Republic v Katee [2010] KIHC 85; Criminal Case 37 of 2010 (1 September 2010)

IN THE HIGH COURT OF KIRIBATI
CRIMINAL JURISDICTION
HELD AT BETIO

High Court Criminal Case 37 of 2010

The Republic

V

Rereua Katee
Karereiti Amota
Teruru Obeta
Konono Tekaiti
Tauro Nanai
Binauea Tokaatu

For the Republic: Ms Pauline Beiatau
For the 1st Accused: Mr Taburuea Rubetaake
For the 2nd Accused: Ms Debrah Mercurio
For the 3rd Accused: Ms Maere Kirata
For the 4th Accused: Mr Raweita Beniata
For the 5th Accused: Ms Taoing Taoaba
For the 6th Accused: Ms Abunaba Takabwebwe

Date of Hearing: 24, 25, 26, 27 & 30 August 2010

JUDGMENT

The six men have been accused of murder:-

Rereua Katee, Karereiti Amota, Teruru Obeta, Konono Tekaiti, Tauro Nanai and Binauea Tokaatu on the 10th July 2010 at Betio, Tarawa murdered Ieeru Riiro.

At arraignment all but Binauea Tokaatu pleaded not guilty. Binauea pleaded guilty.

The outline of the facts is clear. Early on the morning of Saturday 10th July the victim, Ieeru Riiro, was sleeping on the beach some distance on the lagoon side of Tabontekati, Temakin, Betio. Next to him or close by was sleeping the accused Rereua. They had both been drinking and were sleeping it off. Ieeru was attacked by some or all of the accused and so severely injured that he died. Some or all of them dragged his body in the water to Tabontekati where he was buried either fully covered or with some parts of the body shewing. The body had been discovered by Independence Day.

That is the outline. Evidence of the detail of who did what and when, has been given through a fog of drunkenness and self interest, each trying to shift the blame on to the others. There has been a lot of evidence, much of it conflicting. Apart from Binauea who pleaded guilty, I have not been able to come to any conclusions beyond reasonable doubt except in the case of Teruru.

The Republic called 12 witnesses. It is only the last, Binauea, the co-accused, on whom I can place any reliance and it is only on one point that I do rely on it. Binauea is an informer. The Court must be careful in assessing and relying on the evidence of an informer. The circumstances are unusual. Binauea is not one who had made a deal with the prosecution in exchange for giving evidence. I accept what Ms Beiatau told me: she did not know until he was arraigned that he would plead guilty. It was only after he had pleaded that she decided to call him. Ms Beiatau told me that one day and called him, without any complaint from any defence counsel, the next. Even bearing in mind that he is an informer and contradicted himself on several points I thought he was doing his best to tell the truth. As far as I can tell Binauea has nothing to gain by giving evidence for the prosecution against his co-accused.

There is no point in going through the evidence. There is so little upon which I can rely or which is helpful in coming to conclusions. All I shall do is to consider briefly the prosecution case against each accused in turn.

Before I do there are three matters of law which I should mention.

The first is that after a voir dire hearing I excluded the caution statements which the prosecution applied to tender. The tender was opposed by defence counsel. The incident occurred in the early hours of Saturday 10th July. The defendants were arrested on Independence Day, 12th July and statements taken from them either later that day or on the 14th. Despite the evidence of Constable Bita Maritino that they were given the opportunity to have legal advice I doubt that they were. The combination of the shortness of time between arrest and statement and the lack of opportunity for legal advice made me uncomfortable about receiving the statements. I excluded them all.

Secondly, I can find no evidence of a joint enterprise in which the defendants or some of them engaged. There is certainly no evidence of an intention or of any agreement to kill the victim. At the very most it may be argued that there may have been an agreement to assault him. If there were that is irrelevant in the light of the conclusions on the facts I have reached.

Finally, there is no doubt that some, maybe all of the defendants, were accessories after the fact to murder. The body was dragged by one or other of them to the water and in the water to Tabontekati where it was buried at least partly. Several walked along the road and kept watch. Those facts are more definitely established. The problem for the prosecution is that none was charged with being an accessory. At first I thought a verdict of being an accessory might be an alternative to murder but concluded later that it is a separate offence not subsumed within murder. For the prosecution to succeed the defendants should have been separately charged in the alternative with being accessories.

I now consider each accused, one by one.

Rereua

He and Ieeru had been sleeping on the beach. There is no evidence that Rereua ever hit Ieeru and one of the others very early in the action took him home: his house was close by. Although he spent time with the others later and feared he would be blamed there is no evidence against him.

Karereiti

He did not give evidence. Ms Mercurio simply submitted that her client had no case to answer: a submission I rejected at the time. Binauea does not mention Karereiti hitting Ieeru. Rather to the contrary Karereiti may have tried to help the victim and he was one who checked whether he was still alive or not. Karereiti was certainly an accessory after the fact but not charged.

Teruru

It seems that Teruru was the first to strike Ieeru: he admits "tapping his cheeks" – in itself an admission of assault – to help Ieeru up so that Binauea could attack him. A surprisingly gentle action in the light of what followed. I prefer and accept Binauea's evidence that Teruru was already hitting Ieeru before he, Binauea, did. Even so there is no evidence of any injury Teruru may have inflicted. I doubt if I can find, on the evidence, even actual bodily harm. An accessory after the fact but not charged.

Konono

He denies hitting the victim. It seems he with Karereiti tried to succour Ieeru. They were the two who later checked to see whether Ieeru were dead or alive. It seemed that Binauea contradicted himself about Konono. He did say that Konono was one of those hitting Ieeru. In the light of Konono's denial and the admitted fact that Konono tried to help the victim, I cannot find beyond reasonable doubt that Konono assaulted Ieeru. Certainly an accessory after the fact but not charged.

Tauro

Tauro came to the beach very late in the incident and by then Ieeru may well have been dead. No doubt Tauro hit Ieeru's body but by then Tauro may have been hitting a dead body. If that were so then Tauro cannot be convicted of assault. I cannot be certain one way or the other as to whether Ieeru was still alive when Tauro hit him. Accessory after the fact but not charged.

Rereua, Karereiti, Konono and Tauro are not guilty of any offence. Teruru is guilty of assault.

Dated the 1st day of September 2010

THE HON ROBIN MILLHOUSE QC
Chief Justice