Republic v Timau [2017] KIHC 3; Criminal Case 29 of 2015 (9 March 2017)

IN THE HIGH COURT OF KIRIBATI

CRIMINAL CASE NO. 29 OF 2015

[THE REPUBLIC PROSECUTOR
[
BETWEEN [AND
[
[MARETA TIMAU ACCUSED

Before: The Hon Mr Justice Vincent Zehurikize

3, 7, 11, 18 November, 1 December 2016
20 & 21 February 2017

Mr Waimauri Nawaia for the Prosecutor
Ms Manrongo Kararaonnang for the Accused

JUDGMENT

Zehurikize, J: The accused is charged with manslaughter contrary to section 192 of the Penal Code. It is alleged in the particulars of the offence that the accused, some time in October 2015 at Eita village, South Tarawa, unlawfully caused the death of Tiebo Namoriki who is her mother by beating her many times.

The accused having denied the charge, the prosecution examined six witnesses in a bid to prove its case. In her defence the accused gave evidence on oath and called no witnesses. The prosecution presented two eye witnesses namely Tereiooti Touea (PW1) and Moanibou (PW2). Both witnesses claimed to have witnessed the incident as they differently came from bathing sessions. It was late at night between 2 and 3 am.

At giving evidence PW1 was 15 years old meaning that at the time of the incident she was around 14 years of age. She had been swimming with Itinnang who was not called as a witness. Probably she was younger than PW1 and if she was older then it is not clear why the prosecution ignored him/her in favour of a young witness.

PW1 said she was able to see what was happening in the accused’s buia because there was moonlight. But she also said that there was a curtain around half of the house. She said the accused was using a stick to beat the deceased. At Police she appeared to have stated that the accused used a fist to assault the deceased.

PW2 told the Court that she was able to see what the accused did because there was a lamp in the buia. That she was beating the deceased with a stick. Both witnesses told the Court that the deceased cried calling for help. But none of these witnesses gave help or sought help from their relatives or neighbours.

PW3 Tamwarea Biira told the Court that she was awakened by the accused who wanted a torch/flashlight in order to observe her mother whom she reported was stiff. That accused came back and told her mother to go and look after the deceased as the accused was going to get her sister.

PW4 Dr Ioanna Beiatau was called to tender the medical evidence as per medical forms made by Dr Harry Tong who attended to the deceased when she was admitted in the hospital between 22^nd to
28^th September 2015 before the alleged incident took place.

The medical report Exhibit P1 disclosed that the deceased was 89 years old. She was suffering from heart failure secondary to hypertension and chronic obstructive airway disease. His opinion was that the incident may have triggered off fatal heart failure and an attack. This report or opinion was made on 14 January 2016 some more than two months from the date of the alleged killing. His opinion was informed by the Police enquiry and the medical notes. It was not a post mortem report.

PW5 Christina Tekena is a Social Worker whose evidence is derived from information given to her by the deceased complaining that the accused used to mistreat her.

PW6 Ereata Enoka is a relative to the accused and deceased. She came to the scene where she found the deceased dead. She examined her body and noticed bruises on her body.

The accused in her defence told the Court that on the material day she was at home watching a movie up to after midnight. When she took food to her ailing mother she found her facing down. She shook her up in vain. She turned her round and noticed that she could be dead. She cleaned her and tried resuscitating her by pressing her on the chest so that she could breathe again.

She then went to PW3 for a flashlight. On realizing that her mother was dead she went to call her brother and other relatives. Later the deceased was buried.

It is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt. The accused has no duty to prove her innocence. In case of any doubt the same will be resolved in favour of the accused.

As presented by Mr Nawaia Counsel for the Republic and
Ms Kararaonnang for the accused, the following elements of the offence must be proved beyond reasonable doubt if a conviction is to be procured namely:

1. That a person is dead
2. That the death was unlawfully caused
3. The participation of the accused.
   

In the instant case the death of Tiebo Namoriki is not disputed. The evidence by both sides agree that she is dead. Thus this ingredient of the offence was proved beyond reasonable doubt. The contested issues are whether her death was unlawfully caused and whether it is the accused who caused the death. For convenience I will deal with these two essential ingredients of the offence together.

It is important to note that no post mortem was carried out and so no report is extent. What was presented to Court are medical notes regarding her treatment when the deceased was admitted in hospital from 22^nd to 28^th September 2015. Whatever diagnosis was made on her had nothing to do with the alleged incident some time during the night in the month of October 2015. This was a subsequent incident after she had been discharged.

The medical opinion expressed by Dr Harry Tong was based on police enquiry. He also looked at medical notes to discover she was 89 years old and suffered from heart failure secondary to hypertension and chronic obstructive airways disease.

His conclusions were not derived from examining the deceased’s body. Thus the opinion that the incident may have been triggered off the fatal heart failure and or attack was at best speculative. It is also based on hearsay evidence that there was an attack on the deceased. This was an ailing lady of 89 years and surely her death could have been triggered off by any other causes. His guess was as good as mine or yours.

Mr Nawaia citing cases of Auatabu v Republic 1989 and Republic v Ueanteiti 1996 KIHC 12 contended that although medical evidence in cases of this nature is desirable, in its absence, the cause of death can be established by rational inference.

I agree with Counsel. It is not a hard and fast rule of evidence or law that there must always be medical evidence to prove the cause of death. The cause of death can adequately be proved by any other credible evidence adduced before Court.

The “inference” as to the cause of death must be rational. It must be credible and leave no doubt as to the cause of death. It should not be left to conjecture or possible explanation. Such evidence did not exist in this case.

The evidence of PW1 a girl of 14 years of age and that of PW2 was all wanting. None of them was near the buia where the deceased lived with the accused. They both claim that she cried for help but none came near to see what help she needed and none of the two girls sought any help from those nearby. They claim that the accused used a stick to beat the deceased. If this had been the case and they had disclosed it to other people most likely the Police would have been called. The body would then have been examined to ascertain the cause of death.

But all that happened is that upon her death relatives and other people came and there followed burial arrangements, indicating that she had died of natural causes. The actual cause of death will never be known and yet this was vital to determine whether she died of natural causes or had been battered as PW1 and PW2 wanted this Court to believe.

Further in her defence, the accused stated that on realizing that her mother could be dead she tried to resuscitate her by pressing her chest. It was probably what PW1 at first thought was an assault on the deceased by use of fists. This mistaken understanding cannot be ruled out. But it appears that later she changed to the using of a stick in a bid to paint a criminal picture of the incident.

I tend to believe that when she realized that her mother was dying she tried to help her regain her breath. When she saw that she was indeed dead she went about informing the neighbours and relatives. This cannot be the conduct of a guilty murder person.

All in all I find that the prosecution failed to prove that the death of the deceased was unlawfully caused and consequently also failed to prove that she was killed by the accused beyond reasonable doubt.

Consequently I have no option but to find that the accused is not guilty as charged and acquit her accordingly. She is set at liberty.

Dated the 9^th day of March 2017

THE HON MR JUSTICE VINCENT ZEHURIKIZE
Judge