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Republic v Timau [2017] KICA 9; Criminal Appeal 2 of 2017 (16 August 2017)

IN THE KIRIBATI COURT OF APPEAL ] Criminal Appeal No. 2 of 2017
CRIMINAL JURISDICTION ]HELD AT BETIO ]REPUBLIC OF KIRIBATI ]

BETWEEN THE REPUBLIC APPELLANT
AND MAREETA TIMAU RESPONDENT

Before: Blanchard JA

Handley JA

Hansen JA

Counsel: Waimauri Nawaia for appellant

Kiatoa Iaoniman for respondent

Date of Hearing: 10 August 2017
Date of Judgment: 16 August 2017

JUDGMENT OF THE COURT

Introduction

[1] The respondent faced a charge of causing the death of Tiebo Namoriki by an unlawful act (manslaughter) contrary to s.192 of the Penal Code. After trial before Zehurikize J she was acquitted.

The Evidence

[2] The deceased was the mother of the respondent. They lived together at Eita village in South Tarawa. At the time of her death the deceased was 89 years of age. She was in poor health, suffering from heart failure secondary to hypertension and chronic obstructive airways disease. The prosecution case was, however, that her death was the result of a beating administered by the respondent a short time before her death.

[3] The prosecution relied on the evidence of two eye witnesses both of whom said they saw the respondent hit her mother with a stick as they returned from bathing at between 2 and 3 am one morning in October 2015. Tereiooti Touea (PW1) who was aged 14 years at the time said she saw in the moonlight the respondent beat the deceased on the back with a piece of timber. She heard the deceased cry out, then suddenly stop. The evidence of the second witness, a 24 year old woman, Moanibou (PW2), was to much the same effect. She said the pair argued, then, by the light of the lamp that was on in the buia, she saw the respondent appear to strike her mother with a stick. She said, however, that she did not actually see the blows land.

[4] A neighbour said she was awakened by the respondent who wanted a torch to observe her mother whom she described as ‘stiff’. A relative called to the scene in the morning said she saw bruising on the body of the deceased and blood on one of her hands.

[5] No one sought medical assistance or police intervention. The deceased was buried without being medically examined or the cause of death investigated. Evidence of her pre-existing health was, however, given by a doctor based on medical notes of treatment made when she was admitted to hospital for six days the previous month. The medical witness also presented a report by the doctor who treated the deceased in which, based on information provided by the police and his treatment of the deceased, he expressed the view that the incident may have triggered a fatal heart attack.

[6] The respondent was the only witness for the defence. She denied hitting her mother. She said that after leaving food for her mother she returned to find her cold and unresponsive. She said she attempted to resuscitate her mother by pumping her chest before seeking help from the neighbour who provided the torch. The respondent confirmed there was bruising on her mother’s body but denied there was blood on her hand.

Judge’s decision

[7] The Judge was sceptical of the eye witness evidence, describing it as ‘all wanting’. He said neither eye witness was near the buia where the incident was alleged to have occurred. He noted that neither made any move to assist the deceased, to seek help from others or to complain about what they claimed to have seen and heard. In the result the death was treated by family members and others concerned as having arisen from natural causes.

[8] The Judge accepted the evidence of the respondent that she had attempted to resuscitate her mother. He thought it likely that PW1 may have mistakenly concluded that she was beating the deceased and later “changed to the using of a stick in a bid to paint a criminal picture of the incident”. The Judge saw the action of the respondent in attempting to resuscitate her mother and then summoning help as inconsistent with guilt.

[9] The Judge found the medical evidence to be of little assistance. He described the opinion evidence as to the cause of death as ‘speculative’. “His guess was as good as mine or yours”.

[10] The Judge concluded that the prosecution had failed to prove that death was caused by the unlawful act of the respondent.

Grounds of Appeal

[11] The grounds of the appeal by the prosecution, in short, were that the verdict was against the weight of evidence and that the Judge had erred in:

• Failing to give proper consideration to the undisputed eye witness evidence.
• Failing to take account of the evidence of injuries to the body of the deceased.
• Rejecting the medical evidence as to the likely cause of death.
  

[12] For the appellant it was submitted that there was no proper basis for the rejection of the eye witness evidence. Their evidence was said to be undamaged in cross-examination. It was argued that the medical opinion should have been accepted. Mr Nawaia submitted that, although direct evidence of the cause of death would have been desirable, it is not essential in cases where the cause of death can be established by rational inference.

Decision

[13] The way in which the Judge disposed of the eye witness evidence is not without its difficulties. It was incorrect for him to find that neither eye witness was near the buia where the incident occurred. PW1 said she was about five metres away and PW2 less than ten metres. On our reading of the evidence both were unshaken in cross-examination and gave plausible explanations for their failure to assist the deceased, to seek help or to complain to others on the night. It was never put to PW1 that what she might have seen, and misinterpreted, were the respondent’s attempts to resuscitate her mother.

[14] However, we agree with the Judge that the medical evidence was critically deficient. This is a case where direct medical evidence of the cause of death and of any injuries sustained by the deceased was not simply desirable but essential. The deceased’s state of health was obviously fragile. It is common ground that she was suffering from a condition that could cause death at any time.

[15] The medical evidence was in the form of a letter by Dr Harry Tong which was produced by another doctor who apparently had no direct knowledge of the deceased. Based on hospital medical records Dr Tong was able to say that the deceased suffered from heart failure secondary to hypertension and chronic obstructive airway disease. He went on to say:

“Taking into account the event prior her reported death, I am of the opinion that the incidence [sic] may have triggered off the fatal heart failure and/or attack”.

[16] There is nothing to indicate what Dr Tong was told. The factual basis for his opinion is unknown. There was no opportunity to cross-examine him. In the circumstances the evidential value of the opinion is negligible.

[17] We accept that a beating of the kind of which the eye witnesses spoke could well have led to the death of the deceased. But in the absence of reliable evidence to support such a finding we do not think the Judge erred in finding that the prosecution had failed to prove beyond reasonable doubt that the actions of the respondent caused the death of the deceased.

Result

[18] The appeal is dismissed.

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Blanchard JA

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Handley JA

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Hansen JA