Republic v Teunroko [2004] KIHC 32; Criminal Case 59 of 2003 (19 February 2004)

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

Criminal Case No. 59 of 2003

THE REPUBLIC

vs

IOREME TEUNROKO
TANGITAUA MAREKO
BUREBATI KAUONE

For the Republic: Mr Tion Nabau & Ms Tetiro Semilota
For the 1st Accused: Mr Aomoro Amten
For the 2nd Accused: Ms Taoing Taoaba
For the 3rd Accused: Ms Jacqueline Huston

Dates of Hearing: 16 & 17 February 2004

JUDGMENT

Originally three young men, Ioreme Teunroko, Tangitaua Mareko and Burebati Kauone were charged with murder. Particulars:-

On or about the 13^th day of September 2003, at Manriki, Nikunau in the Republic of Kiribati, Burebati Kauone, Iorema Teunroko and Tangitaua Mareko murdered Kauaii Bauro.

All four lived at Manriki village where the alleged murder took place.

Before they were arraigned Mr Nabau said that the Republic was not proceeding with the charge against Ioreme. I noted the nolle prosequi and discharged Ioreme.

On arraignment Tangitaua pleaded not guilty and Burebati not guilty of murder but guilty of manslaughter.

At the close of the prosecution, Mr Nabau offering no argument to the contrary, I accepted Ms Taoaba's submission that her client had no case to answer. There was no evidence against Tangitaua. When Burebati was telling the witness Taebo Toarei what happened, although Tangitaua was close by, he was asleep so could not be bound by anything Burebati was saying.

That left Burebati alone in the dock. Ms Huston also made an application of no case to answer. After hesitation I rejected it for two reasons. First, Taebo's evidence of Burebati's admissions and secondly the evidence of the deep wounds on the head of the deceased which indicated the use of considerable force and were unlikely to have been caused other than deliberately. Both called for an answer.

The trial continued, narrowed to the issue of whether Burebati was guilty of murder or of manslaughter.

During the evening of Saturday the 13^th of September last year a varying group of young men were drinking. The only drink mentioned was home brew yeast.

Ioreme, Tangitaua and Burebati started in the bush. When it rained they went to a house and joined other young men including the victim Kauaii. They moved to a well. They were noticed by the first witness, Nei Taeri Uakei:-

I saw young boys sitting on cement. Burebati, Tangitaua, Ioreme. Moon shining brightly: no interruption to view. I saw Kauaii and Ioreme fighting. The other two stopping them.

The group moved away to the lagoon side of the Maungatabu maneaba, next to the beach. Ioreme, aged 26, is the eldest of the young men. He was called as a witness for the prosecution.

Ioreme confirmed Nei Taeri's evidence of what she saw of them near the well:-

Kauaii while we were drinking challenging party members most of the time. I stood up and stopped him, telling him not to fight.

His evidence of what happened at the lagoon side of the maneaba:-

Kauaii stood up and started challenging again. Challenged Burebati because Burebati had done something to personal belongings – eel trap. I stood up again and stopped him. He wanted to fight me. I tried to hold on tight to him but he didn't want to be stopped. Burebati stood up. I lost hold on Kauaii – Burebati came all of a sudden – standing behind us. Kauaii suddenly jumped on me.......... Kauaii had a go at me – we fell down. Kauaii on top of me: I was being hit. I was lying on my back: Kauaii top of me. I was hit, don't know who hit me. Burebati was standing over the two of us. I was hit. I was trying to get away: I got away. I went to Tangitaua sitting next to bucket of drink. Kauaii was lying down. Burebati standing beside him.

In cross-examination Ioreme agreed that Kauaii was known as a good wrestler and with a knowledge of the martial arts.

Mr Nabau, Ms Huston having cross examined on it, tendered Ioreme's statement to the police. It is to the same effect as his evidence.

Taebo, aged 19, was not among those drinking. He was at Tabukai's house. Tangitaua and Burebati were in the house: "Burebati on buia and Tangitaua beside hammock, asleep".

At that point in his evidence Taebo became unwilling to go on and tell the Court of his conversation with Burebati. I made this note:-

[Long pause and hesitation – several minutes – Mr Nabau asks for adjournment – refused].

No improper pressure was put on Taebo but eventually he was persuaded to go on. Whether he had been overwrought by his surroundings in court or whether he did not wish to get his friends into trouble or what the reasons for his hesitation may have been, I do not know. That he did hesitate made me confident that when he did speak he was telling the truth and giving accurately the substance of what Burebati said to him:-

I spoke to Tangitaua and Burebati – asked him where they'd come from. Burebati said [--------] They said they'd just returned from killing somebody. Burebati said that. Tangitaua didn't say anything. "Who was it?" Burebati answered (Kauaii). Burebati mentioned he had a fight with Kauaii and after that may be Kauaii had fallen down and then he took hold of a rock and then he hit Kauaii's head with it. Then he got hold of a coconut tree trunk and Burebati hit Kauaii with it. Then he started dragging him to the beach. Someone came all of a sudden and caught them there. That's all Burebati said to me. We all went off to sleep. I said to Burebati "Is he really dead?" "He's really dead". Tangitaua was in front of us: think he was asleep.

The next morning the police officer Tamuera Tabokai found the body, "located near boundary of maneaba ...... on the beach".

Through Tamuera Mr Nabau tendered Burebati's caution statement. There is no significance in Burebati saying in the statement, "I accept the allegation made against me". The allegation, whatever it was, is not set out in the statement: even if it were I could not be satisfied Burebati had understood it.

Burebati had a case to answer and Ms Huston called him in his own defence. He is now 19 years old.

In examination in chief:-

Drinking yeast. Ioreme and Kauaii in dispute: no idea how it started. Kauaii began it. They fought. Ioreme on ground, Kauaii on top. I went to assist Ioreme, in serious condition. I had a stick to hit with – quite small – about size of wrist – 15 cm long. I hit Kauaii. I assumed Kauaii fell to ground, fainted. Tangitaua and I went away to Taebo's house. Started telling to Tebao. Sleep. When we left Kauaii stayed: lying and we left him.

In cross examination:-

It was not my intention to hit him but my friend was nearly dying. Ioreme had cut on nose and bleeding. I did hit him with stick four times. All I hit him with: not with a rock. Left him outside maneaba. Didn't drag him anywhere. Conversation with Teabo....... We were surprised and shocked by Kauaii's death. After I'd hit him with stick. I tried to wake him up and he didn't wake up. Hit him as I was trying to assist Ioreme in a very serious condition: thought he was going to die. It was my story that I hit him with a rock but I was telling lies. I didn't tell Tangitaua I dragged Kauaii anywhere. I hit him on head.

The accused did not have to prove anything in his own defence. The onus of proof beyond reasonable doubt rested throughout on the Republic. Having heard and considered the evidence of Taebo and of the accused I accept beyond doubt Taebo's account of what Burebati told him. I also have no doubt that Burebati gave Taebo an accurate account of what happened.

The wounds on Kauaii's head are more consistent with his being hit with a rock, rather than a stick and while he was on the ground. The medical assistant, Nei Orebura Arekiti, made a report. She examined Kauaii's body after his relatives had cleaned it up:-

When I examined him on the head, I found that he had two wounds on the left side of his skull on the frontal right to the parietal bone. The first wound is about 4-5 cms long and 2-3 cms deep. 2-3 cms from that wound is the second wound. The second wound is about 6-7 cms long and 2-3 cms deep. These wounds result from a contact with a blunt object with excessive force ........... There was also another wound on his left eye, which is about 2 cms long and ½ cm deep. This wound is caused by the use of a blunt object with sufficient force.

The cause of death was "excessive blood loss from his head wounds". In cross examination Nei Orebura referred to "blood loss from wound on left of skull".

The parietal bone: "either of a pair of bones forming the central part of the sides and top of the skull" (The Concise Oxford Dictionary). The wounds were to the left side and top of the skull.

These wounds are most unlikely to have been caused other than when the victim was lying down.

I have no doubt that after Ioreme got away from Kauaii, Kauaii was lying on the ground. He was probably on his back. Burebati was standing over him. Burebati hit Kauaii with a rock, causing the dreadful wounds, and then with a piece of wood.

Why Burebati did it remains a matter of speculation. Kauaii had been making a nuisance of himself: Burebati had been drinking: Burebati's inhibitions may have weakened: he became exasperated with Kauaii. That is a likely explanation.

Ms Huston called Tangitaua but his evidence added nothing to the accused's case.

Section 193 of the Penal Code:-

Any person who of malice aforethought causes the death of another person by an unlawful act ....... is guilty of murder .......

Section 195:

Malice aforethought may be expressed or implied and express malice shall be deemed to be established by evidence proving either of the following states of mind preceding or co-existing with the act or omission by which death is caused, and it may exist where that act is unpremeditated –

(a) an intention to cause the death of or grievous bodily harm to any person, whether such person is the person actually killed or not; .....

I find it impossible to believe that Burebati, who inflicted those wounds on Kauaii, in the circumstances I have found, did not have, at the least, an intention to cause grievous bodily harm, really serious injury. Anyone who picks up a rock and hits a man lying on the ground with sufficient force to cause the injuries Nei Orebuure described, must have had the intention to cause grievous bodily harm. The act of causing those injuries makes clear the intention. The force used was too great to find otherwise.

Despite Ms Huston's able, forceful and persuasive arguments, I am against her. She argued that Burebati was acting in defence of Ioreme and was entitled to use the same force as if he were defending himself. She referred helpfully to Crime by David Ross QC at paragraphs 19.635 and 19.640 and to the discussion of malice aforethought in Criminal Law: text and cases by Waller and Williams at paragraphs 5.31 et seq. I accept the principles canvassed by the authors but they do not apply here. Burebati inflicted the injuries not while Kauaii was on top of Ioreme but after Ioreme had freed himself. The need to defend Ioreme had passed. Burebati's acts were unlawful.

The accused Burebati is guilty of murder.

Dated the 19^th day of February 2004

THE HON ROBIN MILLHOUSE QC
Chief Justice