Republic v Ueritaake [2001] KIHC 9; Criminal Case 17 of 2000 (14 March 2001)

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

High Court Criminal Case 17 of 2000

THE REPUBLIC

vs

TEEURI UERITAAKE

For the Republic: Mr Tion Nabau with Ms Pauline Beiatau
For the Accused: Mr Neil Allen

Date of Hearing: 5, 6 & 7 March 2001

JUDGMENT

Violeta Vaea, a little girl aged 3 or 4, disappeared from near the house where she was staying in Temaiku, in the late afternoon of Tuesday 2 May 2000. Her disappearance was soon noticed. The search for her began about 6 o’clock. Searchers were out all night and searched a big area without finding her.

Her body was found about 6 o’clock next morning. A witness, Toromon Manitaake, described the finding:-

I feeding pigs, becoming daylight. I heard voices. The lady screamed out loudly when she saw body. I left pig and ran to her. She was amongst some bushes on ocean side: running back and forth. I saw the girl’s body on the rocks: I was about a metre from the body: injuries surrounding her face, lying there naked: didn’t notice any other injuries. She was dead: I was shocked. Body full of sand: seaweed in hair. I recognised body – it was Violeta (my notes).

Violeta’s body was taken to the Central Hospital. Dr Kautu Tenaua examined her. This is from his report:-

3-4 years old girl. Dead before arrival at TCH. Bruising on the face with superficial minor lacerations. The superficial lacerations around the anterior part of the neck is consistent with that caused by finger nails. The bruising and lacerations around the neck is consistent with strangulation. The vaginal and vulva injuries is consistent with forced penetration consistent with rape.

In his evidence Dr Kautu said:-

A tear through vaginal wall, anus, rectum. Forced penetration – unconscious – died aspirating saliva, accumulating in the mouth aspirated into the lungs ........ Child may have been left unconscious and left to die.

There is no direct evidence but I deduce from the evidence of Toromon and of Dr Kautu that the little girl was violated and then placed either in the water or on the rocks close to the water. The tide carried the body out and then brought it back leaving it in the position where it was found.

The accused and two friends, men 10 years or so older than he, were on a drinking binge from the Sunday until the Tuesday. They were drinking yeast. At least on the Sunday evening they watched a blue movie. One of the other two, Teevita Mooriti, said that the accused left them between 5 and 6 in the evening on the Tuesday:-

I saw him go towards the ocean side. When it was dark and he had not returned to us, that’s when the search for the child began. The last time I saw accused was in the afternoon when he left us.

Teevita said that he and the other man, Moote, took part in the search. In cross examination Teevita said they have been drinking fermented yeast for one or two days: they drank and slept alternately: he, Teevita, was sober enough to think straight: he was not very drunk.

The accused, now aged 18, had for some years, on Marakei and latterly on South Tarawa, lived as a member of the household of Aturente Sani. Aturente’s wife, Ioanna, is the accused’s sister: Violeta was the daughter of Vaea who is Aturente’s brother. Aturente was the head of the household in which the accused lived. The accused normally slept with the family: if he wanted to sleep over with other relatives he would ask Aturente’s permission first. On the night of Violeta’s disappearance the accused did not sleep with Aturente and his family: he had not sought Aturente’s permission to sleep elsewhere.

Kamaraia Mitiana is married with 5 children. Until Wednesday 3 May last year he was living at Temaiku. This is my note of his evidence of events on the Tuesday evening, the Wednesday and the Thursday:-

Tuesday 2 May, on that night I was sleeping: Tireta (another name for the accused) asked to sleep next to me – his other name is Teeuri. Around 8 or 9 – not sure, no watch. Radio still on. I agreed. He smelt of alcohol but already knew he’d been drinking that day. ----------. While we were sleeping search party came to house. A man asked if I’d seen a child. Accused slept with me until daylight on 3 May. Shifted to Bikenibeu that day and he came with us.

The accused helped Aturente move house to Bikenibeu on the Wednesday.

During the Wednesday and the Thursday suspicions grew among the family that the accused was responsible for Violeta’s death. The suspicion arose from his unusual behaviour: he had stayed away overnight without first seeking permission: Aturente had to persuade him to be at the funeral on the Thursday.

The funeral was held at the house of Teriria, the sister of Aturente and Vaea, where Violeta had been staying.

By Friday the suspicions about the accused had grown so strong that Aturente and Vaea decided to speak to the accused, to confront him. On the Friday evening Aturente and the accused had a conversation:-

No one in house when we got there. I begged him to tell me the truth about what he had done against us. He was silent for some time and he was crying. He begged me and the father of the child to forgive him: apologies. I asked him the same question again to affirm what he had said: “So it was you who actually committed the murder? He was silent for some time: then he hugged my legs and cried. “How did you ever come to think of committing such an act?” “Perhaps I was very drunk”. He told me how he had called the child and carried her away. I asked him where he had called child from: he said he had been calling her from among the salt-bush beside the house. I asked when he called did she answer or run away or was she afraid: she immediately ran to him. “The child knew me”. Asked if he felt pity for her: he didn’t answer immediately – then he cried: apologised again. My last question to him – whether it was he who had raped etc. the child. He affirmed that and apologised. “Yes. I killed her” and went on to apologise. Only the two of us there.

Aturente called Vaea in: he had been outside the house:-

When Vaea came in I told him to ask accused if he wished to say anything to child’s father. “Was it you who committed the murder?” He answered “Yes: it was I who committed the murder” and went on to apologise. The father struck the accused: can’t say how often he struck him but I only saw one.

The prosecution relied strongly on the admissions, this confession of the accused.

The accused (to his credit, Mr Neil Allen who appeared for him, argued) gave evidence. He did not deny that he had confessed but said the confession had been forced out of him after he had been beaten by Aturente and Vaea:-

Went inside to his (Aturente’s) house: no one else threre. Told me I was suspected of tragedy which had occurred: told him I knew nothing about it. Aturente and I got up: Uauea came in holding the torch and spoke angrily with me – accused me of killing his daughter – told him it wasn’t me. He struck me with torch at back of head and my jaw. Knocked unconscious. Next I remember I felt blood from back of head, after I woke up. In the room were Aturente and Vaea. Vaea told me to tell the truth or they would kill me. If I confessed they’d call police. I was afraid. Afterwards I confessed. I apologised to them: perhaps I was very drunk and did not know what I was doing. They forced me to confess. They believed I had killed his child. If I hadn’t said that they said they’d kill me. ------

young men ...... came at me: they came from beside the house: 7 or 8 of them..... they stood above me and punched and kicked me.”

Mr Allen argued, while conceding that the accused confessed, that the confession was useless as it was forced out of Teeuri after he had been beaten.

The confession is a strong one: if I accept it, sufficient to convict the accused – that is, if I accept beyond reasonable doubt that it was made voluntarily. Aturente was an excellent witness: a man whom I describe as “a solid citizen”. I came to the conclusion that I can accept beyond reasonable doubt the accuracy of his evidence. The accused on the other hand I did not find convincing: his evidence amounted merely to a blank denial that he knew anything about the crime. On one matter it differed from the evidence of Teevita and of Kamaraia. Teevita said he last saw the accused on Tuesday between 5 and 6 in the evening. Kamaraia said that the accused came to his house “around 8 or 9”. The accused said he left his drinking companions “around 7 or 8 and went to Kamaraia’s house” – much later than Teevita said and much earlier than Kamaraia said. The accused said he had to cut Kamaraia’s toddy but even between 7 and 8 it would be too dark to do that. I prefer the evidence of Teevirta and Kamaraia to that of the accused.

Vaea did not give evidence but Teevita did. He had been outside on the Friday night listening to the conversation between the accused and Aturente:-

When police arrived accused lying down in the house of Aturente: he was injured because he was accused of harming the child. He confessed that he had committed the act. He admitted it to Aturente and Vaea and we were outside. I heard him say that it was he who had committed the deed and he apologised. I was outside the house but very close to them. (examination in chief).

In cross examination Teevita said that the accused had already admitted doing it before he was attacked. Teevita’s evidence corroborates Aturente’s and confirms me in accepting Aturente’s account beyond reasonable doubt, despite denials of the accused.

The accused’s conduct between the Tuesday evening and the funeral, which gave rise to family suspicion, may be a straw in the wind but I do not consider it as evidence against the accused. What are more than straws are the timings given by Teevita and Kamaraia. I accept that these timings are imprecise. Yet even making allowance for that there is a significant gap during which the accused’s movements are not accounted for – that is the time immediately after which the little girl had disappeared. This is more than a straw in the wind and goes to confirm the accused’s guilt. I should say, however, that even without it I would have found the accused the perpetrator.

The evidence of Dr Kautu is sufficient for me to find beyond reasonable doubt that the accused indecently assaulted the child. Thereafter the other evidence to which I have referred shews that either the accused put the child in the water or left her somewhere where the water reached her, either dead or to die.

So much for the facts. There are 3 matters of law.

On the Friday night, after the accused had confessed and been attacked, the police were called. Corporal Tewaia Tiroia attended and arrested the accused when he took him from the house. The police officer informed the accused that he was being arrested on suspicion of murdering Vaea’s daughter and anything he said would be taken down in writing and could be used against him. The form of caution may have been defective as the accused was not told he need say nothing. In fact he said nothing so the omission did not matter.

Detective Constable Tabanea Kauriaa was the investigating officer, having been assigned to the case, he said, on the Tuesday evening. In company with Detective Constable Terabwena he interviewed the accused at the Bonriki police station on the Saturday morning. Before the interview Detective Kauriaa told the accused he was going to take an “open” statement from him. The police officers took the statement and then cautioned him before taking a “caution” statement. Mr Allen objected to evidence of either statement being given. I upheld the objection. The witness said until the open statement had been taken he had only a suspicion that the accused was the culprit: he did not have sufficient evidence to charge the accused with murder. I did not accept that. As investigating officer the detective knew or ought to have known of the confession on the Friday night to Aturente and Vaea: that was ample to support the charge.

Mr Tion Nabau leading Ms Pauline Beiatau for the prosecution, argued that, under the Judges’ Rules I had a discretion to admit the evidence. So I had but to exercise that discretion in favour of the prosecution I must be satisfied that it was fair to the accused to admit the evidence. I could not possibly be satisfied of that. I did not see either the open or the caution statement but I am confident the object of the exercise was to get enough evidence in the open statement to lead to a conviction, then to caution him – when it was too late to have any effect because he had already confessed – and take the caution statement.

I say again as strongly as I can that these are not fair tactics. Although every case must be judged on its own facts and there may be occasions when it would be alright to admit evidence of statements taken in this way, such a case would be an exception to the rule. As a rule, I do not admit evidence the police obtain by unfair methods. The method here was unfair. I made the following ruling:-

In the exercise of my discretion I refuse to hear the evidence of the open statement and the caution statement as the former was obtained without the accused having been cautioned.

Secondly, Mr Allen in his address referred me to section 194(1) of the Penal Code:-

Where a person kills another in the course or furtherance of some other offence, the killing shall not amount to murder unless done with the same malice aforethought (express or implied) as is required for a killing to amount to murder when not done in the course or furtherance of another offence.

Mr Allen argued, on Dr Kautu’s evidence, it may be that Violeta died from suffocation and the accused may not have deliberately caused the death: therefore I could find neither actual nor implied malice. I reject the argument. For the accused to do what he must have done to the little girl, to have injured her as he did and then to leave her exposed somewhere either in the water or in a place which the water would reach, makes it easy beyond reasonable doubt to imply malice. How could a man act like that and a criminal court find there was no malice?

Finally, I raised with Mr Allen the question of drunkenness. The accused was probably, almost certainly drunk, when he lured the little girl away. Mr Allen said that drunkenness was no part of the defence case. Had it been I would have rejected the defence but I felt I had a duty to raise the point with counsel. There was no evidence that the accused was so intoxicated as not to be capable of forming the intention to harm the child.

The accused is guilty on both counts, murder and indecent assault.

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE
(14 MARCH 2001)