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Supreme Court of Nauru |
IN THE SUPREME COURT OF NAURU Criminal Case No. 2 of 2020
AT YAREN
CRIMINAL JURISDICTION
BETWEEN
REPUBLIC
AND
(1) KURR ALIKLIK
(2) NUMERO THOMA
Defendants
Before : Fatiaki CJ.
Dates of Trial : 30 April 2021 ; 19 to 23 July 2021 ; 26 to 30 July 2021 ; 2, 3 & 6 August
2021 and 9 to 13 August 2021.
Dates of Submissions : 16 to 20 August, 2021
Date of Verdict : 22 October , 2021
CITATION : Republic v Aliklik & Thoma
CATCHWORDS: “Murder ; “ joinder of offenders” ; “severance” ; “intoxication” ; “self-defence” ; “legal burden of proof” ; “evidential burden” ; “standards of proof ” ; “cause of death” ; “joint commission” ; “intention or recklessness” ; “ use of a hammer” ;
LEGISLATION : s.92 Criminal Procedure Act ; ss.8, 14, 17 & 19 Crimes Act 2016 ; ss 25, 26, 27 & 32
Crimes Act 2016 ; ss 43, 51, 55 & 56 Crimes Act 2016 ;
CASES REFERRED TO : R v Smith [1959] 2 All ER 193; R v Grant and Gilbert [1954] 38 Cr App R 107 ;
Hui Chi-Ming v The Queen [1991] 3 All ER 857; Beckford v R [1957] 3 All ER 425 ; Martin v R (2001)
EWCA Crim 2245 ; Republic v Agege [1989] NRSC 1 ; R v McCarthy [1954] 38 Cr App R 34 ; R v O’Grady
[1987] 3 All ER 420 ; R v Malcherek & Steel [1981] 2 All ER 422 ; R v Blaue [1975] EWCA Crim 3; [1975] 3 All ER 446 ; Republic
v Scotty [1977] NRSC 9 ; Hyam v DPP [1974] UKHL 2; [1975] AC 55 ; Chan Kau v The Queen [1954] UKPC 40; [1955] AC 206
APPEARANCES:
Counsel for the Prosecution : R.Talasasa (DPP)
Counsel for the 1st Defendant : E Soriano
Counsel for the 2nd Defendant : R. Tagivakatini (PLD)
VERDICT
INTRODUCTION
THE INFORMATION & PLEAS
Count 1
Statement of Offence
Murder : Contrary to s.55(a), (b) , and (c) the Crimes Act 2016
Particulars of Offence
Kurr Aliklik and Numero Thoma on the 15th day of February 2020 intentionally engaged in conduct, that is to say, by hitting James Bako on the head with hammer, and that caused the death of James Bako, who died on 20 February 2020, and that the said Kurr Aliklik and Numero Thoma intended to cause or were reckless about causing the death of James Bako by their conduct.
Count 2
Statement of Offence
Going equipped for theft: Contrary to s. 162(1)(a) of the Crimes Act 2016
Particulars of Offence
Kurr Aliklik and Numero Thoma on the 15th Day of February 2020 had an article, that is to say, a hammer, with intent to use it in the course of in relation to theft or a related offence.
Count 3
Statement of Offence
Going equipped for theft : Contrary to s.162(1)(b) of the Crimes Act 2016
Particulars of Offence
Kurr Aliklik and Numero Thoma on the 15th day of February 2020 were disguised or had their faces covered with their own shirts with intent to commit theft or related offence.
SEVERANCE OF MERO
(a) The alleged roles of the defendants in Count 1 was markedly different ;
(b) The alleged fatal blow was not struck by Mero who was unarmed at the time ;
(c) Mero’s defence on Count 1 is a “cut throat” one, whereby he completely blames Kurr for single-handedly committing the offence of his own accord ;
(d) No confession or admissions are made by Mero in relation to Count 1.
AMENDED INFORMATION
Statement of Offence
Murder : Contrary to section 55(a), (b) , and (c) the Crimes Act 2016
Particulars of Offence
Kurr Aliklik and Numero Thoma on the 15th day of February 2020 intentionally engaged in a conduct, and that conduct caused or resulted in the death of James Bako, and that the said Kurr Aliklik and Numero Thoma intended to cause or were reckless about causing the death of James Bako by their conduct.
RELEVANT PROVISIONS (Crimes Act 2016) :
s. 8 Definitions
‘engage in conduct’ means
(a) do an act ; or
(b) omit to do an act ; or
(c) be in a state of affairs.
‘causes’: a person’s conduct causes death or harm if the conduct substantially contributes to the death or harm.
s. 14 Physical elements
(1) A ‘physical element’ of an offence may be:
(a) conduct; or
(b) a result of conduct; or
(c) a circumstance in which conduct, or a result of conduct, occurs.
(2) Conduct can only be a physical element if it is voluntary.
s. 17 Intention
(1) A person has an intention with respect to conduct if a person means to engage in
the conduct.
(2) A person has intention with respect to a circumstance if the person believes that it
exists or will exist.
(3) A person has intention with respect to a result if the person means to bring it
about or is aware that it will occur in the ordinary course of events.
s. 19 Recklessness
(1) A person is ‘reckless’ about a matter if :
(a) the person is aware of a substantial risk that :
(i) ......
(ii) In the case of a result – the result will occur ; and
(b) having regard to the circumstances known to the person, it is unjustifiable to take the
risk.
(2) The question whether taking a risk is unjustifiable is one of fact.
(3) If recklessness is specified as the fault element required to prove an offence, proof of
intention, knowledge or recklessness will satisfy that element for the offence.
s. 25 Burden of proof on prosecution
(1) The prosecution has a legal burden of proving each element of the offence.
(2) The prosecution also has a legal burden of disproving any matter in relation to which the defendant has discharged an evidential burden of proof imposed on the defendant
(3) The legal burden of proof on the prosecution must be discharged beyond reasonable
doubt, unless the written law in which the offence is set out specifies a different standard
of proof.
s. 26 Evidential burden of proof on defendant
(1) Subject to section 27, a burden of proof that a written law imposes on a defendant is
a burden (the ‘evidential burden’) of presenting or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
(2) ...... (inapplicable) ........
(3) The defendant no longer has the evidential burden in relation to a matter if evidence
sufficient to discharge the burden is presented by the prosecution or the Court.
(4) The question whether an evidential burden has been discharged is one of law
s. 27 Legal burden of proof on defendant
(2) A legal burden of proof on the defendant must be discharged on the balance of
probabilities.
s. 32 Joint commission
A person commits an offence if :
(a) a person enters into an arrangement with 1 or more other people ; and
(b) the person and at least 1 other arty to the arrangement intend to commit an
offence and to assist one another to commit the offence ; and
(c) either :
- ........ (not applicable) ........ ; or
- an offence is committed in the course of carrying out the arrangement.
(1) ........ (not applicable) ........
(2) ........ (not applicable) ........
(3) For subsection (1)(c)(i) , an offence is committed in accordance with an arrangement
if :
(a) the conduct of 1 or more parties in accordance with the arrangement makes up the conduct required for an offence(the “joint offence”) of the same type as the offence agreed to ;
the physical elements of the joint offence was engaged in.......
s. 43 Intoxication
(1) .........(not applicable).....
(2) Evidence of self-induced intoxication cannot be considered in deciding whether a
fault element of intention existed for a physical element that consists only of
conduct.
(3) This section does not prevent evidence of self-induced intoxication being
considered in deciding whether conduct is voluntary ;
(4) In this section :
‘intoxication’ means intoxication because of the influence of alcohol, a drug or......
‘self-induced’: intoxication is ‘self-induced’ unless it came about :
(a) involuntarily ;.....
s. 51 Self-defence
(1) A person is not criminally responsible for an offence if the person engages in the
conduct constituting the offence in self-defence.
(2) A person engages in conduct in self-defence only if
(a) the person believes the conduct is necessary:
(i) to defend the person or another person ; and
(b) the conduct is a reasonable response in the circumstances as the person
perceives them
(3) However, this section does not apply if:
(a) the person uses force that involves the intentional infliction of death or serious
harm
s. 55 Murder
A person commits the offence of murder if:
(a) the person intentionally engages in conduct; and
(b) the conduct causes the death of another person; and
(c) the person intends to cause, or is reckless about causing, the death of that
or any other person by the conduct.
Penalty: Life imprisonment.
s. 56 Manslaughter
A person commits the offence of manslaughter if :
(a) the person intentionally engages in conduct; and
(b) the conduct causes the death of another person; and
(c) the person intends to cause, or is reckless about causing, serious harm to
that or any other person by the conduct.
Penalty: 25 years imprisonment.
s. 58 Causing death- criminal responsibility despite certain other factors
(1) A person can be criminally responsible for an offence ....... for conduct
by the person that causes the death of another person even if:
(a) ......... (inapplicable) .........
(b) when the conduct happened, the other person’s death as a result of the conduct was
preventable by taking reasonable steps; or
(c) ......... (inapplicable) .........
(2) A person can be criminally responsible for an offence ...... if :
(a) the person engages in conduct causing serious harm to another person; and
(b) the death of the other person is caused by treatment for the harm (even if the treatment
is proper and administered in good faith).
GENERAL DIRECTIONS
ELEMENTS OF MURDER
(a) The defendant intentionally engaged in conduct against Bako ; and
(b) the conduct caused the death of Bako; and
(c) the defendant intended to cause Bako’s death or was reckless about causing
Bako’s death.
20. Although it is the duty of the prosecution to bring evidence against the defendants in
discharging its burden to prove the guilt of each defendant , there is no obligation whatsoever on each defendant to prove his innocence.
21. Having said that , each defendant has an evidential burden to call or produce some evidence
in support of any defence(s) that he relies upon on a balance of probabilities. Such evidence may be raised directly by the defendant or in the cross-examination of prosecution witnesses and , in both events , the prosecution has the burden of disproving the defence(s) beyond a reasonable doubt.
PROSECUTION CASE
“Q: Then what happened next?
A: The two (2) defendants made plans they wanted us to cover our faces. I just stayed
back and they moved forward. They ran up to him and I saw Kurr coming round
the side and swing a hammer at him when the boy fell, they both ran away in one
direction and I ran in the opposite direction and went straight home to bed and
don’t know anything from there.
Q: What part of body did Kurr swing the hammer to?
A: To the front of his head to his forehead.
Later in examination-in-chief, he said :
Q: Why go from E4 store to the golf course?
A: We were planning to rob the drunkards there.”
KURR’S EVIDENCE
“Q: Recognize the person in the photo ?
A: Yes I recognize him. He is Bako.
Q: Is this what you wanted to do to him ?
A: This is not what I meant to do.”
“Q: Why didn’t you hit Bako on the hand or leg or other part of the body?
A: When he came up to us I went to him, his body was slightly bent forward and when I
swung my hand I meant to hit his arm but I just swung even though I meant to put him
to sleep.
Q: So you put him to sleep forever ?
A: No he got up when he fell and we ran off. I looked back and I saw him get up. My
intention was to put him to sleep and not anything else.
Q: meaning put him to sleep ?
A: Just knock him out that’s all.”
MERO’S EVIDENCE
“Q: Someone came up to Bako ?
A: Yes
Q: From behind you towards Bako?
A: Yes, I had my back to him.
Q: Correct to say you did not know who the person was because you were turning.
A: Yes.
Q: All happened very fast?
A: Yes ”
“Q: Did Bako fight Kurr you said no. Were you facing them or was your back to them at
that time ?
A: I was not facing them at the time.
Q: So, why say ‘no’ about Bako fighting Kurr?
A: If they had been fighting it would have taken longer but when I turned Bako was
already fallen.
“Bako’s death was caused by the severe head trauma that was inflicted by Kurr Aliklik when he hit him on the head with a hammer. Zorro and TJ Akubor’s evidence was clear on that which was confirmed by the defendants in their evidence.
There was no intervening factor in the five (5) days prior to his death.
Senior Constable Shane Brechtefeld told court that he attended to the report at the Golf area and saw Bako lying down on the ground. He told court that him and the other police officers together with Bako’s friends assisted Bako into the police vehicle.
Senior Constable Shane told court that he stayed for a while at the hospital, watching over Bako.
The mother of Bako , Crystal Jimwereiy was called to see her son at the hospital. Crystal told the court that she remained with her son at the hospital till his passing on 20 February 2020.
She told the court that Bako did not fall from the bed or anywhere whilst being admitted. Acting Inspector Sareima also testified that police did not receive any report of Bako being injured whilst at the hospital.
Similarly, Dr. Dimitry said well that he did not receive any report and was not aware of any report that Bako had a fall or sustained any other injuries during his admission.
He attended to Bako on the day of his admission and did dressing on him every other day (daily) and he observed Bako getting weaker and weaker every day.
Bako was in coma from Day 1 and never recovered till his death on 20 February 2002. (See: Ex P9 handwritten medical report). Dr Dimitry told court that when he examined Bako, he found a lot of pieces of bone in the brain and had to clean it up. He said that could be only from a “acute high energy trauma”. i.e a very heavy punch or hit.”
The pathologist, Dr. Kalougivaki also told the Court that Bako died from internal bleeding caused by a “severe head trauma”.
SUBMISSION BY KURR’S COUNSEL
“The evidence of the Pathologist shows that Bako died of blood clotting that was brought about by immobilisation. However, Dr. Dimityr in his evidence told the court that Bako went into coma after his surgery. That anaesthesia was administered on Bako before surgery and that he did not recover from coma thereafter.
Dr. Dimitry also said that in other places he has worked, it was the neurosurgeon that usually attended to these cases.
The pathologist evidence also suggests that even if immobilisation was a result of induced coma, that the immobilisation was necessary for Bako’s recovery from the wound.
Therefore, it is submitted that blood clotting that resulted in death was a direct consequence of immobilisation. It is not clear whether the brain injury itself cause the blood clotting. The haemorrhaging and head trauma were both listed as antecedent cause or external causes.”
“The head wound according to the evidence of the Pathologist was consistent with the evidence of Zorro Dabuae, TJ Akubor and Kurr Aliklik in that it was inflicted by a hammer hitting on the forehead of Bako.
Kurr Aliklik’s evidence suggests that Bako was moving in a forward momentum when Kurr swung the hammer at Bako. That it is possible that the weight of the hammer, as well as the momentum of Bako advancing towards Kurr Both resulted in the severity and location of the impact and injury on Bako. It is after all accepted that both Bako and Kurr were in motion, independent of each other, yet advancing towards each other.”
“Kurr Aliklik admitted in court that he hit Bako on the head with a hammer, and Bako fell as a result. This was an admission as to infliction of injury on Bako.
It is unclear from the evidence whether it was the injury inflicted by Kurr that eventually led to Bako’s demise, or whether it was the post-treatment and handling of Bako from the crime scene that caused or aggravated the injury.”
The evidence of Dr. Dimitry suggests that there is a degree of uncertainty on the physician’s part as to the propriety of Bako’s treatment upon admission and the initial procedure. That is due to the absence of a neurosurgeon who according to Dr. Dimitry would be the most appropriate person to direct treatment in cases such as Bako’s.
Dr. Dimitry’s evidence suggests a possibility that Bako’s death may have been the result of medical procedure conducted in the absence of proper direction from an appropriate medical practitioner such as a neurosurgeon. This presents a difficulty in ascertaining who caused the death of Bako.”
SUBMISSION BY MERO’S COUNSEL
“This issue can be broken down into three limbs :
(1) Who caused Bako’s death ?
(2) What caused Bako’s death ?
(3) How was Bako’s death caused ?”
In order to gauge this issue clearly, it is best that this issue is answered in reverse chronology.
The third limb of this issue is to ascertain “ how” Bako’s death was caused. Only one witness gave a conclusive response and that was the pathologist, Dr. James Kalougivaki who indicated that the ‘cause of death’ was bilateral pulmonary emboli or in layman’s term, blood clots that caused or blocked his breathing or respiratory system. This was preceded by immobilisation, severe haemorrhaging and severe traumatic head injuries.
It is submitted that Bako’s cause of death was blood clots that blocked his breathing.
The second limb of this issue is to ascertain “ what caused ” Bako’s death. Dr James again at the forefront of this second limb and can give a conclusive response. Another witness who can give insight into this second limb is the attending physician. Dr Dimitry Gaurylov.
Dr James indicated that the external cause for this was blunt force head trauma. He went on further to state that the blunt force head trauma was most likely caused by a blunt solid object, possible of a high density in weight. This object was responsible for the impact and caused a fracture in the bone. He indicated that a hammer fits the above description.
Dr Dimitri own opinion on the cause of death was brain edema, also known as brain swelling. He treated Bako during his final days and said that he had to pick bone fragments from the brain. He qualified his opinion by stating that the cause of death can only be answered conclusively by the pathologist.
It is submitted that Bako’s “ cause of death ” was brought about by blunt force head trauma, most likely caused by a hammer.
The first limb of this issue is “ who caused ” Bako’s death. Following on from the third and second limbs and what had caused the blunt force trauma, three witnesses gave evidence that is consistent with the second limb : Zorro Dabuae, TJ Akubor and Kurr.
Both “Zorro” and “TJ ” gave evidence that they were part of the group that accompanied both defendants and they both witnessed Kurr hit Bako with a hammer. Kurr confirms the same in his evidence.
It is submitted that Kurr Aliklik caused Bako’s death by hitting him with a hammer onto his forehead. (my highlighting)
ANALYSIS & DECISION
“It seems to the Court that if, at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound. ....”
“... the fact that the victim has died , despite or because of medical treatment for the initial injury given by careful and skilled medical practitioners , will not exonerate the original assailant from responsibility for the death.”
Earlier at (p 427) his Lordship observed :
“ In each case it is clear that the initial assault was the cause of the grave head injuries....and of the massive abdominal haemorrhage... In each case the initial assault was the reason for the medical treatment being necessary. In each case the medical treatment given was normal and conventional. At some stage the doctors must decide if and when treatment has become otiose........ The doctors are not on trial : Steel and Malcherek respectively were”
And lastly , (at p 429) :
“ discontinuance of treatment in those circumstances does not break the chain of causation between the original injury and the death.” (my underlining and highlights)
“ Because death was the result of an unbroken chain of physical causation (between the injury to the brain suffered in the collision and death)..... I find that the injury must be regarded as having been ‘an operating and a substantial cause’ of his death and that the accused must be found guilty.”
“ a person who causes serious injury to another cannot escape liability for that other’s death from that injury on the ground that the injury remained untreated , even if treatment was available and would have prevented death.”
s. 43 Intoxication
(1) .........(not applicable).....
(2) Evidence of self-induced intoxication cannot be considered in deciding whether a
fault element of intention existed for a physical element that consists only of conduct.
(3) This section does not prevent evidence of self-induced intoxication being considered
in deciding whether conduct is voluntary ;
(4) In this section :
‘intoxication’ means intoxication because of the influence of alcohol, a drug or......
‘self-induced’: intoxication is ‘self-induced’ unless it came about :
(a) involuntarily ;.....
The DPP further submits that Kurr Aliklik was not affected by alcohol or marijuana when he committed the offence for the following reasons :
“( i ) Kurr Aliklik talked about the stealing at the Golf area, at “E4-store” ;
(ii) Kurr Aliklik got the hammer from Numero Thoma on their way to the Golf area ;
(iii) Kurr Aliklik told court clearly both in chief and in cross that his intention to hit
Bako was “to put him to sleep” or “to knock him out” in order for them to steal his
money. ...he repeated the same more than once. A person who is affected (by
alcohol) or marijuana would not have been that clear in his thinking plan.
(iv) Kurr Aliklik ran away with the boys when Bako’s friend was seen coming towards
them.
(v ) Kurr Aliklik and the boys including Numero Thoma ran all the way, passed the basketball court, to the T-Shop beside the China Town.
It can be inferred from the facts listed above and other facts relating to the incident, that
Kurr Aliklik was not affected in any way when he hit Bako with the hammer.
I submit that the defence should not be accepted. Bako died a brutal death and for the 1st
defendant to assert ‘intoxication’ for such an act is unimaginable and beyond common
sense. That should not be allowed to prevail in this jurisdiction.”
SUBMISSION BY KURR’S COUNSEL
“Section 43(3) applies in cases where the Court is faced with the question as to whether an intoxicated person’s conduct was voluntary or not. Whether the conduct was voluntary, Section 8 of the Act provides that an act is voluntary if it is a product of the will of a person.
Kurr told the court that he had been drinking the night of the 13th February and returned home on the afternoon of the 14th February. That when he got up at 10pm on 14th February, he was still experiencing a hangover. Then when he arrived at the mechanical workshop beside E4, he smoked “a cone” of marijuana. This was attested to by Numero Thoma.
Numero told the court that while they were still at E4, he asked Kurr for some marijuana but Kurr told him that there was none left as it was only one piece he (Kurr) smoked. Kurr told the court that he was feeling irritable and stressed throughout the night and especially after smoking marijuana. Numero told the court that Kurr did appear irritable.
Kurr had stated in his evidence that the death of Bako was not on his mind, and that the expectation was that Bako would knock out from the hit. From Kurr’s evidence there appears to have been no contemplation or appreciation even in the slightest that serious injury or death would occur from his conduct.
Therefore, the question in relation to this issue is whether Kurr’s conduct was voluntary in that just prior to the incident, he had smoked Marijuana. Furthermore, the absence of appreciation of serious harm from his conduct in the words of Lord Parker CJ “...the reasonable man would term it abnormal...
In this regard, it is submitted that sub-section 43(3) applies to Kurr Aliklik, and that his mind was affected by drugs that his thinking at the time of the incident would be termed by a reasonable person as abnormal. As such, his conduct could not have been voluntary or a product of his will.”
ANALYSIS & DECISION
“ (Drunkenness) is merely some evidence which may throw a doubt on whether the accused had formed the specific intent which was an essential element of the crime which he was charged...... Often the evidence is of no avail because obviously a drunken man may well be capable of forming and does form the relevant criminal intent ; his drunkenness merely diminishes his power of resisting the temptation to carry out this intent”.
“ A man who by voluntarily taking drink or drugs gets himself into an aggressive state in which he does not know what he is doing and then makes a vicious assault can hardly say with any plausibility that what he did was pure accident which should render him immune from any criminal liability.”
“apart from a man being in such a complete state of intoxication as would make him incapable of forming the requisite intent , drunkenness which may lead a man to attack another in a manner in which no reasonable sober man would do cannot be a matter of defence on a charge of murder.....”
“The plan to steal was thought up, discussed and Kurr Aliklik confirmed in his evidence that Numero Thoma was aware of the plan and joined in the plan.
Numero Thoma was a party to the offence.
It is immaterial even if the consequence or the result was not what was planned or intended. Numero Thoma did not withdraw from the plan.
Section 32 provides for the principal (sic) of ‘joint commission’. It is submitted that both Kurr Aliklik and Numero Thoma planned to steal and they set off together to the Golf area and were the ones who went to approach Bako and were together when Kurr Aliklik attacked Bako. They also ran away together.”
SUBMISSION BY MERO’S COUNSEL
“This issue deals with the principle of joint commission and whether Numero Thoma is liable under the principle. ‘Zorro’ , ‘TJ’ and both defendants gave evidence that Numero was part of the plan to ‘profit’ or to steal motorbikes. This was never denied by Numero and his supposed denials in his record of interview were explained by him, in that there was no plan to hurt or kill Bako.
Section 32 requires the following :
(1) Numero entered into an arrangement with Kurr and others, which was to steal ;
(2) Numero , Kurr and others intended to steal and to assist each other to steal ; and
(3) Another offence was committed (the assault on Bako) in the course of carrying out the arrangement (stealing) ;
(4) Numero was reckless about the commission of assault against Bako by Kurr, in
the course of carrying out the arrangement (stealing).
In Gillard v The Queen [2003] HCA 64; (2003) 219 CLR 1, the High Court of Australia further applied the
doctrine of joint criminal enterprise.
“Each of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose.” The scope of the common purpose is to be determined subjectively : by what was contemplated by the parties sharing that purpose. And whatever is comprehended by the understanding or arrangement , expressly or tacitly , is necessary within the contemplation of the parties to the understanding or arrangement. McAuliffe also says that joint enterprise includes what that party foresees as a possible incident of the venture.
Section 32 and the Gillard case are similar in wording and application. The arrangement and the end result have to be similar in nature and have to be foreseen by Numero. The plan was to steal but not commit robbery or to commit assault.
Numero gave evidence that he went under the cover of darkness to see who was in the car. His actions indicate that he tried to avoid any confrontation with the drunkards. Numero’s intention was to steal using methods of stealth, not confrontation or brute force.
He turned to run when Kurr approached Bako. He did not see the hit on Bako nor did he know how Bako fell. He just saw Bako on the ground. He thought Bako had tripped or that one of his friends hit him. He did not think Bako’s injuries was serious and did not bother to check on him as he was afraid that Bako might wake up anytime soon.
The following extract from the case of Hui Chi-Ming v The Queen [1992]1 AC 34, is relevant, where Lord Lowry remarked :
“Mere foresight is not enough : the accessory in order to be guilty , must have foreseen the relevant offence which the principal may commit as a possible incident of the common unlawful enterprise and must, with such foresight , still have participated in the enterprise.”
The extract from the above case would pose the question : should Numero have reasonably foreseen that Kurr was going to commit murder in the common unlawful enterprise for stealing? The simple answer is no: he could not have foreseen such outcome. He did not go armed and tried to avoid confrontation. He was even scared of the drunkards and his actions confirms the same.
Numero had told his friends to wait near the container while he went ahead to scope the area. He did not anticipate that they would follow him and do such thing. He was neither reckless nor was he given any advanced warning of Kurr’s actions.
It is submitted that taking into consideration Section 32 and the relevant case authorities, section 32 does not apply to Numero. We submit that Numero Thoma cannot be liable for the charge of murder under joint enterprise.”
ANALYSIS & DECISION
Held : If several embark on an enterprise to commit a felony and have also the preconceived common intention to use violence of any degree , if necessary , for the purpose of overcoming resistance , and death results from such violence , all are guilty of murder , even though the felony be one that does not in itself involve violence.”
Held : “ Although the contemplation of both parties was relevant in determining whether an act of the principal was contemplated as a possible incident of the common purpose of the parties in order to determine whether the secondary party was liable for the principal’s act, it was not necessary in every case to show that the relevant act had been in the contemplation of both parties as an act which might be done in the course of carrying out the primary criminal intention before the secondary party could be proved guilty , since the secondary party could be liable simply by reason of participating in the joint enterprise with foresight that the principal might commit the relevant act as part of the joint enterprise.”
“the fact that (Kurr) had armed himself with the metal pipe (hammer) showed that he had in fact contemplated serious physical harm to (Bako) the man who had tried to intimidate his friend (Mero) and there was a strong case or at least tacit agreement that the intended victim (Bako) would be attacked and that the appellant (Mero) had foreseen that a very serious assault might occur even if it had not been planned from the beginning”.
s. 51 Self-defence
(1) A person is not criminally responsible for an offence if the person engages in the
conduct constituting the offence in self-defence.
(2) A person engages in conduct in self-defence only if :
(a) the person believes the conduct is necessary:
(i) to defend the person or another person ;
and
(c) the conduct is a reasonable response in the circumstances as the person
perceives them ” (my highlighting)
(i) that his conduct was “necessary to defend.... (Mero)” ; and
(ii) his conduct was “reasonable in the circumstances” as he (Kurr) perceived them to be.
“Kurr told court that he hit Bako with the hammer, intending to put him to sleep or knock him out. I submit that these are assertion that relate to hitting someone on the head(he was aiming for the head and he hit him on the head.”
It is submitted that the trier of fact has to take into account all the circumstances surrounding the commission of the offence. i.e. how the hitting on the head with a hammer would justify the ‘approach’ by the deceased.
I submit that the response by the accused was not reasonable. Prosecutions witnesses Zorro Dabuae and TJ Akubor told that clearly in their evidence in chief. They also maintained the same in cross-examination, i.e. that the deceased did not ‘attack’ or ‘fight’ with the accused. Zorro told court that the way Bako approached Mero, it was as if Bako wanted to see who was approaching him. TJ Akubor told court that Kurr and Mero ran to Bako and Kurr hit Bako on the head with a hammer.
It is submitted that the defendants were the aggressors and attacked the deceased. The hitting of Bako with the hammer was not reasonable.
The accused Numero Thoma also confirmed that in his cross-examination. Numero Thoma went further to state that it was not a fair or sensible response, to hit Bako with a hammer when that was put to him.
“There is no basis for the application of Section 51. It was not necessary neither was it reasonable.”
SUBMISSION BY KURR’s COUNSEL
Firstly, this defence can only be available to Kurr, if it can be established on the balance of probability that (1) he believed that the conduct was necessary to defend either himself or his friends ; and (2) the conduct was a reasonable response in the circumstances as he (Kurr) perceives them. The standard is that of a reasonable person in the circumstances of the defendant as the defendant perceives them.
In the evidence Kurr told the court that he was worried for his friends, and that the way Bako was advancing towards them looked like he was going to be violent with them. Numero told the court that he turned to run away from Bako who was advancing at a rapid pace towards him. Zorro and TJ who both gave evidence in court, were of very young age. Kurr perceived that he and his friends would be beaten up by Bako given the way he was advancing towards them .
The description of the incident painted a chaotic scene and confusion. It was under cover of night; Bako was returning to the drinking party where he had come from; Kurr was feeling irritable and stressed, and with him and Numero were a number of kids that had not even turned teenagers, amongst those was TJ.
Kurr told the court that the way he saw Bako coming towards them. Bako was going to beat them up hence why he responded the way he did, by hitting Bako with a hammer. In Beckford v The Queen [1987] UKPC 1 the Privy Council in discussing self-defence said :
“Furthermore a man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike.”
It is submitted that Kurr was acting in self-defence when he hit Bako with a hammer. Kurr’s response was on the basis of his perception that Bako was about to attack Numero, him (Kurr) and other kids that were with him.
The question as to whether the response was a reasonable one depends on what Kurr honestly believed the circumstances to be. In this regard, it is submitted that Kurr’s evidence shows that he believed the circumstances necessitated the response. Notwithstanding Numero’s evidence in saying that he does not think it was fair that Bako was hit with a hammer, the requirement under the law insofar as which account the court should consider in deciding the reasonableness of the response, it is Kurr’s account and perception of the circumstances.
On the other hand, have the Prosecution disproven the defence of self-defence ? In cross-examination Kurr maintained that he believed Bako was going to attack him (Kurr) and his friends. He also told the court that the hit was meant for Bako’s arms, but the hammer hit Bako’s head only because he was coming up towards Kurr when the hammer was swung. His evidence suggests that the hammer hitting Bako’s forehead was more of an accident brought about by both Bako’s and Kurr being in motion when the hammer was swung.
It is submitted that Kurr in maintaining his evidence during cross-examination can only mean that Prosecution have not disproven beyond reasonable doubt , that Kurr was acting in self-defence ”. I disagree.
ANALYSIS & DECISION
Held : “A defendant was not entitled to rely on the defence of self-defence, if because of his own self-induced intoxication, he made a mistake as to the amount of force reasonably necessary to defend himself and had used more force than was necessary.”
“ We have come to the conclusion that , where the court is satisfied that the defendant was mistaken in his belief that any force or the force which he in fact used was necessary to defend himself (or another person) and are further satisfied that the mistake was caused by voluntarily induced intoxication , the defence must fail. We do not consider that any distinction should be drawn on this aspect of the matter between offences involving what is called specific intent , such as murder , and offences of so-called basic intent , such as manslaughter...... the question of mistake can and ought to be considered separately from the question of intent.”
( my highlightings )
“Q : See who the boys were ?
A : I saw they had no shirts on but I couldn’t recognise them.
Q : Were they far from you ?
A : Yes they were , I saw silhouettes the moon was up then and shining on them.
Q : Was the boy heading towards where you were standing ?
A : The person leading towards the drinking place turned and had his back to us.
Q : What else did you see ?
A : When other guy was returning I went towards him as he approached a friend of mine.
Q : What was he doing when you went towards him ?
A : He come towards me as if he was going to throw a punch at me ?
Q : Why did you think that ?
A : I approached him he saw me with face covered and also when I heard him talking to his friend
he seemed agitated.
Q : Was he coming towards you ?
A : Yes he came up to me when he seemed like he wanted to throw a punch and when I saw
that I went up to him.
Q : Then what happened ?
A : When I went up to him I hit him with the hammer and he fell then “Mero” and “TJ” went
to check oh him , check his pockets looking for money or anything (to steal).
Q : What were you doing ?
A : I was just standing there looking out for people that might come along.
Q : What were you feeling at the time ?
A : I thought the guy had knocked out , sleeping.
Q : When you hit him on the forehead what were you intending ?
A : I intended to knock him out just put him to sleep.
Q : Why put him to sleep ?
A : So that we can steal his money.” (my highlighting and underlining)
“Q : Did Bako hit or fight anyone , you or Numero before you hit him ?
A : When I looked at the guy approaching it looked like he would throw a punch and I
thought that’s what he would want to do.
Q : Bako was alone at the time ?
A : Yes he was there by himself .
Q : You had up to ten (10) people with you at the time ; why did you hit Bako ?
A : Because what we were doing there was to steal and even though that’s the plan I feared
if we get caught the boys and I might get hurt by other people.”
“...... when this defence is raised (by the accused) , the prosecution has the burden of satisfying (the Court) so that they are sure that the defendant was not acting in self-defence. A defendant is entitled to use reasonable force to protect himself , others for whom he is responsible and his property ( see: Beckford v R [1987] UKPC 1; [1988] 1 AC 130).
In judging whether the defendant had only used reasonable force , (the Court) has to take into account all the circumstances , including the situation as the defendant honestly believes it to be at the time , when he was (acting in self-defence). It does not matter if the defendant was mistaken in his belief as long as his belief was genuine.
Accordingly (the Court) could only convict (the defendant) if either (it) did not believe his evidence that he was acting in self-defence or (it) thought that (the defendant) had used an unreasonable amount of force....
...... as to what is a reasonable amount of force ..... it cannot be left to the defendant to decided what force is reasonable to use because this would mean that even if a defendant used disproportionate force but if he believed he was acting reasonably he would not be guilty of any offence. It is for this reason that it was for (the Court) .... to decide the amount of force which it would be reasonable..... to use in the circumstances.....”
(my insertions in brackets)
“It is difficult , if not impossible , to infer from the evidence taking the most favourable view of the defence , that (Mero’s) life was ever seriously endangered so as to justify – as distinct from excuse – the use of (the hammer)."
“The Crimes Act 2016 uses the term ‘fault element’ which replaces the common law term of ‘mens rea’. Section 16 lists the ‘fault element’ which includes ‘intention’ and ‘recklessness’. Section 17 and 19 defines ‘intention’ and ‘recklessness’.
When the defendant did or engaged in the conduct which resulted in the injury and later death of the deceased, it is submitted that they possessed the necessary ‘fault element’ or ‘mens rea’.
The ‘fault element’ of ‘intent’ applies to the ingredient under section 55(a), which is ‘intentionally engaged in conduct’. Kurr Aliklik told court clearly that he intended to put Bako to sleep or knock him out when he hit him with the hammer. So he had that ‘intent’.
The fault element of ‘recklessness’ applies to the second limb of the ingredient under Section 55(c), which is ‘reckless about causing the death of Bako.’ I submit that Kurr Aliklik had the ‘fault element’ of ‘recklessness’ when he hit Bako with hammer because he was aware of the substantial risk that would result in very serious injury or death, and yet went ahead and did what he did, having regard to the circumstances known to him, that is, that Bako was unarmed, was walking back to his friends, was on his own, etc, see: Section 19(1)(a)(ii), Crimes Act 2016.”
SUBMISSION BY KURR’S COUNSEL
“The fault element of the offence of murder has two limbs – (1) that there is a specific intent to cause the death, or (2) an appreciation that there was a substantial risk of Bako’s death occurring from being hit with a hammer.”
An essential ingredient to establish the fault element is an appreciation of the resulting death of Bako. Whether that appreciation was by way of a positive intention to bring about his death or was by way of being aware that there was an unjustifiable but substantial risk that Bako’s death would occur as a result of the act of hitting him with the hammer.
Kurr told the court when shown the picture of the deceased with the head injury, that he did
not mean to cause the injury showing in the picture. During cross examination, Kurr told the court that he did not know that what he did “ could cause death ”.
Kurr in response to questions in cross examination said that he did not know that the hammer could cause fracture, or that it could cause death. He only knows it could cause a person to ‘knock out’. Kurr also told the court that he only hit Bako once. From the evidence of Zorro, TJ and Numero, Bako was hit once by Kurr, then he fell. When asked whether anything else happened to Bako when he fell, they all said that nothing else happened.
The presence of the hammer in the circumstances cannot in itself suggest an intention. Reference is made to the case of Republic v Agege [1989] NRSC 1 ; [1980-1989] NLR
where the defendant was charged with intention to cause grievous bodily harm when he stabbed the victim in that case, the court said :
“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.”
For the defendants to have had the requisite mens rea under the first limb, there has to be specific intent to cause Bako’s death. It is submitted that the evidence led before the court is not sufficient to establish specific intent to cause death.
It is further submitted that for the defendants to have had the requisite mens rea under the second limb, there had to be an appreciation of the substantial risk of death resulting from Kurr’s conduct. The evidence from TJ, Zorro, Numero and Kurr all suggest that it all happened so fast. It is submitted that the suddenness of the events would have made it impossible for the defendants to contemplate or turn their mind to the risk of causing death.
It is further submitted that the defendants did not have the requisite mens rea for the offence of Murder.”
SUBMISSION BY MERO’s COUNSEL
“This issue seeks to address the minds of both defendants at the time of the commission of the offence.
The evidence that gives insight into this issue was given by both defendants.
Kurr was shown Exhibit P3-B, which shows a picture of Bako and his head wound. When asked whether that was his intention, he said that it was not what he wanted to do. He also stated that he wanted to hit Bako’s arm or shoulders. Bako was slightly bent over when Kurr swung the hammer, which unfortunately collided with his head.
Numero’s intention was to flee when Bako approached him. His actions before Bako approached him are testament to his intentions. When Numero searched Bako’s pockets, he did not see what Kurr had done nor did he realise the severe nature of Bako’s injuries.
Section 17(3) addresses intention with respect to a result if the person means to bring it about or is aware that it will occur in the ordinary course of events. Kurr did not mean to bring about that result nor was he aware that the result will occur in the ordinary course of events. The same is applicable additionally for Numero, who was caught off-guard with Kurr’s actions.
Numero’s main action was that he wanted to avoid detection, which was not reckless in any way.
The different ways in which the crime of murder can be committed is categorised in four ways :
(1) Killing with intent to kill.
(2) Killing with intent to cause really serious injury (grievous bodily harm).
(3) Reckless murder
(4) Killing while committing a crime of violence (felony murder)
Offence of murder in this jurisdiction
(3) At its highest, the recklessness was to cause grievous bodily harm, not death.
(4) The initial plan was to steal. Stealing or theft is not a crime of violence, therefore
cannot be attributed to felony murder.
In Zecevic v DPP (Vic) [1987] HCA 26; (1987) 162 CLR 645 , it was held that an accused person is not liable to be convicted of murder unless the jury is satisfied beyond reasonable doubt that there was an intention to kill or do grievous bodily harm. It is submitted that neither intention was present for both defendants, in the commission of this offence.
It is submitted that taking into consideration Section 17 and 19 and the relevant case authorities, there was no mens rea on both defendants on the charge of murder.
ANALYSIS & DECISION
“open multi fragmental fracture of the frontal bone with the cerebral involvement and internal bleeding Brain edema. Coma III ” caused by : “Acute high energy trauma....”
“ (iii) Where the defendant knows that there is a serious risk that death or grievous bodily harm will ensue from his acts , and commits those act deliberately and without lawful excuse , with (sic) the intention to expose a potential victim to that risk as the result of those acts. It does not matter in such circumstances whether the defendant desire those consequences to ensue or not ....., ”.
“Q : Why didn’t you return home when you weren’t part of the plan ?
A : I don’t know why I didn’t return home.
Q : Put you didn’t return home because you were part of the plan to steal from the
drunkards at the Golf Course area ?
A : When they planned to steal I accepted also the plan and joined them
Q : Plan was to steal from drunkards at Golf Course area ?
A : Yes
“A : ..... I was watching the car and bent over to see and I saw someone come towards me.
I was near the car.
Q : Know who it was ?
A : I thought it was Sidpolo and later I learnt who it was.
Q : Who was the person ?
A : Bako
Q : What was Bako doing when he approached ?
A : I don’t know he was just moving along and uttering words. I don’t know what he
was saying. I don’t know whether he was trying to recognise who I was or coming up to me to fight with me.
Q : How close did he get to you ?
A : He came from my right and he was about three (3) metres away from me.
Q : What did you do ?
A : I was backing up then I turned to run.
Q : Why turn to run ?
A : Because he was coming towards me.
Q : Then what happened ?
A : When I turned round someone else came up to him. I don’t know who was but later
I found out.
Q : Who was it.
A : Kurr
Q : Then what happened?
A : I don’t know what he did but when I turned around I saw Bako on the ground.
Q : What did you do ?
A : I ran up to him to check his pockets .......
Q : Why check his pockets ?
A : Looking for money or anything to steal.
Q : Find anything ?
A : Nothing.
“A : Yes he spoke to me but I don’t know what language , I know he spoke to me because
he was trying to recognize me.”
“Q : If Bako saying something you didn’t understand its not fair for Kurr to hit him with
a hammer, Agree ?
A : Yes its not fair that happened to him.”
the Golf Course area ;
and had hidden under the tree shade close by to where the drunkards were ;
trousers pockets for something to steal ;
him.
Dated the 22 day of October 2021
__________________
D.V.FATIAKI
CHIEF JUSTICE
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