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Republic v Taunteang - judgment [1996] KIHC 93; HCCrC 21.95 (6 September 1996)

IN THE HIGH COURT OF KIRIBATI
(BEFORE THE HON R LUSSICK C.J.)

HCCrC 21/95

THE REPUBLIC

versus

TEUEANNA TAUNTEANG

Ms P Atanraoi for the Republic
Mr D Lambourne for the Accused

JUDGMENT

The accused is charged with murder contrary to section 193 of the Penal Code Cap. 67 in that on the 21st May 1995 at Otowae Village on Onotoa Island he caused the death of Teannaki Tiem by stabbing him with a knife.

The prosecution called evidence to prove that sometime after 4.00 pm the victim was sitting in a crowded maneaba when the accused came up behind him, put his right hand around his throat and stabbed him in the stomach with a knife held in his left hand. The knife was put into evidence. It has a blade 17.5 cm long which has been honed to extraordinary sharpness. The wound inflicted exposed the victim's intestines and he died early the next morning. A nursing officer who had tried to help the victim testified that in her opinion he had died from "severe internal bleeding together with severe burning pain".

As the accused was being led away from the maneaba he was spoken to by one of the prosecution witnesses who is a magistrate on Onotoa. The witness asked the accused what had happened and the accused replied: "Do you remember the person who embarrassed my father? I am satisfied now as I have stabbed his stomach". The accused also told the witness that he was ready to face whatever will happen to him.

The prosecution called six witnesses. The accused chose to remain silent and did not call any evidence. There is of course no onus on the accused to prove his innocence. The onus of proof beyond reasonable doubt remains upon the prosecution from first to last. The prosecution must prove the charge and each element of the charge beyond reasonable doubt and if it fails to do so then the accused is entitled to be acquitted.

Having said that, the evidence that the accused stabbed the victim in the circumstances I have just described was, in my view, overwhelming and it was not surprising that the defence did not challenge it. I was satisfied that the foregoing facts were proved by the prosecution beyond reasonable doubt.

One might therefore be forgiven for concluding that a very clear case of murder had been established.

Not so, submits counsel for the accused. He argues that the evidence is equivocal on two points.

The first point is that the evidence leaves in doubt whether it was the unlawful act of the accused which caused the death of the deceased. The accused does not deny stabbing the victim in the stomach. However, this wound (so counsel argues) may not have been anything more serious than to justify a charge of unlawful wounding. It was the subsequent struggle between the accused and some people who had come to the assistance of the victim to remove the knife from his stomach which may have made the wound more serious so as to cause death.

The prosecution witness Kabua denied that any struggle had taken place. He testified that when he went to the victim all he saw at first was the accused's hand on the victim's stomach. It seems to me that this could only have been because the knife had been buried in the victim's stomach up to the hilt. The witness said that when he realised that there was a knife in the accused's hand he grabbed that hand and the knife came out easily. The witness agreed in cross-examination that if the hand holding the knife had been pulled upwards then that would have made the wound more serious. Later in cross-examination the witness agreed that he had given the police a statement only a few hours after the incident in which he had said that he grabbed the accused's hand which was held against the victim's stomach and pulled upwards. Two other prosecution witnesses gave evidence of a struggle to remove the knife from the victim's stomach and I am satisfied on the evidence that such a struggle did take place.

Counsel for the accused submits that because there was a struggle section 9(1) of the Penal Code applies to such a situation. Section 9(1) is in the following terms:

"9(1) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident".

I reject this submission. The accused deliberately stabbed the victim in the stomach. The only reason a struggle ensued was that the accused was unwilling to remove the knife from the victim's stomach. Had he withdrawn the knife willingly there would have been no need for the others to struggle with him. I do not see how it can be said that there was an act for which the accused was not criminally responsible because it occurred independently of the exercise of his will.

There is no evidence to prove one way or the other that the wound to the victim's stomach might have been made more serious by the struggle. No questions were put to the nursing officer on this issue. But even if there were such evidence it would not absolve the accused from causing the victim's death. Had the accused not stabbed the victim in the stomach the victim would not have died. Had the accused not refused to withdraw the knife from the victim's stomach the wound would not have become more serious (if in fact it did). Section 200 of the Penal Code, which defines "causing death", makes it abundantly clear that even if the struggle had made the wound more serious the law still makes the accused culpable for the victim's death. Section 200(e) provides as follows:

"200. A person is deemed to have caused the death of another person although his act is not the immediate or the whole cause of death in any of the following cases:

(e) if his act or omission would not have caused death unless it had been accompanied by an act or omission of the person killed or of other persons".

The second point in the submission of counsel for the accused is that the evidence does not prove malice aforethought beyond reasonable doubt. Counsel submits that the evidence is equally consistent with an intention to unlawfully wound. I also do not agree with this submission. It is clear from the evidence that the accused went to the maneaba armed with a very sharp knife for the express purpose of exacting revenge on the victim who had apparently embarrassed the accused's father. In pursuit of this purpose he stabbed the victim in the stomach, driving the blade in so deeply that the witness Kabua was at first unable to see the knife at all. Afterwards, the accused expressed satisfaction with what he had done and declared himself ready to face the consequences. Furthermore, section 195 of the Penal Code provides that "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 or grievous bodily harm is caused or not, or by a wish that it may not be caused".

In the present case the inference is inescapable that in stabbing the victim in the stomach, with a weapon such as has been described, the accused had the intention of causing grievous bodily harm or worse.

There is thus strong evidence of both implied and express malice aforethought and I am therefore satisfied that the prosecution have proved this element beyond reasonable doubt.

In fact the evidence against the accused very clearly establishes beyond reasonable doubt all the elements of the crime of murder, that is, that the accused caused the death of the victim by an unlawful act with malice aforethought.

No defence of provocation or self-defence has been raised and I am satisfied that the prosecution have negatived any such possibility beyond reasonable doubt. There was some evidence that the accused was affected by alcohol but there was also evidence that he had no difficulty walking and talking. There was no evidence that the accused was incapable of forming the requisite intention and no defence along these lines was raised.

There can be thus no other conclusion but that a conviction for murder is called for.

I therefore find the accused guilty of the murder of Teannaki Tiem and he is convicted accordingly.

THE HON R B LUSSICK
CHIEF JUSTICE
(06/09/96)