Tetaua v Republic [1990] KICA 3; Criminal Appeal No 8 of 1989 KICA (27 March 1990)

IN THE COURT OF APPEAL OF KIRIBATI

Criminal Jurisdiction

Criminal Appeal No 8 of 1989

BETWEEN:

RITATE TETAUA
Appellant

AND

THE REPUBLIC
Respondent

Mr. Koaru for Appellant
Mr. Brechtefeld for Republic

Date of Hearing: 27th March 1990
Delivery of judgement:

JUDGMENT OF THE COURT
(Gibbs V.P., Frost, Donne, Dillon and Mitchell J.J.A.)

The accused, Ritate Tetaua, was charged that on the 6th of October 1988 at Betio, Tarawa, he wilfully murdered one Terawea Ienraku. The trial judge, Muhammad, J., found that with the intention of doing at least grievous bodily harm, the accused caused the death of the deceased. He was accordingly convicted and sentenced to life imprisonment.

The appeal was brought on the grounds:

(1) That tine evidence was unsafe and unsatisfactory to convict on a charge of murder taking into consideration that all prosecution witnesses were related to each other or the deceased.

(2) That the trial was conducted in a manner unfair to the accused in that investigating officers were not called as witnesses and important medical evidence in respect of the plea of self defence was destroyed.

(3) That His Lordship misdirected himself as to the plea of self defence.

(4) That the evidence was insufficient to prove the element of malice afore-thought.

The fight in which the deceased was killed occurred about midday on 6th October 1988 near the biscuit factory in Betio. It was outside a house which was a traditional structure with separate compartments, also called houses. The main witness, Katio Kareo, a woman about 50 years of age, owned apparently the greater part of the structure. She lived in the house, her son and the accused each in one of the other houses. The deceased, a youth of 14 years, was living in a house, or space, opposite Katio's house. He was related to her, Katio said, in that she was brought up by his grandmother.

There was a build-up of events in the morning leading to the deceased's death. At about 10am, Katio said in evidence, the accused returned early from his work at the wharf. He sought food from Katio but refused the rice she offered him. He then went to obtain fish from a nearby market or shop. On his return he enquired where her son was and was told he had gone fishing. The accused had a knife with him which she recognised as her toddy knife. It had a stainless steel blade with a wooden handle. Admitted in evidence at the trial, it was about two feet long. As the accused sat eating in his house, as it appears, his demeanour became menacing. He shouted, stabbing his plate.

During the morning she could see that the accused drank about 2 mugs of sour toddy. He became affected by it but, Katio said, he was "not really drunk. He knew what he was doing." He came to her and asked who it was sleeping inside. She told him it was Terawea, the deceased. He returned to his house. She threw a stone towards the deceased to awaken him. The accused returned and, outside the house, shouted at the deceased to "get hold of this knife". Katio recognised it as her knife. She intervened to tell the deceased to run away. As the deceased stood behind her, she told the accused to throw the knife away and instead use his fists. As she tried to get the knife from him, she saw that the deceased had run around and was standing in front of them holding a stick, or what she called a muttle pipe, about two feet long. The accused jumped to stab him and the deceased was trying to avoid the blows by using his rod, as she called it.

Other people came around to ask them to stop the fight. The accused was attacking the deceased, and he was defending himself with what she then called the iron bar.

The only one to intervene was the deceased's father, Ienraku Ikatau, who had arrived at the scene from his house nearby. He picked up a stone and threw it at the accused. The accused jumped at him trying to stab him. It was the deceased then who ran into the house and came back with a different iron bar, about a metre long and of the thickness of her finger. Next, to use the witness's own words, "the father left the accused and went to the deceased to hold him and the bar to stop him from using it. As the father of the deceased was holding him by his two hands the accused ran around the back of the deceased and getting in between them, hit and stabbed him on the stomach by thrusting the knife into the stomach and then pulling it across. The deceased staggered for a couple of steps holding his intestines and then fell to the ground..."

Evidence to the same effect was given by Ienraku Ikatau and his wife Kateinang, the mother of the deceased who were at the scene. Ienraku said he was 14 years of age but bigger than the accused.

One matter which troubled the learned trial judge was the evidence of Tiaon Tamaeri, a constable of police called for the prosecution, who went to the scene after the fight. He saw there two bodies "lying down", one of them was the deceased and the other the accused. The latter was unconscious, or appeared to be, and had a wound on his head. In relation to this matter, there was the evidence of Outaki Tataua who testified that he arrived at the scene immediately after the fight and saw the deceased with his intestines hanging out and the accused holding a knife and fighting Ienraku. The learned judge said that he was satisfied that whatever had happened to the accused, it was only moments before the policeman saw him and well after he had inflicted the fatal wound.

Evidence that the death was caused by the knife wound was given by Adam Tekanene, a medical officer in the Ministry of Health and Family Planning. It was on 6th October, just after lunch he said, when the deceased was brought to the hospital. He had a deep wound on the stomach, 5 inches in length. His death, he said, caused by the wound.

At the close of the case for the prosecution the only evidence called was that of the accused. He admitted that he had drunk sour toddy, 2 cups of it, but it was 3 cans of beer he had drunk which caused him to become "a bit drunk". He admitted that he and the deceased had had a fist fight and said the deceased's father had come and hit him. He had fainted and did not know what happened after that. He denied that he injured the deceased or had stabbed him.

The learned trial judge considered the prosecution witnesses and found all of them truthful. He was satisfied that before the police arrived, and well after he had inflicted the fatal wound, the accused was still on his feet, unmarked, and still violent. When he was seen by the police lying on the ground he had either faked unconsciousness or 'maybe someone knocked him down'. It was clear he suffered no serious injury. The learned trial judge found there was not a shred of truth in the accused's evidence and there was no possibility of him having acted in self defence, which was the only defence submitted by the accused's counsel. He was satisfied beyond reasonable doubt that the accused was guilty as charged and he convicted him accordingly.

A passage near the beginning of the reasons for judgment gave us some concern. The learned trial judge said:-

"It is clear that there is no requirement that murder be wilful. A killing by one person of another is murder if it is accompanied by malice aforethought which may be expressed or implied (See section 195 of the Penal Code). The practice of alleging malice aforethought in England ceased long ago but if it is alleged I could at least understand why it is done but the use of "wilfully murdered" does not have any meaning in Kiribati or law and practice in England. Of course "wilfully" might have been used to mean "with the knowledge of" or "knowingly" to suggest that implied malice aforethought is alleged. Whatever the reason in my view it is unnecessary to use the expression and should in future be avoided."

We do not understand that passage and believe that, as a direction to a jury, it would have been flawed. Malice aforethought is an essential element of murder in Kiribati. However the finding of the learned trial judge that the accused "intentionally and with the intention of doing at least grievous bodily harm attacked the deceased and caused his death" shows clearly that he applied his mind to the elements of the charge required to be proved beyond reasonable doubt.

The learned judge did not expressly direct himself that the onus is on the prosecution to establish that a person charged with murder did not act in self defence. However we have no doubt that a reasonable jury properly directed would have rejected a finding of self defence on the evidence which was before the court.

The learned judge entered into the realms of conjecture when he said of the accused being seen by Constable Temaeri to be lying on the ground and apparently unconscious, "whatever happened I have no doubt it happened moments before the policeman saw him." But the evidence of Outake Tataua, which the learned trial judge accepted, left no doubt that whatever caused the accused to be seen lying on the ground happened after the deceased was stabbed.

It appears from the evidence of Constable Tamaeri that the accused had a wound on his head and that the Constable took him to the Betio clinic where they remained for two to three hours. No record of his admission was found in the clinic and one of the grounds of appeal is that important medical evidence which would have supported the plea of self defence was destroyed. There is in fact nothing to show that any record was made or, if made, was destroyed.

Outtake Tataua said that when he saw the deceased lying on the ground with his intestines hanging out the accused was fighting with the deceased's father. Tataua took a knife from the accused and threw it away. Even had it been established by medical evidence that the accused had been treated at Betio Clinic for a wound, that would not have carried any further a possible defence of self defence in the situation in which the learned trial judge accepted the prosecution's witnesses as truthful and found that the accused had lied in all important aspects of his evidence.

As to ground 1of the notice of appeal it is necessary to say only that the learned trial judge was well aware of the relationship which the first three witnesses bore to one another and the deceased and the fact of the relationship was not in itself a basis for rejecting this evidence.

As to ground 2 we add only to what has already been said that there is nothing before us to suggest that any investigating officer who was not called to give evidence could have assisted the accused's case. In argument we were told only of one investigating officer who was not called, the reason for not calling him being that he was in Kiritimati Island at the time of the trial. In any event there was no application for adjournment of the trial to enable further evidence to be called.

We have already discussed the other grounds of appeal.

The appeal will be dismissed.

Vice President
Judge of Appeal
Judge of Appeal