Republic v Mikaere [2001] KIHC 29; Criminal Case 18 of 2000 (19 April 2001)

IN THE HIGH COURT OF KIRIBATI
CRIMINAL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

Criminal Case No. 18 of 2000

THE REPUBLIC

v.

TAUREREI MIKAERE

FOR THE REPUBLIC: Mr Tion Nabau
FOR THE ACCUSED: Ms Emma Hibling

Date of Hearing: 18 & 19 April 2001

JUDGMENT

The accused has been charged with murder. The particulars:-

Taurerei Mikaere on or about the 16th April 2000 murdered Tekanene Rikaare at Buariki village, on the island of Tabiteuea South.

What happened is not in dispute. The injuries which the accused Taurerei inflicted on the victim Tekanene led to Tekanene’s death a few hours later.

The only defence is provocation.

It was on 16 April 2000 but the culmination of events during the preceding weeks.

Tiroi had originally been married to Bumatang, the son of Tekanene. Tiroi left Bumatang and went to live with Taurerei, the nephew of Tekanene and the cousin of Bumatang. Taurerei regarded Tiroi as his wife. They had two children, last year aged about 4 and 2. In March Tiroi left Taurerei and went back to Bumatang. She returned to Taurerei for a few days and then went back again to Bumatang. On Sunday 16 April she and the two children were living with Tekanene and his wife Nei Tioba Teuna.

Taurerei was most distressed at losing the woman he regarded as his wife and their two children.

On the Sunday morning Tekanene, Nei Tioba, Tiroi and the two little children made their way to church. They were either on foot or some may have been using a bicycle. The evidence is silent as to transport on their way to church: as they prepared to go home Tekanene, Nei Tioba and the two children were to use a bicycle.

However they were travelling going to church, they passed by Taurerei’s house. He saw them and this increased his distress: he was outraged that they should all be seen together in public. He followed them to church and waited outside during the service. The length of the service was an hour or it may have been longer, up to two hours. For the purposes of considering the question of provocation I shall assume it was only an hour.

The service ended, people came out of the church. Tekanene and his family prepared to go home. He, his wife and the two children were getting on his bicycle. Taurerei rode up to them on his bicycle and attacked Tekanene with a bush knife. The first wound inflicted on the victim was to the back of the head. Thereafter, despite the pleas of others the accused hacked at the victim causing the most awful injuries: Taurerei did not stop until he saw Tiroi some distance away. He ran after her and was overpowered.

This is the accused’s account in examination in chief:-

I waited for the end of the service. Thinking of having a fight because my wife staying with them driving me crazy. When Tekanene came out of church with his wife, my wife and the two children. He put his weapon – bush knife and a stick – on the midriff of the bike. Instead of fighting the son I had a fight with the father who backed up his son. I attacked (Tekanene with the bush knife). I’m sure he had a weapon but not holding it: I didn’t give him a chance because Tekanene had been in this situation before. He was the eldest in the family – very much older than me.

My feeling, waiting quite far from the church, I can’t explain: never had feelings like it before. When I saw them come out of church I didn’t feel anything. I just got bike and rode it. When I reached the man I just go for it. I knew what I was doing at first but for a while I didn’t know what I was doing – once I had the fight.

The accused, in cross examination by Mr Tion Nabau, the prosecutor:-

Saw them passing going to church. I followed carrying a knife. Saw them going into church: started at 1000. I waited for Tekanene to come out. When he was getting on his bike I rode towards him and without notice attacked him. (My notes).

Tekanene was taken to the hospital and arrangements made bring him to the Tungaru Central Hospital but he died about 4 o’clock in the afternoon, before that could be done. The medical assistant, Arote Uriam, made a report:-

The cause of death is due to severe internal bleeding and from his external wounds as well.

Ms Emma Hibling, for the accused, has done the best she could with the evidence to argue that this was a situation of cumulative provocation, beginning with Taurerei’s loss of Tiroi and the children, then seeing the family going past on the way to church and finally seeing them coming out of church. All this, Ms Hibling argued, was too much for Taurerei and caused a sudden and temporary loss of control so that he hacked Tekanene to death. Ms Hibling referred me to Archbold (paras 19-51 et seq in the 1992 edition) and particularly to the Queen vs Duffy (1941) 1 All ER 932) which sets out the classic exposition by Devlin J of provocation.

Despite Ms Hibling’s valiant attempt, I am satisfied beyond reasonable doubt that there was no provocation causing “the sudden and temporary loss of self control, rendering the accused so subject to passion as to make him for the moment not master of his mind.”

This was a deliberate attack on a man, taken by surprise and unable to defend himself. The accused followed the party to church and waited an hour for them to come out after the service so that he could attack the victim. The defence of provocation fails.

Even if I thought – which I do not – that there was a reasonable doubt whether the prosecution had negatived provocation, what the accused did was out of all proportion to the distress and insult which he had suffered: the distress and insult described to me would not “cause in any reasonable person .... sudden and temporary loss of self control ......” Nor did it cause a loss of self control in the accused.

The accused is guilty of murder.

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE