Republic v Tirae - Judgment [2015] KIHC 15; Criminal Case 11.2014 (10 April 2015)

IN THE HIGH COURT OF KIRIBATI

CRIMINAL CASE NO. 11 OF 2014

BETWEEN

THE REPUBLIC
PROSECUTOR

AND

MANIKAI TIRAE
ACCUSED

Before : The Hon Justice Vincent Zehurikize

16 & 17 March & 10 April 2015

Ms Pauline Beiatau for Prosecutor
Ms Kiata Kabure for Accused

JUDGMENT

Zehurikize, J: Manikai Tirae herein referred to as the accused was originally charged with Murder contrary to section 193 of the Penal Code, but at the trial he indicated that he was ready to plead to a lesser charge of Manslaughter. The learned Director of Public Prosecutor Ms Beiatau conceded and she tendered a manslaughter charge contrary to section 192(2) of the Penal Code. However, the accused having disputed the facts which were narrated by the learned Director of Public Prosecutor, I found no option but to record a plea of not guilty. Henceforth a full hearing proceeded on a manslaughter charge.

In a bid to prove its case the prosecution called three witnesses. PW1 Beruiaki Manikai is the daughter of the deceased and the accused who were husband and wife. Her evidence was to the effect that on 8 January 2014 her father beat her mother. It was at night. The next morning she called the accused's sister one N. Maria who was their neighbour. N. Maria called for an ambulance which came and took her mother to hospital. She explained that her mother was already dead when the ambulance came to take her body to the hospital. Counsel for the defence, Ms Kabure, did not cross examine her.

PW2 Kingking is a village mate to the accused. At around 6.00 am of 9 January 2014 she came to the home of one Tenoa who is a neighbour to the accused for cooking for purpose of fundraising function. Some time after 7.00 am the children of the accused, including PW1, came to their home and disclosed that their mother was not breathing. When the ambulance came this witness (PW2) helped in putting the body of the deceased on the ambulance. She was already dead.

Dr Tebwebwe T Kienene (PW3) carried out physical examination of the deceased's body and made a Medical Report which was received in evidence and marked Exhibit P1. She detailed the multiple injuries found on the deceased and in her conclusion the cause of death was base of the skull fracture. She described it as a severe blunt injury which could have been as a result of the use of a blunt weapon.

In cross examination the doctor clarified that cause of death was suggestive of skull injury. That the blood was coming out through the openings like nose, ear and eyes. That the cause of death was not heart attack.

In his sworn evidence the accused admitted beating his wife by punching her and also using a piece of timber on her upper part of the body. However, he was at pains to impress it on the Court that he did not intend to kill her. He went on to indicate that she could not have died of his beatings because the following day around 6.00 am he made love with her. But that thereafter he realised that she was gasping for breath upon which he tried to resuscitate her by blowing air into her mouth but she later died.

It is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt. The accused has no duty to prove his innocence. In case of any doubt the same would be resolved in favour of the accused. In the case of manslaughter the prosecution must prove the following ingredients of the offence if a conviction is to be procured:

1. That a person is dead – in this case that Nei Tanginiman Teabwabwa is dead;
   
2. That her death was unlawfully caused;
   
3. That it is the accused who caused the death or participated in causing the death of the deceased.
   

From the evidence on record there is no doubt that Nei Tanginiman is dead; thus the first ingredient of the offence is proved beyond reasonable doubt.

The second issue of whether her death is unlawfully caused, the prosecution presented the evidence of PW1 who testified to the effect that in the night of 8 January 2014 the accused beat the deceased for not having paid for electricity which led to the power being cut off.

PW3, the doctor who examined the body found swollen left side of the face and bruising around the left eye. There were lacerations on the left lower lips. The right forearm was swollen. She saw blood on the ear, nose and dried blood around the hair.

The accused in his evidence admitted beating the deceased with punches and also used a piece of timber. It was due to the beating that she fell down upon which he stopped assaulting her.

According to PW3 the cause of death was the base of the skull fracture which could be by use of a blunt weapon.

The accused went at pains to impress on Court that his beatings could not have been the cause of death. He even dramatised his case by saying that early in the following morning he had sex with the deceased.

I find his evidence a sheer pack of lies. Having battered the deceased the way he did there is no way she could have consented to any sexual act only to die soon after. If he had any sex with the deceased, then this was forced sex on his dying wife which renders him even more criminal and a callous character at that.

I believe the evidence of PW1 and PW3 and find that the deceased died as a result of the injuries inflicted on her by the accused on the most vulnerable part of the body namely the head. This assault being a criminal act, the death of the deceased was unlawfully caused. In the premise the second ingredient of the offence was proved beyond reasonable doubt.

The next issue is whether it is the accused who committed this crime. His participation is proved by the evidence of his daughter (PW1) and his own evidence on oath in his defence.

PW1 vividly told the Court how his father battered her mother. She saw her father beating her mother using a piece of timber measuring 2" by 4". He was beating her on the head and the rest of the body.

Her evidence was corroborated by the medical evidence. In his evidence the accused told the Court that he punched the deceased several times and she fell down. He then ordered her to stand up but she merely sat. Then she lay down and started vomitting. Later she started breathing badly and he claims to have tried to resuscitate her.

But in cross examination he threw more light on how he battered the deceased. He told the Court that he had a stick in his left hand. It was a piece of timber. He is left handed. He said that it is possible that he hit her with the stick several times and he noticed the bruises on her face.

Both Counsel Ms Beiatau and Ms Kabure found that there is no other person other than the accused who assaulted the deceased leading to her death.

Ms Kabure counsel for the accused only noted that in his defence the accused wanted to show that he did not intend to kill his wife. Well, if he had not been tried on a charge of manslaughter his conduct, the nature of the injuries, the part of the body on which these injuries were inflicted and the nature of the weapon used, would have pointed to a different intention. But all in all, the participation of the accused in causing the death of the deceased unlawfully was proved beyond reasonable doubt.

Since all the essential elements of the offence have been proved beyond reasonable doubt I find the accused guilty of manslaughter contrary to section 192(1) and (2) of the Penal Code and convict him accordingly.

Dated the 15th day of April 2015

THE HON MR JUSTICE VINCENT ZEHURIKIZE
Judge