Republic v Tabwaia - Reasons [2006] KIHC 57; 3-06 (8 May 2006)

IN THE HIGH COURT OF KIRIBATI
Criminal Jurisdiction
Held at Betio
Republic of Kiribati

High Court Criminal Case No. 3 of 2006

THE REPUBLIC

v

TIARE TABWAIA

For the Republic: Ms Ruria Iteraera
For the Accused: Mr Aomoro Amten

Date of Hearing: 8 May 2006

REASONS FOR FINDING NO CASE TO ANSWER

Tiare Tabwaia was originally charged with murder. As his trial was to begin the prosecution substituted for the charge of murder that of manslaughter or in the alternative causing grievous harm. Tiare pleaded not guilty to manslaughter but guilty to causing grievous harm. The prosecution did not accept the pleas. The trial proceeded on manslaughter.

Ms Iteraera handed me as her Opening this Summary of Facts:-

On 3 December 2006 late at night the deceased Biirate Tauo came to the accused (Tiare Tabwaia) house in Ambo. He was drunk and wanted to sleep but he was too tired to go back to his home. He was given food by the accused and then was told to sleep with the children on a raised floor house because it is more spacious. He was related to the accused as an uncle.

He lay down for a while beside the two girls (the accused daughter and cousin) and then got up and change position. This time he lay at the feet of the children. The accused was not bothered at first at this but he saw his daughter moving so he began to suspect that the deceased was doing something to her. He went to check him with his light (made of a wick floating in a small bottle filled with kerosene). He found him licking his daughter’s genitals so he hit him with his fists. He hit him from on the raised floor house until he fell to the ground. He continued punching him hard until his father Tabwaia Mareko came and stop him. They then call the police to get the deceased. The police found the deceased lying close to the raised floor house. They took him to the Betio Hospital but he was already dead. The accused admitted having hit the accused many times on his face and the front and back of his neck with his fists.

Ms Iteraera called four witnesses. The little girl Bwenata Tiare, daughter of the accused and said to be the victim of Biirate’s action, is 13 and in the sixth grade at school. After questioning I allowed her to be sworn. She could not say what, if anything, the deceased did to her: she was asleep and woke only when her father was hitting him. The accused’s father and the police officer who came to the house in answer to a call took the prosecution case no further. Dr Kautu had examined the body of the deceased when it was brought to the hospital. The bridge of the nose was broken, the right eye lid was bruised and swollen, the eye itself was bruised. In his report Dr Kautu gave no cause of death. In evidence he said it was difficult to give a cause of death: he could not give one.

Finally Ms Iteraera tendered by consent the accused’s caution statement. Having found the deceased licking his daughter’s "genitals/vagina so I hit him with my fists. I did not hit him with anything else. I hit him many times until he fell from the raised house and I continued hitting him until my father came to stop me".

Case for the prosecution.

Mr Amten submitted that his client had no case to answer. If Dr Kautu could not tell the cause of death, could express no opinion on it, I could not find beyond reasonable doubt that the blows by the accused caused the death. As a matter of common sense they probably did but other causes are still reasonable possibilities: could not be excluded beyond reasonable doubt.

I accepted Mr Amten’s submission and found the accused not guilty of manslaughter.

Dated the 9th day of May 2006

THE HON ROBIN MILLHOUSE QC
Chief Justice