Republic v Tamaroa [2009] KIHC 1; Criminal Case 71 of 2008 (22 January 2009)

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

High Court Criminal Case 71 of 2008

The Republic

v

Makitera Tamaroa

For the Republic: Ms Tumai Timeon
For the Accused: Mr Banuera Berina

Dates of Hearing: 21 & 22 January 2009

JUDGMENT

Makitera Tamaroa is charged with murder:-

On the 4th May 2007 at Nanomatoa, Betio on South Tarawa, Makitera Tamaroa murdered Nei Taeana Tebau.

Makitera is now 20 years old: powerfully built. He had been on a drinking spree the preceding day, into the night and into Friday 4th May. He had been in company with several other young men of whom Terakoro Kabunare and Omeri Tokamaitarawa gave evidence. In the early hours of the morning the group had been drinking together. The victim, Taeana Tebau, a girl of 13, came asking if she could sleep beside them. They agreed. Some time later Makitera woke the girl and asked her to go with him. She agreed and they left.

Later still, several people heard noise coming from an unoccupied house some 10 metres from where they were sleeping.

Taakua Takabea, aged 67:-

Late at night – heard a cry. Someone asking for help – coming from unoccupied house ..... Next morning ...... peered into house – 10-12m. ----- stood near security wire. Saw girl – vagina full of ants and face – legs at awkward angle. Saw two of them. Girl face upwards. Dead. Boy quite close – asleep.

Kaoiaki Tekakoro:-

Thursday early in morning – woman found dead and a man: about 0700. Earlier – crying woman for not long. I was 10m away. Didn’t bother about it. Asleep. In the morning – (we) went to see: woman, man sleeping. Daylight. Naked – face upwards. I covered her. Hand on stomach – cold, not breathing. (Examination in chief).

Mr Berina cross examined Kaoiaki closely and at some length. He did not put to the witness that he, Kaoiaki, had anything to do with the victim’s death.

PC Tionee Riannaba was on duty on the morning of 4 May at the Betio Police Station. He went to the scene:-

.... Went in – woman dead – stiff body blackened – lying. Man lying beside her – facing woman on right side. We broke through fence – went in. Checked her. I woke him etc. Healthy – sober.

The accused was handcuffed and taken away.

PC Tionee took photographs at the scene: three are exhibited (Exhibit P2). They shew a naked young woman lying on her back: abrasions on the face and neck.

Dr Bauro Tematang was the first prosecution witness. His report is Exhibit P1. He described the scratch marks and bruises:-

Mostly likely cause of death – strangulation ..... think of nothing else but strangulation.

Dr Bauro’s opinion as to the cause of death was not challenged. I find beyond reasonable doubt that this girl was strangled and died.

To sum up the prosecution case: Makitera and others were drinking: the victim asked to sleep next to them: she did: she and the accused went off: some noise was heard from an unoccupied house: in the morning the body of the girl lying prone, naked, was found in the house with the accused, naked, lying close to her, asleep.

The accused gave evidence. He and the girl went off as described by the prosecution witnesses. They went to this unoccupied house with which he was familiar. On a bed on the verandah they had sex, put on their clothes again and went to sleep. He remembers nothing more until the police were handcuffing him.

Two other witnesses for the defence. Nei Tiraro Tebano is the lady who at the time – they are now separated – was living with Kaoiaki. She denied having gone out of the house in the night after hearing a noise: she went back to sleep. In the morning she did go out to watch:-

Had told husband. Don’t know if husband left room ..... I heard noise – crying.

[The other defence witness, the accused’s mother, Nei Kinoia Teratabu said when her son is "drunk, very hard to wake him".]

In his final address Mr Berina submitted that Kaoiaki may have sneaked out, gone in, attacked the girl, strangled her, left again: all this time with the accused sleeping by her not knowing a thing. None of this was put to Kaoiaki in cross examination.

The Rule in Browne v Dunn:-

7.90 The importance of cross-examination in obtaining comment upon facts in issue is seen in the rule in Browne v Dunn (1894) 6 R 67 This demands that, where the cross-examining party intends to later contradict a witness by calling further evidence or by suggesting the witness’ testimony can be otherwise explained, the witness should be given the opportunity in cross-examination to comment upon the contradictory version. Not only is this fair to the witness, giving that witness the opportunity to comment upon something within his or her knowledge, it also enables the trier to assess more accurately the credibility of any contradictory version. It also serves to give notice to the party calling the witness which particular aspects of that witness’ testimony are being contested so that party can decide what further corroborating evidence to call. Failure to cross-examine may suggest that the opponent is not going to contest certain matters and this may lead a party not to fully explore them by calling all possible witnesses. (Australian Evidence, Second Edition, Andrew Ligertwood @ pp 411-412).

The Rule was breached. Counsel should always observe it. If not it will very greatly weaken the force of their arguments. I reject Mr Berina’s submission that Kaoiaki may have killed the girl. It is a fanciful, not a reasonable possibility.

I am left with these two people going off together and the next morning being found naked, in a vacant house, she having been strangled, he sleeping naked close by her. There is no other credible explanation but that he killed her and that he intended to kill her. Strangulation is a deliberate act: in the absence of explanation, beyond reasonable doubt this strangulation was a deliberate and intentional act. The accused’s intent to kill the victim is proved beyond reasonable doubt.

The prosecution has proved every element of the crime of murder. The accused is guilty.

Dated the day of January 2009

THE HON ROBIN MILLHOUSE QC
Chief Justice