Republic v Teitarawa [2006] KIHC 10; Criminal Case 27 of 2005 (13 January 2006)

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

High Court Criminal Case No. 27 of 2005

THE REPUBLIC

vs

TABWEA TEITARAWA

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

Date of Hearing: 10 January 2006

JUDGMENT

Tabwea Teitarawa is charged with murder:-

Particulars of Offence

On 25 September 2005 at Murebenua village on Nikunau Island in the Republic of Kiribati, Tabwea Teitarawa murdered Tamueru Tiketa.

The evidence comes through a haze of inebriation. A group of men was drinking, beginning about 8 o’clock in the morning on Sunday 25 September. By the time of the tragic incident which led to the death of Tamueru they were all more or less drunk. The four who gave evidence had their wits sufficiently about them to be able to give coherent accounts of events. There were some differences in sequence but the outline is clear.

There were several fights. The first was between Tebitemwa Ranebong and Tamueru. After it the two were reconciled and all went on drinking together.

The second was between Tabwea and Tamueru and the third between Tabwea and Toteru Taoboia who seems to have fought Tabwea after Tabwea had fought Tamueru: Toteru said he went to Tamueru’s assistance.

The second fight, between the accused, Tabwea and the victim, Tamueru, is the relevant one.

The account given by the accused:-

Tamueru fell asleep and we moved away. About 8-10m. Woke him up. Tebitemwa pulled his arm and they fought. I went on drinking. Reconciled. Told Tamueru not to upset my course of drinking: it would be better if he left rather than upset me. Tamueru said it was better for me to leave. I said “Do you want a fight?” He wanted to fight: we both got up and fought. He hit me: I hit him: kept on. Not very long. He fell squatting and crouched over. I kicked one to right side chest, one to right side of neck. Not much force as I was drunk. Twice only. Toteru appeared and took victim’s part so I fought him. (Examination in chief).

I challenged Tamueru to a fight. (The others) were still there: saw us. Kicked him – only twice – on side, on neck. We were all drunk at time. As soon as he fell I kicked him twice. When he fell down I kicked him because I thought he might get up and attack me again: I was defending myself. When we were fighting each of us was trying to win. After his fight with Tebitemwa I didn’t see any injuries on Tamueru. When we were fighting he may have been struck on the face. I kicked him only on right side. When I left him he had a little capability left but then to fight Toteru. Tamueru was no longer thinking of fighting or capable of fighting. I never intended killing him. Our fight was meaningless: a burst of anger. I wasn’t defending myself when I was kicking him. When I kicked him it wasn’t my intention to injure him. This happened when one gets drunk. He would be bound to get injured when I kicked him. I used my bare feet. We were the same drunk. (Cross examination).

Tabwea presented himself in as good a light as he could. While the prosecution witnesses confirmed his outline, they described Tabwea using more force than he himself admits.

For example Toteru:

Didn’t fall on face. Fell, sitting down, all rubbery. Lying on his back. Tabwea kicked him ..... May be he struck more than two times ..... I actually saw two blows land but from what I heard more than two blows struck.

Tebitemwa:

Then Tamueru got into fight with Tabwea. Tabwea got up and said, “Why does everybody want to be bold?” Then he hit Tamueru. They got into a fight exchanging blows. Tamueru fell and Tabwea swarmed all over him and went at him from above. Tabwea had struck the first blow. Kicked him and stamped on him. Kicked him three times: twice in neck and then stamped on chest and ribs ..... While he was being kicked and stamped trying to defend himself but he couldn’t do anything because Tabwea kicking him hard and fast.

Oteta:-

Tamueru fell. No weapons – fists. Accused kicked him in head and neck more than once (don’t know how many).

On this matter I prefer the evidence of the prosecution witnesses whom I accept beyond reasonable doubt, to that of the accused.

No one had expected Tamueru to die and they were surprised to find him dead.

Tebitemwa:-

Drink finished. Oteta went to wake Tamueru but couldn’t: I went to wake him. Saw he wasn’t breathing: realized he was dead. Rubbed his chest (etc).

Nei Bubunrenga Rataro is the nurse for Nikunau. She made this report:-

At about 3.30 pm I was called to see a man lying dead in the bush. On examination – no heartbeat, no pulse rate and both eyes are fully dilated. I found out that the right side neck is swollen. Under both ears are swollen as well. Under left ear was injured about 2mm deep and some scratches. Both eyes are also swollen. Right eye has some scratches under eye and under right eyebrow.

In her evidence:

Cause of death. Severely beaten. In my opinion death caused by injuries I saw.

The accused does not have to prove anything. It is for the prosecution to prove its case against the accused beyond reasonable doubt. I shall, in applying the law, use the accused’s account of what happened (except on the amount of force he used) and it is the account most favourable to him.

The two fought. The accused brought the victim to the ground and kicked him. The victim was injured so seriously that he died. I accept Nei Bubunrenga’s opinion as to the cause of death. Hers is the closest to expert evidence there is. Besides, as a layman, it is not difficult as a matter of common sense to conclude that Tamueru died from his injuries. Nothing appeared to be wrong with him before he and Tabwea fought.

Ms Taoaba submitted that Tamueru might have died of a heart attack. So he might have. Anything is possible, I suppose. I reminded Ms Taoaba that I have to find the charge proved beyond reasonable doubt. He may have had a heart attack. That possibility raises no more than a fanciful not a reasonable doubt in my mind.

This may have been, as the accused says, a fight into which he and Tamueru entered willingly. Both Ms Taoaba and Ms Beiatau referred to earlier decisions of the Court (Criminal Case 8/99 Republic v Rifuka Siakisini and Criminal Case 3/02 Republic v Tiare Itinnaibo) in which I cited The Queen v Orton 39 LT 292, (1873) 14 Cox 226. When two men get into a fight and one of them is killed that is murder.

These two got into a fight and Tamueru was killed. Tabwea murdered Tamueru.

There is another way of looking at the facts. The fight between the two finished when Tabwea knocked Tamueru to the ground. Tabwea had won the fight. Yet he went on to inflict serious injuries on Tamueru by kicking him. Tabwea said, “It wasn’t my intention to injure him” but he admitted, “he would be bound to get injured when I kicked him”.

Actions speak louder than words. “Kam na kinaia naba burabeti ni kewe n aia makuri” (Mataio 7.20) (“By their fruits ye shall know them” as the Authorized Version has it in English).

A person commits murder if he causes the death of another deliberately and unlawfully and at the same time does so with the intention, either of causing death or of causing really serious bodily harm.

Tabwea’s actions in deliberately kicking Tamueru when Tamueru was down, causing the injuries he did, shew an intention to cause really serious bodily harm. Tabwea murdered Tamueru.

The prosecution has proved all elements of the crime of murder beyond reasonable doubt.

The accused is guilty of murder.

Dated the 13th day of January 2006

THE HON ROBIN MILLHOUSE QC
Chief Justice