Republic v Terawati [2001] KIHC 6; Criminal Case 23 of 2000 (16 January 2001)

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

Criminal Case No. 23 of 2000

THE REPUBLIC

v.

ARAM TERAWATI

FOR THE REPUBLIC: Ms Pole Tebao
FOR THE ACCUSED: Ms Emma Hibling

Date of Hearing: 15 & 16 January 2001

JUDGMENT

Aram Terawati, you have come before this court charged with the offence of murder. You pleaded not guilty and has stood your trial.

On consideration of the evidence I am firmly of the view that I can arrive at no other verdict than that you are guilty of murder.

On the morning of Tuesday 18 July 2000 the accused and the deceased were members of a work team clearing some ground on the site of Temamang Primary School on Tabiteuea North. I heard testimony from another member of the work crew, a man by the name of Bataka Takaea. He testified to the effect that he was working that morning chopping away at a tree stump with an axe. The deceased came over and relived him. Bataka then went to sit a short distance away to have a break. Seated near to him was the accused. He testified that the accused gave him his cigarette and asked him to light it. Bataka turned away to light the cigarette and when he turned back around he could see a knife stuck into the side of the deceased. He did not see the knife enter the body of the deceased but he did see that the accused held the knife that was inside the deceased’s chest.

Aside from the deceased, the accused and the witness Bataka there was a fourth man in that group, a man by the name of Tekarawa Rabaere. Tekarawa was also within a short distance of the other three men. (END OF TAPE) The men scattered and in the process the knife was withdrawn from the chest of the deceased. Bataka testified that words were spoken, none of which seemed to make sense. The deceased called out ‘why don’t you call Tiribo’ apparently referring to himself in the third person. The accused said ‘didn’t you know’ or was translated as ‘weren’t you aware’.

The only other witness who testified as to what happened that morning was a member of the primary school committee who was attending a meeting at the school that morning, Uba Kinta. Uba didn’t see any contact between the accused and the deceased but when he came out of the meeting room he saw the accused holding a long knife with blood on it.

The deceased died later that day and we have the unchallenged evidence of Dr Karmen that he died as a result of the stab into his left chest.

That is essentially the evidence for the prosecution. In cross examining the prosecution witnesses, Ms Hibling for the accused, did bring out evidence of an attack by the deceased upon the accused in February of 2000. there was also some evidence of a process by which reconciliation between the two parties was attempted.

The accused testified and gave details of the attack of him in February 2000. He also testified that on the day before the deceased was stabbed he and the deceased were working alone together. He testified that the deceased whispered words to the effect that he the accused was lucky he had not been killed the first time and that the deceased would attempt to kill him again. Not surprisingly the accused was very frightened by this. His testimony of the events leading up to the stabbing is very similar to that of the prosecution witness Bataka. He paints the actions of the deceased though in a very different line.

If I understand the accused’s evidence correctly, he said that the action of the deceased in coming to take Bataka’s place in chopping the tree was a move directed at the accused. The accused said he was placed in fear by this and that in a desperate attempt to put some space between himself and the deceased, he rushed at the deceased and pushed him away. The accused denies categorically being in possession of the knife that morning. He says that it is impossible that he may have mistakenly stabbed the deceased and that the witnesses Bataka and Uba are mistaken when they say that they saw him with a knife. He cannot account for how the deceased came to be stabbed.

Frankly I find the evidence of the accused incredible and unbelievable and I am not prepared to accept any of it unless it is supported by other evidence. I found the evidence of Bataka and Uba to be truthful and they were honest men doing their best to assist the court. Certainly neither of them appeared to have an axe to grind nor any motive for lying to the court. The accused on the other hand has every reason to lie. He’s fighting for his life. Although nobody saw the accused actually insert the knife into the chest of the accused, I can infer from the evidence of Bataka and I so infer, that it was the accused who stabbed the deceased. There is no other inference that can be drawn. He is absurd to suggest that somebody else inserted the knife and that a split second later the accused was seen holding the handle innocently.

Having found that the accused stabbed the deceased it is a necessary conclusion from that that the accused caused the death of the deceased. In the circumstances of the stabbing unless the prosecution is able to negative either provocation or self defence then a conviction for murder is inevitable. In the fact as found by me the accused stabbed the deceased once in the chest. Unless that act was done in either self defence or as a provoked act then it is a simple matter to draw the inference that there was malice intended. I am of the view that this was simply an act of revenge for the attack sustained by the accused in February. It is not necessary for me to find a motive.

On the question of provocation I raised to both counsel during addresses a possible scenario which went something like this, that taken in the light of the attack in February and the whispered threats the day before, was it possible to construe the deceased relieving Bataka as a provoking act. The difficulty with this scenario is that whether an act is capable of amounting to provocation or not is an objective test. It must be viewed in the light of what effect that act would have on an ordinary man with the particular circumstances of the accused. I am of the view that in no way can the actions of the deceased be viewed as an act of provocation.

I don’t accept the evidence of the accused as to the threats on 17 July and in any event all the deceased did was to take the place of Bataka, an act that would be expected of any member of the work that day. I am therefore satisfied beyond reasonable doubt that prosecution have negatived the defence of provocation and what of the defence of self defence? The deceased was wielding an axe. The deceased was wielding this act in the way in which he was expected to be wielding it, he was chopping a tree. I find that in no way could the deceased’s action be construed as a direct threat to the accused.

The accused testified that he was afraid of what the deceased would do with the act. He said he thought that the deceased was going to strike him with it. Even if the accused did believe that, which I doubt, this was not a reasonable belief to hold and in any event at least twice during his evidence the accused testified to a loss of control and a loss of control is inimicable to the defence of self defence which requires a considered response to the threat. The defence of self defence is not being made out and has been negatived to the required standard by the prosecution.

As I said at the outset the only conclusion that can be drawn from the evidence I have heard from this trial is that the accused murdered the deceased. I am satisfied that the accused stabbed the deceased once in the left chest. The stab wound was inflicted with the intention of at least causing grievous harm to the deceased. The stab wound led to acute respiratory distress and hypo shock which caused the deceased’s death.

Aram Terawati I find you guilty of the offence of murder. You are accordingly convicted and sentenced to imprisonment for life.

DAVID LAMBOURNE
COMMISSIONER
(16/01/01)