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Republic v Riaua [1998] KIHC 12; HCCrC 40.97 (9 February 1998)

IN THE HIGH COURT OF KIRIBATI
CRIMINAL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

Criminal Case No. 40 of 1997

THE REPUBLIC

vs

IONATAN RIAUA
TEIWAKI TANAWAI
IERERIA TEWERU
IOATATA UEARIKI

For the Republic: Mr Titabu Tabane
For the 1st Accused: Mr Banuera Berina
For the 2nd & 4th Accused: Mr David Lambourne
For the 3rd Accused: Mr Tuarirake Teiwaki

Date of Hearing: 8, 9, 11, 15, 16, 17, 18, 19, 22 December 1997;
5, 6, 9 January 1998

JUDGMENT

The four accused are charged with murder contrary to section 193 of the Penal Code Cap. 67 in that on the 16^th July 1997 at Temaiku, South Tarawa, they did murder a man named Mangotaake Katee.

The prosecution allege that at about 4.00 pm on the 16^th July 1997 the deceased, who was drunk, fought with his drinking companion, Maneiti Kamatie. The four accused, who were drinking nearby, came and attacked the deceased, leaving him unconscious with minor injuries to his eyes and lips. Later in the evening the four accused once more met the deceased and they again attacked him, this time with sticks and knives. The deceased sustained severe bodily injuries and died.

The prosecution called eight witnesses.

The first two witnesses for the prosecution, Maneiti Kamatie and Nei Kaawi Natan, gave evidence about the earlier assault on Mangotaake, the deceased.

Maneiti testified that at about 4.00 pm that day he had been drinking sour toddy with the deceased at Nei Kaawi's place when they had an argument. As he got up to leave, the deceased grabbed his foot and he fell down. He continued on home and at about 6.00 pm the deceased arrived and challenged him to a fight. He went to fight with him and was surprised to see three other men attacking the deceased. One of them knocked him to the ground and the other two then attacked him with their fists.

Maneiti said that the person who first struck the deceased was the accused Teiwaki and that the other two attackers were Ionatan and Ioatata. He also saw Iereria standing there but did not see him do anything.

When cross-examined, Maneiti conceded that he had been drunk at the time.

Nei Kaawi's evidence was that she did not witness the attack. She heard the sounds of a fight but when she went to investigate it was all over. She saw the deceased lying on the ground with the four accused standing above him. When the deceased later got to his feet she could see that his face was bloody.

The third prosecution witness was Uarai Koneteti, who witnessed the first stage of the second attack on the deceased in which he was killed. Uarai was a neighbour of the deceased. Although he did not give his age he appeared to be in his early 50s.

He gave evidence that on the night the deceased was killed he saw four men on the road heading directly to the deceased's house. Although there was bright moonlight he was unable to recognise any of the men. He was able to see, however, that one was carrying a knife, another was carrying a stick with a knife tied to the end of it, and a third was carrying a long piece of wood. He did not see the fourth man carrying anything.

Uarai said that when he saw these men surround the deceased, he went over and told them not to harm him, but they would not listen. When the man carrying the long piece of wood pushed the deceased with it the deceased ran away, pursued by all four men. Uarai did not follow them.

When cross-examined, he agreed that he had given the police a statement in which he had claimed that all four men were armed: one with a knife, one with a stick with a knife attached, and the other two with pieces of wood. The witness explained that when he had read his statement recently he realized he had been mistaken on that point.

The next witness for the prosecution, Atanimango Terara, a man aged 28, testified that he had seen the whole of the second attack on the deceased, from the time he had run away from the four accused to the time that he fell down near the store of Nei Tabukai where he was killed.

Atanimango's evidence was that he saw four men surround the deceased near the deceased's home. He was able to recognise three of them as Iereria, Ioatata and Ionatan. He did not know the name of the fourth man but he identified him in court as Teiwaki.

Ionatan was carrying a spear (by that he meant a long piece of wood with a knife at the end), and Iereria had a knife. He thought that the other two were also carrying knives but he could not see clearly.

Atanimango said that the attack on the deceased began when Ioatata stabbed the deceased in the side. Ionatan also stabbed him with the spear. The deceased fell down but then got up and ran away. He was chased by all four accused. They were stabbing the deceased from behind as they ran. When the deceased fell down beside the store of Nei Tabukai, all of them immediately stood over him and stabbed him. He clearly saw Ioatata and Ionatan stabbing the deceased. Iereria moved back towards the light and the witness saw that he held a knife. Teiwaki also had something in his hand but when he also moved away from the deceased he was no longer holding anything.

After the other two accused had moved away, Ionatan and Ioatata remained over the body. Ionatan took the spear, which by then had broken, and stabbed the deceased twice in the buttocks with it. Then all four accused left.

The witness said that he was able to see all of this because a fluorescent light was shining from the verandah of the store. After the four accused had left he went over to the deceased and saw that he was dead. There were numerous injuries on his head, chest, stomach and under his arms.

The witness correctly identified a knife (exhibit C) as the knife he had seen Iereria carrying that night.

When the witness was cross-examined it became evident that he had a hopeless memory for detail. He had also given the police two statements which were not consistent with his sworn evidence. In his first statement, given two days after the incident, he stated that he was not able to recognise any of the attackers. In his second statement, given on the 3^rd November 1997 he was able to identify Iereria as one of the men carrying a knife, and was able to give a description of one of the other men but stated that he was not able to identify the other two men.

The next witness for the prosecution, Tevita Moriti, aged, 24, saw some of the chase and some of the final attack on the deceased.

He testified that on that night he was walking on the road with two others, Taake (who gave evidence) and another person. There was a commotion some distance ahead and they ran towards it. Tevita was able to see four men chasing another man towards Nei Tabukai's store.

When he arrived at the scene he saw that a person was being held on the ground and beaten up. He could not see the face of the man holding down the deceased but saw that he was wearing jeans. Next morning, the witness saw the same man at the hospital. He pointed him out in court as the accused Teiwaki.

While the deceased was being held on the ground, one man was hitting and stabbing him with a stick. The witness could not see his face but noticed that he was tall and of average built. The witness later saw him in a cell at Bairiki Police Station and was able to point him out in court as the accused Ionatan.

The witness knew the two accused Ioatata and Iereria. He saw that Ioatata was kicking and using his hands on the victim. Ioatata then moved back from the deceased while Ionatan continued to stab him with the stick. The witness then heard the deceased say, "I know you. I know all of you". He saw Ioatata then go back to the deceased and strike him with a stabbing motion. He could not see if there was anything in Ioatata's hand and he did not see what part of the deceased's body was struck.

The witness said that Iereria was standing above the head of the deceased with his arms folded, but he did not see Iereria doing anything and he did not notice any weapon on him. After Ioatata had struck the deceased, all four men left together.

One of the men walking with Tevita that night was Taake Kaititi, aged 21. He arrived on the scene while the deceased was being attacked near Nei Tabukai's store.

Taake gave evidence that he knows the four accused and has drunk sour toddy with them before that night.

During the attack he saw Ionatan hitting the deceased with a stick. Ioatata was striking the deceased in a stabbing motion but he could not see if Ioatata held a knife. Teiwaki was holding down the deceased. Iereria was standing by watching with folded arms. He had a knife in his back pocket.

When cross-examined, he agreed that he had given the police a statement in which he had identified only one of the attackers – Iereria – by name, and had not mentioned seeing a knife on Iereria.

Two police officers were the only other witnesses for the prosecution. Detective Constable Baamaere Tiira gave evidence that he took voluntary statements under caution from both of the accused Teiwaki and Iereria. He also produced the knife (exhibit C) which he had taken from Iereria.

Detective Constable Mweretake Roobe gave evidence of having taken a voluntary statement under caution from the accused Ionatan.

The report of Dr Georgina Phillips dated 16 July 1997 (exhibit E) was admitted into evidence after being conceded by all three counsel for the accused as a formal admission under section 126A of the Criminal Procedure Code Cap. 17. The doctor concluded from her examination that the deceased had suffered multiple injuries from both blunt and knife-like instruments. The most likely cause of death was haemorrhagic shock due to extreme blood loss. The report sets out the various injuries in anatomical detail, but briefly they were as follows:

(i) large swellings over the forehead and left eye consistent with trauma from a blunt instrument;

(ii) deep lacerations to the right cheekbone and right chin, the latter associated with a fracture of the jaw;

(iii) a large semicircular slice through the scalp at the back of the head, exposing the skull bone;

(iv) deep lacerations to the right shoulder, chest abdomen (exposing the intestines), and base of neck;

(v) deep lacerations to the right base of thumb and left forearm.

The report expressed the opinion that all the lacerations were consistent with trauma from a knife-like instrument with an approximate width of 2-3cm and possible length of more than 8 cm.

At the close of the case for the prosecution I found that there was a prima facie case for all four accused to answer.

Two of the accused – Ioatata and Teiwaki – elected to remain silent and called no evidence. The other two accused – Iereria and Ionatan – elected to give evidence themselves but did not call any other evidence.

The accused Iereria Teweru testified that he and the other three accused were on their way back home after drinking at Nei Kaawi's when they heard the deceased say, "You people, what are you doing here?" The deceased then threw two stones at them, neither of which hit anyone. The four accused then moved towards the deceased and the deceased ran away, chased by all four of them. Iereria admitted that he was angry with the deceased for throwing the stones. However, he denied harming the deceased. All he did was to pin the deceased's foot to the ground by stepping on it. According to Iereria, it was the other three accused who attacked the deceased. He was not quite sure what each of them did, but he remembered that Ionatan struck the deceased with his hands on the right side of the neck while Teiwaki was holding him down. Ioatata was punching the deceased. All this time, Iereria was trying to restrain them, without success.

Iereria admitted in his evidence in chief that he had been carrying a knife that night. He had it tucked in the back of his waist. But he claimed it was not he who stabbed the deceased with it. His story was that he had been trying to restrain Ioatata when Ioatata asked him for his knife. Iereria said that he gave the knife to Ioatata who then stabbed the deceased with it on the right side of his body at about waist level. After that happened, Iereria said, "It's finished. He's dead". They then all continued on home.

The accused Ionatan Riaua also gave evidence in which he exonerated himself and put the blame on the other three accused.

He testified that he had first seen Iereria with a knife at Nei Kaawi's. He noticed that Ioatata had armed himself with a stick as they walked along the road towards the home of the deceased. He himself did not carry a weapon at any stage.

Ionatan said that he stopped outside the deceased's house as he was angry with him and wanted to challenge him to a fight. He was angry with him over an incident that had happened at Nei Kaawi's house earlier that day, in which the deceased had been rude to him as he was buying some drinks. However, Ionatan claimed that as soon as Uarai asked him not to hurt the deceased his anger disappeared.

According to Ionatan, when the deceased ran away he was chased by the other three accused. Ionatan did not take part in the chase. He saw the other three accused striking the deceased from behind, causing him to fall beside the store. They then attacked him. Ionatan was expecting some of the people living in the area to go to the deceased's assistance, but when that did not happen he went over to try to pull his companions away.

Ionatan's evidence was that when he pulled Iereria away, Iereria said to him that the blade of his knife had pierced Mangortaake's body and it was doubtful whether he would live or not. After being pulled away, Iereria stood nearby but did not take any further part in the attack.

Ionatan claimed that Ioatata was beating the deceased with a stick and that it took three attempts before he was able to pull him away.

Teiwaki was sitting on the ground holding the deceased form behind.

Ionatan declared that he himself had not attacked the deceased in any way and that it has not occurred to him that Iereria would use his knife on the deceased.

Ionatan said that he had given the police a statement which was in similar terms to his sworn evidence.

He conceded when cross-examined by Mr Tabane that when he heard that the police were looking for him that night, he ran away to stay with some relatives, and was not arrested until the next morning.

As already mentioned, the other two accused did not give or call evidence.

However, the accused Teiwaki Tanawai gave a cautioned statement to the police which was admitted into evidence without objection. In the statement he admitted taking part in the first assault on the deceased earlier that afternoon. He stated that he punched him and, when he left, the deceased was lying on the ground. Iereria was carrying a knife but did not use it at that stage. According to the statement, the deceased appeared about an hour later. He carried a knife and looked at Teiwaki and his friends "very hard". The deceased then walked away and they followed. Teiwaki admitted in his statement that he threw a stone at the deceased after they had all surrounded him and that he had then jumped at the deceased and fought him. He admitted to the police that he had held the deceased's neck tightly with his hands. He claimed to have suffered a cut on his hand from the deceased's knife. The statement goes on to say that when the deceased fell to the ground the other three continued to attack him. Teiwaki claimed in his statement that he did not know until afterwards that the accused had died. He blamed Iereria for causing the injuries to the deceased as, according to Teiwaki's statement, Iereria was the only one with a knife.

I should mention here that I am aware that a confession made by an accused person which is admitted in evidence is evidence against him but is not evidence against any other person implicated in it.

The fourth accused, Ioatata Ueariki, apparently did not give a voluntary statement under caution to the police or, if he did, was not put into evidence.

It was admitted by counsel for the accused Ioatata and Teiwaki that in view of the discrepancies in the prosecution evidence, and because it would be dangerous for the Court to act on the uncorroborated evidence of the accused Iereria and Ionatan, there was insufficient evidence to support convictions for murder. It was argued that Ioatata and Teiwaki should therefore be convicted of manslaughter only.

It was submitted for the accused Ionatan that his sworn evidence, which was consistent with what he had earlier told the police, ought to be accepted. On that evidence, Ionatan took no part in the attack upon the deceased and tried to prevent the other three accused from harming him.

Counsel for the accused Iereria submitted that the evidence of Tevita Moriti ought to be accepted and that the evidence of the other prosecution witnesses, the evidence of the accused Ionatan, and the evidence of his own client should be disbelieved. On Tevita's evidence, Iereria was simply standing by with his arms folded, watching the other three accused attack the deceased.

It was argued on behalf of all the accused that there was insufficient evidence to support the inference that the four accused had formed a common intention to prosecute an unlawful purpose, namely to cause at least grievous bodily harm to the deceased.

All three counsel for the accused conceded that self-defence and provocation did not arise on the evidence. I find also that the defence of intoxication did not arise and it was not in issue.

Before reviewing the evidence I must direct myself that there is no onus on the accused at any state to prove their innocence. The burden of proof beyond reasonable doubt remains on the prosecution from first to last. That burden is discharged only when the prosecution establish beyond a reasonable doubt that the accused, by an unlawful act and with malice aforethought, express or implied, caused the death of the deceased.

In relation to the first attack on the deceased earlier that day, it was obvious from cross-examination that the first prosecution witness, Maneiti, did not have a good memory of the details of the incident. Nevertheless, I have no doubt from his evidence and from the evidence of Nei Kaawi and from other evidence that an earlier incident did occur involving the deceased and the four accused in which the deceased had been injured. However, as regards the individual role played by each of the accused in that incident, I did not consider Maneiti's evidence to be reliable.

I found Uarai, the third witness for the prosecution, to be truthful and I accepted his evidence. It has been submitted for the defence that it was extremely unlikely that any of the men would have been carrying a weapon such as a stick with a knife tied to the end of it. However, I accept Uarai's evidence that he did see such a weapon. His was not the sonly evidence in that regard. The next prosecution witness, Atanimango Terara, also testified to seeing one of the four accused carrying a weapon of that description. Furthermore, when the accused Iereria was cross-examined by Mr Tabane (for the Republic) he admitted that he had seen someone carrying a stick with a knife at the end, but he claimed that he could not remember who it was.

It has been submitted for the accused that the evidence of Atanimango, the fourth prosecution witness, should be rejected in its entirety. I think it is clear that the witness was unable to recognise the four accused on the night of the attack and named them in his evidence because he knew that they were the ones who had been charged. When cross-examined on specific details he became confused. I think the main reason for this was that no ordinary person would have been capable of absorbing details of the volume and precision demanded by the three defence counsel. I formed the impression that the witness tried to guess some of the answers instead of admitting that he did not know.

It has been submitted that it is doubtful that the witness was at the scene at all. The support for that submission was that two other witnesses, Tevita Moriti and Taake Kaititi, had said that they did not see him there. However, there is nothing surprising in that. When an incident of the nature already described is taking place it would be unusual for an observer to look around for other observers not in his immediate company instead of focusing on the incident itself. The witness Uarai gave evidence that immediately before the incident began, Atanimango had been talking with him in his home when he saw the four men walking along the road, which was only 30 feet away. It would therefore have been strange if Atanimango did not go to see what was happening.

I have no doubt at all that Atanimango was at the scene, and therefore he must have seen at least some of what was happening. I believe that he did his best to describe to the court what he saw that night. His memory for detail was not good but that does not mean that the whole of his evidence ought to be rejected. I accept that he saw four men surround the deceased on the road, chase him, and then kill him near Nei Tabukai's store, just as he described. I did not think that he was able to identify the men that night, although it is not in issue that the men were the four accused. However, on the question of which man did what, the evidence of this witness must be regarded as mostly unreliable. Nevertheless, his description of Iereria standing back from the deceased after having attacked him is consistent with what the witnesses Tevita and Taake said about Iereria's position when they arrived at the scene. Also, Atanimango's evidence that the deceased was brought down near Nei Tabukai's store by being stabbed from behind, agrees with the evidence of the accused Ionatan, except of course that Ionatan did not include himself as one of the pursuers.

The witness Tevita admitted in cross-examination that he had given a statement to the police in which he had said that he had not seen Ioatata doing anything. The witness explained that he told the police that in order to protect Ioatata, who is related to him. However, he was emphatic that what he had told the court was the truth.

The witness was adamant that the deceased had been chased by all four accused and that none of them had tried to prevent the others from attacking him.

Tevita impressed me as a truthful witness and I accept his evidence.

As regards the witness Taake, I thought that he was telling the truth. The fact that he omitted in his statement to the police to give the names of all the attackers, and made no mention of seeing a knife on Iereria does not persuade me to reject his evidence given under oath.

On the other hand, the accused Iereria was very obviously not telling the truth when he gave evidence. In cross-examination he recanted much of what he had said in chief. He gave several conflicting versions of what had happened. I did not believe his evidence that his only role in the attack was that of a peace-keeper. In his earlier statement to the police he gave yet another version, with both he and Ionatan playing the role of peace-keepers.

Perhaps unwittingly, he made the damning admission in his evidence in chief that he had handed a knife to Ioatata at a time when Ioatata was attacking the deceased. He also admitted pinning the foot of the deceased to the ground by stepping on it. Those actions are hardly consistent with his alleged role as peace-keeper.

The evidence given by the accused Ionatan conflicted with the evidence of the prosecution witnesses. He claimed that he did not take part in the chase after the deceased, but three prosecution witnesses said that he did. Ionatan claimed that he had pulled Iereria and Ioatata away from the deceased, the latter after three attempts. However, none of the prosecution witnesses saw anyone trying to stop any of the accused. It also seems improbable that Ionatan would have gone to the house of the deceased with the express intention of challenging him to a fight, yet not only desist at the request of Uarai but turn into the deceased's protector.

I did not believe Ionatan's evidence about merely playing a peace-keeping role in the incident.

As has been seen, the accused Teiwaki Tanawai made several admissions in his cautioned statement about following and attacking the deceased However, the implication was that he was defending himself because the deceased was armed with a knife. That claim is at odds with the testimony of every other witness and cannot be true.

I should emphasise here, however, that it is not just a question of making a choice between the evidence of the prosecution witnesses and that of the accused. To put the matter that simply would be to substantially reduce the prosecution's burden of proof. After considering the whole of the evidence I must be satisfied that the prosecution have proved the charge beyond a reasonable doubt, notwithstanding the sworn or unsworn denials by the accused, and it is not essential that I believe that the accused were telling the truth before they are entitled to be acquitted.

The evidence, in my view, clearly establishes beyond any doubt that the four accused formed a group which went to the road outside the house of the deceased, attacked him there and then chased him until he fell down outside the store of Nei Tabukai. They then attacked him again and when they had finished he was dead.

I am also satisfied that when they first approached the deceased on the road, at least three of them were armed as described by Uarai, although it is not clear from the evidence what subsequently happened to the weapon described as a stick with a knife on the end.

In argument, counsel for Ioatata and Teiwaki contends that there was no evidence that Ioatata was ever armed with a knife or even knew of its existence. Counsel also contends that although Teiwaki admitted in his statement to the police that he knew that Iereria had a knife, there is no evidence to suggest when he gained that knowledge.

I will deal with this latter argument first. Teiwaki's statement makes it quite clear that he was aware that Iereria had a knife as early as the first assault on the deceased near Nei Kaawi's place earlier that afternoon.

The other argument is that there was no evidence that Ioatata had any knowledge that Iereria had a knife. There was evidence that Iereria had the knife with him from the very beginning when all four accused had been drinking at Nei Kaawi's place. The group stayed together from that time up until the time the deceased was killed. The other accused Ionatan and Teiwaki knew that Iereria was armed with a knife and, in the circumstances, the most reasonable inference is that Ioatata must also have known.

However, the question is academic. The evidence of Tevita and Taake, which I have accepted, was that they saw Ioatata striking at the deceased with what appeared to be a stabbing motion, although they could not see a knife in his hand. Since the deceased was found to have sustained a number of lacerations consistent with trauma from a knife-like instrument, the only possible conclusion is that what they saw was Ioatata stabbing the deceased. Their evidence also corroborates Iereria's evidence that Ioatata stabbed the deceased.

The evidence of Atanimango makes it clear that all four accused took pat in the final attack on the accused beside the store.

When the witnesses Tevita and Taake came on the scene, Iereria had already moved away from the deceased and was standing by encouraging the others. Teiwaki was holding the deceased on the ground to assist the others in attacking him. Ionatan hit and stabbed the deceased with a stick. Ioatata commenced by kicking and using his hands on the deceased but at a later stage stabbed him with a knife.

The witnesses Tevita and Taake saw that Iereria was only standing by with his arms folded. However, I am satisfied from the evidence of Atanimango, and from the evidence of Iereria himself, that Iereria's role in the attack went much further than that.

The evidence leaves no doubt at all that each accused took part in the attack or aided and abetted the others. Each must have known that as the deceased was held on the ground, a knife and a stick, as well as hands and feet, were being used to injure him. No other reasonable conclusion is available.

The ferocity of the attack, as evidenced by the medical report, leads to the inescapable inference that each of the accused participated in the attack or aided and abetted, with the intention of causing at least grievous bodily harm to the deceased.

Since each of the accused was very clearly a principal offender within section 21 of the Penal Code, it is not necessary to decide whether it has been proved that there was a common intention to prosecute an unlawful purpose. I will go so far as to say, however, that there was evidence to support an inference in favour of that proposition.

Upon a consideration of the whole of the evidence, I find that the prosecution have proved the charge of murder against the four accused beyond a reasonable doubt.

Each accused is therefore found guilty of murder contrary to section 193 of the Penal Code and convicted accordingly.

In accordance with the mandatory sentence provided by law, each accused is sentenced to imprisonment for life. For the purposes of any future consideration of parole, the sentence shall be deemed to commence from the 17^th July 1997, which was the date all four accused were taken into custody.

Dated the 9^th day of February 1998

THE HON R B LUSSICK
CHIEF JUSTICE