Ueara v Republic [1997] KICA 1; Criminal Appeal 01 of 1996 (21 March 1997)

IN THE COURT OF APPEAL OF KIRIBATI

CRIMINAL JURISDICTION

CRIMINAL APPEAL NO. 1 OF 1996

BETWEEN

BAITONGO UEARA, BWEBWEIETA ITINIKUA
TAUNTEANG BIIRA, REREITAAKE TEUEA
MARAWA KANOUA, KOKORIA REREITMKE
Appellants

AND

THE REPUBLIC
Respondent

Date of Hearing: 17 March 1997
Delivery of Judgment: 21 March 1997

Mr D Lambourne for the Appellants Nos 1, 2 and 3
Mr B Berina for the Appellants Nos 4, 5 and 6
Mr D Sim for the Respondent

JUDGMENT OF THE COURT
(Gibbs V.P., Connolly and Ryan JJ.A)

On 16th February 1996, the appellants were convicted by Lussick CJ of the murder of Atanimakin Bwarerei on Mwanra islet, Abaiang on the 30th May 1995 and sentenced to imprisonment for life. They appeal on the grounds that the trial judge erred in law in rejecting their submission that there was no case to answer and, in the alternative, that the verdict cannot be supported, in that the evidence given was weak and obviously unreliable so that no tribunal of fact could reasonably have convicted them. Mr Lambourne appeared for Baitongo, Taunteang and Bwebweieta and Mr Berina for Rereitaake, Marawa and Kokoria.

The story appears somewhat confused but an examination of the evidence of the witness Biribo reveals a clear picture. This witness was not a resident of Mwanra Islet where the death of Atanimakin occurred. He came from Abemama and was diving on the day in question with a group which included three of the appellants Baitongo, Taunteang and Bwebweieta. They returned to Mwanra Islet between 4 and 5 o'clock and were met by Rereitaake who told them that the deceased had been disturbing their wives. At that stage they were near Rereitaake's house. According to Biribo he said to Bwebweieta and Baitongo "Lets go look for him and kill him" and Taunteang who was obviously there said that it could be done very quickly. At that stage according to Biribo, Rereitaake was carrying a bush knife. Marawa and Kokoria were also obviously there for his evidence was that he did not see either of them carrying anything. It is thus clear from his statement that all six appellants were in the group at that stage.

They moved off together towards the house of one Tebino where, it would seem, they expected to find Atanimakin and where in fact they did find him. At that stage Biribo observed that Baitongo and Marawa were with the group and had spears and that Taunteang had a bayonet. They found the deceased at Tebino's house and the witness identifies all except Taunteang as being present at that time and throwing stones at the deceased who ran from that house to a neighbouring house where they followed him. At the neighbouring house the deceased who had armed himself with a spear challenged someone to fight him and Taunteang came forward. Taunteang struck the deceased's right hand which was his spear hand taking off a number of his fingers. The deceased dropped his spear and picked it up again with his left hand and ran off. He fell and the evidence of Biribo is that they beat him up, Rereitaake having his bush knife, Taunteang his bayonet and Biribo observed Taunteang striking with the bayonet although he did not actually see the bayonet hit the deceased. The evidence was that Marawa also speared him and that the other three were present, namely Baitongo, Bwebweieta and Kokoria. He did not see what, if anything, they did but all six were at the scene where Atanimakin met his death.

The learned Chief Justice decided that the case was within section 22 of the Penal Code which provides that

"when two or more parsons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence".

The unlawful purpose in this case was constituted by an intention to kill the deceased, that being one of the ways in which the malice aforethought required for a conviction of murder is stated in section 195. This is not a case in which it is difficult to infer such a state of mind for the evidence directly established an intention to kill on the part of Rereitaake and Taunteang. The evidence of Biribo in relation to Rereitaake at the stage at which Rereitaake addressed the others coupled with Taunteang's reply is direct evidence against them, and the fact that all six then moved as an armed group in search of Atanimakin who was ultimately killed makes this conclusion almost inescapable in relation to all of them. So far as the four others are concerned they constituted part of the group from the beginning to the end which culminated in the death of the deceased. All, with the exception of Kokoria, were armed and all were seen by Biribo to be making hostile movements towards the deceased. At Tebino's house members of the group were seen to throw stones at the deceased and at that stage Kokoria participated by throwing stones. It is true that there is no evidence that he was otherwise armed but he continued to be part of the group to the very end.

This is not a case really in which any of the six appellants was involved for the purpose of section 22 only by reason of some prior agreement. A possible approach to the evidence was to regard each as either an active participant in the sense of striking or one who aided and abetted by standing by and encouraging. This does not mean that any exception can be taken to the learned judges' approach for each of the features of S.22 was established, the common intention that Atanimakin should be killed by the group in conjunction and his ultimate killing as a consequence.

In our view it cannot possibly be said that there was no case for the appellants or any of them to answer and that the evidence was either weak or unreliable. It is true that there were apparent inconsistencies in points of detail but that is unavoidable when a witness is giving evidence about an event in which a number of men are moving and variously armed. It is also true that both of the Republic's main witnesses had told certain things to the Police which were not consistent with their subsequent evidence. This is particularly true of the second of those witnesses, one Mauritaake. Ultimately the learned Chief Justice accepted both the witnesses as witnesses of truth. Part of this inconsistency is attributable to the fact that when the evidence was given to the Police by the Republic's witnesses the appellants were at or near the place at which the Police took the evidence and his Honour accepted that they were influenced by fear of the appellants. However, his Honour accepted that they had told the truth at the trial and there is no reason to question his acceptance of that evidence.

The position of each of the appellants may be shortly stated as follows:

Baitongo - the evidence of Biribo was that he was furious at Rereitaake's house. He was armed with a spear at Tebino's house. He joined in the stoning and he continued to follow with the group to the scene of Atanimakin's death.

Rereitaake - he had instigated the group attack. He was armed with a bush knife. He too remained with the group to the death scene where he struck the deceased.

Bwebweieta - he too was one of those urged by Rereitaake and was furious at what he heard. He stoned the deceased at Tebino's house and he remained with the group to the end.

Taunteang - he encouraged immediate killing of the deceased. He was with the group up to Tebino's house and to the end. He injured the deceased by disabling his right hand. He was seen by Biribo to make a striking motion with his bayonet at the position at which the deceased met his death

Marawa - was also one of those whom Rereitaake addressed at the beginning. The evidence is that he was furious at Tebino's house. He attacked the deceased with an arrow (although it had earlier been described as a spear). He joined in the stoning at Tebino's house. He followed to the deceased's end.

Kokoria - was also one of those addressed at the beginning by Rereitaake. He also seemed to be furious. He joined in the stoning at Tebino's house. No witness has identified him as carrying a weapon but he remained with the group up to the point at which the deceased met his death.

There is no substance in the submission that the verdict cannot be supported by the evidence.

The appeal must be dismissed.