never told the Court that the deceased was her cousin brother and Max Tioti – witness of accused testified that he saw PW7 only after the accused and deceased had stopped fighting.

Counsel for the accused therefore submitted that Karewenang must not be believed.

Before considering the evidence I directed 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. There is never any onus on the accused 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.

Tekeerua Kaitu (PW3), Tebaara Kabiriera (PW4) (also known as Tebakai) and Nei Karewenang Beru (PW7) were the substance of the prosecution's case. They were good and reliable witnesses.

However the evidence of Max Tioti, the only witness of the accused, that Karewenang was not an eye witness to the fight between the accused and the deceased from the beginning of the fight and up to the time when he (Max) went near the deceased and only then he saw Karewenang. In cross-examination he (Max) admitted he didn't see the fight from the beginning to the end as he fell asleep then and when he saw Karewenang the fight was by then finished. I therefore reject Max's evidence that Karewenang did not see the fight from the beginning to the end.

I also direct myself that though Karewenang is related to the deceased I still find her as a truthful and reliable witness and I accept her evidence. I also accept the evidence of all prosecution witnesses.

I now turn to the argument of counsel for the accused that the prosecution had failed to prove beyond reasonable doubt the cause of death of the deceased. Counsel argues that the hard multiple and repeated blows inflicted by the accused all over and everywhere on the head of the deceased including face, temple, front and back of the neck and the throat of the deceased and chest are not sufficiently powerful enough to constitute violent force and blunt instrument. According to medical evidence such violent force with a blunt instrument is the cause of the fracture of the base of the skull of the deceased which in turn caused intra brain bleeding and death of the deceased. And therefore counsel for the accused submits the prosecution has failed to prove beyond reasonable doubt the cause of the death of the deceased.

When asked by the Court, however, Dr Gong did not rule out altogether the possibility of a 'karate kick' or a similar hard kick if applied to the head and neck of deceased as could be the possible cause of the severe fracture of the base of skull of the deceased but such kick has to be a violent force with a blunt instrument which is capable of causing a severe fracture of the base of the skull like that of the skull of the deceased in this instant case.

From the evidence of Tekeerua (PW3), Tebaara (PW4) and Karewenang (PW7) there is ample evidence that, apart from the multiple hard and repeated blows which the accused inflicted on the deceased's head etc., the accused not only inflicted multiple hard and repeated blows all over his head, face, neck etc. but that he also kicked the deceased when he fell on the ground and also stamped very hard with his boot on the deceased's right hand side of his upper neck as he lay there helplessly. After the accused kicked and stamped on his neck the deceased was seen gasping for breath and bystanders had to come to his help to hold up his body, his head and neck in order to breath freely. Counsel for the accused argues "that the neck is far away from the skull and hence the impact could not possibly affect the brain in the skull". I reject this point as the fracture of the skull of the deceased according to medical evidence, occurred at the base (or lower part) of the skull or base of the head on the right hand side or where the head and neck joins up. This fracture of the base of the skull causes internal bleeding of the brain which in turn causes the death of the deceased. Further the prosecution has established that the accused had kicked and stamped very hard on the neck of the deceased on the upper right hand side. Therefore a kick and the stamping on the neck very hard with boots while a person is lying on the ground as the deceased was when attacked by the accused makes the deceased more vulnerable to being kicked and stamped at the base of skull rather than when standing up protecting himself as the deceased did in the instant case.

Further kicking and stamping on at neck of person with one's boots rather than just with one's fists as the accused did to the deceased in the instant case increases the size of the area of impact on the damaged part of the body both internally and externally. I am therefore satisfied beyond reasonable doubt that the kick and stamping on the neck of the deceased by the accused had caused the fracture of the base of the skull of the deceased which in turn killed him.

There is also evidence of boot print marks being seen left imprinted on the right hand side of the upper neck of the deceased at the base of the head. There is also evidence of the deceased seen bleeding from his nose, mouth and right ear, as well as he was unable to stand up again after he collapsed on the ground.

According to medical evidence the fact that blood was seen oozing out and clotting at the orifice of right ear is proof of the severe fracture of the base of the skull which in turn causes internal bleeding of the brain and then the death of deceased.

I am satisfied beyond reasonable doubt therefore that the hard kick and the stamping by the accused with his boot on the right hand side of the upper neck at the base of head of the deceased had killed the deceased and hence the cause of death of the deceased.

I am also satisfied beyond reasonable doubt that the accused and the accused alone had killed the deceased as before the accused fought with the deceased, the deceased was seen to be a perfectly normal and physically healthy person; but shortly after the fight stopped the deceased was seen to be no longer the same normal and healthy man he was before the fight. Instead he was a severely wounded and crippled man: he was bleeding from the right ear, nose and mouth, he was gasping for breath and crippled so much so that he was unable to stand up and walk on his two feet again after he fell on the ground. He also suffered a severe fracture of the base of the skull, which caused internal brain bleeding from which he died.

Tekimaua, the woman over whom the accused and deceased fought, shortly after the fight stopped and the deceased was still lying on the ground, told Karewenang, when he saw the deceased that the deceased was already dead (PW7). When the nurse on duty at Betio hospital examined the deceased's body she confirmed that the deceased was dead by then.

All this had happened without any other person having fought, intervened or interfered in any other way with the deceased, but the accused alone, during the incident in question and up to the time when the nurse at Betio hospital examined the decease's body and confirmed that he (deceased) was dead.

I next turn to the issue of intoxication which the accused raised as one of its defences.

Counsel for the accused relies on section 13(4) of the Penal Code (Cap. 67) which provides that:

Intoxication shall be taken into account for the purpose of determining whether the person charged had formed an intention, specific or otherwise, in the absence of which he would not be guilty of the offence.

Further counsel also relies on R v. Sheehan [1975] 2 All ER 960, in which the Court of Appeal held that where it must be proved that the accused intended or foresaw a particular result of his action, evidence of intoxication which might render the accused incapable of forming the intent required must be considered together with other facts proved in order to determine whether the accused had the necessary intent? In this instant case counsel for the accused submits that the accused was so intoxicated that he was incapable of forming the necessary intention for the offence to cause either death or grievous bodily harm to the deceased. I shall therefore review now the evidence of Tekeerua (PW3), Tebaara (PW4) and Karewenang (PW7) to establish the degree of intoxication of the accused.

Tekeerua (PW3) says that he was actually drinking with the accused at the night in question at the premises of Tematang's sour toddy drinking place. He says that he observed that the accused was getting drunk and as the result he started to annoy other drinkers there. The witness stated also that he saw the accused walking over to the deceased group and demanded that Tekimaua should leave the deceased group.

Apart from these above evidence which established that the accused has had some drink and as the result he started to become aggressive and demanding I am satisfied beyond reasonable doubt that there are no other evidence to suggest that the accused has been so drunk that he was incapable of forming the necessary intention to commit an offence.

Tebaara (PW4) said that his group and the accused's group who were drinking together during that night in question bought a considerable amount of sour toddy and the accused shared with them such sour toddy. However there is no evidence to show as how much sour toddy the accused had taken or how drunk he was after taking such sour toddy during that night. I am therefore satisfied beyond reasonable doubt that the accused was not so drunk during that night in question that he was incapable of forming the necessary intention for offence.

On the contrary on the review of the evidence of Tebaara (PW4) and Karewenang (PW7) I am also satisfied beyond reasonable doubt that the accused was not so drunk during that night in question as he was still able to remember that his father had forbidden him to drink alcohol and when he heard his father's name mentioned and shone a torch on him, he remembered that he has been drinking so he quickly ran away and disappeared immediately altogether from the scene of the crime whilst the deceased was still lying helplessly on the ground.

Further in accordance with his own evidence the accused clearly recollected that when the deceased collapsed on the ground and lay there helplessly he asked the deceased in derision and said: "Can you then defend yourself?" Again this clearly shows that the accused despite his having taken alcohol during that night in question he was still in control of his faculties.

Further in his caution statement and in the questions and answers he gave the accused clearly remembered everything that he did during the incident in question that he had fought with the deceased because he stopped him to chase Tekimaua away from the deceased's drinking group; he had asked the deceased thrice whether he (deceased) was going to fight with him; he also remembered clearly that he wore long pants and boots when he fought with the deceased; he also remembered that during the incident in question that night he was drunk but was still able to walk.

So taking into account the whole of the evidence I am satisfied beyond reasonable doubt that the accused was capable of forming the necessary intention to commit the offence.

I now next deal with the issue of provocation. And under section 197 of the Penal Code 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 98 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.

It is now necessary to review the evidence of Tekeerua (PW3), Tebaara (PW4) and Karewenang (PW7).

Tekeerua in his evidence said that as he and his group and also the accused and his group were all together enjoying their drink at the Tematang's sour toddy place he observed that the accused started to become quite aggressive and threatening in his behaviour towards other drinkers and especially towards the deceased and Tekimaua where he claimed to be his cousin sister. The witness also said that he saw the accused just walking across to the deceased and his group who were about six metres away from the witness and the accused and started to demand that Nei Tekimaua should leave the deceased and his group. And when the deceased asked him to leave the poor woman alone, the accused questioned the deceased: "Are you going to fight with me?" The deceased then simply nodded his head without saying anything back to accused and still stood up facing the accused. It was then at this point in time that the accused started to attack the deceased. The accused started the fight first by throwing the first punch on the right chin of the deceased followed immediately by multiple and repeated very hard blows all over and everywhere on the head (at the back, front and side of the head), front and back of the neck and chest of the deceased till the deceased collapsed on the ground helplessly and the accused still continued attacking the deceased by kicking him and stamping on his neck at the upper right hand side at the base of the head. In the result the deceased suffered a severe fracture of the base of the skull, then internal brain bleeding which killed the deceased.

When the deceased was attacked by the accused, the deceased did not retaliate at all in any way against the accused's punches. Instead the deceased was seen to just put a shield with his two hands by holding them up in front of his head and face to thwart off the onslaught of any violent blows of the accused to his head and face. The account of the incident in question relating to the provocative, aggressive and threatening behaviour of the accused is also corroborated by the testimonies of Tebaara (PW4) and Karewenang (PW7).

However in accordance with the evidence of the accused the deceased had started the fight first by punching the accused first on the face and it was only after this first blow of the deceased when he was then provoked to retaliate against the deceased in the manner as described in testimonies of Tekeerua, Tebaara and Karewenang. This version of the accused as to the commencement of the fight is in direct contradiction to that of the version given by Tekeerua, Tebaara and Karewenang as they all said that the accused had first started the fight by attacking the deceased first. As the accused's version of the commencement of the fight was uncorroborated by any other evidence of any of the witness who gave evidence I accept beyond reasonable doubt that the accused had first started the fight by punching the deceased first on the cheek.

The accused also said when he was cross-examined that when the deceased stood up immediately in front of him and prevented him from chasing Tekimaua away from the deceased's group and told the accused to leave the poor woman alone, he was not in any way provoked by the deceased at all. But what made him angry however was the fact that the deceased had punched him first on the chin.

This of course is not true as the prosecution has proved beyond reasonable doubt that the accused was the one who had started the fight first by throwing the first blow on the deceased's face.

Taking into account everything done and said by the deceased, I am satisfied beyond reasonable doubt that the accused was not provoked into losing his self control, or that any provocation was capable of causing an ordinary person to lose self control and act in the way the accused did.

Taking then into account the whole of the evidence including that of intoxication in this instant case I am satisfied that the prosecution has proved beyond reasonable doubt that the accused attacked the deceased. The intent to cause at least grievous bodily harm if not death is clear from his actions even though the accused had stated that he did not intend to kill the deceased (see R v. Cunningham [1981] UKHL 5; [1981] 2 All ER 863). He killed the deceased. I accept the evidence of Tekeerua, Tebaara and Karewenang as how the accused killed the deceased. Their evidence is confirmed by the internal injuries and fractures of the base of the skull of the deceased.

Taokai is guilty of murder.

Dated the 11^th day of November 2003

THE HON MR JUSTICE MICHAEL N TAKABWEBWE
Judge