Republic v Uera [2015] KIHC 76; Criminal Case 10 of 2014 (12 October 2015)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CRIMINAL CASE NO.10 OF 2014

BETWEEN

THE REPUBLIC
PROSECUTOR

AND

KOMATI UERA
ACCUSED

12 October 2015

Ms Pauline Beiatau for Prosecutor
Mr Aretaake Ientaake for Accused

JUDGMENT

Zehurikize, J: The accused, Komati Uera, is charged with Murder contrary to section 193 of the Penal Code.

It is alleged in the particulars of offence that on 12th June 2014 at London village, Kiritimati Island in the Republic of Kiribati with malice aforethought and by unlawful act or commission caused the death of a woman namely Nei Rosalie Ioane.

The accused having denied the offence the case went into full hearing. In a bid to prove its case the prosecution examined five witnesses in addition to the agreed medical evidence.

The case for the prosecution briefly is as follows. The accused was the husband of the late Rosalie Ioane, the victim in this case. At the time of the incident the accused was serving sentence in prison for another case.

On 12 June 2014 while the accused and other prisoners were doing some work at a certain playground, he saw his wife. He indicated to the warden that he was going to get something. Instead he rushed to his wife and started stabbing her inflicting multiple injuries.

According to the medical report the Doctor's findings were a long and deep laceration around the anterior part of her neck where vessels and veins were severed. There was also a big (deep clean cut wound) across her abdomen that the omertum and intestines came out (approximately 20cm long). There were also lacerations (clean cut wounds) about two inches long at her left shank, forearm and right palm. The cause of death was cardiac arrest from hypovolaemic shock due to severe haemorrhage from multiple lacerations by a sharp object e.g. knife. The medical evidence is on record and marked Exhibit P1.

PW1 Teramwemwe was at the maneaba belonging to KPC. She saw the accused moving to the deceased and stabbing her with a knife after which he went away.
PW2 Taaninga Kobaia is a fellow prisoner with the accused. It was his evidence that on 12 June 2014 the prisoners including himself and the accused were taken out to do some work. He told the Court that he was close to the accused when he stabbed his wife. It was around 2.00pm. The wife was coming from the gate of KUC going to where there was a bingo game. That he ran to her and stabbed her on the throat and went away from the deceased back to the prison.

Kiataruru Raei (PW3) is another former prisoner with the accused. He said that on 12 June 2014 they were working at the football field when the accused saw his wife and ran to her. He saw him stabbing her after which he walked back to the prison. He heard the deceased crying and walking to the maneaba. She was blood soaked. He went to the maneaba and saw injuries on her throat and stomach. He saw the intestines had come out of her stomach.

PW4 is Katara Kaamteea the warden who was in charge of the prisoners as they worked at the football field on 12 June 2014 in the afternoon. The accused told him that he wanted to get something and he ran to the road. He followed him and saw the accused holding a knife. He asked the accused to give him the knife in vain, but instead the accused told the witness that if he disturbed him he would kill him. The witness then went to report to the Police. But when he came back the woman – the deceased – had been taken away.

He explained that the prisoners were using grass cutters and some were using their hands in doing the work. The accused had been in prison for about one year. The witness did not know how the accused got the knife despite the fact they used to do routine checking.

PW5 Rameteti Rawati is a Police Officer who investigated the case.

In his defence the accused gave evidence on oath and called no witness. He told the Court that the deceased was his wife and they had been married for seven years. That when they were cleaning the football field he saw his wife near the church. He told the warden that he wanted to get something near the road and he allowed him. When he reached the road he saw his wife's dressing had changed as she was putting on a tight mini dress. He felt jealous and suspected she was having other men. He lost self-control, then went and stabbed her with a knife.

He explained that he picked the knife when working on the playground and had been with it while in prison. He was using it to cut or make cigarettes. He had been with it for a long time. He does not know where he first struck her or the number of times he stabbed her because he had lost self-control. That after stabbing her he went back in prison. By the time of this incident he had been in the cells for one year.

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 a case of murder the prosecution must prove the following ingredients of the offence if a conviction is to be secured:

1. That a person is dead – in this case that Rosalie Ioane is dead;
2. That the death was unlawfully caused;
3. That there was malice aforethought;
4. The participation of the accused.
   

It is not in dispute that Rosalie Ioane is dead. The evidence of all the prosecution witnesses, the accused and the admitted medical evidence is a testimony to that effect. Therefore this element of the offence was proved beyond reasonable doubt.

The law is that all homicides are unlawful except where it is accidental or authorized by law. In the instant case, the evidence of the prosecution as per evidence of PW1, PW2, PW3 and PW4 and the accused shows that the deceased was attacked and stabbed thereby sustaining serious injuries which led to his death. This was a criminal act. In the premise I find that her death was unlawfully caused. Thus the second element of the offence was proved beyond reasonable doubt.

I will next deal with the fourth ingredient of the offence which is whether it is the accused who killed the deceased. The evidence of all the prosecution witnesses as stated above and the admission by the accused that he stabbed her because he had lost self-control do prove beyond reasonable doubt that he is the one who killed the deceased.

I will now turn to the third element of the offence of whether he caused the death of the deceased with malice aforethought. Malice aforethought is defined under section 195 of the Penal Code. In brief malice aforethought is defined as:

(a) An intention to cause death of or grievous harm to any person;
(b) Knowledge that the act which caused death will probably cause the death of or grievous harm to any person.

It is important to note that intention to kill or knowledge that death would probably be caused are mental elements which cannot be seen nor be easy to perceive. However such intention or knowledge can be discerned from surrounding circumstances namely the type of weapon used, the nature of injuries inflicted and the part of the body which the injuries are inflicted. Sometimes the conduct of the accused before or after the killing. All these do assist the Court in inferring the intention or lack of it to cause death of the deceased.

In the instant case the weapon used is a knife which is a deadly weapon when used for offensive purposes. The parts of the body where the knife was used were the neck and abdomen which are sensitive parts of the body. The deceased died from these fatal injuries.

After inflicting such fatal injuries the accused simply walked off, apparently satisfied with what he had achieved. It must be noted that having acquired the knife the accused kept it safely with himself and hid it from the prison authorities. It is clear to me that he had the knife on himself for a premeditated act.

All in all I find that the evidence adduced by the prosecution proved beyond reasonable doubt that the accused caused the death of the deceased with malice aforethought.

The next issue to consider is whether the defence of provocation is available to the accused with the result of reducing murder to manslaughter. This is provided for under sections 197 and 198 of the Penal Code.

Section 197 partly provides:

"Where a person by an intentional and unlawful act causes the death of another person the offence committed shall not be murder but only manslaughter if any of the following matters of extenuation are proved on his behalf namely –"

The three extenuating circumstances are listed as (a), (b) and (c). The relevant extenuating circumstances to the instant case is (a) which states:

"(a) that he was deprived of the power of self-control by such extreme provocation given by the person killed as is mentioned in the next succeeding sections".

The next succeeding section is section 198 which provides "where on a charge of murder there is evidence on which the Court can find that the person charged was provoked (whether by things done or by things said or by both together) to lose self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be determined by the Court, and in determining that question there shall be taken into account everything both done or said according to the effect which it would have on a reasonable man".

In other words in determining whether there was provocation Court has to apply an objective test of "a reasonable man".

This section has been a subject of interpretation or application by the courts. In Regina v Katiotio Reirei Cr. Case No. 26 of 1974 cited in [1979] KIHC 18; (1979) KILR 57 O'Brien Quinn CJ relied on R v Duffy (1949) 1 All ER 592 where clearly the law was stated as follows:

"Provocation is some act or series of acts done or words spoken by the deceased to the accused which would cause in any reasonable person and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him for the moment not master of his mind".

In the Republic v Kaititi Wanikaie Cr. Case No. 28 of 2008 cited in (2003) KIHC 95, the Hon Robin Millhouse QC CJ explained the principle saying that there is a dual test for provocation. The first one is "was the accused actually provoked into losing his self-control as a result of which he committed the act which killed the deceased. Secondly, was the provocation such that it was capable of causing an ordinary person to lose self-control and to act in the way that the accused did?"

In the instant case there is no evidence nor even allegation that the deceased did things or said some things that provoked the accused to lose self-control so as to act as he did. The only alleged provocation is that the deceased was dressed in a way that made the accused suspicious and jealous. That she was putting on a tight dress which made the accused believe that she could be having some other men.

While I do agree with the proposition that Kiribati men are well known to be possessive of their wives and jealous of any other man who may threaten the possession, I have not been able, on the evidence adduced, to find that there was any apparent threat to the accused's possessiveness of his wife. There was nothing to feel jealous about.

Assuming it is true, I do not see how a tight dress depicts a woman/wife as having other men. I am unable to find that any reasonable man of the accused's community and station in life would have been provoked to the extent of losing self-control and not being master of his mind just because he saw his wife putting on a tight dress, assuming that that piece of evidence was true.

In fact I do not find it credible that the accused was actuated to act the way he did because the deceased was dressed in a manner unbecoming of a wife. The evidence on record shows that the accused had been armed with the knife for a long time. He was in prison serving sentence, but nevertheless secured this deadly weapon which he kept hidden from the prison wardens despite their routine checking of the prisoners.

At the scene of crime the accused like other prisoners was cleaning the playing field using either a slasher or hands. But for him on his person was hidden the killer weapon. Immediately he saw his wife he ran to her and started stabbing her so viciously that she could not survive the savagery wounds inflicted on her.

It is clear to me that all along the accused was armed in preparation for the attack on the deceased at first sight. The fatal opportunity presented itself on 12 June 2014. This was a premedidated murder pure and simple. Provocation arising from jealousy would ordinarily have been directed against a suspected lover of the accused's wife which is not the case in the instant case. In fact there was nobody the accused suspected to be having an affair with the deceased. In those circumstances I find that the defence of provocation is not available to the accused. I find that the prosecution have proved all the ingredients of the offence beyond reasonable doubt. There are no extenuating circumstances for which the finding of murder can be reduced to manslaughter.

In the premise I find the accused guilty of murder contrary to section 193 of the Penal Code and convict him accordingly.

The sentence for murder under section 193 is mandatory. It is imprisonment for life. Consequently I sentence the accused to imprisonment for life. What remains is to receive submissions from both Counsel on the issue of parole before this Court fixes parole period under the Parole Board Act 1986.

Dated the 13th day of October 2015

THE HON MR JUSTICE VINCENT ZEHURIKIZE
Judge