Republic v Tetaua [1989] KIHC 2; Criminal Case 26 of 1989 (6 October 1989)

IN THE HIGH COURT OF KIRIBATI
BEFORE THE HON. MR. JUSTICE F. MUHAMMAD

Case No. 26/89

THE REPUBLIC

versus

RITATE TETAUA

Mr. Brectefeld – for Republic
Mr. Koaru – for the accused.
Interpreter – Mr. Boutu.

JUDGMENT

Ritate Tetaua, hereinafter referred to as 'the accused' is charged with and he has pleaded not guilty to Murder contrary to Section 193 of the Penal Code (Cap 67). It is alleged, in the particulars of the offence, that on 6th October 1988 at Betio the accused "willfully" murdered Terawea Ienraku (whom I shall refer to as 'the deceased').

Section 193 of the Penal Code reads "Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder and shall be sentenced to imprisonment for life"

It is clear that there is no requirement of law 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 was done but the use of "wilfully murdered" does not have any meaning in Kiribati law or law and practice in England. Ofcourse "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 the future be avoided.

There is evidence of four eye witnesses, that the deceased was wounded and evidence of P.W.2, his father, and P.W.5 that he died. P.W.5 Medical Officer at Tungaru Central Hospital examined the deceased and says he had 5 inches long wound, it was deep and had cut the guts. He says guts were hanging out and were punctured. He was operated on at about 2.0 Pm and died four hours later. He considered hemorrhage as the main cause of death although he says they had difficulty in tying the fermoval vein up and that too could have caused the death. There is no dispute and ample evidence that the deceased died as a result of the wound and for the purposes of this judgment I find this proved.

Prosecution's case is that the deceased died as a result of the wound unlawfully caused by the accused and at the time of causing such wound the accused intended to kill the deceased or at least intended to cause him grievious bodily harm.

P.W.1, Katio Kareo, is about 50 years old lady and lives near the biscuit factory on Betio. She says that at the time of this incident the accused's mother was building her house and pending its completion they were staying in one of her houses. (House in Kiribati, as I understand it is a separate structure on the same plot as other such structures and often part of the same house. In other words a separate room occupied by a member of the family is called a house). She says Tarawea the deceased was related to her, in that she was brought up by his grandmother, and lived opposite to her house.

On 6th October, 1988 the accused came back from work and asked her where the food was. She told him that she only had rice. He did not want rice and went out and bought some cooked food and ate it. Whilst he was eating his food the accused asked her where her son Teitiaka was and she told him that he had gone fishing. She says that he started stabbing the plate he was eating from. The deceased was asleep in her house at the time and the accused asked who it was. The witness replied it was Tarawea. The accused returned to his house and she threw a stone at Tarawea to wake him up. He woke up and the accused returned to the house and shouted at Tarawea, "Tarawea get out and get hold of this knife". She says the accused had her toddy knife (exhibit P1) in his hand. She told Tarawea that the accused had the knife and told him to run away. Deceased appeared with a small piece of pipe and he was trying to defend himself with it while the accused was attacking him with his knife. Before going for this pipe he had suggested to the accused to drop the knife and fight with fists. This lady too asked him to drop his knife but he wouldn't.

However they were jumping around, the accused was trying to hit and deceased trying to defend himself when the father of the deceased arrived at the scene. The accused left the deceased and faced his father, he jumped at him trying to stab him. The deceased went and found a metre long pipe, she described its thickness as same as of her finger. The father left the accused and went to his son and held him by both his arms in order to stop him. He was still holding him when the accused moved forward towards them and stabbed the deceased by thrusting the knife into his stomach and then putting it across. The deceased staggered for a couple of steps holding his intestines and then fell to the ground. She cried Tarawea is dead and ran away.

In her cross examination she described her house which has three separate structures and the accused was in the 3rd one. She said the accused had come home from work at about 10a.m. She saw him drinking two mugs of toddy. He was normal and not drunk at the time. She said there was no fist fight between the accused and the deceased and neither of them even fell to the ground. The accused was never hit with the iron bar and did not receive any injury.

She said father of the deceased did not have an iron bar and did not fight with the accused. After the deceased was wounded she hid her face with her hands in grief and did not know what happened after that.

P.W.2 is the father of the deceased and says much the same as P.W.1. He says when he arrived at the scene the accused came to attack him with the knife and he held his hand which was holding the knife. He confirms what P.W.1 says about the fatal moment that he left the accused and went to hold his son and the accused stabbed him whilst he was so held.

He says after the deceased fell to the ground the accused tried to attack him and as he was trying to get hold of the knife he received injuries to his hand and back. Then the Police came. In cross examination he denied suggestion that he and deceased were attacking the accused.

P.W.3 is the mother of the deceased and came to the scene little later but before the stabbing and corroborates P.Ws 1 and 2. P.W.4 is a cousin of the accused and at the time he was working at the Biscuit Factory. He saw the deceased on the ground and was able to disarm the accused by taking the knife out of his hand and throwing it away. He corroborates P.W.2 and confirms that the accused was fighting with him.

P.W.6 was one of the Police Officers who went to the scene but was not the investigating officer. The only thing of interest in his evidence is that he says he saw that the accused too was lying on the ground unconscious. They took him to Betio Clinic although there seems to be no record at the clinic. However this officer says he was treated there although he did not see the treatment. He claims he saw him with blood on his nose and head. This is what the accused claimed but none of the other witnesses would accept that the accused was injured or lay on the ground.

I find all the witnesses truthful and they were at pains to remember and showed surprise when asked about the accused lying on the ground. I have no doubt that the father of the deceased in anguish of the moment might have not remembered the details of the fight he had after his son was injured and might have succeeded in hitting the accused. However up to the moment P.W.4 arrived I have no doubt the accused was still on his feet unmarked and still violent. It is possible that he lay on the ground and faked unconsciousness or may be someone knocked him down but whatever happened, I have no doubt it happened moments before the policeman saw him and well after he had inflicted the fatal wound. It is clear he suffered no serious injury anyway otherwise there would have been some record at the clinic.

The accused in his evidence disagrees with everything prosecution witnesses say. He says P.W.1 is wrong in fact he did go to her for rice. He did ask for her son because he had damaged their house. He says the father of the deceased was also with them and they were standing and talking not that the deceased was asleep at the time. He did not have a knife but had a fist fight with the deceased and the father of the deceased hit him on the head. He fainted and did not know what happened afterwards. When he came to he saw the deceased holding a stick. Then the police came. He said 'I don't know how Tarawea got injured it is not true that I injured him'. He did not know he had a knife and he said it was not true that he had a knife. He agreed it was P.W.1's knife but did not accept it was used for cutting toddy. He received the injury to the head while he was having a fist fight with the deceased but had no other injury. Then he said he had an injury on the left side of the nose but did not know how. He tried to get up but could not because his head was badly injured.

Then he said he did not know if he had a knife, he tried to defend himself when the deceased was coming towards him. He tried to defend himself, as he thought, with his fist. He did not stab him. Police came and took him in the van.

In his cross examination he went on in this extraordinary fashion. He said he was not really drunk next sentence was he was a bit drunk and then he was drunk but he could still recognize a person. He said he went for rice to P.W.1 before drinking toddy then he said that was a mistake and infact he got rice first and then drank sour toddy. Then he told the court how he fell to the ground was that the father of the deceased had hit him from behind him. He was asked how did he know it was him if the blow came from behind and he said someone had told him. He was asked who told him and he said he did not know.

He did not know how the knife got into his possession. He said he was conscious enough to know that deceased's father was not holding him but he did not see the knife in his own hand when he tried to punch the deceased to defend himself and was surprised to see that there was a knife in his hand.

This is all the evidence in his defence. I don't know what is he saying that happened. It is either accident, self defence or diminished responsibility. I have no doubt it is none of these. The accused knows, as he knew soon after he had cut his victim down that there was absolutely no excuse for his action. He started the onslaught on the deceased, threatened him, attacked him and eventually killed him. How could he be defending himself when he chose to go to the deceased equipped with a knife without any apparent reason and would not go away despite the requests of P.W.1, P.W.2 and the deceased himself. P.W.3 said that the deceased had stopped the accused few days earlier from beating his (accused's) sister that may be a motive but it makes no sense and the accused denies that it ever happened anyway. Whatever the reason I believe all that the prosecutions witnesses have said, that the accused sought the deceased, attacked him, and killed him. As I have said earlier accused's evidence makes no sense and there is not a shred of truth in it. There is no possibility of him having acted in self defence. He intentionally and with the intention of doing at least grievous bodily harm attacked the deceased and caused his death. I am satisfied beyond reasonable doubt that he is guilty of murder as Charged and I convict him accordingly.

The accused is sentenced to imprisonment for life.

F. Muhammad
Judge
6-10-1989