Republic v Tio [2005] KIHC 151; HCCrC 24-05 (14 November 2005)

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

High Court Criminal Case No. 24 of 2005

THE REPUBLIC

vs

BAKETUA TIO

For the Republic: Ms Olga Guillen
For the Accused: Mr Glenn Boswell/Ms Berenike Iuta

Date of Hearing: 14 November 2005

JUDGMENT

Asked to plead when arraigned on a charge of murder the accused had first pleaded guilty. Seeing the looks of consternation on the faces of his counsel I suggested to Mr Boswell and Ms Iuta they take further instructions. They did. They asked for their client to be arraigned again. This time he said he did not mean to do it. I noted a plea of not guilty.

The facts are clear beyond any doubt. The deceased Nabwebwe Bwaontu, aged 19, at about 7 o’clock in the evening of 22 April was lying asleep on a cement slab covering a grave 15 paces from the house at Ambo where he lived with his parents.

The accused rolled a huge stone – it must weigh between 20 and 30 kg – lifted it and dropped it on Nabwebwe’s head. His parents found him still alive but bleeding from nose, mouth and ears, eyes swollen. He was taken to the Central Hospital and died some time later. Doctor Teraira Bangao gave the cause of death as a crushed skull.

Wanikaie Taoku had been with the accused before he did it:-

Saw Baketua smoking, rolling a stone until near victim Nabwebwe. Victim asleep on grave – cement – lying on his back with head sideways. I used to see him but not know him well ...... After he rolled the stone he came to see me. Baketua said, “Can you see that stone? Can you help me as I want to drop it on that person”. He meant Nabwebwe. “This is the person that attacked my cousin Teiobi”. “I cannot”. “Don’t be frightened. I’ve done this to four people in Temaiku and I’ve never been caught”. When he was about to drop stone I turned away as I was afraid. Lifted it to chest height. I heard the stone making a banging sound. I felt weak. I was leaning against coconut tree – about 10m away. I ran away.

The accused was arrested on 25 April and the caution statement taken on 27th. Mr Boswell resisted its tender because of the two-day delay. Sgt Vivane Tekitaa, the arresting officer, said there had been an electricity blackout at the Bairiki police station on the evening of 25th. On the 26th was a rehearsal of the ceremonies for the arrival of the President of Taiwan and most police officers were committed to that. The statement was taken the next day.

It is most desirable that a statement from someone under arrest be taken at the first convenient opportunity: as soon as the person is sober and in a fit condition to give it. The longer the delay in taking a statement the more likely it is that the court will refuse to receive it. I concluded that in this case the delay had not been too long and I received the statement.

The accused made a full confession:-

I returned to Nabwebwe who was still sleeping at that time. I then saw stones that put together and I carried one of them. The stone was very heavy but I just managed to lift it up to the above of my knee. When I reached the front of Nabwebwe’s head I then dropped the stone on his head. Nabwebwe was sleeping at that time and he was lying on his side. After I have dropped that stone I saw blood flowed on the grave which was made from cement. I took him and put him in a sitting position but he coughed and vomited. I left him in that position and ran away.

Earlier in his statement Baketua had said Nabwebwe had threatened to cut his throat.

Ms Guillen closed her case. Mr Boswell asked that the accused be re-arraigned. I could not see much point in that and the accused was not re-arraigned. He did not give evidence and had no witnesses. His only explanation for what he did, Mr Boswell said, was fear of Nabwebwe.

I find the accused guilty of murdering Nabwebwe on 22 April 2005 at Ambo and sentence him to life imprisonment.

Mr Boswell complained about a delay of two days between arrest and the caution statement. The complainant was not justified but after the statement was taken there was inordinate delay about which every complaint is justified. Baketua was arrested on 25 April. He was kept in custody. On 13 September he saw a law clerk from the People’s Lawyers Officer with a view to making an application for bail. He was before the court for the first time on 30 September. He had been charged with no offence. I discharged him unconditionally. An indictment was filed only on 6 October. I granted bail on 14 October.

In the absence of an explanation and none has been offered, this was disgraceful. That a person be held in custody without charge for over five months is disgraceful. In a case where the facts against the person being held were so strong! He should have been charged immediately after his statement. There was ample evidence by his own admissions to justify a charge of murder. Yet it took four and a half months in custody before even he was able to get legal advice!

This should not have happened. I mention it in the hope that what I have written will be brought to the attention of the Attorney General and the Commissioner of Police: that action will be taken to make sure such delays do not occur again. Persons should not be kept in custody without charge.

Dated the day of November 2005

THE HON ROBIN MILLHOUSE QC
Chief Justice