Republic v Irata [2002] KIHC 90; Criminal Case 44 of 2001 (8 October 2002)

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

High Court Criminal Case No. 44 of 2001

THE REPUBLIC

vs

MATAKAI IRATA
TOATOA IRATA

For the Republic: Mr Tion Nabau & Mr Birimaka Tekanene
For the 1st Accused: Ms Batitea Tekanito
For the 2nd Accused: Mr Aomoro Amten

Date of Hearing: 7 & 8 October 2002

JUDGMENT

The two brothers, Matakai Irata and Toatoa Irata, are charged with the murder of Teiniku Teratabu on 3 November 2001 at Teuaabu village, Nonouti.

Matakai is 32, married with two children. Toatoa is younger: from observation I should think a year or two younger than Matakai. The deceased was, according to Matakai, a year younger than he.

On Saturday 3 November 2001 Matakai, the deceased and Karetoa Neetiata, were drinking fermented yeast at Teiniku’s house. It was during the evening, probably the early evening. They were joined by Toatoa and Takarebu Ereman. Teiniku became aggressive towards Irata, the accuseds’ father. Teiniku went to Irata’s house close by. The police came, broke up a fight and sent Teiniku home. When the police had gone Teiniku went back to start the fight again. He fought with Matakai. Kateia Moaiti separated them. Matakai acknowledged that he was drunk that evening and said Teiniku was drunk as well. I have no difficulty in accepting that they were both drunk.

The defence of drunkenness was not raised but I should consider it. There is no evidence that any of those involved were so drunk as not to know what they were doing. On the contrary Matakai gave two different accounts of what happened, in both of them he shews himself to have been well knowing what he was doing. There is no question of his being unable to form the unnecessary intention to kill or at least injure Teiniku. Intoxication played a part in inflaming passions and tempers and that is all. I need not consider it further.

I have found confusing the sequence of events described by the witnesses but that is a broad outline of what happened preceding Teiniku’s death. Later in the evening he was found lying on his stomach on or near his buia from injuries from which he had bled to death. Bleeding was the cause of death in the opinion of Tenga Tebakabo, the nurse who came and saw him lying there. In her report Nei Tenga has described many injuries to the head, neck, back and chest: the skull was cracked.

What had happened? Takarebu, aged 20, the principal prosecution witness, gave the fullest account. Early in the evening he had gone to Irata’s house looking for his wife. Teiniku and others were there. Takarebu left. Later he saw Teiniku who hit him on the shoulder with his fist. Takarebu ran away. Later still he was with Matakai and Toatoa:-

We went over to deceased’s house – me and the two accuseds and Irata. That man was going to be killed. We brought things with us, knife, spear and pieces of iron pipe. Hadn’t talked to accused about what we were going to do.

I was one of the first to approach: then I retreated. Because I was scared. The two accused – Toatoa hit him with the spear. Deceased was at his house: on his buia. Toatoa hit him first with the spear. Matakai pulled the deceased and stabbed him not quite sure where. Night dark, moon light. I was standing by Toatoa. He took the iron bar from me: called out to Matakai to move away. Hit him with iron bar. Deceased cried out to Irata “I am dying Irata”. Then we went to Irata’s house. Irata told us to clean up our hands ....... Don’t know where Matakai was. Toatoa threw knife into pond, not far from house on ocean side........ Approached house each of us had an item – Toatoa the spear, Matakai the knife and I was carrying iron bar, Irata nothing. (Examination in chief).

I carried iron bar to deceased’s house. I didn’t hit him with iron bar: not with anything. I carried iron bar because I was a bit upset with deceased. I hadn’t expected him to hit me at that time. About an arm’s length long: thicker than spear. (Cross examination by Ms Tekanito).

Takarebu seemed a slow thinker: it took time to get his evidence out. Nevertheless I thought him honest: a witness on whom I could rely: not shaken in cross examination.

Both defence counsel, Ms Tekanito for Matakai and Mr Amten for Toatoa, argued vigorously that it would be dangerous to convict on Takarebu’s evidence: he was an accomplice. Indeed he was: on Takarebu’s account it was a joint enterprise between himself and the two accused (and perhaps Irata as well) to murder Teiniku. Takarebu is lucky not to be in the dock, charged with the other two. I can only speculate (with some confidence) on why he has not been charged. A jury must be warned – and I warn myself – that, although they may convict on the uncorroborated evidence of an accomplice, it is dangerous to do so.

Mr Amten, at the close of the prosecution, submitted that there was no case to answer against Toatoa. The only evidence against him was Takarebu’s and I should not accept it. He argued that it would be dangerous to convict on Takarebu’s evidence alone. I rejected the submission because on Takarebu’s evidence Toatoa had a case to answer: whether at the end of the trial, after having heard all the evidence and the warnings of the judge, a jury would convict on it was another matter. The evidence was already there: it would be for the jury to decide, having heard all the evidence and the judge’s directions, whether the quality of the evidence was such that they could rely on it.

Mr Amten whose client neither gave evidence nor called any other, used the same argument again in his final address. He reminded me of what I said in criminal case 30/99 (The Republic v Temeauaa Berata & Eight Others):-

I do remind myself, however, that the evidence of an accomplice must be scrutinized with particular care before being accepted. It is dangerous to convict on the evidence of an accomplice unless it is corroborated. I may but I give myself that warning: it is dangerous to do so.

I have thought carefully about that warning. I have concluded that I shall heed it, that I should not convict – it would be too dangerous to do so - .... Unless it is corroborated in some way.

In that case the situation was quite different. It was a matter of identifying a number of individuals alleged to have been present at the killing. Here there were, on Takarebu’s account, only three men present. Takarebu’s is the only evidence of the killing. There is no question of identification. Either the killing was carried out as Takarebu has described or in some other way of which there is no evidence and by persons not identified.

There are two reasons why I accept, and feel able to come to a decision beyond reasonable doubt based on Takarebu’s evidence. First is my favourable impression of his being truthful and accurate. The second is that his evidence is corroborated on several points by other witnesses who were I thought reliable on the points of corroboration.

I need not go through all their evidence, only mention the points on which they corroborated Takarebu.

Kateia Moaiti was the one who separated Matakai and Teiniku when they had been fighting.

Loud laugh, like a challenge: Teiniku. Heard a loud bang. “I’m dying” – Teiniku. Deceased’s wife told me to go and see Teiniku – Beside his buia, lying facing the ground on his stomach. Something black around him, might be blood. He looked dead: didn’t move.

Kateia heard “I’m dying”: the words are in Takarebu’s evidence.

Karetoa Neetiata gave evidence for Matakai:-

I was on my way to Kateia’s house when I met Takarebu, 10m away. Moonlight – he carrying – it looked like a stick about an arm’s length. Perhaps I wouldn’t recognise it. About 10m from Teiniku’s house. Standing. I went back to Kateia’s house. Quite a while later heard “I’m dying”. The three of us ran to Teiniku’s house – self, Kateia and Teingoa. Met Matakai. Matakai said to Kateia, “I’m sorry, Kateia”. Reached deceased’s house – found him – dead. Fight between Matakai and Teiniku. After Teiniku hit Takarebu with his fist. Can’t recall what happened. Hit him on side of head. Takarebu walked away: didn’t see where. He didn’t fight back.

Karetoa heard the words “I’m dying”. Not only that but he described seeing Takarebu carrying something which “looked like a stick about an arm’s length”. Takarebu described the iron bar he carried as, “about an arm’s length long”. Finally Karetoa mentions Teiniku having hit Takarebu.

Takarebu’s evidence is corroborated on three points – Teiniku saying “I’m dying” Teiniku having hit Takarebu and the length of the iron bar. No witness, except the accused Matakai, contradicts Takarebu.

There is a fourth point. Takarebu said Toatoa threw the knife into a pond. Katuua Teboaboa:

On Wednesday 7 November went out to collect coconut husks and clean them in pond. I found the knife on the husks. Husks in pond about four months. My mother’s pond. ...... not far from house, on ocean side. From Irata’s house not very far ........ This is the knife ......... I had seen it before. Irata always hid it, father of accused. [Tekanito cross examining.] That knife was our knife. When Irata got it, it stayed there.

Despite the caution with which an accomplice’s evidence should be treated, even when corroborated, I am confident beyond reasonable doubt that Takarebu’s killing was carried out by Matakai and Toatoa in the way Takarebu described. Teiniku was drunk during the evening, was aggressive, was making a nuisance of himself. His murder was in the nature of a deliberate execution by the two brothers.

I have already said that Toatoa did not give evidence. Matakai did. His caution statement was already in. The accounts in the statement and evidence are different.

Ms Tekanito had opposed the admission of the statement. We have a voir dire. Ms Tekanito argued that her client had been arrested late on the evening of Saturday 3 November. The statement had not been taken until the following Tuesday morning: too long to have kept Matakai in custody. The officer in charge of the Nonouti Police Station, Corporal Tebaa Naurie, said Matakai was drunk when arrested and needed time to sober up. Matakai on the other hand said he was alright by the next morning but it was hot in the cell: he had said what he did so that he would be released.

I allowed the statement in. Two and a half days was not too long an interval between the arrest and statement. The death had just occurred: the police must be allowed some time to make their enquiries. Besides, it was reasonable to allow Matakai time to sober up and get over a hang-over.

The court may exclude a statement as a mark of displeasure if the police have not acted properly and sufficiently promptly. The police had acted properly and sufficiently promptly.

Matakai’s statement:-

I recall Saturday 3 November 2001 early in the evening I drank at Teiniku’s house with Karetoa. We drank fermented yeast mixed by Karetoa and Teiniku. When the drink was about to finish probably one more teapot left Teiniku went to my house to challenge my father Irata. I followed him trying to calm him down to avoid the fight. We send someone to call the police. When the police arrived they took him to his house, but again shouted when the police have left. I was at my house. Then Teiniku came to my house with a knife and again challenge my father Irata. My father was not there as he had run away from the house. I went out to him and he stabbed me with the knife that was carrying that time. I received a cut on my left hand. I took a hard wood (koro) and hit his hand that holds the knife with. When the knife fell I took it and stabbed his chest with it then I hit him again with that same hard wood. As he tried to run away I stabbed him on the back. I cannot remember how many times did I stab him .........

Matakai said he gave his statement because he thought it would help him be released from custody. It was not how it really happened at all: his evidence was the true story. Kateia had stopped him and Teiniku fighting:-

Deceased left for his house. I went back to my house. After that I went over to Teiniku’s house to stop this and forget everything as they were close relations. Deceased didn’t want to listen to me and told me to leave his house or else I will spear or stab you in the butt like I did to your wife. I felt very angry and the rumour I had heard about him having an affair with my wife was true and he always wants to challenge my father. With that bad temper I went back to my house and looked for anything that would hurt him. About 10 minutes later I found my knife. White knife about 1½” wide. [Not Ex P1. Not the knife I’m talking about.] I threw it into the sea. I went over to his house, still in a bad temper. He was lying on his stomach very close to buia, with blood around him and a few injuries. Because I was still in a bad temper I stabbed him on the neck. Injury on my hand: caused it myself. I was in control and didn’t realize my hand on his neck. Still in bad temper. He was already dead. I went and washed in sea: threw away knife. Met Kateia. I apologised to him for what I did, for stabbing his neck.

Matakai said, in effect, that he was provoked. On the prosecution case there is no question of provocation. It was a deliberate, planned killing carried out after preparation by – I disregard Takarebu – the two accuseds.

Even on Matakai’s story there was no provocation in the sense of “a 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 (per Devlin J, quoted by Lord Goddard CJ in R v Duffy (1949) 1 All ER 632.) Matakai spent 10 minutes searching for a knife before he went to stab Teiniku. That too would have been a deliberate act.

Finally, despite Matakai’s denial I find that the knife, Exhibit P1, was the knife used in the attack.

The prosecution must prove beyond reasonable doubt every element of the crime of murder. The accused does not have to prove anything. I am afraid though that Matakai’s account is so bizarre that I do not have even a reasonable doubt about proof of the prosecution case.

Both Matakai and Toatoa are guilty of murder.

Dated the day of October 2002

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE