Republic v Ioane & Toatu - Judgment [2007] KIHC 25; Criminal Case 53 & 54 of 2006 (14 February 2007)

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

High Court Criminal Case Nos 53 & 54 of 2006

THE REPUBLIC

v

IABETA IOANE
NAMORIKI TOATU

For the Republic: Ms Pauline Beiatau
For the 1st Accused: Mr Karotu Tiba
For the 2nd Accused: Mr Stephen Earl

Date of Hearing: 12 February 2007

JUDGMENT

These two young men are charged with murder:-

Between the 7th and 8th of October 2006 at Tabiang village on the island of Abemama in the Republic of Kiribati IABETA IOANE and NAMORIKI TOATU murdered Ten Taam.

They were two of a group of men drinking yeast. The deceased was another. After drinking yeast they persuaded Taam to go with them, saying that they would go somewhere else to drink more. He went with them to an area known as "ruabui", "90". They set on him with their fists and a piece of wood: hit him about the head and face. There was no direct evidence but it seems Taam must have been knocked unconscious by the assault. Iabeta and Namoriki dragged him to a babai pit, threw him in: one put his leg on Taam’s head, the other put his leg on Taam’s neck for a few minutes. They left him there. The body was found some days later.

Originally Ms Beiatau had nine witnesses. She called only three.

Raoboia Bwatiata is 17. Iabeta, to whom he is related, spoke to him the next day:-

The day after the day they did the killing: the way they did the killing. They were drinking: after drinking went away with Taam. They went and bashed him up in Ruabwi. Iabeta was with Namoriki ..... Bashed him on head and face: dragged him to a pit. They used their fists and a stick. Dragged him to a pit – babai – drowned him in babai pit by pushing him on chest and left him.

There was a second conversation a few days later at which Namoriki also was present:-

Maybe 3-4 days later talked to Iabeta. Tie Taam’s neck – they asked me to come and help them. I didn’t go: went to my house. So they wouldn’t be blamed and he had done it himself.

At the second conversation Iabeta had not been drinking.

Mr Tiba in cross examination got Raoboia to say that Iabeta makes jokes when he is drunk (as he was at the time of the first conversation) and Raoboia was not sure whether Iabeta had been joking or not.

If Iabeta went to Raoboia the first time as a joke it was a poor one. What Iabeta said complements other prosecution evidence. I have no reason to doubt either about the accuracy of Raoboia’s evidence or about the truth of what Iabeta told Raoboia. They were Iabeta’s admissions to Raoboia: his admissions may be used as evidence against him but not against Namoriki. However Namoriki was present at the second conversation. Raoboia’s evidence of the second conversation may be taken as evidence against both of them.

Taatoa Nito, a police officer, was the investigating officer. He took caution statements separately from each accused and not in the presence of the other. Defence counsel made much of the fact that neither Taatoa nor his partner police officer, who was present, signed the caution statements. Each accused did sign after his answer to each question. Certainly the lack of signatures by the police officers does not shew good police work but it does not go to the accuracy of the statements themselves. Taatoa wrote out each statement and said he witnessed each accused signing.

We had two short voir dires. Each counsel argued then and more vigorously in closing addresses that the police officers’ omission to sign the statements may mean neither accused was properly cautioned before the statement was taken. I reject their arguments. Taatoa reiterated that he cautioned each accused: the first few lines of each statement set out the caution and the signature of the accused is beneath it. The lack of the police officers’ signatures does not make me doubt each accused was sufficiently cautioned. Finally, neither Mr Tiba nor Mr Earl objected to the tender of the statements.

Iabeta:-

I agreed with what I’ve blamed as we murdered Taam. The main reason of doing this was that he was bullied us when drinking. He used to throw us sand and he was going to cut our neck as well as saying fuck to us. Therefore, we thought that once we finished our drink, we Namoriki and I going to punch him. We don’t mean to kill him. But once we reached at the ninety "90" with him, we started to punch him. After being punched him, we returned back to our home.....

Q2: What are you doing on the Saturday of 07/10/06?

Ans: We were having a drink (sour toddy) with members of sea cucumber divers....

Q3: What are the names of those people who are members of sea cucumber divers whom you are drunk with that time?

Ans: They are Taam, Touaiti and Iabeta ....

Q4: You are the only one from the village who joined them?

Ans: It was I, Namoriki and Tentau.....

Q5: What kind of drink do you drink that time and when did you start drinking?

Ans: It was a fermented yeast and we started at 2200 hrs or 2300 hrs.....

Q6: When you have a drink that time, is there any problem?

Ans: Yes......

Q7: What is happened then?

Ans: It was an argument between Touaiti and Taam whilst I and Namoriki with Taam.....

Q8: What is happened between you and Taam?

Ans: The things happened to me and Namoriki was that he used to say fuck and he was going to cut our neck.....

Q9: what did you do when Taam saying bad words to you?

Ans: We did nothing to him as we were consulted by Taberaua and his wife as well as the wife of Touaiti and informed us that we should leave him alone as he was fully drunk.....

Q10: When did you finish drinking?

Ans: ......

Q11: What did you do after you have finished drinking?

Ans: Once I have finished drinking, I went to Maan’s house. She was not there upon arrival but I met Namoriki there where we both gone to Taraa’s to light up our smoke .....

Q12: What did you do after lightening your smokes?

Ans: We were gone to the north of the ninety "90" with Taam ....

Q13: What is the main purpose of going there?

Ans: We are going to punch him as he have done wrong to us when drinking.....

Q14: How did Taam follow you?

Ans: We told him lied as we are going to continue drinking ....

Q15: What did you do to Taam when arrived at ninety "90"?

Ans: Upon arrival there we started to punch him ....

Q16: How can you punch him?

Ans: We touched him using our fists ....

Q17: Who punched first?

Ans: It was Namoriki but not me ....

Q18: What did you do when Namoriki have stopped punching him?

Ans: I was then punched him on his chest, face and body ....

Q19: Is there anything you did after punching him?

Ans: We picked him up to the inside of a ‘bwabwai’ pit ....

Q20: Upon arrival at that hole, what did you do next?

Ans: We put him among the ‘bwabwai’ ....

Q21: Is there any other action did you do when his body lying among the ‘bwabwai’ fruits?

Ans: Yes, we drowned him in the water among the ‘bwabwai’ for about 5-10 minutes ....

Q22: Did Taam cry or shout while drowning him in the water?

Ans: It was only his body moved ....

Q23: What did you do after drowning him in that water for about 5-10 minutes?

Ans: We left him ....

Q24: Did you believe that once you left Taam with Namoriki is he still alive or death?

Ans: I do not know whether he still alive or death ....

Namoriki:

I agreed with what I have been blamed for as I was also the one who punched Taam at the time and we put his body inside a ‘bwabwai’ pit but we did not know whether is he still alive or dead. It was not our own decision to punch him because he had also done wrong to us .....

Q2: Where are you in the evening of Saturday 07/10/06?

Ans: We were having a drinking with Iabeta, Taam, Touaiti and Tabaraua ....

Q3: What kind of drink do you drink that time?

Ans: It was a fermented yeast ....

Q4: What time did you start drinking?

Ans: It was early in the evening ....

Q5: Is there any problem between you and your friends while drinking?

Ans: Yes, it was .....

Q6: What are your problems and who caused your problem?

Ans: It was Taam who had a problem with us as he said that he would cut our neck, throw us sand and chased us away ....

Q7: When did you finish drinking?

Ans: It was about late at night ....

Q8: What did you do when you have finished drinking?

Ans: We just left them ....

Q9: Where did you go next?

Ans: We went northward to the "90" whilst Taam followed us ....

Q10: How can Taam accompany you?

Ans: It was me that I told him to follow us as there was a yeast to drink at the ninety "90" ....

Q11: Did you recognize well Taam?

Ans: Yes I knew him ....

Q12: What did you do upon arrival at the ninety "90"?

Ans: Nothing but we just punched Taam ....

Q13: How can you punch Taam?

Ans: We (Iabeta and I) punched him on his face, neck and the back of his head ....

Q14: What kind of instrument did you use to punch?

Ans: It was our own pair of hands foot and an old trunk of tree that we used to drop it on to his head ....

Q15: What happen to Taam after you have punched him?

Ans: He fell down and fainted ....

Q16: What did you do after that?

Ans: We threw him into the ‘bwabwai’ pit ....

Q17: What else did you do when you have thrown him inside the ‘bwabwai’ pit?

Ans: I put my leg on his chest whilst Iabeta put his leg on his neck ....

Q18: What happened to his body when you put your legs on it?

Ans: His body sunk a bit into the water ....

Q19: for how long when you put your legs on him?

Ans: It was not too long ....

Q20: After doing that what did you do?

Ans: Nothing but we just returned back ....

Q21: did you believe that Taam’s body stay inside the ‘bwabwai’ pit when you left him?

Ans: Yes his body stayed there ....

Having called Raoboia, Taato and Itimeata Kataake (whose evidence was not of much relevance) Ms Beiatau applied for an adjournment as her other five witnesses had not yet arrived from Kuria.

I asked what their evidence would be. It was to be as to the circumstances surrounding events before the assault on Taam and his being thrown into the pit. None of the five was present while those were happening: the evidence would have been as to events antecedent. Especially as it would have meant waiting at least two days for the witnesses to arrive, I persuaded Ms Beiatau that she already had a very strong prima facie case and the evidence she outlined would not take her case further. She closed her case.

Mr Tiba said his client would not give evidence.

Mr Earl complained that he had wanted to interview the other prosecution witnesses: they might support defences of provocation and self-defence. I could not see it. While the onus remains always on the prosecution to prove the case against an accused beyond reasonable doubt, there must be some evidence from somewhere – or the circumstances of the incident must suggest it – to raise a doubt about provocation or self defence, a doubt for the prosecution to negative. Here there is none – neither in the oral evidence nor in the caution statements nor in the circumstances. No suggestion that anyone else but Iabeta and Namoriki were present. They have decided, as is their right, not to give evidence. The evidence of the witnesses from Kuria could do no more than strengthen a doubt about the prosecution case had there already been a doubt. On what Ms Beiatau had opened the witnesses from Kuria had no knowledge of the crucial events – the assault and the throwing into the pit. However I offered to adjourn until Mr Earl could see them. The proviso to the offer was that his client had given evidence first – without Namoriki’s evidence I could not see there ever being reasonable doubt about the prosecution having negatived any suggestion of provocation or self-defence. If having heard Namoriki I thought there was any chance at all that his client had been provoked or had acted in self-defence I would allow the adjournment. Mr Earl did not accept the offer: his client did not give evidence.

On the prosecution case the evidence is overwhelming – Iabeta’s two conversations with Raoboia and his caution statement are compelling admissions. Namoriki’s presence at the second conversation with Iabeta and Raoboia and his caution statement are equally compelling admissions. The prosecution has proved its case beyond reasonable doubt.

Iabeta and Namoriki are guilty of murder.

Dated the 14th day of February 2006

THE HON ROBIN MILLHOUSE QC
Chief Justice