Republic v Taato [2004] KIHC 234; Criminal Case 48 of 2004 (5 October 2004)

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

High Court Criminal Case No. 48 of 2004

THE REPUBLIC

vs

URIAM TAATO

For the Republic: Ms Eveata Maata
For the Accused: Mr Banuera Berina

Date of Hearing: 13 & 15 September 2004

JUDGMENT

The accused is charged with murder. The particulars are that on or about 29 May 2004, some time between 0100 and 0200 at Bikenibeu, South Tarawa murdered Mwakaina Tewaiwai.

On arraignment the accused pleaded not guilty to the charge. And in order to prove its case the prosecution called six witnesses.

Tunnang Tibau (PW1) lives next to Otintai Hotel. He testified that on Saturday of 29 May 2004 at between about 1 or 2 am he recalled he was at his house when he saw two men fighting outside. He was about 6 paces (4 metres) from where they fought. There were sufficient light outside and thus he was able to recognize Uriam (accused) as one of men involved. The witness said he already knew the accused before this incident, but he did not know how the fight had started. He however saw the accused struck (deceased) with something he was holding but could not identify as what the object was.

He also said he could not recall as how many blows the accused had struck against the deceased. He however recalled he heard a sound like an iron pipe hitting the hard surface of bitumen road when the accused struck the deceased with that object he was holding.

The witness also stated he observed the fight from his house and never went out near the scene of the crime to see the fight. The witness also stated that he also saw two men whom he did not know, appearing near and around the scene of the crime and tried to stop a passing car.

He also saw the accused getting on his white truck and driving away from the scene of the crime.

In cross-examination Tunnang stated he did not see everything that went on during the fight except that he only saw the deceased falling down on the ground, then he heard the sound of a blow but did not see where that blow landed.

The witness also said in cross-examination that he was aware that the accused and the deceased have had a heated land dispute recently and he was aware also that the deceased have had hired a back-hoe heavy equipment to clear up the disputed land but apart from these incidents he is ignorant about the cause of the fight in question.

Tebatau Nakibae (PW2) testified that on 29 May 2004 at about midnight he was at Otintai Hotel with Urateti Taam drinking and dancing. At about 2 am the witness and Urateti left the dancing hall and went outside to look for transport to take him and Urateti home. As he was waiting outside he saw a white truck parked on the ocean side of the road near Abamakoro store and then crossed over the main road to the other side and then went to the truck and asked the driver whether he could drive them home (he and Urateti) that morning. The driver then told him that he could not do so as the truck was not going anywhere else that morning.

The witness then identified the accused as the driver of the truck whom he had asked to take them home that morning and he is the one sitting at the dock.

After he spoke to the driver (accused) the witness walked back to the other side of the main road on the lagoon side to the round about at the entrance gate to Otintai Hotel. At this round about the witness looked back to the white truck and there he saw the accused stepping out of the truck, then left it and started walking across the main road to the lagoon side. Momentarily the witness lost sight of the accused but as he looked back to the spot where the accused was he saw somebody falling to the ground (deceased) but did not recognize him. And as the deceased was lying on the ground the witness saw the accused striking him with something. The witness also saw the accused carrying an object in his hand but could not identify it but it looked like a metal pipe to him. The witness also saw the accused leaving the scene of the crime after he attacked the deceased.

After the accused left the scene of the crime, and whilst the deceased was still lying flat on the ground the witness walked over to the deceased and at first sight he thought that he had been wounded at the mouth but when he and Urateti turned the body of the deceased over so that he lied on his stomach, he saw wounds on his neck with slight bleeding and was still breathing. The witness and Urateti helped put the body of deceased on the car and accompanied him to Nawerewere hospital.

Urateti Taam (PW3) testified that on the early morning of 29 May 2004 he and Tebatau (PW2) were at Otintai Hotel enjoying themselves drinking and dancing during that night.

Then at about between 1 or 2 am he left the dancing hall and went outside to look for a transport to take him home. When he looked for the transport he could not find any so he and Tebatau (PW2) went and sat in front of the hotel near the construction site for some new building and waited there. And while waiting he then saw two men fighting whom he did not recognize.

The witness estimated that he was about seven paces (or about five metres away from where the two men were fighting. Initially the two men were fighting near the main road but then moved to the middle of the road. And as the two men were in the middle of the road he saw the accused struck the deceased on the head thrice and also heard some metallic sound as if someone had hit a hard object with a steel knife.

The witness also stated that he also saw the deceased lying flat on the ground on his stomach and also saw injuries at the back of the deceased’s head or neck. The witness also testified that the deceased was still breathing when he saw him so he and Tebatau (PW2) turned the deceased over so as to let him lie on his back and then dragged him over to the side of the road and then waited for a car to take him over to Nawerewere Hospital. The car eventually came and took the deceased along with the witness who accompanied the deceased and took them to Nawerewere Hospital. On the way the deceased stopped breathing.

Paeniu Ueaua (PW4) is a Catholic catechist currently stationed at Tekaibangaki, Bikenibeu. He testified that he knew Uriam Tatoo – the accused but only for a few months and he is in court sitting at the dock. He recalled that on 29 May 2004 he was at the catechist’s house at Tekaibangaki. Then at about after midnight when he was still awake the accused came on a group truck to see him. He then asked the accused as what has happened to him and the accused then told him that he needed help with his problem as he has made a mistake with his hands and has killed a man by the name of Mwakaina.

The witness then invited the accused to come on in the house and as he walked into the house Paeniu saw the accused carrying a long bush knife which he (accused) placed it on the ground and left it there. The witness then suggested to the accused that he must see the police immediately and that he (witness) would accompany him when seeing the police. The accused then picked up his bush knife from the floor and brought it along with him to the truck.

Lawrence Randolph (PW5) is a police officer and presently stationed at Bikenibeu Police Station and has been a police officer for more than 10 years. He recalled that on 29 May 2004 he was at Bikenibeu Police Station and he was the investigating officer in the present case. He testified that before he carried out the investigation he recalled the accused was already put into custody. He also recalled that he took the statements of the various witnesses, then afterwards he drew the sketch plan of the scene of the crime which when shown to him he confirmed that that was the sketch plan of the scene of the crime which he had drawn. The sketch plan was then admitted into evidence as Exhibit “P1”. The witness also testified that as an investigating officer in the present case he, with another officer, also took the caution statement of the accused and without any objection being raised by the defence such caution statement was admitted into evidence as Exhibit “P2”. The translation from Kiribatese language to English language of that caution statement of the accused is set out in full as follows:

“FULL NAME: Uriam Taato National/Home Island: Tarawa

SEX: Male AGE: 38

OCCUPATION: Driver Catholic Kaibangaki RELIGION: RC

PRESENT ADDRESS: Bikenibeu, Nearby Abamakoro RECORDED AT: Crime Branch Office Bikenibeu

DATE/TIME: 29/05/04

0830 hrs

I Uriam Taato wish to give my statement and for it to be recorded by DC Lawrence who is to write it for me. I have been informed that I have the right to remain silent. But what I say shall be recorded in writing and may be used as evidence.

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

I have done wrong as regards to what I did to the deceased because when I saw him stopping a car on the road near the Otintai Hotel everything irritating about him which he had done to us before all came back to me suddenly. So I approached him and spoke to him. I told him that since we were all alone by ourselves that night we now have a chance to fight each other which is what he had always wanted to do with me. He then advanced on me whilst I retreated and then he suddenly struck out at me but missed me as I dodged the blow and he in turn fell on the ground on the road, and I then struck him at the neck on the back of the head with a bush knife whilst he was lying face down. I struck him about twice with the bush knife and then I left him there.

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

I have read the above and have been informed that I have the right to omit, correct or insert any that I wish. I gave this of my own free will.

I wish to ask you some questions in relation to this suspicion against you and which are being charged with. You also have the right not to answer these questions but if you do they will be recorded in writing and used as evidence against you.

Do you understand this?

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Q1: Did you know a person by the name of Mwakaina Tewaiwai?

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Ans: I did.

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Q2: You said you struck him when he was on the ground. Where did you get the bush knife?

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Ans: I took it from the car (truck) I was driving at the time.

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Q3: Where is that bush knife?

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Ans: I don’t know whether I returned it to the car or threw it away.

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Q4: After wounding Mwakaina where did you go?

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Ans: I dropped the car (truck) off with the missionary at the Catholic compound at Te Kaibangaki.

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Q5: Where did you go after dropping the car (truck) off?

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Ans: I confessed to the catechist that I had wounded somebody and he told me that he was to drop me off at the Bikenibeu Police station.

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Q6: Did he deliver you to the police?

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Ans: Yes.

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Q7: What did the police do to you at the time?

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Ans: They asked me what had happened?

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Q8: What did you tell them?

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Ans: I informed them I had wounded someone.

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Q9: What else did the police do to you?

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Ans: They called the hospital at Nawerewere.

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Q10: What was the result of the telephone call to Nawerewere?

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Ans: They told me Mwakaina had died?

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Q11: What did they do after that?

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Ans: They put me in custody.

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Q12: Were you drunk at the time?

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Ans: I was.

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Q13: How drunk were you?

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Ans: I was affected but not fully drunk.

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Q14: Now that Mwakaina has died after what you did how do you feel?

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Ans: I am regretful because of my drunkenness at the time.

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Q15: Have you ever had a conflict with Mwakaina?

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Ans: Yes as a result of what he did to my place or land.

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Q16: Was that the first opportunity you had to confront him?

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Ans: Yes.

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Q17: Is Mwakaina your relative?

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Ans: No.

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Q18: Have you anything to say before we end?

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Ans: Yes.

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Ans: Yes.

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Q19: What do you wish to say?

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Ans: I have never done anything like this before but I have done because I was crazy and that caused me to do this.

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature

Our interrogation ended at 0935 hrs.

Uriam Taato’s Signature

PC 124’s Signature

DC Lawrence’s Signature”

Dr Ken Reuee (PW6) had been working as a medical doctor for more than two years.

He testified that during the early morning of 29 May 2004 he examined a certain patient whose name he did not know initially but found out later on his name was Mwakaina. After he examined the patient he wrote a report about his findings on him and signed it. The report was shown to Doctor and he identified it as being the one that he had prepared. The report was then admitted into evidence as Exhibit “P3”. In that medical report about Mwakaina Tewaiwai Dr Reuee reported as follows:

“Patient’s Name: Mwakaina Tewaiwai

Date: 29-05-04

Appeared flat on arrival. No respiratory effort evident. Sustains very severe injury to head. There is a deep laceration at the back of head, more on the left side about 4-5 inches deep. Intra cranial tissues are exposed. This is consistent with sharp object of heavy blow injury.

Signed: Dr K Reuee

Signature of Medical Officer”

When the doctor was asked by the court as to the cause of death of Mwakaina and he said that the brain injuries were the cause of death as the injuries sustained at the back of the head or the base of the skull which were about four to five inches deep were quite severe. Doctor also confirmed that a strong blow with a sharp heavy object must have been applied to the back of the head.

That concluded the case for the prosecution.

The accused then elected not to give evidence nor call any evidence or witness.

Consequently the court then invoked section 261 of the Criminal Procedure Code (Cap 17) in that it considers that there is evidence that the accused had committed the offence in the present case, and therefore the court invited the prosecution to summarise its case against the accused.

Ms E Maata counsel for the prosecution in her submission argues that all the elements of the offence of murder in the present case has been proved beyond reasonable doubt by the evidence of all the prosecution witnesses which is overwhelming. And the elements of the offence of murder are as follows:

(i) there was death
(ii) the accused caused the death
(iii) the act of the accused were conscious and voluntary
(iv) the act of accused caused the death
(v) the accused intended to kill or cause serious bodily harm
(vi) the accused’s act were unlawful

In analyzing the prosecution witnesses’ evidence Ms Maata submits that firstly the three eye witnesses who gave evidence clearly described how the accused had killed the deceased. And these were not challenged by the defence except the weapon used by the accused. I disagree with Ms Maata’s analysis of the evidence of the three witnesses as their evidence showed only how the accused had wounded the deceased severely. However the evidence of Paeniu Ueaua (PW4) shows that the accused carried a bush knife with him when he visited him (Paeniu) straight after the incident.

Furthermore the evidence of the medical doctor (PW5) shows that the injuries were inflicted by a sharp heavy object. The prosecution therefore submits that the weapon used by the accused to injure the deceased with is a bush knife.

Secondly Ms Maata further argues that the accused himself had made two admissions to Paeniu (PW4) that he had killed the deceased with the bush knife. I do not accept this analysis of the accused’s evidence by Ms Maata that the accused had admitted twice to the catechist (PW4) that he had killed the deceased with the bush knife but rather in his evidence Paeniu stated that the accused told him that he had made a mistake with his hand and had killed Mwakaina.

Thirdly, Ms Maata argues that the accused also admitted in his caution statement that he had killed the deceased. Again I do not accept this analysis of accused’s caution statement by Ms Maata. Rather what the accused had admitted was the fact that he had severely wounded the deceased on neck at the back of his head with the bush knife. And it was on the way to Nawerewere hospital that Urateti (PW3) saw the deceased to have stopped breathing and when Dr Reuee first saw the deceased at Nawerewere hospital he described the deceased as “appeared flat on arrival” with no respiratory effort evident” meaning that the deceased was already dead. Ms Maata further argues that as the defence has raised no defence then there is no question of self-defence nor provocation.

Therefore in light of all the evidence the prosecution submits that it has proved its case beyond reasonable doubt.

Following the conclusion of the summary of the prosecution’s case against the accused I then called upon Mr Berina counsel for the defence to address the court on behalf of the accused but elected not to say anything.

Before addressing the issues I remind myself that the onus of proof beyond reasonable doubt remains upon the prosecution from beginning to end. The Republic must prove the charge and each element of the charge beyond reasonable doubt and if fails to do so then the accused is entitled to be acquitted. There is no onus on an accused at any stage to prove his innocence.

In the present case to discharge its burden in respect of the charge of murder, the prosecution must prove beyond reasonable doubt that the accused caused the death of the deceased by an unlawful act with malice aforethought.

The three eye witnesses of the prosecution namely Tunnang Tibau (PW1), Tebatau Nakibae (PW2) and Urateti Taam (PW3) were the substance of the prosecution case. They were good and reliable witnesses.

Other witnesses Lawrence Randolph (PW5) and Dr Ken Reuee (PW6) strengthened the case of the prosecution in one or more respects.

The substance of the evidence of the prosecution’s case is as follows:

“It was about 1 or 2 on Saturday morning of 29 May 2004 at Bikenibeu, South Tarawa, when Tebatau Nakibae (PW2), Urateti Taam (PW3) came out of the dancing hall of Otintai Hotel to look for transport to take them home. Another man by the name of Tunnang Tibau (PW1) who lives in one of houses close to Otintai Hotel entrance was still awake at that time. While the two boys (PW2 and PW3) were waiting for the transport outside the hotel and Tunnang looking across from his house saw the accused and the deceased fighting. The three witnesses saw the deceased fell on the ground almost in the middle of the bitumen road. As the deceased fell face down on the road the accused then struck the deceased with a bush knife on the back of his head on the neck at least three times. After the accused had attacked the deceased thus he quickly got on his white truck, drove away and left the scene of the crime and the deceased where he fell.

In the meantime but shortly immediately after the accused left the two boys went quickly over to where the deceased was lying on the ground in the middle of the road and saw that the deceased had received severe wounds at the back of head on the neck. They then (two boys (PW2 and PW3) dragged the deceased to the side of the road and called for transport to take the deceased to Nawerewere Hospital. When the transport came they placed the deceased on the transport and accompanied him to the Nawerewere hospital. On the way to Nawerewere Hospital the boys noticed that the deceased had stopped breathing.

When the patient (deceased) reached Nawerewere Hospital at 3 am of 29 May 2004 Dr Reuee examined him and confirmed that the patient had died (no respiratory effort evident) and the cause of death being severe brain injuries as evidenced by the injuries of about four to five inches deep at base of the skull which were caused by a sharp heavy object. The bush knife which the accused showed to the catechist (PW5) was the murder weapon used by the accused when he attacked the deceased”.

I accept the above account of the evidence of the prosecution beyond reasonable doubt. And as the defence had not in any material particular challenged by any other evidence such evidence of the prosecution would be sufficient to prove beyond reasonable doubt the guilt of the accused.

However the whole account of the evidence of prosecution set out above was only the first part of the prosecution case. The second part is the admission of accused as set out in Lawrence Randolph’s evidence (PW5).

The accused did not give evidence nor call any evidence. This means that his admission stand unchallenged. This is sufficient to prove beyond reasonable doubt the guilt of the accused.

Taking into account the whole of the evidence in the present case I am satisfied that the prosecution has proved the charge of murder against the accused beyond reasonable doubt: twice over effectively, once through the evidence of the prosecution’s own witnesses and again in the admission of the accused himself. The prosecution’s case against the accused is overwhelming.

I therefore found the accused guilty of murder contrary to section 193 of the Penal Code (Cap 67) and convict him accordingly.

In accordance with the mandatory sentence provided by the law the accused is sentenced to imprisonment for life.

For the purpose of any future consideration of parole, the sentence shall be deemed to have commenced from the 29th day May 2004.

Dated the 5th day of October 2004

THE HON MR JUSTICE MICHAEL N TAKABWEBWE
Judge