Republic v Beia [1996] KIHC 103; HCCrC 10.96 (19 November 1996)

IN THE HIGH COURT OF KIRIBATI
(BEFORE THE HON R LUSSICK C.J.)

HCCrC 10/96

THE REPUBLIC

versus

TEKIATA BEIA
(Murder)

Ms T Beero for the Republic
Mr D Lambourne for the Accused

JUDGMENT

The accused has pleaded not guilty to the murder of his wife, Meerita Tearoua, on the 25th May 1996 at Tebanga, Abaiang.

As in many murder cases, the evidence against the accused is entirely circumstantial.

In the early hours of the 25th May 1996 the accused, accompanied by two other persons, woke up the Special Constable and told him that his wife was dead and asked the Special Constable to go with him to a field where the deceased was lying. The accused had claimed that his wife had committed suicide.

The prosecution case is that the victim died of strangulation and that because the accused was the last person to be with her immediately before her death he must have killed her.

Of course this argument collapses if the prosecution fail to prove beyond reasonable doubt that it was an act of the accused which caused the victim's death.

The only evidence of the cause of death came from a medical assistant, Tanimakin Nooti. She holds certificates as a nurse and medical assistant but no other formal medical qualifications. Her examination of the body took place where the body lay in a field and could be described at best as superficial and cursory. There was no post mortem and in fact no tests of any kind were carried out. Her opinion that death was caused by strangulation was based solely upon her observation of some bruises on the victim's throat. She did not examine the victim's neck for any other evidence of injury. There were no signs of bulging eyes, protruding tongue, gaping mouth which one might have expected to find on a strangulation victim. In fact the medical assistant said that the only noticeable thing about the victim's face was that her eyes were blackened, but otherwise she appeared to be asleep. Nor was the medical assistant able to tell whether the bruising on the neck was new bruising or old bruising. Furthermore, she conceded in cross-examination that she was not in a position to say whether or not the bruising on the victim's neck was the cause of her death. Indeed, her evidence did not rule out the possibility of other causes.

For instance, she saw that the victim had sustained what must be described as a serious wound to her left leg below the knee, measuring two inches in length and 1¼ inches in depth. She gave the opinion that this did not cause the victim's death. However, she did not say why she thought that. Surely loss of blood from such a deep wound could not be ruled out. The body had been dead for some time and was cold and stiff when she arrived. Yet death from loss of blood apparently was not even considered. Nor, for that matter, was heart attack, shock, or the taking of poison. Her report (exhibit A) reflects the quality of her evidence in these words: "In my opinion the caused (sic) of death may be strangulation of neck". (Emphasis added).

The accused gave a statement to the police (exhibit B) in which he claimed that his wife had committed suicide by stabbing herself in the leg after accusing him of not loving her and making other complaints. After she had stabbed herself there was a struggle for the knife in which he admitted punching her on the temple. He said in his statement that he tied his lava lava around the upper part of her wounded leg. (The medical assistant said in her evidence that she found a cloth on the victim's upper leg). After a while he realised her condition was deteriorating so he went to the house of another prosecution witness, Tekai Nabura to get his wife a drink. (This witness testified that he followed the accused back to where the accused's wife was sitting and that the wife drank some of the drink but when she did not want any more, the accused asked him to go for the nurse. The witness in turn told his nephew to fetch the nurse but did not know whether this was done or not).

In all, five witnesses were called for the prosecution. The accused elected not to give evidence, and called no evidence.

None of the prosecution witnesses was able to say that there had been any disagreement between the accused and his wife or that they had seen the accused offer any threats or violence to his wife. The witness Arobati Ientau gave evidence that he was with the accused and his wife the night before she died and he did not see any quarrel or ill feelings between them. In fact this witness said that he knew them well and had never known them to fight or quarrel.

Perhaps the strongest piece of evidence against the accused emerged from the record of interview. Question 4 was in the following terms:

"The result of the examination done by the Medical Assistant upon Meerita after her death showed a bruise on her neck. Do you know why or what happen (sic) to it?"

According to the translation, the accused answered: "May be it was caused when I hold shaking her neck when she was about to die".

However, it is clear from the original document that that was not the answer the accused gave at first. Whatever he replied was obliterated with white-out (or liquid paper) and the answer just quoted was handwritten over the top of the white-out. There is no telling from the document just when this answer was substituted, nor has the amendment been initialled by the accused or otherwise acknowledged by him. Counsel for the accused suggested to the police officer who took the statement that the accused's original answer had been obliterated so that a less favourable one could be written in. In my view, the improper way in which the answer was amended leaves the way open for that accusation. Because of this it would not be fair to use the substituted answer against the accused. I might add that the answer would not by itself be sufficient to convict the accused.

It follows from what I have said that I am not satisfied from the evidence that the cause of death was strangulation. The onus of proof beyond reasonable doubt remains upon the prosecution from first to last. The Republic must prove the charge and each element of the charge beyond reasonable doubt and if it fails to do so then the accused is entitled to be acquitted. There is no onus on the accused at any stage to prove his innocence.

On a consideration of all the evidence I find that there is insufficient evidence to establish a cause of death and that the prosecution have thus failed to prove that the victim's death was caused by an act or omission of the accused.

I therefore find the accused not guilty of the murder of Meerita Tearoua and he is acquitted accordingly.

THE HON R B LUSSICK
CHIEF JUSTICE
(19/11/96)