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Republic v Arintetaake - Judgment [2015] KIHC 16; Criminal Case 8.2014 (15 April 2015)

IN THE HIGH COURT OF KIRIBATI
CRIMINAL CASE NO. 8 OF 2014

BETWEEN:

THE REPUBLIC
PROSECUTOR

AND

MAURI ARINTETAAKE
ACCUSED

Before: The Hon Justice Vincent Zehurikize

Ms Pauline Beiatau for Prosecutor
Mr Reiati Temaua for Accused

JUDGMENT

Zehurikize, J: Mauri Arintetaake, hereinafter called the accused, is charged with Grievous Harm with intent contrary to section 218(a) of the Penal Code Cap 67.

It is alleged in the particulars of offence that the accused, on the 24th September 2013, at the Betio Wharf, Tarawa in the Republic of Kiribati unlawfully wounded or did grievous harm to one Mr Noere Francis with intent to cause him grievous harm.

The accused having denied the offence the case went on full hearing. In a bid to prove its case the prosecution examined four witnesses.

Noere Francis (PW1) is the victim of the assault. He told the Court that he knew the accused before. On 24 September 2013 he came from Abaiang in a boat called "Santo Ioane" while the accused came also from Abaiang on another boat called "Kaekeman". While he was still on his boat, he saw the accused on the wharf having alighted from the other boat. The victim met the accused on the wharf and greeted him. But on approaching him the accused stabbed him with a knife which was wrapped in a towel. That having stabbed him, the accused told the victim whether he can see how painful it is when a daughter is stolen. According to PW1 the accused was blaming him that he played a role in making his daughter elope with another man who was a brother-in-law to the victim.

Having been separated, the accused again confronted the victim in a bid to stab him again, whereupon the victim went for the knife and they struggled for it. They fell down but PW1 managed to get hold of the knife. But the accused who was on top started knocking the victim's head on the ground. After they had been separated again PW1 walked away but the accused still followed him still with his knife.

The victim showed the Court a scar on his right shoulder. When the police vehicle came PW1 was taken to hospital first at Betio and then to Nawerewere where he was operated upon and admitted for a week. He told the Court that his right shoulder became weaker and he feels pain in the fingers.

In cross examination PW1 told the Court that he did not prevent the accused from seeing his daughter in the boat. In re-examination he said that the accused knew that his daughter and her husband were staying at his home because when the accused came to the victim's home looking for his daughter she ran away together with her husband.

PW4 Dr Kabiri Itaaka who is one of the doctors that worked on PW1 told the Court that the patient had two injuries. One injury was on the shoulder which was about 5cm deep but did not injure the lungs. The second injury was on the hand.

Medical Report – exhibit P1 reveals that PW1 sustained knife injury on the right shoulder – entry point anterior and exit point posteriorly. He also had knife injury in both hands (palmar aspect) and unable to move third to fifth fingers on the right hand. There was active bleeding from all wounds.

The other witness is Utimawa Teberu (PW2) who stated that he saw the accused coming to PW1 with a knife which was wrapped in a towel and stabbed him on the right side shoulder. The victim having fallen down he shouted for help and the witness came and separated them. The accused was on top of PW1. The accused punched the victim's head. After separating them the accused still followed him (PW1).

In cross examination the witness insisted that he and one Teroi took the accused away from the victim, and that he saw what really happened.

On 24 September 2013 PW3 one Booto Bwebwere saw somebody injured at the wharf although he did not witness the fight.

In his sworn evidence, the gist of the accused's defence is that he never attacked the victim in order to stab him. He told the Court that he came from Abaiang looking for his daughter. He assumed she was on another boat also coming from Abaiang. The boat was called "Santo Ioane".

When he was approaching the boat he saw PW1 going on the wharf and approaching him and he thought he was going to make him busy so that his daughter could escape with his brother-in-law (of PW1). That when PW1 reached him the accused tried to push him away using his hand which had a knife wrapped in a towel. But the victim grabbed the accused's hand which had a knife. They fell down. It is his evidence that in the process the victim got injured by the knife. He contends the injury was self inflicted. But that when they fell down the accused was on top.

In cross examination the accused told the Court that he was going to check his daughter on the other boat but could not find her because of the victim's interference. He explained that the knife was some 10 inches long and it was a kitchen knife. He also told the Court that he did not suffer any injury because he was the one who was on top and he also held the knife firmly.

Ms Beiatau for the Republic and Mr Temaua for the accused filed written submissions. While Counsel for the State insisted that the prosecution had proved its case beyond reasonable doubt, Counsel for the accused insisted that there was no proof that the accused injured the victim intentionally.

The burden of proof rests on the prosecution and the standard of that proof is to prove the accused's guilt beyond reasonable doubt. This burden never shifts and in case of any doubt the same is resolved in favour of the accused. If the prosecution is to secure a conviction it must prove beyond reasonable doubt the following elements of the offence:

1. That there was wounding of the victim;
2. That the wounding was unlawfully caused;
3. That there was intent to cause grievous harm;
4. The participation of the accused in the commission of the offence.
   

From the evidence as a whole as adduced by the prosecution and defence, there is no doubt that the victim was wounded and seriously at that. The evidence of PW1 and PW4 the doctor tells it all. Therefore, this element of the offence was proved beyond reasonable doubt.

As to whether the wounding was unlawfully caused, the prosecution relied on the evidence of PW1 and PW2 which is that the accused attacked the victim and stabbed him with a knife. On the other hand the accused claims that the victim could have fallen on the knife when they struggled for it. But in his own evidence the accused said that when they fell down he is the one who remained on top and that he held firmly on the knife for fear that PW1 could use it against him.

He also told the Court that when the victim held his arm which was holding the knife, the sharp end remained pointed to his (the accused's) side. Under such circumstances there is no way PW1 could have fallen on the knife so as to be injured so deeply on his right shoulder. I would, therefore, find the victim's version of what happened more credible. The accused confronted him when they met on the wharf and stabbed him with the knife.

The reason for this sudden attack is not difficult to find. The accused, according to his own evidence, believed the victim intended to delay or obstruct him from seeing his daughter on the other boat thereby aiding her escape with her husband and disappear in Tarawa. This apparently was a highly emotive suspicion which could have led to such an attack.

I have no doubt, as brought out in evidence, that the accused believed that the victim was behind the elopement of his daughter to the victim's brother-in-law who was staying with him or near his home in Abaiang. The accused therefore came armed with a knife to fight the victim for his presumed sins. The fight was well premeditated.

Since the wounding of PW1 was not authorised by law nor accidental, but as a result of a criminal act of assault it was unlawful. I find that this element of the offence was proved beyond reasonable doubt.

I now turn to the issue of whether there was intent to cause grievous harm. I agree with the holding of the Hon R B Lussick, Chief Justice in criminal case No. 55 of 1997 R v Tewaiwai Teruru of this Court when he stated that "To establish a charge of unlawful wounding with intent to do grievous 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 a specific intention to inflict it is not sufficient (R v Belfon (1976) 3 All ER 46)".

I wish to add that intention is a mental element. It is difficult to see what is in a person's mind. That being the case the Court would be guided by the conduct of the accused and the surrounding circumstances to determine the person's intent. In the instant case the accused was frantically looking for his daughter. He decided to move with a kitchen knife which was about 10 inches long. Although he wrapped it in a towel, he left the sharp end open.

When he confronted the victim he drove it deep in his right shoulder for some 5cm. Aiming at inflicting the wound at such a vulnerable part of the body could only have been intended to cause grievous harm given the fact that such a knife is a dangerous weapon. The injuries suffered by the victim were well explained by PW4, the doctor under Exhibit P1.

In determining the intention of the accused in cases like the instant one the Court will consider the type of weapon used, the nature of the injuries inflicted and the part of the body affected.

In view of the evidence on record and as discussed above I am satisfied that the accused had the intention to kill the victim or cause grievous harm to him. It was by luck that PW1 minimized the damage by fighting off the assailant. I find that the accused's intent to cause grievous harm to PW1 was proved beyond reasonable doubt.

The last issue is the participation of the accused. While discussing the above elements of the offence the participation of the accused in the commission of this crime was adequately covered. In any case by his evidence the accused pinned himself at the scene of crime. Thus his participation, which was admitted, was proved beyond reasonable doubt.

In the final result I find that the prosecution have proved its case against the accused person beyond reasonable doubt.

In view of the above conclusion I find the accused guilty of Causing Grievous Harm contrary to section 218(a) of the Penal Code and I convict him accordingly.

Dated the 15th day of April 2015

THE HON MR JUSTICE VINCENT ZEHURIKIZE
Judge