IN THE KIRIBATI COURT OF APPEAL
CRIMINAL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

Criminal Appeal No 2 of 2007

BETWEEN

TABWEA TEITARAWA
Appellant

AND

THE REPUBLIC
Respondent

Before:	 Hardie Boys JA
Tompkins JA
Paterson JA

Counsel: Karotu Tiba for appellant
David Lambourne for respondent

Date of Hearing: 24 July 2007
Date of Judgment: 30 July 2007

JUDGMENT OF THE COURT

[1]. 	The appellant was charged with the murder of Tamuera Tiketa. Following a trial before the Chief Justice, he was, on 10 January 2006, found guilty and sentenced to imprisonment for life, with a recommendation from the Chief Justice that the Parole Board allow the appellant to have parole rather earlier than usual for one convicted of murder.

[2]. 	By notice dated 23 April 2007, he has applied for leave to appeal out of time. If that application be granted, he appeals against the conviction.

The application for leave to appeal out of time

[3]. 	The application was filed on 23 April 2007, ten days out of time. Counsel for the respondent submitted that the respondent took no issue on the lateness of the application. In view of that attitude, and the short period involved, leave is granted to appeal out of time

Facts

[4]. 	The events that occurred are set out in detail in the Chief Justice’s judgment. What follows is a summary. On Sunday 25 September a group of men were drinking, commencing at about 8 am. In the course of the day, there were several fights amongst them, often followed by reconciliation and continued drinking.

[5]. 	Relevant to the charge was a fight between the appellant and the deceased. Several witnesses gave evidence of the fight, including the appellant. In the course of the fight, after an exchange of blows, the deceased fell to the ground, and while he lay there, the appellant kicked him at least twice, he said once to the right side of the chest and once to the right side of the neck. Another witness said that more than two blows were struck by the appellant while the deceased was lying on the ground. Another witness described the appellant kicking the deceased three times, twice in the neck and then stamping on his chest and ribs. The witness said that the appellant was kicking the deceased ". . . hard and fast."

[6]. 	When the appellant desisted, the deceased, still lying on the ground where the kicking by the appellant had occurred, was found to have died

[7]. 	At about 3.30 pm Nei Bubunrenga Rataro, a nurse, examined the deceased. She found that he was dead. She described the injuries she found around the neck and the head. She said that death was caused by those injuries, resulting from the deceased being severely beaten. It was her opinion that the injuries to the head and neck caused the death. The Chief Justice accepted her evidence as to the cause of death.

Judgment

[8]. 	The Chief Justice, having referred in some detail to the evidence given by the witnesses, noted that he had to find the charge proved beyond reasonable doubt. He expressed his conclusion:

"A person commits murder if he causes the death of another deliberately and unlawfully and at the same time does so with the intention, either of causing death or of causing really serious bodily harm.

Tabwea's actions in deliberately kicking Tamueru when Tamueru was down, causing the injuries he did, shew an intention to cause really serious bodily harm. Tabwea murdered Tamueru.

The prosecution has proved all elements of the crime of murder beyond reasonable doubt."

[9]. 	In the course of his judgment, the Chief Justice said:

"This may have been, as the accused says, a fight into which he and Tamueru entered willingly. Both Ms Taoaba and Ms Beiatau referred to earlier decisions of the Court (Criminal Case 8/99 Republic v Rituka Siakisini and Criminal Case 3/02 Republic v Tiare Itinnaibo) in which I cited The Queen v Orton 39 L T 292, (1873) 14 Cox 226. When two men get into a fight and one of them is killed that is murder."

[10]. 	Counsel for the respondent made available to us the authority to which the Chief Justice refers in support of the proposition in the last sentence of that passage, R v Orton 39 LT 292, (1873) 14 Cox 226, although the report he made available is at 39 CCR 293 (1873). The issue before the Court of Appeal was whether the trial judge had correctly directed the jury on whether the parties involved in a fight were giving an exhibition of sparring or whether the parties were involved in a prize fight. The Court of Appeal held that the direction was correct and that the participants were rightly convicted. We can find nothing in the judgment of the Court of Appeal to justify the proposition that when two men get into a fight and one of them is killed that is murder. Nor can we accept the proposition as a correct statement of the law. If two men get into a fight and one is killed, it will be murder if the accused with malice aforethought has caused the death of the other (s 193 of the Penal Code) Whether the accused has the necessary malice aforethought is to be determined by the application of s 195 (see below). If he does not, he may be guilty of manslaughter pursuant to s 192 or he may be not guilty if he acted in self defence,

[11]. 	This statement by the Chief Justice does not affect the appeal, since it is clear from the passage in his judgment we have set out in § 6 that he did not rely on this statement in reaching his conclusion. Rather he relied on s 195 (a). 

The Penal Code

[12]. 	Section 193 of the Penal Code provides that where any person with malice aforethought causes the death of another by an unlawful act or omission he or she is guilty of murder. Relevant to the Chief Justice’s conclusion in this case is section 195:

195 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 of grievous bodily harm is caused or not, or by a wish that it may not be caused.

Counsel’s submissions

[13]. 	Counsel for the appellant has submitted that the appellant never had the intention to kill the deceased, that there is no obvious evidence that the appellant knew that the acts which caused the death, namely the kicking, would probably cause grievous bodily harm to the deceased and that the acts were done without malice aforethought in doing grievous bodily harm to the deceased. Consequently, he submitted, the conviction was unsafe and the appellant should only have been convicted of manslaughter.

[14]. 	Counsel for the respondent submitted that there was ample evidence to support the Chief Justice’s conclusion that the appellant, on the evidence of the nature of the attack on the deceased when he was on the ground, had an intention to cause the deceased grievous bodily harm.

Conclusion

[15]. 	The issue, therefore is whether there was evidence to support the Chief Justice’s finding of the intention of the appellant at the time he was kicking the deceased when he was on the ground. This is a question of fact. An appellate court will only interfere in the trial judge’s finding of fact if there is no evidence to support that finding or if for some other compelling reason, the finding of fact should be reversed.

[16]. 	It is our conclusion that there was ample evidence to support the Chief Justice’s finding that the appellant intended to cause the deceased really serious harm. Not only was the appellant kicking the deceased and stamping on his chest when he was lying on the ground, he was doing so, according to the witnesses, hard and frequently. The intensity of the attack is itself established by the fact that the blows were of sufficient violence to cause fatal injuries. It was clearly open to the Chief Justice on this evidence to find that the appellant intended to cause really serious harm.

Result

[17]. 	The appellant’s appeal against conviction cannot succeed. Accordingly, the appeal is dismissed.

Hardie Boys JA
Tompkins JA
Paterson JA