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Republic v Kaiuea - judgment [1996] KIHC 17; HCCrC 07.96 (20 June 1996)

IN THE HIGH COURT OF KIRIBATI
(BEFORE THE HON R B LUSSICK C.J.)

HCCrC 7/96

THE REPUBLIC

vs

KAKIATAAKE KAIUEA

Ms P Atanraoi for the Republic
Mr D Lambourne for the Accused

JUDGMENT

The accused is charged with the murder of Borau Kaamoua at Buota Village, Marakei on Sunday the 3rd March 1996.

The prosecution's case is that on the morning of that day the accused was drinking sour toddy with the deceased and others. The accused went away to inspect a babai pit and upon his return noticed that his hammock had been cut down and that the deceased was missing. The accused blamed the deceased and became very angry but was calmed down by the others who were present.

Later on, in the afternoon, the accused took his basket containing a bush knife and went to the home of Bakatokia. From there he asked a boy who was passing by to go and ask the deceased to come to him.

When the deceased arrived the accused asked him who had cut down his hammock. Although the deceased denied doing it, the accused took his bush knife and fought with the deceased, who was unarmed. The accused struck him repeatedly with the bush knife causing severe injuries and exposing his intestines. A special constable who arrived at the scene was unable to restrain the accused who said that he wanted to finish off the deceased.

The deceased died later that day as a result of the injuries received.

The case against the accused was a strong one and not many of the facts were in issue.

A man who had been drinking with the accused that morning gave evidence that the damage to the hammock was minor so he fixed it and, in an effort to calm down the accused, showed him how the hammock could once more be used. He said that the accused appeared to have calmed down and left to go home to sleep. When the witness was on his way home later that day he saw the accused walking by with blood on his clothes. He took from the accused a bush knife which is in evidence as Exhibit A. Soon afterwards a policeman came to arrest the accused.

The fight with the deceased took place near the house of a man named Bakatokia. He testified that the accused came to his house asking for the deceased. The accused then stopped a passing boy and asked him to go and get the deceased. The deceased was unarmed when he arrived and the witness saw the accused strike the deceased many times with the bush knife and there was a lot of blood coming from his wounds.

Bakatokia's wife testified that she saw the accused take the bush knife from his basket and hit the deceased with it. When the deceased fell down the accused stood over him and hit the deceased with the knife as if he was hitting a piece of wood.

The young boy (aged 13) who was passing by and was asked by the accused to go and get the deceased gave evidence that he saw the accused take the bush knife from a basket and hit the deceased with it. The deceased fell down and the boy ran off to fetch the special constable.

The special constable testified that when he arrived the deceased was lying on the ground with the accused standing over him. The deceased was unarmed. The accused refused to surrender his knife and made repeated attempts to stab the deceased while the constable tried to fend him off with a stick. The constable could see that the deceased was badly injured. He could see his intestines and his hands were so badly lacerated that they appeared to be about to fall off. He saw many other cuts on the deceased's head and body and it was obvious that he had lost a lot of blood. Eventually the accused left with his knife after the constable had begged him to go. At this stage the deceased was still alive though very seriously injured. The constable then made arrangements to get him to hospital.

A medical assistant gave evidence that he examined the deceased later that day. The deceased was still alive when he was brought in and he was given an IV drip and an injection but died less than two hours later. The medical assistant was of the opinion that the deceased had died from loss of blood from the many wounds he had suffered. The report of the examination details the extensive and quite horrifying injuries.

Two other police officers gave evidence of taking a cautioned statement and two records of interview from the accused. These documents were admitted into evidence without objection and I was satisfied beyond reasonable doubt from the evidence of the police officers that they were given voluntarily. The accused confessed to attacking the deceased with his bush knife because he had cut his hammock. He admitted that the deceased was unarmed and that he kept on striking the deceased with the bush knife even while the deceased lay on the ground seriously wounded.

In the face of this evidence the accused elected to remain silent and did not call any evidence.

Before addressing the issues, I remind myself that the onus of proof beyond reasonable doubt remains upon the prosecution from first to last. The Republic 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 no onus on the accused at any stage to prove his innocence.

The elements of murder are:-

(1) causing death

(2) by an unlawful act or omission

(3) with malice aforethought (section 193 Penal Code Cap. 67)

I found no reason to doubt the evidence of any of the prosecution witnesses. The evidence of each one was quite consistent with the evidence of the others and all of the witnesses retained their credibility under cross-examination.

On that evidence I am satisfied that the first two elements of the offence have been proved beyond reasonable doubt.

Counsel for the accused in fact concedes that the first two elements have been proved but he argues that the prosecution have failed to establish malice in that they have failed to prove that the voluntary act of the accused was not only intentional but unprovoked.

It is submitted for the accused that three factors combined to deprive the accused of the power of self-control and that a reasonable man from Marakei would have done the same thing.

Those factors are, firstly, the damage to the hammock caused by the deceased, secondly the words of the deceased when asked by the accused whether he had damaged his hammock, "Don't you know Tem Borau", and thirdly, the action of the deceased in rushing at the accused and making them both fall to the ground.

Counsel argues that the number of injuries sustained by the deceased is proof that the accused had lost self-control.

Under section 197 of the Penal Code where a person by an intentional and unlawful act causes the death of another person the offence committed shall not be murder but only manslaughter if it is proved on his behalf that he was deprived of the power of self-control by such extreme provocation given by the person killed as is mentioned in section 198. Section 198 provides that 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.

Despite the use of the words "proved on his behalf" in section 197, it is clear from the decision of the Kiribati Court of Appeal in The Republic v. Beretia Bakaatu (1996) that once there is evidence capable of supporting a finding that the accused was provoked, the burden is on the prosecution to prove beyond reasonable doubt that the case is not one of provocation. The Court of Appeal went on to discuss the dual test for provocation, namely:

(1) was the accused actually provoked into losing his self-control as a result of which he committed the act which killed the deceased? and

(2) was the provocation such that it was capable of causing a reasonable person to lose self-control and act in the way that the accused did.

One of the prosecution witnesses who was a village unimane gave evidence that for a person to enter the property of another and damage his hammock is contrary to custom and the owner of the property would be entitled to get angry and challenge the person who did the damage, but it was not something to kill over.

In the present case the cutting of the hammock is not, in my view, capable of amounting to provocation of the quality required to reduce the offence to manslaughter. The evidence was that when the accused saw the damage to his hammock he had been calmed down by the other men with whom he had been drinking. He then went home and it was not until some time later that he confronted the deceased. I have no doubt at all that after pondering the matter the accused formed an intention to kill the deceased in revenge for what he had done to his hammock and took with him a basket containing a bush knife for the purpose of doing so. Counsel for the accused argues that had the accused intended to kill the deceased he would have summoned him to his house which is in the bush away from people rather than confront him in the village. This argument fails to take into account that the deceased would not have been likely to meet the accused in an isolated place and would probably have felt safe where other people were around.

In any event, what the accused did was done only after having time to reflect and he therefore cannot rely on provocation. In this regard, the following statement by Devlin J. in Duffy (1949) 1 ALL ER 932 was approved by the Court of Appeal in Ibrams [1981] EWCA Crim 3; (1981) 74 Cr. App.R. 154:

"Circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that a person has had time to think, to reflect, and that would negative a sudden temporary loss of self-control, which is of the essence of provocation".

In respect of the deceased allegedly using the words, "Don't you know Tem Borau" I do not believe that such words were ever said. Those were the words which the accused claims in his cautioned statement were said to him by the deceased when he was asked did he damage the hammock. But this is contradicted by the evidence of three prosecution witnesses (PW2, PW3 and PW4) who all swore on oath that when the deceased was asked about the damage to the hammock he merely replied that he had not done it. I accept that sworn evidence in preference to the accused's cautioned statement and I find that the words claimed by the accused to have been said by the deceased were not said.

As regards the accused being provoked by the deceased rushing at him, I absolutely reject that submission. It is clear from the evidence that the accused was armed with a knife and that the deceased was unarmed. What the deceased did was more likely done in self-defence, no doubt in an effort to prevent the accused using the knife. The accused himself admitted in both of his records of interview that he thought the deceased was advancing to take away his knife so he struck him with it. I therefore do not consider that what the deceased did would entitle me to find that the accused was thereby provoked to lose his self-control. Even if what the deceased did had amounted to some provocation it would not be enough in my opinion to make a reasonable man do as he did.

I find that if the accused did lose his self-control then it was not because of anything done by the accused. It would more likely to have been self-induced by working himself into a frenzy as he continued his attack.

It follows from what I have said that I am satisfied beyond reasonable doubt that the accused was not provoked into losing his self-control. I am thus quite satisfied that the prosecution have proved beyond reasonable doubt that the case is not one of provocation.

As regards the third element of murder, Section 195 of the Penal Code provides that "malice aforethought may be expressed or implied and express malice shall be deemed to be established by evidence proving either of the following states of mind preceding or co-existing with the act or omission by which death is caused, and it may exist where that act is unpremeditated -

(a) an intention to cause the death of or grievous bodily harm to any person, whether such person is the person actually killed or not; or

(b) knowledge that the act which caused death will probably cause the death of, or grievous bodily harm to, some person whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused".

In the present case the inference is inescapable that in striking the deceased numerous blows with a bush knife the accused had the intention of causing grievous bodily harm or worse.

I therefore find that the prosecution have proved all of the elements of murder beyond reasonable doubt in that it has been proved to the required standard that the accused caused the death of the deceased by an unlawful act with malice aforethought.

The accused is therefore found guilty of the murder of Borau Kaamoua contrary to section 193 of the Penal Code Cap. 67 and is convicted accordingly.

THE HON R B LUSSICK
CHIEF JUSTICE
(20/06/96)