Republic v Bareiti [2004] KIHC 257; Criminal Case 57 of 2004 (15 November 2004)

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

High Court Criminal Case No. 57 of 2004

THE REPUBLIC

vs

KIRAWETE BAREITI

For the Republic: Ms Pauline Beiatau
For the Accused: Mr Banuera Berina

Date of Hearing: 10 & 11 November 2004

JUDGMENT

This is a strange case. Kirawete Bareiti is charged with murdering Iakoba Katarake on 20th September 2004 at Tabiteuea village, North Tarawa. Kirawete made a confession of guilt to the police in his caution statement. When he gave evidence he said he did not kill Iakoba, only took the blame to shield his brothers. Iakoba at least twice, in dying declarations, identified Kirawete’s brother Baikitea Bareiti, as the man who stabbed him: never mentioned the accused.

On 20th September at Tabiteuea village, in the early evening Iakoba and Kirawete had a fight. They were about the same age, perhaps Kirawete said, Iakoba was a bit older. Kirawete gave his age as 28. Kirawete and his two brothers, Baikitea and Nantoon, had grown up from childhood in the village. So had Iakoba. Very difficult to accept that any one of the four could mistake the identity of another. Not impossible but unlikely.

Later in the evening Nei Ataake Betero, aged 18, was sitting on a meter box in company with others. About 10 o’clock Iakoba came along heading north, in the direction first of Baikitea’s house and much further on, of Kirawete’s house. Iakoba was carrying a metal rod. N. Ataake estimated it would take not less than half an hour to walk to Kirawete’s house from the meter box. Iakoba came back 20 minutes after he had left them. By then he had been wounded, the wound from which he died. He was holding his neck. N. Ataake took off her shirt and staunched the flow of blood. At N. Ataake’s house her father asked Iakoba who had stabbed him and Iakoba replied, “Baikitea”. They took him to the nurse’s house. He was capable of walking.

Nei Tekawete Betero whom I assume to be the mother of N. Ataake Betero (there is no direct evidence of their relationship) also said that when Iakoba came to their house he mentioned the name Baikitea as having stabbed him: Iakoba smelt as though he had been drinking but he was talking normally.

Ueanibau Taeuea was at the hospital with Iakoba. In his presence the nurse, Nei Erei Rimon, asked him “Who stabbed you?” The victim used the name “Baikitea” not “Kirawete”. However N. Erei in her evidence said, “Only asked me to help with wound: didn’t hear name from victim”. During counsel’s addresses I became aware that N. Erei Rimon is the wife of Baikitea. Mr Berina suggested that N. Erei was protecting her husband by saying she did not hear Iakoba use the name “Baikitea”.

N. Erei’s report was admitted by consent:

It was around 11 pm on the 20/09/04 when Iakobwa Katarake m/29 was brought up to clinic with stabbed wound on his left upper chest.

O/E: the wound was about 1½ inches long and about 3 inches deep which caused a lot of bleeding which caused him to die. The patient was conscious on arrival and cried for help. It was less than an hour when he suddenly stopped breathing.

The only person Iakoba named as the stabber was Baikitea. The prosecution had evidence, of course, to the contrary, that it was Kirawete.

Ueanibau said Kirawete and Ueanibau’s wife came to him at his home. With Kirawete standing so close to them that Kirawete must have been able to hear their conversation, his wife said to him “It was this man who admitted that he had wounded Iakoba”. Kirawete neither accepted nor rejected this. Ueanibau:

I mentioned to him that it was strange when I visited the nurse the victim mentioned one name and now my wife has told me another. Accused said, “May be I’ll call my brother so he can know the accusation against him”.

When Ueanibau’s wife, Nei Taabua Tabuaka gave evidence she said merely,

“Took Kirawete back my house. Husband there: spoke with accused. I went to our other house. No – I didn’t hear the conversation: I was in the other house looking after my baby”.

N. Taabua having given this answer Ms Beiatau applied to have her declared a hostile witness. I refuse the application. Just because a witness fails to come up to proof does not make her hostile. She did not appear to me to be hostile. I would have needed much more before I could have granted the application. I’m confirmed in my refusal by Archbold (2003 edition paragraphs 8-94 to 8-97).

I am left with Ueanibau’s evidence as to his wife’s accusation of Kirawete (for that is what it comes to) in Kirawete’s presence but which the wife did not corroborate in the evidence, indeed implicitly contradicted.

However the strongest evidence, as Ms Beiatau emphasised in her final written submissions, was the accused’s caution statement. Mr Berina did not oppose its tender during the evidence of the police officer who took it:-

He trespassed to my house with a weapon therefore I looked for a weapon and face him. When he came closer I do not know whether I got a weapon in my hand or not. He missed striking me so I struck him first with something I held whom I do not know may be a knife or something else. I have no intention to do this to him because I only defending myself from him. After I hit him, he then left. Not long after a special Constable came and arrested me. The cause of this was when I first fought him without our weapons between his own house and the Council’s buildings. That was about 8 pm. Our second fight was when he came to my house with a weapon and this was about 11 pm.

About as full and direct confession as one may imagine, followed up by questions and answers which confirmed what Kirawete had already admitted.

The accused gave evidence and said the statement was false:-

Statement false because blame laid on me trying to save brothers. We’d been accused of all ganging up on him and Baikitea accused of actual stabbing. Purpose to save brothers. I did not strike Iakoba again after the fight earlier in the evening. Didn’t know where Iakoba stabbed. It was not I who killed that man.

Kirawete has never mentioned Baikitea or anyone else as the killer, merely denied, except in the caution statement, that it was he.

Ms Beiatau in her address told me I had discouraged her examination of N. Erei as to Baikitea’s movements. If I did I regret it. I told Ms Beiatau she must never be afraid to stand up to a judge: she must insist on following a line of examination which she regards as relevant. She could have retrieved the situation by having Baikitea give evidence. He was on her list of prosecution witnesses: I assume he was available: he was not called.

In her submissions Ms Beiatau characterized as ”unusual” lying as the accused said he had to shield his brother. So it may be but not unknown or impossible. The Christian faith rests on the fact that one innocent man took upon Himself the sins of all.

So I am left with the confession, denied in evidence for a reason perhaps plausible but as Ms Beiatau put it, unusual. Even with the accused’s subsequent sworn denial, the statement is a strong indication of guilt.

On the other hand we have the deceased’s dying declarations. If Iakoba had gone up to the accused’s house to pick another fight and Kirawete had wounded him, surely Iakoba would have known it was Kirawete who had stabbed him? Yet the only name the deceased ever uttered was “Baikitea”.

And how did Iakoba make a journey in about 20 minutes, a journey which N. Ataake estimated would take more than half an hour each way, have a fight and be wounded? Even allowing that N. Ataake may have her estimates wrong can I be certain they are so wrong that Iakoba had time to get up to the house and back?

The onus was on the prosecution to prove beyond reasonable doubt every element of the crime of murder. It has done so except for the one element, the identity of the killer. As to that I am left with doubts which I regard as reasonable. I am left wondering who did stab Iakoba.

I find the accused not guilty.

Dated the 15th day of November 2004

THE HON ROBIN MILLHOUSE QC
Chief Justice