[1979] KILR 36

HIGH COURT OF THE GILBERT ISLANDS

Criminal Case No 14 of 1979

REGINA

v

KAMANUKA TEKUA

(O'BRIEN QUINN C.J.)

Betio: 2nd March 1979

Criminal law - manslaughter - section 192(1) Penal Code (Cap 8) - chastisement of son by father - one blow on the head with a stick - no evidence of death - charge reduced to one of causing grievous harm - section 220 of Penal Code (Cap 8) - special circumstances - leniency - sentence - 6 months' imprisonment - backdated to date of arrest.

The deceased, Tekua Kamanuka, a young man of 23 years of age had, while drunk, beaten and kicked an older relative of his father, the accused, on 24th November 1978 at Nanikai, Tarawa. The relative complained to the accused of the son's behaviour and the accused remonstrated with his son who then ran away. The accused ran after him and struck him one blow with a stick 2 feet long and 2 or 3 inches wide. The son was seen by a Nursing Sister who suspected that he had a brain injury and ordered that he be taken to Hospital at Bikenibeu.

HELD: (1) That as there was no evidence before the Court that Tekua Kamanuka had died the offence was reduced from Manslaughter to causing grievous harm contrary to section 220 of the Penal Code (Cap 8);

(2) That the accused be convicted of the offence of causing grievous harm;

(3) That in view of the background to the case and the father's indignation at his son's behaviour the sentence would be 6 months' imprisonment backdated to 25th November 1978, the date of arrest.

M. Takabwebwe, Crown Counsel, for the Crown
The Accused in person, unrepresented

O'BRIEN QUINN C.J.: -

In this case the accused was charged with manslaughter contrary to section 192(1) of the Penal Code (Cap 8) and the particulars alleged were that, on 25th November 1978, at Nanikai, Tarawa, he unlawfully killed Tekua Kamanuka.

2. The accused, on arraignment, pleaded "Not Guilty" to the charge.

3. The Crown called seven witnesses to establish the charge, which witnesses were cross-examined by the accused.

4. The Crown proved that on the evening of 24th November 1978 the deceased, Tekua Kamanuka, a young man of 23 years of age, was drinking heavily with two of the prosecution witnesses and that, having had a Quarrel with one of the witnesses concerning a radio, he and the witness, Tiboo, fought with their fists and rolled each other on the ground; Tiboo an older man and a relative of the deceased, having been kicked, abandoned the fight and went to the house of the accused, who was Tekua's father, and complained about Tekua's conduct; the father being angry at the son's behaviour confronted him when he came to the house after Tiboo had left but the son ran away and was followed by his father the accused; the son, being drunk, fell down and the father struck him once with a stick about 2 feet long and 2 or 3 inches wide on the left shoulder and on the left side of the head before leaving him and going home.

5. Efforts were made to lift the son, Tekua, but he was unconscious and could not be moved. Medical assistance was sent for and the Nursing sister from Bairiki and three Police Officers arrived on the scene. The nursing sister ascertained that Tekua was bleeding from the left ear and that the pupil of his right eye was considerably larger than that of his left eye and, realizing that he must have had an injury to the brain, ordered that he be taken at once to the Tungaru Central Hospital at Bikenibeu. The Police Corporal, Tangaroa, took Tekua to the Hospital and handed him over, still unconscious, to the Sister in charge. On the following morning the Corporal received word that Tekua had died about 7 a.m.

6. Investigations were made and the accused was cautioned. He made a voluntary statement under caution admitting that he had struck his son, Tekua, once with a stick but on realizing that the son was drunk he left him and went home to bed.

7. Unfortunately the Crown could not produce medical evidence as to the actual cause of death of Tekua nor could the Crown establish that Tekua had died, as the evidence of the Police Corporal, in the absence of medical evidence, was hearsay and inadmissible.

8. At the end of the Crown case, therefore, I found that the accused had no case to answer on manslaughter and acquitted him of that charge but I found that he had a case to answer on the offence of causing grievous harm to Tekua Kamanuka contrary to section 220 of the Penal Code (Cap 8). I explained the choices open to him under section 194(1) of the Criminal Procedure Code (Cap 7) and I explained to him that he had a right to call witnesses. The accused elected to give evidence on oath and not to call witnesses.

9. In evidence, the accused confirmed his voluntary statement to the Police and said that he was rightly annoyed by the behaviour of his son Tekua towards Tiboo, who was an elder relative of theirs, and that he had had no intention of causing his son any injury but merely intended to teach him a lesson in manners.

10. On the whole of the evidence, therefore, I found, beyond reasonable doubt, that the accused Kamanuka Tekua unlawfully caused grievous harm to his son Tekua Kamanuka on the evening of 24th November 1978 and I convicted him accordingly.

11. The accused had no previous convictions. He was a married man, aged 44 years, with five very young children and was employed as a plumber by the Government. He had been in custody since immediately after the offence awaiting trial.

12. The accused begged the Court for leniency, pointing out that he had merely chastised his son for his unmannerly conduct and had had no intention whatever of killing or causing him grievous harm. He was sorry for what he did and threw himself on the mercy of the Court.

13. Having carefully considered the background to the case and the feeling of righteous indignation of the father, the accused, at his son's behaviour, and having considered the family circumstances of the accused I came to the conclusion that this was a case in which leniency could well be exercised in the accused's favour. I took into account the fact that the accused had been in prison custody since 25th November 1978 and I sentenced him to 6 months' imprisonment to run from 25th November 1978. This means that, if the accused behaves himself in prison and earns normal remission, he should be due for release before the end of March 1979.

14. I explained all this to the accused and informed him of his right of appeal to the Fiji Court of Appeal within 30 days.

15. The accused informed the Court that he was satisfied and did not wish to appeal.

16. The accused was sentenced to 6 months' imprisonment to date from 25th November, 1978.