Republic v Katewea [2004] KIHC 182; Criminal Case 40 of 2004 (22 July 2004)

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

High Court Criminal Case No. 40 of 2004

THE REPUBLIC

vs

NARUAI KATEWEA

For the Republic: Ms Eveata Maata
For the Accused: Mr Aomoro Amten

Date of Hearing: 22 July 2004

JUDGMENT

The accused, Naruai Katewea, is charged with wounding with intent to cause grievous harm. The particulars:-

Naruai Katewea on the 7th May 2002, unlawfully wounded Koria Raau at Betio, Tarawa, with intent to do him grievous harm.

Naruai had been at Raau Tungaru’s house all day, arriving between 8 and 9 o’clock in the morning. Raau was Koria’s father. Sour toddy was sold from the house. Naruai had six cups: he lay down there and went to sleep until nearly dark.

Koria woke him up. What happened after Naruai was woken is in dispute between prosecution witnesses and the accused. The prosecution version, given by Raau and another man Teema Tetaua, is that Naruai left the house, came back later and stabbed Koria.

Raau:-

Slept until nearly dark. My son woke him up, sat him up: led him outside. He left. My son went to lie where accused had been sleeping. Accused returned and stabbed my son. They fought. “This man is carrying something”. I saw a knife: shiny blade..... two wounds on stomach and four on hand ......... I saw accused holding a shiny knife when he was fighting with my son.

Teema:-

I was at Raau’s house: drinking sour toddy. First went to Raau’s house between 6 and 7 o’clock in the evening: had only a couple of cups. I was alone. Know Naruai. He wasn’t there at first then he shewed up. He started dancing: told to go out by Koria. Struggling: Koria pushed him, went to lie down. Naruai reluctant to leave, had to be forced out. Pushed him out. Naruai came back and hit Koria who was lying down. I did not see the knife at first. Saw it later. I saw it in Naruai’s hand when striking Koria. He was stabbing Koria with the point. Striking with both hands, knife in one. Saw injuries (later). The wounds – one on left arm, one on stomach, one on thigh. Blood...... the accused struck first Koria lying down when accused came in and struck him.

Special Constable Taribaba Kakiauea was at the Betio police station when the accused came there some (short) time after the incident at Raau’s house:-

Naruai came by. He required assistance saying he’d been stabbed. Bus – He got off holding his stomach – stood by coconut tree – came to station .... I saw no wounds on Naruai. I saw no bleeding or blood. When he came into station not holding stomach ....... I arrested him: went to coconut tree: saw knife. Can’t remember to describe it. Traces of blood on it, fresh. Belonged to Naruai: he said it was his.

Ms Maata tendered a medical report dated 14th May:-

The above was seen by me on 10/5/02 at night. Being stabbed by another man with a knife to the (l) forearm, chest (l) and lower abdomen.

On examination – Laceration – (l) chest – laterally, (l) forearm x 2 stitched

Deep laceration to lower abdomen

Admitted to TCH

He underwent erect AXR & intravenous antibiotics

The medical officer’s signature is indecipherable. As the report was tendered by consent I accept the contents as accurate.

That was the close of the prosecution case. I comment on three things.

First I wondered why the victim Koria had not been called: no explanation for his absence came out in evidence. During addresses I expressed surprise. Ms Maata told me, Mr Amten not objecting, that Koria died a week after his discharge from hospital. I do not know whether his death was the result of his wounds on the 7th May 2002 or not. I disregard altogether the unhappy fact of Koria’s death: I assume it had nothing to do with this case.

Secondly I was also surprised that the knife found by the coconut tree was not exhibited. Ms Maata said it has disappeared.

Thirdly, the accused has been charged with intent to cause grievous bodily harm. Can I find proved beyond reasonable doubt that the wounds described in the medical report amount to grievous bodily harm? They probably do but in the absence of oral medical evidence I am not able to find beyond reasonable doubt that they do. No doubt, though, that they amounted to actual bodily harm. Ms Maata argued that the accused’s intention must have been to cause grievous bodily harm even if he did not succeed. Although I may accept the prosecution version of events, it would be unfair, in the state of the evidence, to impute to the accused an intention to cause grievous bodily harm.

I come now to the accused’s evidence. He is 55 years old. No dispute that he had been at Raau’s house asleep.

Koria woke me. Pulled me: threw me on to ground, by my feet. Backside hit floor: back of head hit raised floor: a little stunned. Koria beside his stereo: playing music and dancing. Lifted me outside. Threw me on to ground: I fell on back. I sat up, dusted off sand, cried. Music very loud. I got up, went into house, told him “I’m very pitiful at what you have done to me. I am an old man. Yet you struck me, threw me to ground, dragged me outside”. I went to tobacco box to cut a smoke. He rushed at me. I grabbed him by the shoulders, “I’m an old man. You’re a young man. You shouldn’t do that”. He kept on hitting me until I was forced outside. I had in my hand when he punched me – tobacco knife in left hand broken knife in right. He was hitting me – tried to defend myself blocking the blow – forced me outside. He stopped when outside. I left. The knife must have fallen: didn’t take it away with me. Caught bus to report to Betio police station. Special Constable not the one I spoke to. I met one with blue (epaulettes). We never discussed a knife. No police officer ever shewed me a knife that night...... Teema not there when I was being forced out ..... I didn’t get off bus and first stand by coconut tree. No way I would have gone to police. I told police I was wounded. An injury bleeding on leg and I shewed it: wearing a pair of shorts. Two police officers at station. It wasn’t Taribaba. I didn’t take a knife to police station or drop one near a coconut tree.

The defendant’s version is different to that of the prosecution in three important respects. First, it makes Koria the aggressor. Secondly, it denied altogether Teema’s presence. Thirdly, it denies that at the Betio police station he saw Special Constable Taribaba or had a knife.

I find all three prosecution witnesses believable. I accept beyond reasonable doubt the thrust of their evidence: that the accused came back to the house and was the aggressor, that Teema was there and saw what he described and that Special Constable Taribaba spoke to the accused, retrieved the knife and the accused admitted it was. It would be beyond belief that Teema made up his evidence if he were not there: likewise that Taribaba would have made up his if it were not he who saw the accused.

Remembering that the accused did not have to prove anything, that the burden of proof beyond reasonable doubt remained always on the prosecution I find beyond reasonable doubt that the accused wounded Koria. I cannot find beyond reasonable doubt the wounding was with intent to cause grievous bodily harm.

The accused is not guilty of wounding with intent to cause grievous bodily harm (section 218) but is guilty of the lesser offence of wounding (section 223).

Dated the day of July 2004

THE HON ROBIN MILLHOUSE QC
Chief Justice