[1980-1989] NLR
[Ed – No page no. in original]

IN TH SUPREME COURT OF NAURU

CRIMINAL CASE NO. 2 OF 1989

THE REPUBLIC

vs

RAMSON AGEGE & KING AKIBWIB

On 1st June, 1989

Ruling on accused’s submission on "no case"

Firstly on the question of cause of death:

In the charges of murder and manslaughter, the burden is in the prosecution to establish beyond reasonable doubt that the accused’s action in relation to the deceased was the cause of his death.

In this case, evidence was given by Dr. Kiki that he saw the body of the deceased at the hospital, made a visual examination only; saw stab wounds on the left chest and blood from his mouth and nostrils. He was dead. The Doctor undertook no physical examination and was unable from his own knowledge as a result of any examination to say that the cause of death had been stab wounds. He arranged for a Dr. Narula to conduct the post-mortem examination and after reading the Doctor’s report, he believed the stab wounds caused the death. Dr. Kiki was not present at the post-mortem examination. The prosecution attempted to put Dr. Narula’s report on the deceased in evidence through Dr. Kiki on the basis that that Doctor knew Dr. Narula’s handwriting and could certify it was his report. It is not exactly clear what was intended to be proved but at the best, the Report could be produced to prove that Dr. Narula made an examination and recorded his conclusions in writing. What is clear, however, is that the Report could not be tended to prove the truth of its contents and to prove that Dr. Narula concluded what was the cause of death. In other words, only Dr. Narula can give evidence of his own conclusions. It is trite law that oral or written statements made by persons other than a witness who is testifying are not receivable to prove the truth of the facts stated. Evidence of such statement is said to be hearsay evidence and is not admissible. That the rule against hearsay applies to documents is emphasised in many cases the most notable of which is probably that of the House of Lords in Myers v Director of Public Prosecutions (1965) AC 1001 which was applied by the English Court of Appeal in R v Van Ureden (1973) 57 Cr LR 818.

No direct evidence in this case is given of the cause of death of the deceased. It is usual for evidence to be given by persons who attended him at the scene of his condition then. There is no evidence of this. There is no evidence from anybody that took him to the hospital. There is no evidence from anybody who admitted and attended to him at the hospital. The only evidence is from Dr. Kiki who saw the deceased after admission at 6.45 pm. The fight occurred somewhere between 5pm and 6pm. There is no evidence of the physical condition of the deceased. Was he physically sound? There is in fact no satisfactory evidence of the cause of death. There is no evidence at all. There may be suspicion as to the cause of death but in criminal law suspicion, however strong is not enough. It must be established beyond reasonable doubt the cause of death and that the death was caused by the accused. This gap in the evidence is fatal to the prosecution’s case. I am satisfied no jury could on the evidence here be satisfied beyond reasonable doubt that the stabbing of the deceased caused his death. I, in Nauru, also exercise the functions of the jury and I am satisfied that the essential element of cause of death has not been proven as required by the criminal law. I so rule.

The cause of death not being established, the accused cannot be linked with it and the charges of murder and manslaughter must fail. Also the charge of common purpose to commit the respective crime cannot therefore stand.

But the matter does not rest here. It is clear that the offences as charged consist of several particulars which continue to constitute an offence under section 317 of the Criminal Code that relating to an intention to cause grievous bodily harm.

I am satisfied that this is a case where section 191(2) of the Criminal Procedure Act 1972 can be invoked. (NB This section applicable not 129 as first cited). I propose to invoke the section by substituting a charge under section 317 of the code as follows:

That on the 17th January, 1989 at Meneng, the accused with intent to disable Adonis William Harris did cause him grievous bodily harm to wit by unlawfully wounding and stabbing him in the chest.

That charge I am satisfied should be met by the accused Ramson Agege only. I find that the accused King Akibwib cannot on the evidence be held to have been a party to this offence on the basis of involvement within the meaning of section 8 the common purpose provision of the Code. There cannot by any measure be found a common intention established. His presence with Agege cannot imply intention. He did not touch or assault Adonis. There is no evidence to be found on common intention with Agege to do anything and I order that he be discharged.

On 2nd June, 1989

Charges: (read). That on the 17th January 1989 at Meneng, Ramson Agege with intent to disable Adonis William Harris did cause him grievous bodily harm to wit by unlawfully wounding and stabbing him in the chest.

Burden of proof in prosecution. It never changes. It is not for the accused to prove his innocence but for the prosecution to establish beyond reasonable doubt his guilt. I mention this because the prosecution appears to suggest the fact that the accused told his story for the first time in Court and not before, is consistent with guilt. Firstly, of course, he has never been asked by the Police previously for an explanation. No evidence of any statement taken or asked for and secondly, it is the undoubted right of the accused to remain silent even at this trial. His failure to give evidence cannot be used against him.

Now, as to the ingredients of the offence. There must be proved-

(a) the wounding;

(b) the wounding was deliberate and without justification;

(c) that it was committed with intent to cause really serious bodily harm.

The Law is stated in Carter as to the intent required to prove the crime. It is – "to establish a charge of wounding with intent to do grievous bodily harm, there must be proof of a specific intent to inflict harm of that nature; mere recklessness or foresight of the likelihood of such harm occurring without specific intention not to inflict it is not sufficient" R v Hoskin (1974) 9 SASR 531. The test is a subjective one – not the test of a reasonable man. The question to be answered is – did the accused in his own mind intent to inflict grievous bodily harm?

I am satisfied on the evidence the wounding of the deceased constituted grievous bodily harm as defined in the Code. It is not necessary to have evidence of the degree of the stabbing. Stab wounds no matter how deep constitute grievous bodily harm. I am satisfied the wound was done by the accused without justification.

I now turn to the question of intent. The accused has given evidence and I was impressed with his demeanour and the way he gave his evidence. He says he did not intend to inflict the harm on the boy Adonis. The prosecution contends that intent is established by the accused deciding to bring with him the knife which inflicted the wound when told by the witness King to accompany him. Certainly taking the knife with him with the intention to use it in a fight would allow the strongest inference of intention. I have considered the evidence carefully on the point. The accused was using his knife when King told him to go with him. Having heard from him and King, I am satisfied he was not told nor did he ask where he was going. He was outside using the knife on wood. King came out and spoke to him as he passed. Nothing was said about any fight ahead. King told him to leave his knife. He took it with him and his explanation that he did not leave it lying around because it may have been taken by children is understandable and I accept it. He has said when he got to the place where the other boys were, he kept the knife behind his back because he did not want to frighten them. That explanation could be consistent with an innocent act since the knife being a dangerous weapon could certainly cause fright and indicate to others an offensive stance by the accused. If, on the other hand, he had sinister motives in carrying it, he would have gained an advantage by revealing it. Having seen the witness and indeed the others who gave evidence on the matter, I am satisfied that there was no, shall I say, gangster or sinister sophisticated complexion present in the confrontation. There was no pre-meditation about what was to happen. As I have said, I am satisfied he was not aware he was going to fight. On the basis of the evidence, it is probable his explanation could be correct. In order for it to be rejected, I must find beyond reasonable doubt that it is not true. On that test, I cannot so find.

The only other evidence is that of the event itself. There is no doubt the accused stabbed Adonis. Do the circumstances under which the stabbing occurred prove intent within the meaning of the section? Did the accused deliberately intend to wound his assailant? I use the word "assailant" because the evidence clearly establishes Adonis came over to the accused and started the scuffle by pushing and grabbing him. This is an important aspect of the evidence. The evidence establishes to my satisfaction that the accused was not the aggressor. The prosecution witnesses all testify to this. The knife was in the accused’s hand. He made no attempt to use it and Adonis let the accused go. The accused turned to the boy Donray and was then grabbed by Adonis from behind. What then happened is not clear from the evidence but it is clear the accused was pushed downwards and his arms which were by his sides at the time. A scuffle occurred and the accused was described by one witness as thrusting his arms around to free himself. The whole incident I am satisfied was of very short duration. In it, Adonis was stabbed. The question is whether the stabbing was preceded by a deliberate intention on the part of the accused to inflict harm or whether it occurred in the heat of the affray without such intent due to the action of the accused in the flailing of his arms. The accused has testified on oath that he did not know he had injured Adonis until they broke away from each other and he saw blood.

The prosecution contends that the stabbing was an act done at the time of the fight and was done deliberately by the accused with the intention to harm. It says the mere possession of the knife establishes intention. The defence contends that the accused could not have had any intent in the circumstances. Had he not been attacked from behind, nothing would have happened, the accused was surprised, acted to free himself and the incident was over so quickly that there was just no time for the accused to form that deliberate intent. In considering these submissions and the evidence, I must again direct myself that the act of the accused in wounding must be the result of a deliberate intention to inflict harm before he can be convicted. Recklessness on his part or lack of foresight as to the consequences of carrying the knife cannot on their own allow an inference of intent. I must be satisfied beyond reasonable doubt on this matter. Both the prosecution and defence submissions can find some support on the evidence to raise probabilities of their truth. But probabilities are not enough and I find I have a real doubt about the matter. In the circumstances, there is no question that in law the benefit of the doubt must be given in favour of the accused and I must hold that the required standard of proof to establish intent has not been met. Intent is a necessary ingredient of the offence. Accordingly, the offence has not been proved and the accused must be acquitted.

The above is a transcript of my notes.

CHIEF JUSTICE

6th June 1989