Republic v Teruruai [2001] KIHC 65; Criminal Case 04 of 2001 (16 November 2001)

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

High Court Criminal Case 4 of 2001

THE REPUBLIC

vs

TAUANIBURE TERURUAI

For the Republic: Mr Tion Nabau
For the Accused: Ms Emma Hibling

Date of Hearing: 12 & 13 November 2001

JUDGMENT

The accused was charged with murder. He was said to have stabbed the victim Kateti, with a toddy knife. Kateti was dead within hours of being stabbed. The accused and Kateti, Teananga and others had been drinking sour toddy together on the evening of last 28 December. Three days before, the accused had told Awira Bauro that he was planning to kill Kateti. According to Teananga the accused said the same thing to him because Kateti had been insulting.

After their drinking Teananga was walking Kateti back to his house:-

Accused suddenly appeared, very close to old man suddenly old man fell to ground. Going up to 2100. Accused appeared from – don't know direction: he appeared suddenly in front of us. When old man fell to ground, old man spoke accusing me of stabbing him: I said I wasn't carrying anything. Accused left. – He told me to take old man away and I was going to be blamed. I was to watch over him. I took the old man west-ways: I was afraid of accused: he had weapon. Said he'd kill me if I revealed him to anybody. I left old man and ran away: left him on lagoon side. I'd been drinking sour toddy: a little drunk but not fully drunk. It was dark: recognize accused when he came close and his voice.

Bwebwentekai Kabwana said that between 8 o'clock and 9 o'clock in the evening the accused came to his house:

I was in sleeping house. During 2000 and 2100 saw person walking by house, not far away, 15m. Walking, not very fast. I was seated. Headed towards the table. Stood beside it. Accused. Recognised his silhouette, shape of his body. Observing him two minutes standing at table. Way he walked; his size. He left. Lighting – dark but some moon, not very bright. Could recognize people ..... I own toddy knife. I cut toddy that pm. I left knife on my dish table. Next morning my knife missing. The person who came to my table: accused. I had seen him before. Met him in my house: he came to drink. I didn't speak to him when at my table.

Later that evening the accused came twice to the house of Karariki Kiera each time giving Karariki a toddy knife, one of them Bwebwetekai's. The accused told Karariki that Kateti was dead and Teananga had killed him. Tinaua Ioane was at Karariki's house when the accused came with the knives:-

Accused arrived at Karariki's house between 2000 and 2100. He shewed us a toddy knife he was holding. ---- blade, handle and his hand covered in blood. He gave it to Karariki. I was close. I could have touched accused.

The circumstantial case against the accused was, at the close of the prosecution, very strong.

Yet there were two pieces of evidence which gave rise to doubt. The first was that the victim, according to Teananga, thought he, Teananga, had stabbed him, not that the accused had stabbed him. Teananga told the victim that he did not do it saying he had no weapon.

The second is the evidence of Atata Takenimakin, the nursing officer who looked after Kateti after the stabbing until he died. When he was admitted to the hospital late at night the victim was unconscious. He regained consciousness about half past six the next morning. Atata asked Kateti who had injured him and he said it was Teananga. Kateti died a few hours later. I admitted what he said as a dying declaration.

Despite the very strong case against the accused how could I but have a reasonable doubt about his guilt when the victim twice had said it was Teananga who stabbed him, not the accused?

Ms Hibling submitted no case to answer. Apart from the victim's belief that it was Teananga, Ms Hibling pointed to the dangers of acting on identification evidence: perhaps Bwebwentekai was mistaken in his belief that it was the accused whom he had seen near the table where he kept the toddy knife.

I was against Ms Hibling on her submission of no case to answer. It was not that the accused had no case to answer but that the jury, at any time after the close of the prosecution case, has the opportunity to bring in a verdict of not guilty if the members of the jury consider that whatever evidence may still be to come, they could not convict. In South Australia the judge may, if he thinks appropriate, give a direction to this effect to the jury at or any time after the close of the Crown case. It is known as a Prasad direction. Sitting in Kiribati I must decide the facts as well as apply the law. Notionally I gave myself a Prasad direction and concluded that I must, in the light of the victim's own belief that it was not the accused but Teananga who had stabbed him, always have a reasonable doubt about the accused's guilt. The accused was entitled to the benefit of the doubt.

I therefore found him not guilty.

Dated the 16th day of November 2001

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE