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Republic v Burentarawa [2025] KIHC 41; Criminal Case 4 of 2023 (23 July 2025)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CRIMINAL CASE 4 of 2023

BETWEEN: THE REPUBLIC

AND: TOKANNUKA BURENTARAWA

Date of Hearing: 16 April, 21 May 2025
Date of Judgment: 23 July 2025

Appearances: Ms Fuatino Noa for the Republic
Mr Banuera Berina for the Accused

J U G D M E N T

The Offence

1. Tokanuuka Burentarawa has been charged with one count of grievous harm with intent contrary to section 218(a) of the Penal Code. His plea was taken on April 16, during which he pleaded not guilty. The hearing began on the same day with parties calling witnesses.
   
2. The provision reads as follows;

“Acts intended to cause grievous harm or prevent arrest.

218. Any person who, with intent to maim, disfigure or disable any person, or to do some grievous harm to any person, or to resist or prevent the lawful arrest or detention of any person-

(a) Unlawfully wounds or does any grievous harm to any person by any means whatever; or

Is guilty of a felony, and shall be liable to imprisonment for life.”

The Undisputed Fact

3. The alleged incident occurred on February 15, 2022. The Republic called five witnesses, and the accused testified. Based on the evidence, the following paragraphs present what I consider undisputed facts.
   
4. The victim, a police officer, was sitting on his motorbike near the accused's house, talking with his friend. His young son was with him on the motorbike. This was during the COVID-19 lockdown. The accused was cleaning around his house with his children when he saw the victim. He suddenly felt the urge to fight him, so he shouted at the victim to prepare himself because he was going to punch him. The accused then approached and immediately punched the victim.
   
5. He punched him in the face, pulled him to the ground, and kept punching him. The victim felt severe pain in his right arm and realized it was broken. The bike fell over, along with his young son who was on the motorcycle with him. While on the ground, the accused continued beating him. The victim lost the lavalava he was wearing when he fell and was beaten repeatedly, so he ran away naked. The accused chased after him, continuing to beat and kick him. The victim fell against the neighbor's wall, and while on the ground, he was still assaulted. People from that house came outside.
   
6. When the fight ended, the accused offered to take the victim to the hospital, but he refused. At the hospital, the victim was examined and found to have an injury to his right arm with two broken bones. He underwent surgery, and a metal rod was inserted into his arm, as shown by the two X-ray images tendered to the court without objection. He testified that his arm is still weak even after the surgery; sometimes it goes numb, and he cannot lift heavy objects.
   

Further Evidence and Analysis

7. The accused did not deny that the injury to the victim’s arm resulted from his attack. This constitutes grievous harm. The only issue is whether the accused had the intent necessary to cause this injury.
   
8. Both the accused and the victim testified that they knew each other, but not personally. Sometimes, the Police Department hired the accused’s truck, and the victim was on the truck during patrols around Betio. During the lockdown, the victim and two other junior police officers were on duty, turning away vehicles without valid passes. The accused was among those turned back by the victim and his team because he lacked a valid pass. The victim told his junior officers to book the accused, but he turned back. The accused testified that he was upset with the victim because he believed the victim knew him and could have spoken to him more politely.
   
9. On the day of the incident, the accused testified that he saw the victim sitting on his motorcycle and chatting with a friend in front of his house. He felt the urge to fight the victim because he remembered the victim being rude to him when he told his junior police officers to book him when he was told to turn back. The accused said he called out three times for the victim to get ready before he started punching him. The victim denied this, saying the accused warned him once and then punched him immediately, without giving him enough time to prepare.
   
10. The victim stated that while being punched, he did not fight back but tried to protect his face. He also testified that when he fell to the ground, he felt intense pain in his right arm because it was broken. He said that although he was injured in his arm, the accused kept hitting it. People from the other house came outside to see what was happening and said something to the accused. The victim said that was when the accused stopped beating him. The accused denied this and told the court that he stopped because he saw that the victim was injured when he cried out in pain.
    
11. The accused testified that he was not thinking clearly because of his fury with the victim. He had heard stories about the victim beating another man and also that the victim was aggressive toward drunkards on the roads whenever the police, including the victim, patrolled around Betio. He believed the victim was very aggressive. When he beat him that time, it was because he remembered how they sent him back and he was rude to him. He fought him to see who would win, since the victim was known to be very aggressive. He did not intend to injure his arm and did not use any weapon.
    
12. The Republic argues that the accused intended to cause serious harm to the victim because he kept punching him even when he saw he was not fighting back. He had multiple chances to stop beating the victim but chose not to. When the victim fell, he continued to beat him; he could have stopped at that point. After noticing the victim’s arm was injured, he kept hitting and kicking him. Even after the victim managed to run away, the accused could have stopped, but he chased the victim and kept beating him. He only stopped when people from the other house came outside. The Republic asserts that this evidence shows the accused's intention to inflict serious harm.
    
13. Counsel for the accused referred this Court to the case of State v Nuenue [2022] FJHC 760; HAC68.2021 (14 November 2022). In this case, it referred to an English case and said-
    

“62. In R v Belfon [1976] 3 All ER 46 [English Court of Criminal Appeal] dealing with the specific intent requirements under similar statute, held that;

“ it was necessary to prove that the accused had done the act in question with intent to cause grievous harm; the fact that the accused had foreseen that such harm was likely to result from his acts, or that he had been reckless whether such harm would result; did not constitute the necessary intent.”

14. Counsel for the accused argues that what matters is not the outcome but the intent at the time of the act that caused the injury. Counsel contends that the accused did not use a lethal weapon but only his bare hands and legs when hitting and kicking the victim. Counsel also states that the broken arm was not caused by being hit or kicked, but by his fall from his motorbike. The accused maintained his position that he stopped hitting the victim when he saw that he was crying in pain.
    
15. Two of the Prosecution’s witnesses are police officers who were involved in this incident when the victim had been taken to the hospital. They testified that they saw the victim at the hospital, lying in bed and crying in pain. They also visited the accused at his house. He told them that he beat up the victim because he was angry with him, as he had done something bad to him. The accused explained that the victim is a very strict police officer and showed him no mercy when he sent him back because he had an invalid pass.
    
16. The other witness is the victim’s wife, who testified that the accused came to apologise to the victim, but he sounded furious when she told him that the victim was still very weak and could not see him.
    
17. While deliberating on the evidence, I remind myself that the burden of proof rests with the Republic to establish its case beyond a reasonable doubt, not with the accused. I considered the following questions: What was the cause of the injury to the victim’s arm? Was it attributable to the beating or the fall? Is there evidence indicating that the injury resulted from the continuous assault on that specific arm? Is there evidence demonstrating that the accused was aware of the victim's injury but chose to ignore it and continued to strike the arm?
    
18. The victim testified that he broke his arm when the accused dropped him to the ground. He felt the pain immediately when he was dropped. This is my record of his answers when examined in chief;
    

“Prosecutor: How did he drag you?

Victim: He grabbed me from the bike, continued to hit me. He hit me on my head, I felt dizzy, nearly fainted. I felt pain in my right arm.

Prosecutor: Why?

Victim: It got injured.

Prosecutor: How?

Victim: When he dropped me to the ground and punched me.

Prosecutor: When did you feel the pain?

Victim: When he dropped me and when I stood up.”

19. The victim further testified that as he ran away, the accused followed and kept punching him. He tried to protect himself with his broken arm, but the accused continued to attack it. The assault stopped when people from the neighboring house came outside because he had fallen against their wall. During cross-examination, he stated he could not hear what those people said. He also admitted that he cried out in pain at the same time the neighbors came outside. The other prosecution witness, the victim’s friend, also testified that the accused stopped beating the victim when the neighbors came out and told him to stop. When the victim ran away, his injured arm was hanging by his side.
    
20. ‘Grievous harm’ is defined in section 4 of the Penal Code as;

“any harm which amounts to a maiming or dangerous harm, or seriously or permanently injures health or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, membrane or sense.”

21. As I stated in paragraph 7 above that the accused did not dispute that grievous harm had been caused to the victim as a result of his attack on him. I have no difficulty in accepting this as the injury caused to the victim’s right arm was severe, requiring immediate surgery to fix it. An artificial rod was inserted to support the two broken bones. Even after the surgery, the victim’s arm did not go back to its normal state. The victim sometimes felt his injured arm numb, and he could not carry heavy objects with it.
    
22. There is no direct evidence that the accused intended to injure the victim. Although the accused had several chances to stop beating the victim, this did not clearly show his intention to cause harm. The evidence clearly indicates that the injury to the victim’s arm resulted from his fall off the motorcycle. While the fall was caused when the accused pulled him from the bike to the ground, this also does not prove an intent to harm the victim’s arm. The evidence shows that the accused grabbed the victim from the motorcycle to the ground in order to continue the assault. The assault was not premeditated, as the accused was cleaning around his house with his children when he saw the victim in front of his house, and he suddenly felt the urge to fight him. The accused did not use any weapons during the fight.
    
23. The prosecution has therefore failed to prove a necessary element of the offence charged. I cannot convict the accused of that offence. However, as submitted by the Prosecution, under section 157 (2) of the Criminal Procedure Code, I can convict him of a lesser offence. I have already found that the elements of the offence of causing grievous harm, contrary to section 220 of the Penal Code, have been proven to the necessary standard.
    
24. Section 220 states as follows;
    

“Any person who unlawfully does grievous harm to another, is guilty of a felony and shall be liable for imprisonment for 7 years.”

Finding

25. I find the accused not guilty of the offence of causing grievous harm with intent to maim, disfigure or disable, but guilty instead of causing grievous harm, contrary to section 220 of the Penal Code. He is convicted accordingly.
    
26. I will hear counsel as to sentence.
    

The Hon TETIRO SEMILOTA MAATE MOANIBA

CHIEF JUSTICE