Republic v Kakati - Judgment [2014] KIHC 23; Criminal Case 60.2012 (27 June 2014)

IN THE HIGH COURT OF KIRIBATI 2014

CRIMINAL CASE NO. 60 OF 2012

BETWEEN

THE REPUBLIC
PROSECUTOR

AND

IOTEBA KAKATI
ACCUSED

Before: The Hon Mr Justice Vincent Zehurikize

24, 25, 26 & 27 June 2014

Mr Taburuea Rubetaake for Prosecutor
Mr Raweita Beniata for Accused

JUDGMENT

Zehurikize, J: Ioteba Kakati, hereinafter referred to as the accused is charged with Murder contrary to section 193 of the Penal Code Cap 67.

It is alleged that on the 22nd day of December 2011 at Tebero Village in Abaiang in the Republic of Kiribati the accused murdered Beia Toani, hereinafter referred to as the deceased. The accused having denied the offence, the case went into full hearing.

In a bid to prove its case the prosecution adduced evidence from five witnesses. In his defence the accused made unsworn statement and called no witnesses. The case for the prosecution briefly is as follows:

In the evening of 22 December 2011 the deceased with one Etiete Ekera (PW2) went for a drinking spree in the village. They came back in the early hours of 23 December 2011 at around 2.00 am or 3.00 am.

Before reaching home, the deceased went ahead of PW2 who stayed behind urinating by the roadside. On reaching home PW2 found the deceased fighting with the accused. He separated them. Shortly after the two resumed the fight in which process the accused stabbed the deceased with a knife which led to his death. PW2 panicked and fled the scene. On the other hand the accused decided to report to a Police Constable in the neighbourhood. The Police Constable one Moiarerei Atauea is PW3 in the proceedings. This witness came to the scene and found the deceased dead.

One Katarake Mweeka (PW1) is the Medical Assistant who examined the body of the deceased. He noted two stab wounds. One was on the left side of the chest which was one inch long and ¼ inch deep. The second wound was one inch deep and it entered the chest cavity. According to PW1 the cause of death was Pneumothorax, meaning that the air entered the chest cavity.

The other Prosecution witnesses were Keakea (PW4) to whom the accused admitted to have stabbed the deceased, and one Meme (PW5) the sister in law of the deceased. Both the accused and the deceased were staying with PW5 whose husband was working away in South Tarawa.

PW5 and the deceased on several occasions had an affair which apparently did not please the accused. On the other hand the deceased wanted the accused to go away from the home, apparently to stop the accused from spreading rumours of his affair with his sister in law (PW5).

In his defence the accused admitted that he fought the deceased on the fateful night. That the deceased found him sleeping with his wife and boxed him which led to a fight but were separated by PW2. That the deceased attacked him again and on this second encounter he realized he had been injured on the arm. But not knowing what happened, he swung a knife and did not know whether it hit the deceased. The accused was quite evasive as to what he did with the knife, but later realized that the deceased had been fatally injured; whereupon he went to the Police for help.

It is the duty of the Prosecution to prove the guilt of the accused person beyond reasonable doubt. This burden never shifts. In case of any doubt the same would be resolved in favour of the accused who has no duty to prove his innocence.

In the case of murder the Prosecution must prove the following ingredients of the offence if a conviction is to be procured:

1. That a person is dead, and in this case that Beia Toani is dead;
   
2. That the death was unlawfully caused;
   
3. That there was malice aforethought;
   
4. The participation of the accused in the murder.
   

In the instant case the evidence of all the Prosecution witnesses as summarised above and even the unsworn statement of the accused clearly show that Beia Toani is dead. This element of the offence was proved beyond reasonable doubt.

The next point to consider is whether his death was unlawful. As a general rule, all homicides are unlawful unless death is caused accidentally or is authorised by law and excusable. In the instant case the deceased died from stab wounds sustained during a fight which in itself is an unlawful act. The fight was neither authorised by law nor is it excusable. It was not accidental that the deceased got stabbed. The stabbing was intentional. Consequently, I find that the second ingredient of the offence was also proved beyond reasonable doubt.

The next element of the offence is whether whoever caused the death of the deceased did so with malice aforethought. Malice aforethought is defined under Section 195 of the Penal Code Cap 67 and briefly it is:

(a) An intention cause the death or grievous bodily harm or

(b) Knowledge that the act which caused death will probably cause the death or grievous bodily harm. It is immaterial that such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or even by a wish that it may not be caused. The test here is Objective.

Malice aforethought is indeed a state of mind and it can only be discerned from the surrounding circumstances.

It is usually established by considering the nature of the wounds sustained or the part of the body where such wounds have been inflicted. The other considerations are the nature of the weapon used and the conduct of the accused before or after the act.

Where a deadly weapon is used to inflict wounds on the vulnerable part of the body and or where multiple wounds are inflicted on the deceased, the inference of intention to kill will easily have been established. A person who abandons a person he or she has fatally wounded or flees the area to evade justice can only be said to have intended to kill the deceased.

In the instant case, the weapon used was a knife which, in my view, is a deadly weapon. According to PW1 the two stab wounds were inflicted on the left side of the chest, one of which penetrated the chest cavity. This led to Pneumothorax which caused death.

From his own evidence the accused did not seem to care about what he had done. He simply went to report to a Police Constable. He was at pains to impress it on the Court that what happened was outside his will. It was clear he was lying. He intentionally stabbed the deceased. Thus malice aforethought was proved beyond reasonable doubt.

The fourth element of the offence is the participation of the accused in this murder. I have already summarised the evidence of PW2 who was an eye witness. He separated the accused and the decesed when they fought for the first time and he witnessed how the second fight took place. He heard the accused asking the deceased how he felt and the deceased's reply that he was hurt.

Although it was at night and there was darkness the issue of identification of the assailant does not arise. The accused himself testified that he fought the deceased and that he swung the knife during the fight. He told PW4 that he had stabbed the deceased. I find the participation of the accused in this murder has been proved beyond reasonable doubt.

The only question to consider is whether there are any defences available to the accused which can have the effect of reducing the murder to manslaughter or otherwise. Both Counsel, Mr Beniata for the accused and Mr Rubetaake for the State made spirited submissions on this point.

Mr Rubetaake made oral submissions and also filed written ones. He cited the case of Regina –v- Katiotio Reirei Cr. Case No. 26 of 1979 of this Court to fortify his argument that the accused's retaliation was not proportionate to the provocation received and was not sufficient to make a reasonable man do what the accused did. He invited the Court to find the accused guilty of murder since all the essential ingredients of the offence had been proved beyond reasonable doubt.

On the other hand Mr Beniata advanced the theory of the motive that led to the fight mainly that it was the affair the deceased had with PW5 and the talking about it by the accused that led to the fight. As a result, according to Counsel, there was no malice aforethought. With due respect, I find that such motive could be the basis for forming an intention to eliminate the deceased. In fact grudges do more often than not lead to premeditated murder.

Counsel went on to submit that it is the deceased who picked the knife and went on to attack the accused. They struggled with it and the accused got injured. He then got the knife from the deceased and stabbed him with it.

I have not been able to find any evidence to support the view that it is the deceased who picked the knife. I am inclined to agree with Counsel for the Republic that the accused could have picked the knife after the first fight when he went to a nearby tree from where he resumed the fight with the deceased.

The accused himself was not positive about the picking of the knife. His evidence is that he felt numb and then saw blood from his arm. Then he and the accused struggled. He does not say they were struggling for the knife. But the accused goes ahead to say that he does not know what happened, but that he swung a knife, but did not know whether he hit the deceased.

The only inference I can draw from the above is that it is the accused who picked and in fact had a knife which he used to stab the deceased. It could not have come into his possession out of the blue.

Counsel for the accused further submitted that the deceased was the aggressor and that the accused killed him in the heat of passion, but had no intention to kill him. In effect Counsel was saying that his client should be convicted of manslaughter.

I wish to remark here that provocation acts to reduce murder to manslaughter but does not negative intention to kill. The intention does exist but the circumstances are such that the provocation merely reduces what would have been murder to manslaughter.

Manslaughter is defined under s.192(1) of the Penal Code as follows:

"Any person who by unlawful act or omission causes the death of another person is guilty of the felony known as manslaughter. Any unlawful omission is an omission amounting to culpable negligence to discharge a duty tending to the preservation of life or health, whether such omission is or is not accompanied by an intention to cause death or bodily harm. (Underlining mine).

In the instant case it can safely be held that indeed the deceased was the aggressor. At first he attacked the accused when he was in bed with his wife. They fought and PW2 separated them. The deceased once again challenged or confronted the accused which led to the resumption of the fight. It appears at this stage the accused got hold of a knife to fight off the deceased which led to his death. Before t he deceased was stabbed it appears they must have fought for it which led to the injury sustained by the accused.

I have considered all the circumstances of this case especially how each of the two fights got sparked off and the accused's intention to fight off the deceased and bearing in mind the burden and standard of proof required in criminal cases, I find that this is a borderline case where the benefit of doubt is to be resolved in favour of the accused.

The conduct of the deceased, though drunk, at such time of the night created a situation that could have led the accused to react the way he did. It is a borderline case in that not everyone would have resorted to a knife to fight off such a drunkard assailant. But one cannot ignore the accused's apprehension due to the misunderstanding between the two. In the peculiar circumstances of the case I find that the accused acted under provocation.

In the premise I find him guilty of Manslaughter contrary to section 192(1) and (2) of the Penal Code and convict him accordingly.

Dated the 3rd day of July 2014

THE HON MR JUSTICE VINCENT ZEHURIKIZE
Judge