Republic v Barenaba [2004] KIHC 120; Criminal Case 12 of 2004 (31 May 2004)

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

High Court Criminal Case No. 12 of 2004

THE REPUBLIC

vs

ABERA BARENABA

For the Republic: Ms Pauline Beiatau
For the Accused: Ms Botika Maitinnara

Date of Hearing: 20, 21, 24 & 25 May 2004

JUDGMENT

The accused has pleaded not guilty to the charge of causing grievous harm with intent contrary to section 218(a) in that on 29 November 2001 at Buota village, North Tarawa he unlawfully wounded or did grievous harm to one Tokiteba Ribaii with intent to cause him grievous harm.

In order to prove its case the prosecution called two witnesses.

The first prosecution witness is Tokiteba Ribaii (the victim) (PW1). He is 21 years old. He testified that on 29 November 2001 he was at Buota village, North Tarawa and early in the evening of that day between 8 pm and 9 pm he had a date with a girl by the name of Nei Teetai Kourabi. He and Teetai went to an isolated concrete slap floor at Buota village and spent the early evening there together just enjoying themselves by chatting and sipping away a home made alcoholic brew of yeast. The concrete slab floor is about 50 metres from Teetika's house (see PW2). Then at about 10 pm the accused and Miomio (DW2) showed up out of nowhere. They spoke briefly with the witness and Teetai and then left.

After the accused and Miomio (DW2) left the victim and girl (Teetai) then moved to an hammock under the breadfruit tree which was situated much closer than the concrete slab to the Teetika's house. Then Nei Teetai went to Teetika's house to fetch some food for the victim. She spent more than half an hour there. The victim in the meantime was lying and swinging away on the hammock waiting for Teetai to return with his food. Then at about 10 pm whilst the victim was still waiting for Nei Teetai to return a fight broke out between the victim and the accused. The victim testified that Miomio was with accused when he fought with the accused but he could not remember as how the fight had started. However he remembered that during the fight the accused had stabbed him with a knife at the inner left arm above the elbow and on the left side of the stomach above the abdomen. From the stabwound he suffered at the stomach the victim's intestines came out protruding and accompanied with much blood welling from inside the stomach. Consequently the victim fainted and collapsed on the ground. The people who were apparently watching a video movie at Teetika's house were asked by Nei Teetai (PW2) to help carrying the victim to Teetika's house which they did. Tetika's house is about 15 metres away from where the victim had fainted and collapsed. The victim was carried to Teetika's house and placed on the open pebbled-ground floor of the house which was lit by electrical neon light tubes.

The police were alerted about the incident and thus came and took the victim to Nawerewere hospital for medical treatment where according to the witness he spent two weeks in order to heal his wounds.

The victim showed to the Court the scars of the wounds he had suffered which apparently had been infected and had to be operated upon with the result of a long scar being left across the whole upper part of his stomach from right to left.

In cross-examination the witness said that he did not remember having punched the accused on the eye but he only remembered having fought with him. The witness also said that it was dark at the place where he had fought with the accused but he (the witness) knew even though he did not see the knife that the accused had stabbed him with the knife as he felt it and was wounded in the course of the fight with the accused.

The witness also said when cross-examined that he did not know the accused at all and never met him before except during the incident in question that night. The witness said further in cross-examination that he did not remember having quarrelled with the accused about sour toddy before he fought with him nor had he ever had any drink together with him.

The witness also said that when he punched the accused, the accused then stabbed him with the knife but stabbed him only once.

The next prosecution witness is Nei Teetai Kourabi (PW2). She testified she is 28 years old, now lives at Abaokoro but on November 2001 he lived at Buota village, North Tarawa and she remembered having had a date with one Tokiteba Ribaii – the victim. She and the victim decided to spend the early part of the evening between 2000 hrs and 2100 hours in a quite isolated dark place at Buota village on an open concrete slab floor which was situated about 50 metres away from Teetika's house. The witness and Tokiteba (victim) were enjoying their home made brew of yeast sipping it away while sharing their own thoughts and enjoying their own company.

And as they were sitting thus on such open concrete slab floor Abera (accused) and Miomio paid them a visit with a view to sharing their drink with them. However the accused and his companion stayed only for a little while and then left without sharing any drink as they had wanted to in the first place.

After the accused and his companion left the witness and victim left that open concrete slab floor and moved closer to Teetika's house and went to an hammock under the breadfruit tree which was about 10 metres away from Teetika's house. When the witness and the victim reached the hammock the victim stayed at the hammock whilst the witness continued on to Teetika's house to collect food for the victim. The witness stayed for about half an hour at Teetika's house and then returned with a plateful of food for the victim. When she finally reached the victim she found the victim to have been injured. He was bleeding on the left hand side of the stomach. She saw the victim was standing up and said to her "Oh I have been stabbed with a knife". She then asked as who had stabbed him and replied: "Abera" and then he fainted and collapsed on the ground. When she looked around Abera was nowhere around to be seen and the victim appeared to be alone. The victim then collapsed on the ground near the hammock. When the witness saw the victim collapsing on the ground she shouted to people for help who were enjoying a video move at Teetika's house. Some of these people came and carried the victim to Teetika's house and laid him on the pebbled-covered ground floor at the open end of Teetika's house. This part of the house was lit with an electric neon light tubes.

The witness in the meantime followed the victim to Teetika's house and saw him that he was unconscious and so the people in Teetika's house tried to revive him. The witness also saw the wound on the stomach of the victim through which wound the intestines of the victim came out protruding with much blood welling out of the wound.

Seeing the victim in such condition the witness then rang the police and informed them about the incident in question. Shortly afterwards the police came by car to Teetika's house, saw the wound of the victim, and then took him to Nawerewere hospital. It was then about 1 am. The witness with three other men accompanied the victim to Nawerewere hospital and held and supported him whilst sitting in the police car.

On reaching the hospital the witness said that the victim was taken to the emergency room. Then shortly afterwards the witness and the other people with her were taken to Bonriki Police Station where their statement were taken by the police. When the statements were finished the police drove them back to Buota village.

In cross-examination the witness said that she was with the victim when the accused and Miomio came to them at the concrete slab floor. They (accused and Miomio) briefly spoke to them but the victim said nothing to them. When the witness saw them they (the accused and Miomio) were not in least aggressive to them nor were they looking for a fight or trouble.

Then by consent of counsel for the prosecution and defence the caution statement of the accused was formally admitted into evidence and marked as Exhibit P1. Likewise the diary of the investigating police officer was also formally admitted into evidence by consent of both parties. It was marked as Exhibit P2. In his caution statement the accused confirmed practically everything that he had testified in court namely that the victim was the aggressive one as he had started the fight and during that fight the victim must have been accidentally injured with the knife which he had been carrying before he met the victim and which he was still holding when he pushed him (victim) back with his two hands as he (victim) lunges to hit him for the second time.

That concluded the case for the prosecution. Then counsel for the defence Ms Botika Maitinnara submitted that the accused had no case to answer.

Having heard arguments by counsel for the prosecution Ms Pauline Beiatau and counsel for the defence Ms Botika Maitinnara I then ruled that the accused had a case to answer.

The accused then elected to give evidence himself and called one witness to testify.

Abera Barenaba (Accused). He gave evidence and testified that he is 35 years of age. On 29 November 2001 he was at Buota village, North Tarawa. On that day when it was about noon he was with Miomio (DW2) and decided to buy some home made brew of sour toddy for them to enjoy that day so they both went to Teetika's house where sour toddy was on sale that day and bought some sour toddy. They (the accused and Miomio) could not bring all the drink they bought so they left some. They later returned to collect the remaining amount of drink they had left at Teetika's house at about between 7 pm and 8 pm. After they had collected such remaining amount of sour toddy, they then looked for a quiet place where they could enjoy their drink. So they went to an isolated open concrete slab floor but it was already occupied so they left and looked for another place but could not find one apart from an hammock which was already occupied by the victim. Miomio in the meantime walked ahead of the accused who was following him and when he reached the hammock the victim was already on it, so Miomio spoke with him. The accused in the meantime was still following Miomio and as he was approaching them he saw and heard them speaking to each other whilst standing near the hammock. The accused then thought that they were going to drink together so he bent down in order to sit down. Miomio then moved away from the victim in a distance of about two metres. And as he was about to sit down the victim then punched him on the left eye. It was then dark and so the accused could not see the victim drawing the punch. When the victim punched him, the accused staggered back and the victim still pursued the accused and drew another punch onto the accused. To defend himself against the second punch of the victim, the accused pushed the victim back with his two hands to prevent the victim's punch from reaching him.

And as he was pushing the victim back thus he, at the same, was holding a toddy knife in his right hand with its pointed sharp end forward and hid it by covering it with a lavalava which he had it across his shoulders and neck. He must have injured the victim with his knife as he pushed him away from him with his two hands. The accused said that he carried the toddy knife to cut his tobacco with for smoking and also in case he ran out of money to exchange it for sour toddy to drink.

The accused further stated that after the victim punched him on the left eye his vision on the left eye was impaired and thus he could not see the victim properly. In any case it was dark when he fought with the victim. After the fight the victim left the accused and Miomio and went to the kiakia whose owner the accused did not know. The accused in the meantime was still cross with the victim for having attacked him and so he followed him to the raised floor house to get even with him. At that time the accused was still carrying the toddy knife with him and as he came near the light he noticed his fingers and the tip of the toddy knife to be covered with blood. He also saw the victim and other people on the kiakia.

On seeing this the accused decided to leave the place. And as regards to the bloody toddy knife he recollected having thrown it away but he was not certain whether he threw it away at the place where he saw blood on it or at the place where he hanged himself.

In any case he said that when he saw blood on the toddy knife he became afraid as he had never seen a toddy knife with blood on it before nor has he ever held a knife with blood on it before like the one that he hold then. The accused said that the very sight of the bloody fingers and the tip of the toddy knife so unnerved him, and made him panicky so much so that he decided to hang himself with his own lavalava. Fortunately the lavalava which he had tied around his neck to hang himself with snapped as he was hanging down from a tree. So he fell down and thus his life was saved.

Having thus failed to hang himself the accused then left Buota village and started to walk all the way to Bonriki village, then continued walking on to Temaiku. On reaching Temaiku it was then quite late but he did not stop as he again continued on walking to Bikenibeu till he reached Bawae's house which is close to the Bikenibeu police compound or village. On reaching Bawae's house the accused asked him (Bawae) to drop him at his house at Betio which he did. On the way to Betio the accused briefly stopped at Bairiki and then continued on to Betio to his house. On reaching his house he woke up his wife and shortly afterwards went to bed to get some rest. Then after a while his wife woke him up and told him the police had come and wanted to see him. So he saw the police and apologised as he never intended to injure the victim as it was an accident and later took him to the Betio Police Station where he was remanded in police custody for two days. Whilst in custody he gave his caution statement to the police.

The accused further testified that the victim (Tokiteba) had started the fight by punching him on the eye and that members of his family (accused) had apologised to the victim for having inflicted the injuries on him.

In cross-examination the accused said that when the victim punched him (the second time) he pushed the victim back with both hands and he was still holding the knife in his hand but he did not know what he did with the knife. The knife however was a toddy knife of about 6" to 8" with a longer handle than the blade. He also said in cross-examination that when the saw Miomio and the victim talking together near the hammock he thought that they were going to have some drink together so he approached Miomio to sit next to him but then suddenly without any provocation on his part whatsoever, the victim (Tokiteba) attacked him by punching him on the left eye.

In re-examination the accused clarified that the light with which he was able to see blood on his fingers and on the tip of the toddy knife came from the raised floor house to which the victim went after they (accused and victim) fought.

The second witness for the defence is Miomio Tarua (DW2). He is 21 years old and lives at Buota, North Tarawa. He testified that on
29 November 2001 he testified that he paid Abera a social visit at his house (the accused) at about lunch time where they shared some sour toddy together. Abera's father also joined them. The witness said the three of them started drinking on that day after lunch till about 8 pm when their sour toddy ran out. However some of the sour toddy which the accused had bought earlier on were still left uncollected at Teetika's house. So the accused asked the witness to accompany him collecting the remaining sour toddy. So the accused and witness set out to Teetika's house. It was then about between 7 pm and 8 pm. On their way before they reached Teetika's house the witness stopped at an hammock near Teetika's house and waited for the accused who then continued walking on to Teetika's house to collect the remaining amount of sour toddy. However before they (the witness and the accused) came to the hammock they had gone first to the concrete slab floor where they met the victim and Teetai and the victim shouted at them and ordered them to leave the concrete slab floor. The witness also stated it was after this incident that the witness and accused then went to collect the remaining amount of sour toddy left at Teetika's house.

And whilst waiting for the accused to return from Teetai's house with sour toddy the victim in the meantime came and joined the witness at the hammock and started chatting away. Then the accused came with the sour toddy and upon seeing the accused the victim told the accused off and ordered him to leave them. So the accused left without saying anything back to the victim. Then the victim told the witness that he wanted to hit the accused and so he followed the accused. Shortly afterwards he heard a bang-like noise. It was dark then. So he slowly went in search of what the bang was all about. And as he walked thus to the direction where the bang had come from he then saw the victim standing up in complete silence and in agony. The witness then went closer to the victim and in great surprise he saw that the victim had been wounded with his intestines coming out protruding and covered with much blood. The witness was first of all alone with the victim and the accused was nowhere around to be seen. Shortly afterwards Teetai (PW2) came along bringing a plate of food for the victim. When she saw that her friend, the victim, had been wounded, and seeing Miomio there only with the victim, she blamed him for having wounded the victim.

The witness then walked with the victim to Teetika's house and when the witness and the victim reached the house all those who were in the house were very surprised to see the victim having been wounded with his intestines coming out protruding and covered with much blood.

The witness said he saw the police car arriving at Teetika's house and it was then the time when he left and went home.

The witness in his evidence also said that he knows the victim (Tokiteba) well and he drinks with him regularly but when he is drunk he gets aggressive and irritable sometimes.

In cross-examination the witness confirmed that he walked behind the victim when he took the victim to Teetika's house as he did not want to see blood which was coming out from the victim's stomach. The witness further stated in cross-examination that the victim was in great pain and suffering when he was at Teetika's house and people at the house tried to help him easing the pain and stopped the bleeding.

That concluded the case for the defence. I then heard addresses by counsel for the prosecution and counsel for the defence.

Counsel for the prosecution Ms Pauline Beiatau submitted that the prosecution must prove beyond reasonable doubt the following elements of the offence:

(1) That the accused had wounded the victim;
(2) That the wound is a serious wound;
(3) That the accused intended to cause the wound.

And from the evidence of the victim and the accused the prosecution has proved beyond reasonable doubt Element 1 of the offence. Regarding Element 2 the prosecution has proved beyond reasonable doubt this element from the evidence of Tokiteba (victim), Teetai (PW2) and Miomio (DW2). And regarding Element 3 the prosecution has proved beyond reasonable doubt this element from the evidence of Tokiteba (victim) himself (PW1).

Counsel for the defence on the other hand submitted that the prosecution had failed to prove the guilt of the accused beyond reasonable doubt that he intended to do grievous harm to the victim.

Before I consider the evidence I must remind myself that there is no onus on the accused at any stage to prove its innocence and that the burden of proof beyond reasonable doubt remains on the prosecution from the beginning of trial to the end.

He (the accused) "shall be presumed to be innocent until he is proved . . . guilty" (Section 10(1)(a) of the Constitution.

Tokiteba Ribaii (victim) (PW1) and Teetai Kourabi (PW2) were the only substance of the prosecution's case and taking into account the fact that the instant case is about two and half years old they were good and reliable witnesses and I accept their pertinent evidence. I also find the accused and Miomio to be good and reliable witness and again I accept their pertinent evidence.

In the instant case to discharge its burden of proof in respect of the charge of causing grievous bodily harm with intent the prosecution must prove beyond reasonable doubt that (1) there was the wounding of the victim, (2) the wounding was deliberate and without justification, that is that it was not by way of accident or self defence, (3) the wounding was committed with intent to do really serious bodily harm and (4) the necessary intent must have been in the mind of the accused, that is the intent of a reasonable or sensible man is irrelevant, for the test is a subjective one and not an objective one. R v Belfan [1976] 3 All ER 46 at p. 49 (d)(e). See also R v Frank Purcell, 83 CR App R 45.

In my view, the evidence falls far short of proving such an intent.

There is no doubt at all that the victim was unlawfully wounded. He was seriously wounded. From such wound on his stomach his intestines came out protruding and bled profusely. The victim also fainted and was unconscious and suffered much pain. He also spent two weeks in the hospital in order to heal his wounds.

On the evidence the wound suffered by the victim on the stomach had occurred by accident as he was still carrying his toddy knife in his right hand when he pushed the victim away from him with his two hands to prevent him from punching him (accused) for the second time. The victim himself had confirmed that the accused had stabbed him only once. Yet he had ample time and opportunity to inflict more injuries had he wanted to but he did not. Further the victim and the accused are total strangers to each other and it was their first time to meet when they fought that night. So the fight that took place that evening between the accused and the victim appeared to have happened on the spur of the moment. When the accused saw blood under the light on his fingers and on the knife he became panicky and afraid.

So taking the whole of the evidence into account I am satisfied beyond reasonable doubt that the prosecution has not proved beyond reasonable doubt the charge of causing grievous bodily harm with intent. I therefore find the accused not guilty of that charge and I acquit him accordingly.

However pursuant to section 157 of the Criminal Procedure Code (Cap 17) I find the accused guilty of a lesser offence of unlawful wounding under section 223 of the Penal Code (Cap 67) and I convict him accordingly.

Dated the 31^st day of May 2004

THE HON MR JUSTICE MICHAEL N TAKABWEBWE
Judge