Republic v Roobe [2007] KIHC 139; High Court Criminal Case 11 of 2007 (4 October 2007)

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

High Court Criminal Case No. 11 of 2007

BETWEEN:

THE REPUBLIC

AND

TANIMAI ROOBE

For the Republic: Ms Pauline Beiatau
For the Accused: Ms Tania Moxon

Date of Hearing: 1 & 2 October 2007

JUDGMENT

Tanimai Roobe is charged with manslaughter:-

On or about the 23rd day of December 2005 at Bikenibeu, South Tarawa in the Republic of Kiribati TANIMAI ROOBE unlawfully killed Kaboua Kabane.

Four young men now aged between 24 and 17, during the evening and until after midnight, were sitting together drinking fermented yeast and sour toddy: the accused, Tibeana Kakiaba, Tiaon Borere and Atauea Roobe (the younger brother of the accused). The three witnesses, Tibeana, Tiaon and Atauea, admitted being drunk by the time of the incidents. Tibeana and Tiaon said they knew what was going on round them: I am satisfied from his evidence and my general impression of him, although Atauea did not assert it, he too, knew what was happening.

During the evening the deceased who had not before been known to the group, came and asked if he could join them. They agreed. Later on the accused and Tiaon assaulted Kaboua. Finally he was left gasping by the road. Tibeana and Tiaon said at the time he was dying.

Mr Tabaki Taonikai between 2 o’clock and 3 o’clock in the morning rode past the area on a motorbike:-

Main road. Saw a person being dragged along: only two people – one lying, other dragging. Attitude of person very drunk or dead.

Later between 6 o’clock and 7 o’clock Mr Kakati Beia, out for his morning exercise, saw:-

A person lying on road. -----. Not sure if alive or dead. Surprised. Seemed no longer breathing. Bruise mark on neck: no blood: no wound or injury – trousers and shirt.

As is to be expected (if it were not so one would be suspicious) the evidence of Tibeana, Tiaon and Atauea varied in detail but was common in outline: the accused and Tiaon assaulted Kaboua, punching and hitting him.

I accept beyond reasonable doubt the outline of their evidence. They all struck me as having a good recollection of what happened and to be doing their best to tell the Court of events as accurately as they could.

Tibeana:-

Around 2300-2400 joined by? Talking to all of us – he’d like to join us drinking. [We agreed.] Punched up by Tanimai and Tiaon: don’t know [why]. Tanimai pushed him first: Tiaon too. Tanimai later Tiaon joined him punching. Fell on his back: he did not punch them. Fists only. Punched on chest and face. ----- We jumped up and stopped them. I was the only one holding them back. I took him away: told him to go away. Told me he was Kaboua. He left. While he was going away Tanimai and Tiaon ran after him punching him. I restrained them again. Kaboua went under a pandanus: didn’t fight back .... According to recollection Tanimai hit him first. I was drunk: know what was going on round me.

Tiaon:-

Started drinking round after 2000. A man came – didn’t know man – Tanimai called him. "Come. Lets drink". Tanimai told me to punch him and he would follow. I punched him. Very late. With my fist – his arm. Tanimai hit him on mouth: when he’d fallen punched him with elbow. I hit him four times. (Took it in turns). After that Tanimai did the punching.

Atauea:

Kaboua came looking for his house. Sitting for quite long time. Kaboua was quite drunk. I drunk also. Tiaon jumped up and hit first – no idea why. Accused jumped later. We jumped up and restrained them ..... Saw both Tiaon and accused hitting him. Bright moonlight. Sure I saw them both hitting ..... First time Tiaon after that. Accused jumped up and hit.

Beyond reasonable doubt the accused and Tiaon assaulted the deceased. Who hit first and how many times, who did what injury, do not matter. From their actions they were engaged in a joint enterprise: each is equally responsible.

Dr Burentau Teriboriki was the last witness for the prosecution. He examined Kaboua, by then dead, when he was brought to the TCH.

From his report:-

On examination, there were no major injuries or laceration noted on his body apart from minor bruises over extremities. Deceased wore long pants only and there was no tear noted.

X-ray of chest and neck were carried out but did not reveal any fracture.

Cause of death was uncertain but a possibility of heart attack was entertained. No post mortem was carried out.

From his oral evidence it became even clearer that the doctor could not specify a cause of death.

At the close of the prosecution case Ms Moxon submitted that the accused had no case to answer. I accepted that he had no case to answer on manslaughter. In the light of Dr Teriboriki’s evidence no jury properly directed nor I as the sole finder of fact could find beyond reasonable doubt that Kaboua’s death was caused by the treatment he had received. It may have been but that is not good enough.

I raised the question of alternative verdicts (section 157 of the Criminal Procedure Code): the possible lesser charges, grievous bodily harm, actual bodily harm and common assault. The accused did have a case to answer on them. Ms Moxon called no evidence and continued to address on the lesser alternatives.

The problem for the prosecution is not only Dr Teriboriki’s inability to be sure of the cause of death. On examination he could find no injuries to the body except the scratches on the arms and legs. In the light of that evidence and of the evidence of Mr Beia that all he saw was a bruise mark on the neck, "no blood; no wound or injury" and despite the evidence of Tibeana of "blood on face, eyes swollen ---" I could not find injuries consistent either with grievous bodily harm or even actual bodily harm.

Ms Moxon pointed out the scratches could have been caused when the accused dragged Kaboua off the road – what Mr Taonikai saw – and not by the punching etc. That leaves only common assault.

As to the common assault I have no reasonable doubt that Kaboua was assaulted both by the accused and by Tiaon.

I find the accused guilty of common assault.

Dated the 4th day of October 2007

THE HON ROBIN MILLHOUSE QC
Chief Justice