IN THE SUPREME COURT
OF NAURU
Criminal Appeal No. 16 of 1974
KIRABUKE
v
THE REPUBLICt>
22nd N2nd November, 1974.
Criminal law - judgment - need for magistrate to make clear finding
of every
disputed fact in issue and to give reasonm>
Criminal law - intent to commit offence of unlawf wounding - test oest of intent is subjective.
Appeal against conviction for unlawful wounding. It was not disputed that tpellant
and the alleged victim quarrelled and struggleuggled
physically with one another and that in
the course of that struggle the appellant picked up his fishing spear and subsequently
the
spear pierced the alleged victim's leg, causing a small wound. The defence case was that
the appellant picked up the
spear to protect himself against an assault by the alleged
victim and that the alleged victim struggled to take it from him
and was accidentally
stabbed in the process. The magistrate reviewed the evidence and commented upon it but
made no clear
findings of fact. In the course of the appeal it was argued that the
wounding was the natural and probable consequence of the
appellant's acts and that he must
be taken to have foreseen and intended it.
Held: (1) The magistrate made no clear finding of fact on the issue of intent to wound.
He should have done so in respect of
every disputed fact in issue.
(2) The test of intent is subjective and intent could not be infurred merely because
the wounding was the natural and probable
consequence of the appellant's acts.
B. Dowiyogo for the appellant
J.H. Berriman for the respondent
Thompson C. J:
The appellant a Gilbertese employee of the, Nauru Phosphate Corporation was convicted
in the District Court of wounding Matanea
Eria, another Gilbertese employee of the
Corporation. He was sentenced to served two months imprisonment.
The charge arose out of an incident in the Corporation's Location late at night. The
appellant and Matanea were sitting outside
the quarters where they live when a quarrel
started. In the course of it the appellant picked up a fishing spear which he had
under a mat. He and Matanea struggled for it. In the
struggle the spear pierced Matanea's
leg, causing a small wound.
The prosecution case was that the appellant and Matanea were having a conversation when
the appellant made some remarks about
Matanea's girlfriend and told him that she did not
love him; that Matanea countered by saying to the appellant "Where is
your
wife?" It was alleged that the appellant then picked up the spear and told Matanea to
watch out, meaning that
he was going to spear him. Then the struggle for the spear ensued.
The appellant's case was that Matanea started the quarrel and challenged him to fight;
and that he picked up the spear to defend
himself.
Evidence of the events leading up to the struggle for the spear was given by Matanea,
for the prosecution, and by the appellant
himself. One witness, called by the prosecution,
gave evidence of coming to the scene when the two men were struggling for the
spear. He
did not know anything about the preceding events. Another witness, called by the defence,
said that he heard
the noise of a struggle and when he went outside saw the two men
bending down together but not struggling. That witness also
said that he heard Matanea ask
the appellant why he had sent his wife away and the appellant replied "You have
nothing
to do with it ... she has done nothing wrong". He gave evidence that he
though that Matanea wanted to fight the appellant
and that he heard the appellant asking
Matanea to go away.
The learned magistrate, who had the advantage of seeing and hearing the witnesses give
their evidence, rejected the evidence
of the witness called by the defence because of his
demeanour hearing the of the witness and because he apparently did not answer
frankly some
questions put to him about discussions he might have had with other people about the
incident. Although the
learned magistrate reviewed the evidence in considerable detail and
said that he accepted certain portions of Matanea's evidence,
he did not expressly reject
the evidence of the appellant. He commented "The act of aiming the spear at
the Complainant which is an aggressive act and saying "Watch Out" is in my
opinion sufficient to
foresee the possibility of the Complainant being wounded". But
he did not expressly find that the appellant did aim the
spear at Matanea and say
"Watch Out". The only finding of fact recorded as such is contained in the last
paragraph
of the judgment which reads:
"On the evidence before this Court I am satisfied that the Accused did cause the
injury to the Complainant. I therefore
hold that the Prosecution has proved its case
beyond all reasonable doubt and I find the Accused guilty of the charge and
convict
him".
In a case such as the present where a number of facts are not in issue, and the
question of the accused person's guilt depends
on a few facts in dispute and evidence of
those few facts is given by only one witness on each side, it is very important that
the
judgment of the trial magistrate should set out clearly his findings as to those facts and
his reasons for those findings.
Having found those facts he must consider whether they
establish the offence charged.
In this present case it is not clear whether the learned magistrate found as fact that
the appellant seized his spear and threatened
to attack Matanea with it or that he got
hold of it to defend himself, as he has asserted, if he was attacked. Although the
nature
of the weapon was such that it would not have been lawful to use it to strike at Matanea
even in self-defence, the
question whether the appellant did strike at Matanea with it
should have been decided in order to determine whether the appellant
intended to wound
Matanea, Mr. Berriman has submitted that the appellant must be taken to have foreseen the
natural and
probable consequences of his act and to have intended them. That is an
over-simplification of the matter. The proper test of
intent is subjective and, although
the consequences, of a man's act are evidence from which his intention may be deduced,
they cannot be taken in isolation but must be considered together with any other evidence
of what he intended.
The prosecution had to prove that the appellant intended to wound Matanea. If,
as he has stated in his evidence, he did not strike at, or threaten to strike at, Matanea
and there was merely a struggle
for possession of the spear it is not proper in my view to
conclude, in the absence of any other evidence of intent, that the
appellant intended to
wound Matanea.
Mr. Dowiyogo has submitted that the issue of provocation should also have been
considered. In view of the provisions of Section
268 of the Criminal Code, that the
defence of provocation is limited to offences "of which an assault is an
element"
and since an assault is not an element of the offence of unlawful wounding (R.
v Johnson (1964) Qd.R.1) there was not, in fact, any issue of provocation to be
considered.
However, the absence of any adequate findings of fact in the judgment and of any
consideration of those facts in relation to
the issue of whether the appellant intended to
strike at Matanea with the spear make it impossible to know whether or not the
learned
magistrate was satisfied beyond all reasonable doubt as to all the elements of the offence
with which the appellant
was charged and applied the law correctly to the facts as he
found them. That being so, the conviction cannot be left to stand.
The conviction is quashed and the sentence is set aside.
