Republic v Itinnaibo [2003] KIHC 157; Criminal Case 03 of 2002 (25 November 2003)

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

Criminal Case No. 3 of 2002

THE REPUBLIC

vs

TIARE ITINNAIBO

For the Republic: Ms Pauline Beiatau
For the Accused: Ms Taoing Taoaba

Date of Hearing: 25 November 2003

JUDGMENT

Another tragedy arising from too much drinking.

Tiare Itinnaibo is charged with on 19^th December 2001 murdering Raurenti Tebana, a man in his mid to later 40s, at Ukiangang village on Butaritari. Tiare is a man of 22: in December 2001 he was living at the house of his father Itinnaibo.

On the previous evening, 18^th December, Tiare was drunk. On the morning of 19^th December he went to Raurenti's house and began drinking sour toddy. He left but returned to Raurenti's house. This time he got into a clash with Namaue:-

Tiare came during time still drinking – lunch time: he drank a few. Joking with Tiare – later a dispute: told him he'd had enough, just joking. Raurenti got off buia. Tiare pulled me from buia and slapped me, we wrestle: before Raurenti got off buia. Raurenti shouted at Tiare and punched Tiare's chest. Tiare and Raurenti taken away – didn't see by whom. Nakabuta there also and held Raurenti. Raurenti said for Tiare to prepare himself because he will come back. Raurenti was drunk: he was drinking and walking off balance. Tiare also.

Raurenti was as good as his word. He came to Itinnaibo's house. In his caution statement, admitted into evidence by consent, Tiare said:-

That afternoon at about 5 pm I returned home with my father, Itinnaibo, my mother Mwamwakin and brothers, Remuera. Not very long since we reached our house may be 10 minutes later, Raurenti showed up. He was with Kauongo riding on the bike from the north, and when arrived opposite our house he stopped the bike on the main road, got off from the bike and went toward our house. I was at our house (buia) at east and when Raurenti came at between our house (buia) at west and the breadfruit tree he saw me sitting on the house and stated this to me. "Hey you come out here". I did not say anything, but just rushed to Raurenti where we started to fight at the place between our house and the breadfruit tree.

When he gave evidence Tiare said:-

Raurenti challenged me to a fight. He told me to do my best. I went into a fight with Raurenti.

The two men fought. Raurenti fell to the ground. Tiare sat on his chest and punched him on the face:-

"I beat him on his face until he was unconscious".

Tiare and Raurenti were drunk at the time of these events. The defence of drunkenness was not raised: nor could it be. The accused remembers what happened, what he did to the victim. Only when Kauongo pulled him off the victim and took him for a ride on a motorcycle is he a big vague. Question and Answer 38 in the caution statement:-

Q38: Why did you stop beating up Raurenti?

A: Because Kauongo stopped me and hold me away.

In cross-examination he was asked about that:-

"I only recall being at the back of him on motorcycle: he drove."

While drunkenness does not arise as a defence what is certain is that Raurenti was "a nasty drunk". Witnesses described him as "aggressive", his wife as a "most aggressive man".

Raurenti was the aggressor. At his own house he threatened Tiare and he followed up the threat by going to Tiare's house challenging him to a fight. A challenge which Tiare accepted.

Ms Taoaba in her closing written submission canvassed both provocation and self-defence. The evidence does not support either.

To challenge another to a fight does not amount to provocation. Raurenti did use such words as, "I'd like to make you a coward" but there is no suggestion that words like that are so strong as to amount to provocation in law. Provocation arises only when something is said or done which would cause an ordinary I-Kiribati to lose his self-control. The accused neither in his caution statement nor in his evidence suggested he was so provoked.

As for self-defence, the accused came out of the house ready to fight the victim. Even if there had been any question of self-defence at the beginning of the fight – there was not- there could be no question of it by the time the victim was on the ground with the accused sitting on his chest and punching him in the face.

The defences of provocation and self-defence fail.

What has given me some concern is the absence of any medical evidence of the cause of death. The victim lay for some time under the breadfruit tree where the fight had been. He was taken first to the village clinic and after dusk to the central hospital on Butaritari. His wife saw him at both. At the village hospital:-

I cleaned him up – not dead, still breathing. Not able to move round: nose, mouth bleeding. Taken again to other hospital at Butaritari village: getting dark: got there may be after 1900, almost 2000. Blood never stopped until 2300 when he died.

I suggested to Ms Beiatau, prosecuting, that it is desirable always to call medical, even if not expert medical, evidence of the cause of death.

In this case the evidence of the cause of death is circumstantial but strong. The victim was in aggressive good health, even if drunk, before the fight. After the fight he was in bad condition and died within six or so hours.

Beyond reasonable doubt the cause of the victim's death were injuries, precise nature unknown, inflicted on him by the accused.

In the Republic v Rifuka Siakisini (HCCrC 8/99) I said:-

When two men get into a fight and one of them is killed, that is murder.
(R v Orton 39 LT 292, (1873) 14 Cox 226).

That happened here. The two men, Tiare and Raurenti, fought each other. Raurenti was killed. Tiare is guilty of murder.

Apart altogether from that principle, the accused is guilty for another reason. Raurenti fell to the ground: Tiare sat on Raurenti's chest and pummeled until he stopped resisting. Actions speak louder than words. Tiare's actions shew an intention at least to inflict bodily harm on Raurenti. Tiare did inflict grievous bodily harm. Raurenti died. Tiare murdered him.

The accused is guilty of murder.

Having come to that decision on those two separate grounds the only penalty I can impose if imprisonment for life.

I regret that.

This is one of those rare cases of murder where the penalty should be less than a normal period allowed for life imprisonment. The victim was the aggressor and went after the accused: most unfortunately the accused responded to the challenge to fight, by fighting.

In the jurisdiction in which I sat in Australia, at the time of sentence the judge has the responsibility of fixing the length of time before which the prisoner may apply to the Parole Board to be released on parole. After that time has passed the prisoner may apply to the Parole Board which then decides whether or not the prisoner should be released immediately or must apply again later. The Court in effect has the discretion in a murder case of fixing a sentence to fit the circumstances of the crime. In Kiribati the High Court has no such discretion. Parliament may care to consider the matter with a view to giving the Court a share of the responsibility of fixing a "non-parole period" as in Australia either for crimes of murder or for all crimes.

As it is, I can only suggest to the members of the Parole Board that they consider sympathetically allowing this man to have parole rather earlier than usual for one convicted of murder.

Dated this day of November 2003

THE HON ROBIN MILLHOUSE QC
Chief Justice