IN THE HIGH COURT OF KIRIBATI

CRIMINAL CASE NO. 32 OF 2012

BETWEEN

THE REPUBLIC
PROSECUTOR

AND

TEKAEI TEAEI
KAERE TEKAEI
ACCUSED

Before: The Hon Justice Vincent Zehurikize

Mr Taburuea Rubetaake for Prosecutor
Mr Reiati Temaua for Accused

JUDGMENT

Zehurikize, J: The prosecution having withdrawn the charge of Criminal Trespass contrary to section 182 of the Penal Code, the accused persons who are father and son remained charged with Murder contrary to section 193 of the Penal Code and Grievous Harm with intent contrary to section 218 of the Penal Code.

At the commencement of the trial A1 Tekaei Teaei pleaded guilty to both offences upon which he was found guilty on his own plea and convicted of both offences. However sentencing was reserved until the completion of the trial in respect of A2.

This judgment is therefore in respect of A2 who pleaded not guilty thereby necessitating a full trial as far as he is concerned.

In a bid to prove its case the prosecution presented five witnesses. In his defence the accused gave evidence on oath and called two witnesses.

The case for the prosecution is as follows. Kabetite Mwetaka (PW1) is the victim in the Grievous Harm charge and the father of the late Tekaai Kabetite who is the victim in the alleged murder. It is alleged in the particulars of offence that on 6 April 2012 at Bonriki village on the island of South Tarawa both accused persons murdered Tekaai Kabetite.

In his evidence PW1 briefly told the Court that around 2.00 am while at his home both accused came to his home. A1 was armed with a sword while A2 his son had a spear. Then A1 attacked him using the sword. That A2 also attacked him using the spear. Both accused persons inflicted injuries on him. A1 cut him with a sword on his chest while A2 injured him on his right thigh.

The witness's sons, including the deceased, were at that time swimming in the sea. When they saw that he was being attacked they came to his rescue. Then A2 speared the deceased. PW1 and the deceased were then taken to hospital but on arrival his son was pronounced dead.

Lastly PW1 explained that the accused have been his neighbours for over five years and that their house is next to his own house. He knew them very well as they are always around.

In cross examination by Mr Temaua, Counsel for the accused, PW1 insisted that it is A2 who speared him and that he also saw him spearing the deceased on the back. When asked by Court PW1 said that he was aware of an earlier fight between the deceased and A2 on the main road and that the fight at his home was in retaliation to this earlier fight.

Tekaiwa Terunga (PW2) was staying at the house of PW1 who is his maternal uncle. It is his evidence that he witnessed the fight between the deceased and A2 on 6 April 2012. That the fight started when the deceased challenged Tenini who is a brother of A2. It was around 2.00 am when the fight took place and after the deceased had been drinking.

When they were separated, the deceased was taken by his brothers to the sea to wash him. Then both accused came and challenged PW1. A1 had a sword while A2 was armed with a spear. He was able to see them because there was light. A1 came dancing and challenging PW1 while A2 was behind him.

As A1 fought with PW1 his (PW1's) sons came from the sea to his rescue. He then saw A2 spear the deceased twice on the left abdomen and the back. The witness took the deceased away from the scene. An ambulance came to take him to the hospital, but he died on the way.

In cross examination by Counsel for the accused PW2 told the Court that he did not know why A2 came out of his house to fight the deceased who was challenging his brother one Tenini. He further replied to Counsel that when both accused approached PW1, the deceased and his brothers ran to the scene and fought with A1. The deceased twisted the neck of A1 and they dragged him from the scene. He explained that when the deceased strangled the neck of A1, then A2 came to assist and speared the deceased.

Kabiriera Kabetite (PW3) is the son of PW1. He told the Court that on 6 April 2012 his brother the deceased and A2 fought on the feeder road to their house. He separated them and thereafter went with the deceased to the sea for swimming.

While they were swimming they saw A1 fighting his father (PW1). Then they ran to the scene to save him. The witness hit the hand of A1 in a bid to remove the sword from him. Then the deceased also hit him twice with a piece of wood. At the same time, this witness was injured on the left thigh with a spear but he did not recognize who actually injured him. He does not even know who injured the deceased whom he saw laying on the beach. Later his father and the deceased were taken to hospital.

In cross examination PW3 explained that A1 had a sword and its cover but he did not have a spear. He went on to state that when A1 fought his father,he and the deceased came to rescue him. He threw a stone at A1 while the deceased punched him.

Dr Tobias Smith (PW4) is the one through whom the prosecution tendered the Medical Report under s.26(4)(b) and (6) of the Evidence Act 2003. The reports in respect of the deceased and PW1 were received in evidence and marked Exhibit P1. The reports spell out the injuries inflicted on both the deceased and PW1.

According to the report the deceased suffered multiple stab wounds and the cause of death was pneumothorax. 

PW5 Mamara Ubwaitoi is a Police Officer who was then stationed at Bonriki Police Station and investigated this case. Among others, he recorded statements from both accused persons. He exhibited both the sword and spear which were received in evidence and marked exhibits P2 and P3 respectively.

In his defence the accused admitted to have fought the deceased near his home at around 2.00-3.00 am. It was his evidence that the deceased used abusive language when he came to their home to challenge his brother one Tenini. Thereafter his father decided that they go and challenge PW1 because the deceased had said bad things to them. They went to the home of PW1 where his father fought him.

When he saw the sons of PW1 surrounding his father, the accused claims that he also went to the scene to save him, but was not armed. But at the scene he picked something from the ground and beat the deceased and another person. He beat PW1 and PW3 and then lost his mind and did not know what else happened. He explained that he lost his mind perhaps because of fear, and having lost his mind he could not know what he was doing. He was angry when he saw his father being beaten.

In cross examination, the accused, among other things, said that he did not know if he speared the deceased. That may be he speared him after losing his head. That he ran away from the scene when he saw his grandmother coming to the scene, but did not run away because of what he had done.

Boteri Tunee (DW2) is the mother of A2 and wife of A1. It was her evidence that on 6 April 2012 while asleep she was awakened only to find A2 and the deceased fighting. The deceased had on previous occasions made challenges to the family and saying bad things.

Later in the same night she heard some shoutings at the house of PW1. When she went there she found PW1 and his sons beating A1 her husband. She found one of the assailants carrying something like a metal while the other had a piece of wood with which they were beating A1. Her son, A2, intervened but he was not carrying anything. She never knew that the deceased died. She learnt of it in Court on the day when she gave evidence. On this I must say that this witness was an outright liar.

A1 was called and recorded as DW3. It was his evidence that on 6 April 2012 he went home and slept but when he woke up one of his daughters told him of the challenge and fight between A2 and the deceased. That the deceased had been making the challenges in which he used abusive language.

He stated that he expected the deceased and his family to apologise but they did not but instead they went on shouting and drinking. So he went to them. He went armed with a sword and spear. As he was drunk he dropped the spear on the way and reached the house of PW1 while holding a sword only. He went on to state that when he was fighting with PW1 his sons came and beat him with a heavy thing like a pipe on his back and he fainted and henceforth did not know what followed. That he came to know that the deceased was dead some two months later when he was released on bail. I must say that here A1 lied to the Court. 

In cross examination by Mr Rubetaake Counsel for the State A1 stated that by the time he fought PW1 using a sword he had already dropped the spear. When pressed further he stated that it was not his intention that the deceased be killed and PW1 be injured. He regretted what happened.

At the close of the case by both sides, Counsel filed written submissions in support of their respective cases. They also made oral clarifications to their submissions. From the above presentations there is no dispute that Tekaai Kabetite is dead and that his death was unlawfully caused. It is also not disputed that he was killed by A2 during the second fight at the home of PW1 who was also injured.

The only contention is whether there was provocation which would have the effect of reducing murder to manslaughter. Despite the above concessions, Court is obliged to make a finding on each and every essential ingredient of the offence in order to make a final decision.

As correctly stated by both Counsel, in a case of murder the prosecution has to prove the following ingredients of the offence beyond reasonable doubt if a conviction is to be secured. These are:

1.	That a person is dead and in this case that Tekaai Kabetite is dead;
2.	That the death was unlawfully caused;
3.	That the killing was done with malice aforethought;
4.	The participation of the accused.

I will consider the first two elements of the offence together. The evidence of all the prosecution witnesses and those of the defence is to the effect that there was a fight in the night of 6 April 2012 between both accused persons on one side and PW1 together with his two sons, one of whom was the deceased, on the other side.

It was as a result of this fight that the deceased Tekaai Kabetite met his death. He did not die by natural causes nor by accident or under the authority of the law.

In view of the above evidence I find that the fact that Tekaai Kabetite is dead and that his death was unlawfully caused were proved beyond reasonable doubt.

The next issue is whether there was malice aforethought in killing the deceased. Section 195 of the Penal Code defines malice aforethought. Without reproducing the whole section malice aforethought is said to mean:

"(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 wish that it may not be caused".

In simple terms malice aforethought means killing intentionally. In (a) above one could have called it "express malice" while in (b) it can be said to be implied malice.

Be that as it may, intention to kill is a mental element and it can only be discerned from surrounding circumstances. The commonest circumstances from which Courts usually infer malice aforethought are the weapon used, the nature of the injuries inflicted and the part of the body on which they are inflicted.

Court will also consider the conduct of the assailant before or after the incident to infer the element of malice aforethought. In the instant case a spear Exhibit P3 was used in killing the deceased. I find that this spear was a lethal weapon. There is sufficient evidence that it was used on the vulnerable parts of the body namely on the side and back of the deceased. Medical evidence reveals that the wound of five inches long was inflicted on the left side mid lateral trunk and the second vital wound was at the back which was of three inches long. He suffered other wounds.

The cause of death was multiple stabbed wounds, but most probable was pneumothorax meaning that the wound caused the air to go inside the chest causing lungs to collapse. I find that whoever caused such fatal wounds using a deadly weapon in the form of a spear must have intended to cause death or knew or ought to have known that death would be caused. It must also be remembered that the assailants came well armed with this weapon. I have no difficulty in finding that malice aforethought was proved beyond reasonable doubt.

The next issue is the participation of the accused. The participation of the accused person in this case is not denied. The evidence of PW1 that A2 came armed with the spear and the evidence of PW2 that he saw A2 spearing the deceased twice on the left abdomen and the back tells it all.

I believe the evidence of these two witnesses in regard to the direct participation of the accused in this murder. Their evidence was coherent and they naturally recounted what they saw. They were not shaken in cross examination.

As already stated the defence does not deny the accused's participation in this murder. It is contended that A2 speared the deceased in a bid to save his father, A1. That A2 acted under provocation. The only error is for the defence Counsel to assert that the killing was not intentional on ground that it was done under provocation.

The defence of provocation should not be equated to defences like accident which negates intention to cause death or to offences such as negligence or recklessness.

"Provocation" as a defence exists where in fact there is intention to cause death. Provocation merely acts as one of the extenuating circumstances with the effect of reducing murder to manslaughter only. Section 197(a) of the Penal Code is quite clear. It provides:

"197. Where a person by an intentional and unlawful act causes the death of another person the offence committed shall not be of murder but only manslaughter if any of the following matters of extenuation are proved on his behalf, namely -

(a)	that he was deprived of the power of self-control by such extreme provocation given by the person killed as is mentioned in the next succeeding section….."

The next succeeding section is of course s.198. This section obliges the Court to make a finding as to whether in the given case provocation has been proved. How is this done? There are two tests as explained below.

In Republic –v- Toawea 1998 KIHC 33 under criminal case No. 5 of 1998, the Hon R B Lussick, Chief Justice had this to say:

"The Kiribati Court of Appeal has held in several cases that section 198 requires the Court to apply a dual test for provocation. First, was the accused actually provoked into losing his self-control as a result of which he committed the act which killed the deceased? Secondly, was the provocation such that it was capable of causing an ordinary person to lose self-control and to act in the way that the accused did? The burden of negativing provocation beyond reasonable doubt lies on the prosecution".

I will bear the above principles in mind as I proceed to determine whether there was provocation, in the instant case, within the meaning of sections 197 and 198 of the Penal Code.

The case for the defence is that the deceased had on various occasions gone to the home of the accused persons and challenged them using abusive words. This evidence was not rebutted by the prosecution.

On 6 April 2012 again the deceased went to the house of the accused and challenged one Tenini a brother of A2 and a son of A1. This was around 2.00 am. It appears to me that A2 was so fed up with the acts of the deceased that he had to respond to the challenge by fighting him. When they got separated the deceased with his brother (PW3) went to the sea for swimming.

It was at this time that both accused persons decided to storm the house of PW1 and challenged him to a fight. It was A1 who confronted him with a sword and even injured him on the chest. In the struggle they both fell over the seawall on to the beach.

It is not disputed that it was at this stage that the sons of PW1 came from the sea to his rescue. According to PW3 he hit the hand of A1 in order to disarm him of the sword. In cross examination he stated that he threw a stone at A1 while the deceased punched him. He further told the Court that the deceased hit A1 twice with a piece of wood.

Further, PW2 told the Court, in cross examination, that the deceased twisted the neck of A1 and that when he was strangling him by the neck A2 came to assist his father and that is when he speared the deceased.

I have no difficulty, in view of the evidence on record, in finding that when both accused came to the house of PW1 they were armed with a spear and a sword. A1 had a sword while A2 had a spear. But it is also clear to me that A2 took action only when the deceased and PW3 set on beating his father (A1). He reacted by stabbing the deceased with the weapon he had, namely the spear. This narrative of the sequence of events was not negatived by the prosecution.

Of course I do not believe A2 when he states that he got so confused that he did not know what he was doing nor did he know what he used to beat the deceased. I believe that he knew what he was doing only that when he saw his father being assaulted by the deceased and PW3 he lost self-control and used the weapon he had in his possession against the deceased thereby causing his death. He believed that was the only way he could save his father.

These events at the house of PW1 coupled with constant attacks by the deceased and in particular the challenge meted out at 2.00 am, when apparently the deceased was drunk, all must have worked in the mind of A2 when he acted the way he did. He just acted in the heat of passion.

In Regina –v- Reirei KIHC 18 vide criminal case No. 26 of 1979 Hon O'Brien Quinn CJ relied on R -v- Duffy (1949) 1 All ER 952 where it was held:

"Provocation is some act or series of acts done or words spoken by the deceased to the accused which would cause in any reasonable person and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him for the moment not master of his mind".

I find that the deceased's earlier acts of challenging his neighbours and in particular the confrontation of the accused persons at their home on 6 April 2012 at 2.00 am which culminated into the subsequent fight at the house of PW1 actually caused in the accused sudden or temporary loss of self-control.

Whether a reasonable person would have reacted the way the accused did, must be seen in the circumstances of the accused's community. It appears there is the conduct of challenging each other which ordinarily leads to a fight. But the events of that fateful night were more than mere invitation to fight a duel, which in itself is an offence under s.82 of the Penal Code. This time it turned out to be a war of sorts.

Consequently, I find that the defence of provocation, in the instant case, is available to the accused with the consequence that it reduces murder to manslaughter under s.197 of the Penal Code. In the premise I find A2 guilty of manslaughter contrary to section 197 of the Penal Code and convict him accordingly.

I will now turn to the second count of Causing Grievous Harm with intent contrary to section 218 of the Penal Code. The particulars are that both accused persons on 6 April 2012 at Bonriki village on the island of South Tarawa with intent to do some grievous harm to Kabetite Mwetaka they unlawfully wounded or did grievous harm to him by hitting him with a bayonet.

The evidence in support of this offence was adduced from PW1 the victim. It is mainly that on storming his home A1 came around with a sword while A2 had a spear. A1 first threatened by striking a post of his house. He then attacked him leading to inflicting the injury that he suffered.

He further gave evidence that A2 injured him on his right thigh. His evidence as regards the injuries he sustained were corroborated by the medical report on him. He had a deep laceration on the right side of the chest and a small stabbed wound on his thigh.

I do believe the evidence of PW1 that he was attacked and injured by the accused persons as he stated. A1 in fact admitted that he had a sword when he fought him. He only lied in several aspects in a bid to save his son from any conviction. For instant he lied when he claims to have got hold of both the spear and sword when he went to the home of PW1. He also lied when he said that he came to know of the death of the deceased some two months later when he was granted bail.

In any case it is immaterial as to who of the two accused persons killed the deceased or injured PW1. The two on leaving their home for that of the victim are presumed to have formed a common intention to commit an offence.

There is no evidence that at any stage of the commission of these offences any one of them disassociated himself from the execution of that common contention. The evidence actually shows that they both acted in concert. In any case, since an offence was committed pursuant to the prosecution of their unlawful purpose each of them is deemed to have committed the offence with the meaning of s.22 of the Penal Code which provides:

"When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence".

Just like the murder of Tekaai Kabetite, the wounding of PW1 was clearly a probable consequence of the prosecution of the unlawful attack to him and his family.

Consequently, I find A2 guilty of Causing Grievous Harm contrary to section 218(a) of the Penal Code and convict him accordingly. It will be remembered that A1 had pleaded guilty to this offence, thus this trial is not concerned with him.

Dated the 12th day of August 2015

THE HON MR JUSTICE VINCENT ZEHURIKIZE
Judge