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High Court of Kiribati |
IN THE HIGH COURT OF KIRIBATI
(BEFORE THE HON R LUSSICK C.J.)
HCCrC 20/95
THE REPUBLIC
vs
BAITONGO UEARA
REREITAAKE TEUEA
TAUNTEANG BIIRA
BWEBWEIETA ITINIKUA
MARAWA KANOUA
KOKORIA REREITAAKE
HCCrC 19/95
THE REPUBLIC
vs
TITIKU KAKOROA
MAURITAAKE MATIERO
Mr D Sim for the Republic
Mr B Berina for the second, fifth and sixth accused
Mr D Lambourne for the first, third, fourth accused
and the accused Titiku Kakoroa
JUDGMENT
The six accused in the first indictment are jointly charged with murder contrary to section 193 of the Penal Code (Cap. 67).
The particulars alleged are as follows:-
BAITONGO UEARA, REREITAAKE TEUEA, TAUNTEANG BIIRA, BWEBWEIETA ITINIKUA, MARAWA KANOUA and KOKORIA REIREITAAKE, on the 30th May 1995, on Mwanra Islet on Abaiang, in furtherance of an agreement, jointly attacked Atanimakin Bwarerei, using weapons and intentionally causing his death.
The accused in the second indictment is charged with being an accessory after the fact to murder, contrary to section 209 of the Penal Code (Cap. 67).
The particulars alleged are in the following terms:
TITIKU KAKOROA on the 30th May 1995, did become an accessory after the fact to the murdering of Atanimakin Bwarerei at Mwanra islet, Abaiang island by assisting in the disposal of Atanimakin's body in the sea.
Three witnesses were called for the prosecution.
The first was Mauritaake Matiero, a young man aged 17. He had been jointly charged with the accused Titiku Kakoroa with being an accessory after the fact to murder but a nolle prosequi was filed by the Attorney-General just before this trial began.
The trial was only minutes old when counsel for the Republic applied to have the witness declared hostile. This was after Mauritaake had stated that he had not even known the deceased person Atanimakin. Counsel told the court that the witness had given the police a statement inconsistent with his present evidence.
At this stage I was not convinced that the witness was hostile and I refused the application. The impression I had already formed was that he was not only very nervous but also a person of fairly low intelligence and I thought that perhaps the combination of these factors was affecting his concentration.
With counsel's perseverance Mauritaake went on to say that he did know the deceased Atanimakin. He gave an account of going by boat with Atanimakin from Anaariki to the islet of Mwanra. His description of the events which occurred on Mwanra was not easy to follow because of the absence of any sequence.
He said that at some time after arriving on Mwanra he and Atanimakin returned to Anaariki to cut toddy and coconuts. Once back on Mwanra, Atanimakin started to drink sour toddy. He then went towards the eastern part of the island to harass some women living there. He was going to rape them. Mauritaake knows these women and their husbands. The husbands are divers and were out in the sea at that time. Mauritaake saw the husbands return, or at least he saw their boat but did not see where they went. When the women saw Atanimakin they ran away from their house to other houses.
Atanimakin then went to Rereitaake's house to harass his wife. The divers were at Rereitaake's house. Rereitaake was also there and a quarrel took place between him and Atanimakin. Rereitaake was holding a bush knife about 2 ft long and Atanimakin held a stick. Neither man made any attempt to use these weapons. The witness could not recall what was said during the argument, apart from Rereitaake asking Atanimakin "why he did that to his wife".
The witness said that other persons were present during this quarrel. They were Kokoria, Marawa, Taunteang, Tiroko, Remwaia and Tebaru.
The accused Taunteang took Atanimakin away from Rereitaake's house to the house of Remwaia.
Mauritaake was then told by Atanimakin to go to where Atanimakin's boat was moored and move it to a place near Rereitaake's house. Atanimakin did not explain why he wanted the boat moved.
More people arrived; they were the divers. He heard the sound of a boat being struck but did not see what caused it.
Rereitaake did not say anything to the group of divers. When Mauritaake returned to the house Rereitaake was not there.
Mauritaake saw Atanimakin being chased by the group of divers. In that group were Rereitaake, Bwebweieta, Marawa, Kokoria, Baitongo and Taunteang.
Baitongo was carrying a stone but he did not see what Rereitaake was carrying. Mauritaake was afraid and ran off. He said that Atanimakin was thrown into the sea and is now dead. He did not see how he died, he only saw that he was being stoned by the people he had just named. He did not exactly see who threw the stones. He thinks Baitongo threw stones but not Rereitaake. As Atanimakin ran towards him he was afraid he would be hit by a stone so he ran away.
The next time he saw Atanimakin he was dead. He was lying in a hole in the middle of the island covered in blood. There was a small hole under his Adam's apple and three fingers had been cut off one hand. His face was also covered in blood and there could have been other wounds but he was unable to see because of the blood.
At this point in the examination-in-chief counsel for the Republic again applied to treat the witness as hostile on the basis of a statement given to the police which conflicted with his present evidence. By this time I had had ample opportunity of observing the witness' demeanour and I was of the opinion that he had no desire to tell the truth and was decidedly hostile. I therefore granted leave to treat the witness as hostile and counsel was allowed to cross-examine him on his previous statement to the police.
What follows of Mauritaake's evidence was accordingly elicited by leading questions. Even then the answers came only after much hesitancy and reluctance.
The witness agreed that in fact he had given two statements to the police, the first on the 8th June 1995 and the second on the 13th June 1995. He agreed also that the statements are different from one another and that the first statement was not right. However, he added that the second statement also contained some incorrect information.
He was unable to remember whether he had come to Mwanra on the 29th May 1995 or whether he had been there on the 30th May 1995 but was able to say that he was there on the day Atanimakin died. After Atanimakin had harassed the wives of the divers, the divers returned and gathered at Rereitaake's house. The witness had said in his second statement that Rereitaake and Atanimakin wanted to fight, but that was not right. Rereitaake was holding a bush knife but it was not true that he was also holding a spear, even though he had described the spear in his statement. He agreed that Rereitaake had told Atanimakin he had until noon to leave. Although he said in his statement that Marawa took Atanimakin's boat and brought it to a place near Rereitaake's house, that was not correct. It was the witness himself who took the boat. He agreed that at about 3.00 pm members of the diving group returned to Rereitaake's house where Rereitaake said to them that they had to consider what to do about Atanimakin for raping their wives.
The witness said that after that Rereitaake, Bwebweieta and Baitongo went to see Atanimakin, who was also known as "Speaker".
Quoted verbatim is one part of the witness' evidence to which further reference will be made.
(No answer).
The witness went on to agree that in his second statement he had told the police that Rereitaake, Baitongo, Marawa and Bwebweieta had left Rereitaake's house and that he had listed the weapons carried by them.
However, he now said that what he had told the police about Rereitaake carrying a bush knife and an arrow was not true. Rereitaake carried a bush knife only. Baitongo did not have an arrow and a rubber but only an arrow. He could not say that Bwebweieta had an arrow and a rubber as he did not see what he was carrying. He did agree though that Marawa was carrying a three-pointed spear.
He also agreed that, on the way, Taunteang joined the party and that he was carrying a bayonet. Another man also joined them. He was related to Rereitaake. The witness had told the police he did not know his name and in his evidence he said that he still did not know it. He was able to see him in court but when asked to point him out he said he was afraid. He said that this man may have been carrying an arrow, a rubber and a bush knife but he could not recall. (From later evidence, this person could only have been the accused Kokoria Rereitaake).
The witness said that the group went to the home of Tikanmone where they found Atanimakin. He agreed that Atanimakin and Marawa fought with spears and that Taunteang hit Atanimakin's right hand from behind with his bayonet, cutting off three fingers. He had told police that Baitongo had "arrowed" Atanimakin from behind but that was not true. It was Bwebweieta who "arrowed" Atanimakin from behind. The arrow was a length of steel about three feet long and it went in at the base of Atanimakin's neck. A "rubber" is a length of tyre tube used to fire the arrow. Bwebweieta fired the arrow into Atanimakin's neck.
Mauritaake agreed that he had told the police that Atanimakin was also struck in the back by a spear which almost protruded through his stomach, but it was not true.
Also, Taunteang did not hit Atanimakin from the back but from the front. Atanimakin was also hit on the left side of the head and had skin hanging down. When asked who struck him the witness replied that he was afraid to say. When asked a second time he said it was Taunteang.
Atanimakin then ran away, stumbled on a log and fell on his back. He may have told the police he fell onto his stomach; he cannot remember. He denied that Bwebweieta arrowed Atanimakin while he was on the ground. What he had told the police was wrong. Bwebweieta arrowed Atanimakin while he was standing up. He fired an arrow into him with a rubber. Atanimakin then tried to run away again but he fell down again.
The witness agreed that Taunteang then hit Atanimakin on the forehead and mouth with his bayonet.
Although Mauritaake had told the police that Bwebweieta then fired an arrow into Atanimakin's mouth, that was not true. Bwebweieta had fired only one arrow.
The witness stated that when he had told the police that he saw Taunteang cut Atanimakin's throat he was lying. He did not see Taunteang put his finger tips into the throat of Atanimakin and pull something out. Nor did he see Taunteang thrust his bayonet into the hole in Atanimakin's neck and then pull the bayonet down to Atanimakin's stomach. When he had told the police those things he was lying.
The witness readily identified in court the accused Taunteang, Baitongo, Rereitaake, Bwebweieta and Marawa. When questioned about the person he had mentioned earlier as being related to Rereitaake, he said that it was Marawa he had been referring to. This cannot be true because in his earlier evidence he had been mentioning Marawa by name at a time when he had said he could not remember the name of Rereitaake's relative. Also, the group he described already contained Marawa when he said that it was joined by Rereitaake's relative.
Having told about Taunteang, Baitongo, Bwebweieta and Marawa, he was asked what the others in the group were doing. He answered that they threw stones at Atanimakin. But when he was asked what they were doing when Atanimakin was being stabbed and speared he replied that he did not see them.
He was asked whether the group followed Atanimakin when he got up and tried to run away and his answer was that when Atanimakin fell down he never tried to stand up and run away. When reminded that in his statement to the police he had said that Atanimakin had twice tried to stand up and run away, he agreed that that was what he said to the police and that it was true.
When asked what the group did when Atanimakin tried to run away, his answer was: "I forget".
He gave the same answer when asked what the group of divers had done after attacking Atanimakin. But he then agreed that Taunteang had stayed behind with the body and then went back to the house, where the other divers were. Taunteang said, "Who would stand for Atanimakin?" Tiroko answered that Atanimakin was in agony and it would be better to cut his throat. Mauritaake said that no one went back.
About 7.00 pm Baitongo came to him and asked him to help take Atanimakin's boat out to sea so that his body cold be "dropped". He then went to help the members of the diving group tow the boat out to sea with Atanimakin's body in it. In the diver's boat were five persons: Kokoria, Marawa, Titiku, Taunteang and himself. The witness correctly identified the accused Kokoria Rereitaake sitting in court.
He said that Kokoria was part of the group which attacked Atanimakin before his death. Kokoria was assisting by throwing stones.
The witness also correctly identified the accused Titiku Kakoroa sitting in court.
The witness did not see the body because it was covered with mats. He agreed that Taunteang tied the legs to the boat's outboard motor with a rope and both body and motor were dropped over the side. He then said "they", not stating precisely who, hit Atanimakin's boat with an object making a hole in it and it drifted away.
After that day the witness went to Buariki with other members of the diving group including the accused.
The witness agreed that his first statement to the police was not true and that some of the things he said in his second statement to the police were also not true. However, he greed with counsel for the Republic that everything he said in court was true, but that he had not wanted to tell the truth because he was afraid. Now that he had told the story and identified the accused he was prepared to say that the accused Taunteang had told him not to tell, although he did not say what would happen to him if he did. When the witness said before that he was afraid that he would be attacked if he told the truth, that was not correct. He was afraid to tell the truth because of what Taunteang had said.
Mauritaake was extremely pliable in cross-examination. He readily agreed to most suggestions put to him by the defence counsel and particularly to questions impugning his own credibility. One suggestion he would not agree to, however, was that he had not seen the attack on the deceased. Cross-examination also brought forth much evidence which had not been given in examination-in-chief.
In answer to Mr Berina (counsel for the second, fifth and sixth accused) Mauritaake admitted that he had not really seen Atanimakin harassing Rereitaake's wife; it was just something he had heard.
The witness agreed that in his first statement to the police taken at Buariki he had said that he did not know how Atanimakin had been killed, and that what he told the police in his second statement was what he was told by other people. However, he did see Atanimakin and Rereitaake quarrelling at Rereitaake's house. He was standing close to them. He agreed that Rereitaake was complaining about what Atanimakin had been doing and "they exchanged words by sending away one another". (I took this to mean that each told the other to go away). Then they started arguing about the land. They did not quarrel about Rereitaake's wife. Then Rereitaake accused Atanimakin of stealing. Rereitaake was holding a bush knife and Atanimakin was holding a piece of timber about two feet long and about nine inches in diameter. He held it in one hand. When questioned about how Atanimakin had been able to do that he agreed that Atanimakin was a man of extraordinary strength. He had seen him uproot a local tree called te uri. No other person would have been able to do that.
The witness said that Atanimakin did not drink much but on that day he had been drinking. When Atanimakin got drunk he would become violent if he got a headache, in other words, if he had something on his mind. At least that is what the witness had been told by Atanimakin's son.
Going back to the incident at the house, Atanimakin did not use the piece of wood he was holding because he was taken away, but not before telling Rereitaake that he would come back. Those at the house prepared for his return by arming themselves. They stood so as to block the road to the house.
The witness thought that when Atanimakin was drunk he had even more strength. He has seen him turn over a house at Tebunginako belonging to the pastor of the Kiribati Protestant Church, a kiakia (raised floor house) about 15 ft long which took two persons to lift. He also tried to turn over a maneaba belonging to the KPC. He could not do it but he was still able to move it.
When Atanimakin was taken away the witness accompanied him. Atanimakin told him to go and get the boat. He was in the course of doing this when Rereitaake told him to take it to a place near his house. Rereitaake was still holding the knife. When the witness had left the boat where he had been told Rereitaake was still holding the knife. The witness was then told to go to Rereitaake's house. Rereitaake did not go with him as he was still watching the road.
The group of divers came back. This was about two hours after the quarrel. They were still beside their boats when Rereitaake told them about the incident. The witness had left Rereitaake's house and gone to where they were. He heard Rereitaake saying that they should do something about Atanimakin because of what he did to their wives. Rereitaake told them to find out from their wives what had happened.
The next thing to happen was that Baitongo took a stone and stoned Atanimakin's boat. He next dropped the outboard motor into the boat. Then he went away carrying an arrow, but before he did so he said to his companions what are they waiting for, they should go. His companions were Taunteang, Marawa, Kokoria and Bwebweieta. Baitongo left on his own but later they followed him. Those to follow him were Marawa, Kokoria, Bwebweieta, Rereitaake and Taunteang. The witness accompanied them because he wanted to watch the fight.
When they left, Rereitaake was carrying a knife. The witness was positive of this and would not be persuaded otherwise by counsel. He did agree, however, that Rereitaake never used the knife. All he did was throw stones at Atanimakin. In fact they all threw stones and the witness thought that they must have put down their weapons to do so.
When the group found Atanimakin he was at Tikanmone's house. They attacked him there and he ran to Tebino's house. The witness was with the group when they arrived at Tikanmone's house.
Atanimakin was unarmed at this stage. He was stoned at Tebino's house so he ran away to Tebaru's house. There he found a spear about four feet long. He held it ready to fight. The witness agreed with counsel's suggestion that in fact Atanimakin challenged members of the group to come forward and fight him.
Marawa fought with him first. Marawa was armed with a hand spear. During the fight it fell out of his hand. Thus far Atanimakin was uninjured and was still armed with the spear. The witness agreed with counsel that Atanimakin was going to use the spear on Marawa when the others attacked.
He saw Kokoria throw stones at Atanimakin but he did not see him do anything else. But he was there when Atanimakin was being attacked by the others. He did not see where Rereitaake was.
The witness insisted that he saw the attack. Although he was frightened he did not run away. When asked if he watched Atanimakin being speared through the neck from behind he replied that he saw him being hit but did not see who hit him. He saw Atanimakin's three fingers being cut off. He saw the knife being used.
He explained that he had said earlier in his evidence that he had run away because he was afraid of "those people" (I took him to mean the accused).
Mr Berina then put these questions to him:
He agreed with counsel that everything happened at once when Atanimakin was killed. They all attacked, but he insisted that he was able to see the blows being struck.
He said that he saw an arrow go through the back of Atanimakin's head and come out his mouth. Counsel put it to him that he had told the police in his second statement that the arrow had gone through his mouth and come out the back of his head. The witness replied that that was what he had heard, but that he did not see it. He then agreed that he did not see everything that happened during the attack. But he was definite that he had seen some of the things, although he had been told about other things by other people. He actually saw Atanimakin's fingers being cut off. He also saw the spear go through the back of his head and through his mouth.
The witness agreed with counsel that he had told the police that the arrow had gone in through Atanimakin's mouth, but he said his statement was wrong.
He also agreed with counsel that he had discussed the case with Biribo Naaro (the next witness for the prosecution). He had told Biribo what he knew and Biribo had told him what he, Biribo, knew. He further agreed that what he had told the court was not only his own evidence but also included what Biribo had told him.
The witness confirmed that in his statement of 8 June 1995 taken at Buariki he had told the police he did not know anything. He agreed that he had discussed the case with Biribo before this. When asked had he ever discussed the case with Biribo after 8.6.95 he answered no. He agreed that on 13.6.95 at Betio he gave the police a second statement telling what he knew and more. Counsel put it to him that this was after his discussion with Biribo. The witness replied that he had only discussed it with Biribo in a joking way. They joked about the chase, pretending that one of them might be speared during the chase. He said that this joking took place before the first statement was given on 8.6.95. He also said, however, that there was nothing joking about the statement he gave to the police on 13.6.95 in which he mentioned the chase. He regarded the matter as serious at first but then he almost forgot about him (Atanimakin).
Despite counsel's suggestions to the contrary, the witness was certain that Atanimakin had been chased from one house to another. Atanimakin had run away because stones were being thrown at him and he was unarmed until he found the spear.
The witness agreed with counsel that if he had said that Marawa had carried a 3-pointed spear with an arrow and a rubber and a bush knife, it was not true. Marawa only carried the spear.
Mauritaake was then cross-examined by the People's Lawyer, Mr Lambourne, who is counsel for the first, third and fourth accused and the accused Titiku Kakoroa.
He agreed with counsel that he had also been charged with accessory after the fact to murder, but that the charge had been withdrawn so that he could give evidence against the other accused.
He also agreed that he had helped dispose of the body. (At this point, counsel for the Republic, Mr Sim, gave an undertaking that no further charges are contemplated against the witness and no charges will be brought in respect of anything said in cross-examination).
The witness said that he had helped dispose of the body because he was afraid. He did not want to go but they pushed him into the boat.
He agreed that he had told a lot of lies to the police in both his statements. He admitted he lied to the police when he said he saw Taunteang put his fingers into the throat of the deceased and pull something out. All he really saw was Taunteang "penetrate his bayonet into Atanimakin's throat". His reason for lying to the police was that he was afraid, afraid because of what he had seen. For the same reason, he had told police that he had seen Taunteang put his bayonet into the hole into Atanimakin's throat and slice him to his stomach. He also agreed that he had told police that he had seen Baitongo hit Atanimakin from behind with an arrow, but the truth was that he had only seen him stabbing Atanimakin while Atanimakin was lying down.
He agreed that when he was in the Magistrates' Court in connection with some theft charges he had lied to the court about his age. He also got into some trouble on Abaiang and was sentenced to six month's imprisonment.
The witness denied that he had left Abaiang for North Tarawa before a charge of criminal trespass could be dealt with. He said that after Atanimakin had died, a boat came the next day for the group of divers and they would not allow him to stay on the island otherwise he might tell what had happened. He was forced to go with them to Buariki.
He agreed that when police took his statement at Buariki on 8.6.95 he did not tell them he had been forced to go there. He said he had been afraid to tell them.
He agreed that Atanimakin had great strength and could be regarded as a giant. When he was angry he was dangerous. When asked if Atanimakin was angry on the day he was killed he answered: "I don't know whether he was angry or afraid, but it seems to me he was angry".
He agreed with counsel that Anaariki and Mwanra are very isolated islets of Abaiang. They are a long way away from any settlement and a very long way from the Government station at Taburao where the police are based.
He further agreed that Atanimakin had been obsessed with marrying a woman named Merawea on Mwanra and that he had been a frequent visitor to Mwanra.
He denied seeing Atanimakin harass Taunteang's wife on the day he died, but he did see him having a conversation with her. He did not see Atanimakin harass Bwebweieta's wife, but he did see him going towards her house. He also saw Atanimakin throwing coconuts close to the house of Bwebweieta and Baitongo and Baitongo's wife running away. He also saw Sausanga, the wife of Bwebweieta running away. She ran to Rereitaake's house. At that time the witness was at the house of Teremaia. The witness has adopted Teremaia (or has been adopted by Teremaia) and when he goes to Mwanra that is where he stays.
The first incident where Atanimakin was chasing the ladies occurred on the ocean side.
After that, Atanimakin went to Rereitaake's house where the witness could see him arguing with Rereitaake. This was quite some time after the first incident. Some of the ladies ran past him and said there was a fight at Rereitaake's house. He went to watch. At Rereitaake's house he saw Atanimakin holding the piece of wood, only it was not as he had described it earlier in his evidence. It was in fact the outrigger from a canoe, about four to five feet long. Rereitaake was holding a bush knife two feet long.
The witness agreed with counsel that Atanimakin was acting aggressively. He heard Rereitaake tell him to go away and he heard Atanimakin say before leaving that he would come back. The witness then returned to Teremaia's house. Atanimakin was already there and told him to go and get the boat. After some time the divers returned.
The witness was away for some time. As he was moving the boat Rereitaake called him and he took the boat to him. He was then told to go and sit in Rereitaake's house where he saw the people preparing themselves for Atanimakin's return. Then the divers returned. He cannot remember how many there were. Rereitaake told them what had been happening.
The witness agreed with counsel that various people had said they had had enough of Atanimakin, that he had gone too far this time and that they were going to make him leave Mwanra. He also agreed that that is when he saw the people arming themselves to go and see Atanimakin. He had already said what the six accused did. One of them went ahead.
The witness thinks that Biribo accompanied them to watch but he was not armed. Also Birirake, who may have been in the boat with the divers, may also have gone off to watch, but he was not armed either. Routakarawa had been on the boat, but the witness did not think he did anything. He did not go with the group. He thinks Neneuri was also on the boat but he did nothing. Titiku may also have been on the boat as he is in charge of the engine, but he also did nothing. He agreed with counsel that he knew what the six accused were doing, but he did not see the others going with the group. They accompanied himself as spectators. They followed the group. The witness resisted attempts by counsel to get him to agree that a large group of divers, not only the six accused but others as well, had gone off to confront Atanimakin. He denied that he heard any member of the group say that they wanted to make Atanimakin leave Mwanra. When it was put to him that just 20 minutes earlier he had said just the opposite he replied that he forgot what he had said and agreed that his memory is not very good.
The witness said that when he was watching the confrontation between Atanimakin and the divers he was at the house of Tirae, which he estimated was about 30 metres away. He had a clear view; there were not many other people around because most had run away. He agreed that Tiakanmone was at his house close by, also Tebaru and Tebino. The witness himself was watching beside Titiku, Katarake and Kimaere. There were about five or six of them watching. Sometimes he could not see clearly what was going on because they were hidden by a house as Atanimakin retreated. The group found Atanimakin at Tiakanmone's house and he ran to Tebino's house and then to Tebaru's house. The witness denied that when the group got there Atanimakin was already armed with a spear. He said that Atanimakin got the spear some time after he ran away. He did not hear the group tell Atanimakin to leave Mwanra; he only heard them ask Atanimakin to step out. He does not think that they asked Atanimakin to leave Mwanra because they had gone there aggressively. He agreed with counsel that he cannot remember everything that happened that afternoon.
The witness further agreed with counsel that Atanimakin had approached the group holding his spear in a threatening manner. The witness thought he did this as he approached Marawa. It was then that the group threw stones at him and Atanimakin ran away still holding his spear. It was suggested by counsel that Atanimakin was not injured until he moved to throw his spear at Marawa. The witness replied that he did not think Atanimakin was injured by Marawa but may have been injured when the stones were thrown at him. He agreed that when Atanimakin went to throw the spear Taunteang hit the hand holding the spear with his bayonet. Atanimakin picked up the spear with his other hand and then ran away, but he tripped on a log and was speared. The witness had moved away from Tirae's house in the direction they were running. He disputed suggestions by counsel that he had not been there and had not seen what had happened.
The second prosecution witness was Biribo Naaro, a young man aged 19 who earns his living by diving for sea cucumbers.
He was on Mwanra on the 30th May 1995. He had been diving with Naaro, Katarake, Birerake, Neneuri, Tiakanmone, Bwebweieta, Taunteang, Baitongo and Botoua. They returned to Mwanra between 4 and 5 o'clock.
Rereitaake called to them when they returned and told them that while they had been busy diving Atanimakin had been disturbing their wives. When Rereitaake said this they were all standing beside Rereitaake's house. Rereitaake directed these words towards Bwebweieta and Baitongo. It was their wives he was talking about. Rereitaake also said, "Let's go and look for him to kill him".
Taunteang then told them to have a drink first, but Rereitaake said that they should not drink as they had had enough. Taunteang said, "No, let us discuss it further. It can be dealt with very quickly".
The witness did not really have a good look who was there, but he remembers that after the words were spoken, Baitongo, Bwebweieta, Marawa and Kokoria were furious.
They went straight to look for Atanimakin, asking where he was. They took their spears with them and Rereitaake carried a bush knife.
The witness did not look properly to see if Marawa was carrying anything, nor did he see if Baitongo had anything. He only saw them approaching the house where Atanimakin was. Taunteang was carrying a bayonet. He cannot recall if Kokoria carried anything. At that stage Baitongo and Marawa both had spears. He is unable to say if any other weapons were carried.
When they reached Tebino's house they threw stones at Atanimakin. The people who threw stones were Marawa, Bwebweieta, Baitongo, Rereitaake and Kokoria.
The witness correctly identified the accused Rereitaake, Taunteang, Baitongo, Bwebweieta, Marawa and Kokoria sitting in court.
When Atanimakin was stoned he ran away and the group throwing stones followed him. While Atanimakin was running away he fell to the ground; perhaps he tripped over. They then speared his head. After he had fallen to the ground they beat him up; they used the knife, the bayonet and they speared him too. It was Marawa who speared him. The witness "did not observe carefully" but he thinks Atanimakin was speared somewhere on the back of the head.
The witness was unable to see properly what Taunteang was doing. He could see him making a motion as if to strike, but could not see if he was actually striking or not. However, he saw Rereitaake strike Atanimakin.
When the attack was taking place he could not see properly what Baitongo, Bwebweieta and Kokoria were doing but they were there.
The witness did not stay to see the end of the attack. He felt frightened and left to stand beside his house.
When he next saw Atanimakin it was almost sunset and he was dead. Taunteang had called him to come to assist in taking the body away.
The witness saw wounds on Atanimakin's body, one at the back of the head, one on the forehead, one on the right arm, one across the mouth. The fingers were chopped off and the skin on the side of his head was sliced out.
They put the body in Atanimakin's boat and it was towed away. Taunteang, Rereitaake and Marawa towed the boat by themselves. After they had dragged the boat away the witness did not see it again.
Afterwards, Taunteang told him not to say anything. The witness had seen the body of the deceased and felt frightened when Taunteang said this to him.
Again, cross-examination brought forth evidence which had not been heard in examination-in-chief.
When cross-examined by Mr Berina the witness agreed that he had given two statements to the police, one on 8.6.95 and the other on 13.6.95.
The witness was able to recall what Marawa was carrying: a spear, or rather an arrow that is shot with a rubber. He agreed that in his statement of 13.6.95 he had told the police that Marawa was carrying a knife and had hit Atanimakin with a knife. However, the witness stated that what he had told the court was the truth.
He admitted that he had lied to the police. He saw the arrow as Marawa was shooting it but he had not seen Marawa fighting with Atanimakin. He only saw Marawa chasing Atanimakin and shooting him with the arrow.
The witness said that when Atanimakin was stoned at Tebino's house he ran to Tebaru's house. This was not far away (he indicated a distance of about 18 feet). Atanimakin still had the spear but he could not use it because they were stoning him from a distance. He was not sure if Atanimakin had the spear when the group first came upon him. He saw blows being struck at Atanimakin but did not see which one of the group struck which blow. He did see Rereitaake hit Atanimakin but did not see which part of his body was hit.
Prior to the attack he had been walking with the group towards where Atanimakin was. He does not know if Mauritaake was also with the group. When the group reached the house they asked Atanimakin to come out and when he did not do so they stoned him inside the house. Atanimakin ran away as did Tebino. When Atanimakin was stoned he stepped down from the house, took his spear and ran away to stand beside Tebaru's house. The witness agreed that he had told the police in his statement that he had gone to watch after the group had left but it was not true. He said that he is now telling the truth to the court because he had sworn to tell the truth.
When the witness was asked if he knew why Taunteang had told him not to say anything he replied that it was because he had seen Taunteang standing beside Atanimakin when he died.
He denied that he had discussed the case with Mauritaake, and also denied that the evidence he gave about the roles played by Rereitaake, Marawa and Kokoria in the attack was nothing but lies.
The witness was next cross-examined by Mr Lambourne about what the accused had been carrying. He replied that he had seen them carrying arrows but that he had not observed them properly when they attacked Atanimakin. He did see Marawa shoot an arrow at him.
The witness agreed that there were some parts of the attack he saw properly and other parts he did not. He agreed that he had told Mr Berina the day before that he had a bad memory. He admitted that he did not see everything during the attack. He conceded that he might have forgotten things that he had seen and heard. However, he did not hear anyone say that they should go to Atanimakin and make him leave Mwanra.
When he was asked if someone said something about killing Atanimakin he replied as follows:
The witness denied that it had only been when Atanimakin had approached the divers holding a spear that they had stoned him. He said that they had already stoned him at Tebino's house.
He was asked about seeing members of the group move in and eventually Atanimakin was killed and he agreed with that. It was put to him that he had run away before that and he replied that he had only run a short distance and then stood and watched. He had stopped near the bathroom of Tebaru's house. It was only when Atanimakin was about to die that he ran to his own house.
The witness was next questioned about the disposal of the deceased's body, but before any questions were put to him Mr Sim, counsel for the Republic, confirmed that no prosecution would follow anything said in cross-examination.
The witness said that he had helped some others to load the body into Atanimakin's boat because he was frightened. He agreed that nobody had threatened him but when he was told to assist he did so. He was afraid because he had seen what they had done. He agreed that in his statement to the police on 13.6.95 he had said, "I did not see whether Atanimakin's body was thrown away or what was done to it".
When the witness was questioned about being threatened he denied that the fear was only in his own mind. He said that he was frightened of the person whom he saw killing the deceased. He was threatened in these terms: "If you open your mouth your days will come".
The witness agreed that he knew Tirae's house and that if you were standing at Tirae's house you would not have a clear view of Tebino's house.
He denied that he had played a game with Mauritaake at Buariki when they had pretended to be Atanimakin running away from the divers group. He cannot remember ever discussing the case with Mauritaake.
He agreed that Atanimakin was a very big man, that he had extraordinary strength and that some people called him a giant. He also agreed that Atanimakin was very angry on the day he died.
The witness confirmed that he did not know what Baitongo, Bwebweieta and Kokoria did when Atanimakin was killed other than that they were there. He also confirmed that he did not see Mauritaake or Titiku at any time during the attack on Atanimakin and that Titiku had not been there when he had helped load the body onto the boat.
In re-examination he explained that the person who had said to him, "If you open your mouth your day will come" was Taunteang.
The third and, as it turned out, last witness for the prosecution was Birirake Reon, a man aged 26, of Buariki. He also dives for sea cucumbers.
He was on Mwanra on the 30th May 1995. He left to go diving for sea cucumbers at around 8.00 am and returned between 3 and 4.00 pm. He was diving with Biribo Naaro, Bwebweieta, Baitongo and Routakarawa. He thinks there were two others but he cannot recall.
When they went ashore they heard that a man had been harassing and disturbing their wives. The witness took that to mean that the wives had been disturbed in their respective houses. He did not think it was anything worse. He had a wife and child and he quickly went looking for them.
When Rereitaake had called out to him he was holding a knife of the sort one gets from Agriculture. It looked as if it had been shortened but it was still more than one foot long.
The witness was walking towards his wife and child when he heard someone running from behind. It was Atanimakin and he was carrying a spear. The witness went to his wife and child to take the child out of the way.
The next time he saw Atanimakin it was later that day and Atanimakin was dead. He was lying somewhere in the middle of the island in a hole. He had wounds, although the witness had not seen how those wounds had got there. The skin of his head had been sliced on the right side and he had wounds on the nose, eyebrow and hand. He could not see properly what the other wounds were.
He helped lift the body into a boat. Biribo Naaro was there as well but he cannot remember the others.
The witness said of this incident:
"I helped because I was afraid. I knew he was killed and that the killers were amongst us. I was afraid they might get angry with me. Taunteang asked me to help move the body. Taunteang did not say anything to make me afraid, but I was afraid because the killers may be amongst us and if I didn't want to assist in the removal of the body .............." The sentence was left unfinished.
After Atanimakin's body was loaded onto the boat the witness returned to his house and never saw the body again.
When he was cross-examined by Mr Berina he agreed that in the first statement he had given to the police he had said that he did not know what had happened to Atanimakin and that he had given a second statement in which it appeared he did know what had happened. He said that he was afraid to tell the truth at first because maybe someone amongst them had done the killing. He agreed that the fear was in his own mind and that no one had said anything to him. However, when he made his second statement his fear had disappeared because the diving group had dispersed. Some were in Betio, some in Bairiki and he himself was in Bikenibeu.
He agreed that he had discussed the incident on the day it happened with one other member of the diving group but he could not remember who it was.
When cross-examined by Mr Lambourne he stated that he had known that he would be leaving Mwanra the day after the killing. Arrangements had already been made for a boat to pick up the divers and take them to North Tarawa.
He also stated that the divers had available three boats on Mwanra, two of which were used for diving.
He agreed that he had known Atanimakin very well. He was a very big man and tall. Some people referred to him as a giant. He could be very violent when angry and the witness was afraid of him when he was like that.
That concluded the evidence of this witness.
The prosecution also intended to call Detective Constable Tiaon Itamaeri to give evidence but when his name was called three times outside the court he did not appear. A short adjournment was granted after which counsel for the Republic decided to close the case for the prosecution.
I found that there was a case to answer and explained to all the accused their rights in accordance with section 256 Criminal Procedure Code Cap. 17.
Mr Berina, on behalf of the second, fifth and sixth accused stated that his clients did not intend to give evidence nor was it intended to call any witnesses.
Mr Lambourne, on behalf of the first, third and fourth accused and the accused Titiku Kakoroa stated that his clients did not intend to give evidence but that three witnesses would be called.
The first of these witnesses was Nei Merawea Tebino, a 42 year old woman from Buariki, North Tarawa, who works in the sea cucumber industry. The accused Titiku Kakoroa is her son.
On the 30th May 1995 she was living on Mwanra with members of the sea cucumber group. All of the accused men were living on Mwanra at that time.
She knew Atanimakin. He was known as "Speaker". He was a big, tall man who looked as if he had a lot of strength. He lived on Anaariki, which is close to Mwanra.
Atanimakin was on Mwanra on 30th May 1995. He had visited there several times previously. On one occasion he had caused a problem when he came from the mainland drunk and shouting. When she heard him she ran away. He was an aggressive person. She was afraid of him because of how he talked; he was not polite. When he used to visit them he would come straight into the house as though he did not care for those in the house.
The witness began her account of the day on which Atanimakin was killed by saying that she did not see him that day but only heard his voice in the morning. He was close to the houses and sounded angry. At the time, she was in some "hollow ground" chopping firewood.
The witness then reversed her testimony and said that she did see Atanimakin on the morning of the day he died. In fact she saw him from early in the morning until just before lunch.
When she first saw him the divers had not yet left for work. Atanimakin came from the direction of the other houses occupied by fellow divers and he looked very aggressive. When he visited the witness in her house there were present other members of the household as well as Baitongo. Atanimakin spoke in a very strong voice to her. He said that he wanted to settle with her, by which she understood that he wanted to live with her. He was not polite but was rude and aggressive, and she was afraid.
He next went to Rereitaake's house which she could see from her house. Rereitaake's wife was outside sweeping and he came up behind her and held her tight. She squatted down and let go of the broom. After that he then went away. The witness did not see Rereitaake and the others, nor did she hear Atanimakin say anything.
She then left the house to get firewood. While she was cutting firewood she heard Atanimakin's voice. He was fighting with Rereitaake. She heard him say, "Poor Rereitaake. You are holding that thing against me but I'm not afraid of it".
She then saw Atanimakin being led away by Tiroko. Atanimakin and Rereitaake had been somewhere between her house and Rereitaake's house.
During this confrontation she also heard Atanimakin say that he was sorry for Rereitaake because after everyone had gone away he would come back and chop off Rereitaake's "upstairs". She thought that what he meant was that he was going to come back and cut Rereitaake's neck.
She then ran back to her house to wait for the divers' boat. Her evidence does not make it clear as to when the divers left to go diving or how she knew they had gone before she returned home. When she arrived home there were a lot of people there. Nei Kamakiata was there as well as members of her household. They were feeling frightened. She collected weapons to hide them. She hid a knife somewhere in the house and a spear under the mat.
Atanimakin then came straight into the house and sat on the mat under which the spear was hidden. He did not say anything. He just took the spear and left the house. He seemed to be aggressive. When he left the house they all ran away.
She did not see how Atanimakin was killed or what happened to his body.
At the time Atanimakin took the spear the divers had not yet returned.
When cross-examined by Mr Berina she agreed that in Kiribati married women are guarded fiercely by their husbands and that perhaps the rudest thing one man can do to another is to put his arms around his wife.
In answer to questions by counsel for the Republic she agreed that during the time she was on Mwanra Atanimakin had been a frequent visitor there. Whenever he came he would do things that would disturb people. He was a very rude man. There had been previous incidents where he had disturbed women on the island. She had heard that he had put his arms around women but she had not seen it personally. She agreed that although these incidents had occurred on a regular basis between February (when she had arrived on Mwanra) and May, nothing had ever been reported to the police. When counsel suggested to her that the reason it was not reported was because it really wasn't that bad, she replied that sometimes he behaved himself, but most of the time he was rude or aggressive.
She agreed that when she saw Atanimakin put his arms around Rereitaake's wife she did not hear anything said. She was sure that Rereitaake was in the house because she had seen him walking around just before Atanimakin came. She agreed that she did not see Rereitaake try to pull Atanimakin away from his wife.
She agreed that Atanimakin was a fairly well known person, in fact a bit of a legend. She had heard a lot of stories about him. Her only objection to him was that he was very impolite. However, she had never seen his fighting with anyone.
When questioned about what she had heard, she said that she was not in the hollow when she heard Atanimakin and Rereitaake arguing. She had run back to her house, which was a lot closer so that she could listen. The two men at that stage were beside her house. Rereitaake had been armed with a knife and that is what Atanimakin had been referring to when he said, "Poor Rereitaake, you are holding that thing against me but I'm not afraid of it". She described the knife as a bush knife about two feet long.
Counsel put it to her that when Mr Lambourne had first asked her whether she had seen Atanimakin on the day he was killed she had answered that she had not seen him all day, but that she then went on to describe three separate occasions when she had seen him. Her answer was, "May be because I'm sort of nervous".
The second witness was Nei Sausanga Tingano, a 30-year old woman of Betio. She is the wife of the accused Bwebweieta.
She was on Mwanra the day Atanimakin died. Atanimakin had been to Mwanra a number of times. On previous occasions she had had problems with Atanimakin. He used to frighten them. He would come to their house while they were asleep and remove their mosquito net.
Her description of Atanimakin's physical appearance contradicted the description given by the other witnesses. She said that Atanimakin was of average size in height and build. He was average: he was neither very big nor very skinny.
On the day he died Atanimakin came to her house after their husbands had left to go diving. She was washing her clothes and he called to her from a house that was not being used. He wanted her to go to him but she did not reply as she was afraid of him.
The witness said that he then threw stones at her, first a big stone and then some little stones. None of them hit her but they landed near her little kid. She described what happened next as follows:
"He came and strangled me (demonstrates with both hands around her throat) and was holding onto my breasts. My neck was very tight. I could not speak, I could not breathe. In fact I almost died. I thought I was going to die. He strangled me with one of his hands and touched my breast with the other, but he left me after my small kid cried. He was going to rape me because he had told me to go to him but I did not. After he released me and was walking away he told me to follow him. I was washing. I did not do anything about what had happened. I was going to run away with my children to hide, but I didn't do that as I hadn't been feeling well after giving birth and had two kids with me".
Sometime later, quite a long time after Atanimakin had left, they hid themselves in the bushes towards the end of the island facing Anaariki, "they" being herself, Nei Tane and Mauritaake.
It appears that it was after Atanimakin had come to her house a second time that she hid herself. She saw him approaching and took her children and ran away. Atanimakin called for her to stop and when she did not he followed her. When he saw that she was close to another house he turned around and went away. He was not carrying anything. This second incident happened before lunch. The divers had not yet returned.
Her house was in the divers' compound and she ran from there into the bushes to hide. Herself and Nei Tane arrived first and Mauritaake joined them a short while later. The divers had not yet returned.
She could see Rereitaake's house from where she was hiding but did not see anything happening there. She did not see Atanimakin at any time from where she was hiding.
She stayed there quite a long time. She is unable to say how many hours. They went back when their family (I presume the divers) had returned.
While in that hiding spot Mauritaake never left them.
She did not see how Atanimakin was killed and she never saw his body.
She could not see when the divers came back but she heard noises. She did not know what it was, she only heard their voices. She does not know anything else.
She could not see Tebino's or Tebaru's houses from where she was hiding.
When cross-examined by counsel for the Republic she agreed that prior to the day Atanimakin died there had only been that one incident with the mosquito net and that he had never physically attacked her previously.
She was unable to explain why her description of Atanimakin had been so different from the descriptions given by the other witnesses. When it was suggested to her that she had never really had a good look at Atanimakin she answered, "I don't know".
When questioned about Atanimakin's attack on her she said that he first strangled her with both hands and then touched her breasts. She conceded that it was untrue that he strangled her with one hand and touched her breast with the other.
Counsel put it to her that she had given evidence that Atanimakin had nearly strangled her, was going to rape her and that she was very frightened and yet when he left she continued doing her washing. She replied, "Yes, I was trying to finish off my napkins".
That completed the evidence of the second defence witness.
Mr Lambourne, despite his earlier advice that he intended to call three witnesses, then closed the case for the defence.
I then heard closing speeches by Mr Lambourne, Mr Sim and Mr Berina in that order.
Before addressing the issues, I direct myself that the onus of proof beyond reasonable doubt remains upon the prosecution from first to last. The Republic must prove the charge and each element of the charge beyond reasonable doubt and if it fails to do so then the accused are entitled to be acquitted.
There is no onus on the accused at any stage to prove their innocence.
I will deal first with the indictment for murder.
The elements of murder are:
Malice aforethought is deemed to be established by evidence proving either an intention to cause death or grievous bodily harm or knowledge that it will probably result. (Section 195).
The prosecution case is that the six accused intentionally caused the death of the deceased by jointly attacking him with weapons in furtherance of an agreement.
Section 22 of the Penal Code deals with offences committed by joint offenders in prosecution of a common purpose. Section 22 is in the following terms:
"22. When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence"
In Chan Wing-Siu v. the Queen [1984] UKPC 27; (1985) AC 168 the Privy Council addressed the question of common purpose in cases of joint ventures and considered the mental element required. The three appellants had broken into the victim's flat armed with knives to commit robbery. In the course of the robbery, the victim was stabbed to death. The trial judge directed the jury: "You may convict of murder if you come to the conclusion that the accused contemplated that either of his companions might use a knife to cause serious bodily injury on any one or more of the occupants of that flat".
The Privy Council upheld the convictions for murder based upon this direction, holding "that all those that take part in an unlawful joint enterprise would have the necessary intent to be guilty of murder or grievous bodily harm if they had foreseen that the infliction of serious bodily harm would be a possible incident of the joint enterprise; that the prosecution had to prove beyond reasonable doubt that each of the appellants had contemplated that serious bodily harm would be an incident of their common unlawful purpose; and that, since there was no evidential foundation for the argument that the possible risk of serious injury was so remote that it could be disregarded, there had been a proper and sufficient direction to the jury in the circumstances of the case".
In the present case, the prosecution called two witnesses who allegedly saw the six accused men chase and kill the deceased with their weapons.
One of these witnesses, Mauritaake, was a friend of the deceased and was on the island before the attack took place. The other eye witness, Biribo, came ashore with the divers.
I have absolutely no doubt at all that Biribo was telling the truth about what he saw. He underwent an extensive cross-examination and in my view was not shaken at all on his evidence of the incident he witnessed. He admitted that his first statement to the police was not true but he put forward what I consider an understandable explanation. When he made that statement he was at Buariki where the accused men also were. I do not doubt that he was afraid of them and would not make a statement against them in those circumstances. On the other hand, when he made his second statement it was at Betio and the accused men were not in the vicinity.
There is no question whatsoever in my mind that both Mauritaake and Biribo were threatened by the accused Taunteang not to say anything. After having seen what had happened to the deceased they had good reason to be afraid and that fear showed itself at times while they were in the witness box. If either of them were going to lie in that situation they would have given evidence favourable to the accused rather than against them.
I am not induced to believe that because Biribo lied to the police he therefore lied in his sworn evidence. I am mindful that Mauritaake said in his evidence that he had discussed the incident with Biribo to the extent that they were using what had happened to Atanimakin when chased by the group of divers as the basis for a game of their own. Biribo said he does not remember discussing the case with Mauritaake. In any event, there were disparities between their respective testimonies sufficient to nullify any suspicion of a conspiracy to fabricate evidence. I have no reason to disbelieve Biribo. He was not a friend of the deceased; if anything, he was a friend of the six accused who were his fellow divers.
I have set out Mauritaake's evidence in some detail and it will be seen that he made quite a few concessions and admissions adverse to his credibility. I had put down to nervousness his initial reluctance to say anything at all. In a sense I was correct. I am convinced that his nervousness sprang from a fear of the accused men. They were actually sitting in the body of the court because the dock was too small to accommodate all of them. The courtroom itself is quite small, so there was never a time in the giving of his evidence that he was not in close proximity to them. I would describe each of the accused as a well-built, fit-looking man.
Nevertheless, I thought Mauritaake became more confident the longer he was in the witness box, and he was in the witness box for almost three days. He underwent a lengthy and searching cross-examination during which his exasperation mounted and his fear diminished. He could not be budged at all on his evidence that he had seen how Atanimakin had been killed and who had done it.
Mauritaake's evidence is confirmed in its tenor and effect by Biribo's evidence which provides corroboration of many material particulars. In the light of such corroboration I accept as truthful Mauritaake's account of Atanimakin's death.
The only other prosecution witness was Birirake Reon, who had also come ashore with the diving team. When he was told by Rereitaake what Atanimakin had been doing he did not take the news too seriously. He did not join the other divers but simply went home to his wife and child. He did not see the killing but later saw the body and gave a description of the wounds he was able to make out. Later still, he assisted in loading the body onto a boat after being asked by the accused Taunteang. I had no doubt this witness was telling the truth and I accepted his evidence.
All of the accused men chose to remain silent. There were two witnesses called in the case for the defence.
Nei Merawea Tebino, the mother of the accused Titiku Kakoroa was obviously exaggerating, or inventing, her account of the deceased's alleged attack on Rereitaake's wife. If Rereitaake's wife had found what the deceased did to be the least bit objectionable she could have called to her husband who, according to the witness, was close by in the house. Yet the witness did not hear the wife call out, nor did she see Rereitaake come to her assistance. I felt that her evidence had been invented with a view to helping her son and the other accused.
Nei Sausanga Tingano, the wife of the accused Bwebweieta, was very obviously telling lies. According to her evidence Mauritaake could not have seen anything because he was in hiding with her and Nei Tane the whole time. She said that they all went into hiding before the divers returned. I did not believe this. Mauritaake was a friend of the deceased and would have had no reason whatsoever to go into hiding at that stage.
Her account of the deceased's attack on her was clearly fabricated. Her description of the deceased as a man of average height and build is so inconsistent with the descriptions given by every other witness as to be untrue. I can only conclude that by giving such an erroneous description she has only ever seen the deceased from a distance or not at all.
In my view these two witnesses did not throw even the slightest doubt on the evidence given by the Prosecution witnesses.
With the aforementioned burden and standard of proof in mind I am satisfied on the evidence as to the existence of the following facts:
According to Mauritaake's evidence Rereitaake had a bush knife, Taunteang a bayonet, Baitongo an arrow, Marawa a three-pointed spear, Bwebweieta an arrow and Kokoria stones. Biribo's recollection is slightly different. He has Rereitaake with a bush knife, Taunteang a bayonet, Baitongo and Marawa spears and Bwebweieta and Kokoria stones. At one stage in the attack they all threw stones at the deceased, no matter whatever else they were armed with.
Defence counsel Mr Lambourne argues that the accused were acting in self-defence when they attacked the deceased. I do not consider that such a defence is available on the facts of this case. I think that the prosecution evidence proves beyond a reasonable doubt that the six accused were not acting in self-defence. The six accused, armed with weapons, pursued the deceased with the intention of attacking him. When the deceased was finally caught he defended himself with a spear and succeeded in disarming Marawa before the rest of them attacked and killed him. There was no evidence that Marawa suffered any harm. If there was any danger to Marawa or to any other of the accused it was created by themselves alone. The deceased had shown by running away that he was not willing to fight. I have no doubt on the facts that what the accused did to the deceased was not done to defend themselves but was done out of revenge or retribution for whatever it was the accused imagined had been done to their wives.
Provocation was not raised by the defence and in my view there is no evidence capable of supporting a finding that the accused were provoked to lose their self-control.
Section 198 of the Penal Code provides as follows:
"198. 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 his 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 and said according to the effect which it would have on a reasonable man".
The facts were that, with the exception of Rereitaake, the deceased had not done anything to the accused, nor had he said anything to them. Under the terms of section 198 it is not strictly necessary for the deceased himself to have said the words or done the things, although this is usually the case.
What Rereitaake had told them did not cause the accused to lose their self-control. Instead, according to the three prosecution witnesses, the six accused held a discussion and decided to do something about the deceased. The witness Birirake had come ashore with the divers and had heard what they had been told. He did not think the matter was very serious and went home to his wife and child instead of remaining with the divers. The evidence therefore indicates that the actions of the six accused were the result of a desire for revenge, not the spontaneous actions of persons temporarily bereft of the ability to control themselves.
The following statement by Devlin J. in Duffy (1949) 1 ALL ER 932 was approved by the Court of Appeal in Ibrams [1981] EWCA Crim 3; (1981) 74 Cr.App.R. 154:
"Circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that a person has had time to think, to reflect, and that would negative a sudden temporary loss of self-control, which is of the essence of provocation".
I am quite satisfied that the prosecution have proved beyond reasonable doubt that the case is not one of provocation.
After careful consideration, I have concluded that the totality of the evidence does not raise any doubt, and I find it proved beyond reasonable doubt, that the six accused, of malice aforethought, caused the death of the deceased by an unlawful act.
Self defence and provocation having been negatived, there can be no other conclusion but that a conviction for murder is called for.
I therefore find all six accused guilty of the murder of Atanimakin Bwarerei contrary to section 193 of the Penal Code and they are convicted accordingly.
I now turn to the second indictment in which the accused Titiku Kakoroa is charged with accessory after the fact to murder.
The only evidence against this accused was given by Mauritaake. He said that he was in the drivers' boat which towed the boat containing the body of the deceased out to sea. Also in the divers' boat were Kokoria, Marawa, Taunteang and Titiku. The body was covered with mats. Taunteang tied an outboard engine to the body and dropped it into the sea. That is the total evidence against the accused Titiku. There is no evidence of the role he played, how he came to be there, whether he knew that the object wrapped in the mats was a body, or if he did, whether he had any intention to assist in its disposal. Certain inferences can be drawn of course, but that is a long way short of proof beyond reasonable doubt.
There is also another matter to consider. It will be remembered that Mauritaake was originally jointly charged with the accused Titiku but had the proceedings against him discontinued, thus becoming a competent witness for the prosecution. Mauritaake is thus an accomplice of the category participes criminis and it would not be safe to act on his testimony relating to this offence without corroboration, of which there is none.
For these reasons I am not satisfied that the prosecution have proved the charge against the accused Titiku Kakoroa beyond reasonable doubt. I therefore find him not guilty of the charge of being an accessory after the fact to murder contrary to section 209 of the Penal Code and he is accordingly acquitted.
THE HON R LUSSICK
CHIEF JUSTICE
(16/02/96)
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