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Republic v Terakau - judgment 1 [2002] KIHC 73; Criminal Case 45 of 2001 (18 June 2002)

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

High Court Criminal Case 45/01

THE REPUBLIC

vs

TAUA TERAKAU

For the Republic: The Solicitor General with Mr Birimaka Tekanene
For the Accused: Ms Emma Hibling with Mr Aomoro Amten

Date of Hearing: 18 June 2002

JUDGMENT
(Part I)

The accused has been charged with murder:-

Statement of Offence

Murder contrary to section 193 of the Penal Code Cap. 67

Particulars of Offence

Tauaa Terakau on 1 December 2001, at London village, Christmas Island murdered Iotiabwata Tiemti.

The hearing was set for Monday 17 June. Before her client was arraigned Ms Hibling applied for an adjournment. She had come into the case late and was anxious that the accused be medically examined. She also complained that some persons whom she might want to call to give evidence had not been brought by the Republic from Christmas Island.

I allowed an adjournment until the next day, Tuesday 18 June. Ms Hibling then made another application for adjournment. She had tried to arrange for psychiatric examination but could not get an appointment for her client until Thursday, 20 June.

I refused the application but invited her to renew it during the hearing if she wished. There were two reasons for the refusal. The first is that the accused has been in custody on Tarawa for a month: plenty of time for him to have been examined and a report made. The second is that as I was due to go overseas at the end of the week, any adjournment would have to be for a month or more. This would have been terribly unfair on those persons, especially the mother of the young victim and her 11 year old daughter, who had been brought to Tarawa to give evidence. The voyage by boat is eight to nine days and ships sail infrequently and irregularly. The witnesses would have been stuck on Tarawa for many extra weeks, if not months.

The accused pleaded not guilty and the trial proceeded. Although I do not know if there is any defence except diminished responsibility (which Ms Hibling mentioned) the facts at the end of the prosecution look clear.

The accused and his family had been living for about a year as neighbours, in Ronton village, of the family of which Iotiabwata was a member. The families had been friendly. There seemed to be no problems between them. It came out in cross examination that the accused’s wife had told Nei Tokanteata Kiite, Iotiabwata’s mother, that the accused had not been sleeping well and because of his attitude to other men (it was described variously as possessiveness and jealousy) she had been hiding knives. The complaint of sleeplessness was confirmed by Nei Bema Iabo, the Principal Nursing Officer on Christmas: the accused’s wife had been to her and Nei Bema had given her a sleeping pill for the accused.

Between 8 o’clock and 9 o’clock on the morning of Saturday 1 December 2001 Nei Tokanteata was washing the clothes outside their house and talking to others. The accused came to her asking where her husband, Tiemti, was. Nei Tokanteata told him her husband was working. The accused looked inside the house. Iotiabwata, aged 8 and his older sister, Taakererei, now 11, were on the bed. The accused went back to his house. Nei Tokanteata saw him reaching to the position where he kept his toddy knife. She asked the accused’s wife what the accused was doing. He desisted. Instead he came back and looked again inside the house. Then:-

He went back to his kitchen. Reached up for his toddy knife. I saw him. ....... I saw him approach our house. ....... Accused went to my kids inside house. He was inside living room: couldn’t see him. Daughter came running out. “Iotiabwata is dead” screaming. ..... I saw the accused come out of the house with the knife: the tip had blood on it. When my daughter had come out of the house, he chased after her. Same knife. Daughter ran among some women. Accused ran off with knife in his hand.

The boy was taken to the hospital but died within half an hour.

Before the little girl, Nei Taakererei, gave evidence I satisfied myself that she understood the nature and moral obligation of an oath:-

When I woke up, lay on bed with brother. Taua came in with a knife. Looked at me, looked at Iotiabwata, stabbed Iotiabwata. Between 0900 and 1000. I knew accused before: our neighbour, very close. When accused arrived had toddy knife in hand: looked at me – I ran away. I went to lie by brother again. Accused didn’t say anything. He came at him with his toddy knife and stabbed my brother: more than once. I was trying to run away: blocking me with his hand. I ducked under his hand. I ran amongst some women: he ran in direction of police station. “Iotiabwata is dead” as I ran away.

Sgt Tito Turerei was not on duty that morning. He was on his way to the sports field:-

Had just gone to station: on way to sports field. Accused approached me. “Help me”. Noticed had knife in his hand. Recognized Accused. “Why? What’s wrong?” “I’ve killed somebody”. I took the knife: arrested him.

In cross examination by Mr Amten Sgt Tito agreed the words the accused used were, “I have killed Tiemti” (Tiemti was the boy’s father).

The last witness for the prosecution was Nei Bema. Her report was tendered:-

He was found to have:

1. 3 cuts above right elbow Length 2 ins Depth 1 in.

Length 1½ “ Depth ½ “

Length 1½ “ Depth ½ “

2. 3 cuts back right chest Length 1” Depth 2”

Length 1 ½ “ Depth 2”

Length 1 ½ “ Depth ½ “

3. 1 cut left lower abdomen Length 1 ½ “ Depth 2”

Restless on admission and die few minutes later. Cause of death – Severe haemorrhage due to his severely wounded.

After the Solicitor General closed his case, Ms Hibling renewed her application for an adjournment. I was hesitant and said I would like to hear the accused first before making a decision. To allow Ms Hibling to take instructions the Court adjourned until after lunch.

Ms Hibling was unwilling to call her client. I did not want it to appear that I was forcing her to call him. To force him to give evidence would have been quite wrong.

Because a court should bend over backwards to be fair to an accused I finally allowed the adjournment. At least now the prosecution witnesses will be able to return home. Ms Hibling had mentioned bringing other witnesses from Christmas. That is a matter for the defence.

The hearing is to resume on Wednesday 14 August. That will allow Ms Hibling time to get the psychiatrist’s report and to bring witnesses from Christmas if so instructed.