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Republic v Terakau - judgment 2 [2002] KIHC 89; Criminal Case 45 of 2001 (1 October 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: Ms Pole Tebao
For the Accused: Mr Aomoro Amten

Date of Hearing: 1 October 2002

JUDGMENT
(Part II)

This judgment now may be in several parts. I wrote Part I in June. I am writing this part on 1 October.

The problem causing delay has been the difficulty of getting a report from the psychiatrist. When the case was mentioned on 14 August I made this note:-

The psychiatrist has not yet made a final report and asks for more time. For mention on Friday 13 September by which time the report must be ready with a view to completing the hearing on Monday 16 September.

On 16 September the trial was made priority for Monday 23 September.

On Monday 23 September the hearing started late because the accused was resisting with some violence, coming to court. Eventually the police got him here. I directed that he be placed in the dock with the police officers sitting on either side of him. He gave no trouble. Tion Nabau prosecuted and, in the absence of Ms Hibling, Mr Amten alone was for the accused.

Mr Amten called Br Kevin Dobbin, Technical Assistant to the Kiribati Counselling Programme. Mr Nabau objected to Br Kevin giving expert evidence. I noted the objection but decided to hear Br Kevin, remarking that the strength or otherwise of his qualification would go to the weight of his evidence. In Kiribati there is only one psychiatrist. Br Kevin has in the past given helpful evidence. I appreciate any help I can get in these matters.

Br Kevin made a report on 15 September which Mr Amten tendered without objection. He expressed the opinion that the accused experienced “a paranoid psychotic episode”. He amplified this in oral evidence:-

To some extent culpable – paranoid psychotic state lost touch with reality. In a paranoid psychotic state a person doesn’t know fully what doing. I don’t know if he were to some extent aware of what doing. Not in a fit state to be fully aware of what doing.

[In the final paragraph of his report Br Kevin said, “- it does not appear to me that Taua was fully culpable in this situation....”]

In cross examination Br Kevin acknowledged that he is not a psychiatrist and his understanding of a psychotic state comes from working some years ago in a mental hospital in Australia.

Br Kevin was kind enough to remind in court while the accused gave evidence. Afterwards he was recalled. He said that what he had heard did not change his mind. He was relying on his intuition “that the accused was not in a fit mental state when this occurred”.

Br Kevin’s evidence suggests diminished responsibility (see Archbold (1992 edition, volume 2) @ paras 19-65 et seq).

The accused gave evidence. He appeared normal. He had been unwell before 1 December with hallucinations. He did not remember what happened:-

True I don’t recall anything. If I did it I must have been someone else. Something coming over me, lost my mind, doing things I can’t recall later.

He did not remember speaking to Sgt Tito. I thought the accused exaggerated, made the most of the illness he claimed.

Mr Amten did not propose to call the psychiatrist whom, he said, was unwilling to give a report, needed more time to come a conclusion. I therefore strongly suggested to Mr Nabau that he should arrange for her to come to court. In effect this allowed the prosecution a case in rebuttal.

Dr Yang Yan Ping gave evidence today, 1 October. Dr Yang’s English is not perfect and another Chinese doctor acted as her interpreter. It was difficult sometimes to disentangle her evidence from what the interpreter was saying. I am satisfied that I have understood her opinion so far.

I accept Dr Yang’s qualifications. She gained her basic medical qualification in 1986, her psychiatric qualification in 1987 and became a visiting psychiatrist in 1994. She has been working in the mental wing of the Central Hospital for the last 20 months.

Dr Yang has written three reports which Mr Nabau tendered without opposition. Her conclusion in what I think is the first report (the dates on the two earlier reports are confusing):-

Conclusion:

1. At the time of committing the offence, Tauaa’s mental status is difficult to determine and before a conclusion can be made. It will be necessary to observe him further.
   
2. At this time, I have not observed any mental symptoms or problems.
   

In the last report, dated 27 September:-

10. I had examined Tauaa Terakau on 27/6/02 and 30/9/02 in mental wing and offered my report on 12/8/02 and 2/9/02.
    

After lawyer sent 2 added statement about Tauaa Terakau to me the second report was made.

11. On 24/9/02, Tauaa Terakau been sent to emergency room of TCH by several officers of prison because of his insomnia, easy angry, severe decreasing of appetite, make troubles to others and want to escape from the prison etc. Then he was admitted to mental wing for further observation and proper symptomatic treatment.
    
12. At present I still need few more weeks to determine his diagnosis (schizophrenia or reactive psychosis).
    

In oral evidence Mr Yang said it is “difficult to decide if he is sick or not”. I had to write out this question to her to make sure she understood it:-

That he went and stabbed to death a young boy for no reason – does this not shew a mental illness?

Her answer:-

May be mental.

I asked the question because the very fact that the accused did such a senseless and awful thing suggests to me some mental abnormality. His actions may be the best evidence of mental abnormality. Dr Yang’s answer raises at least a reasonable doubt in my mind as to the accused’s sanity.

This morning the hearing had again been delayed by the resistance of the accused. He resisted coming to court. He is now lodged in the mental wing (as mentioned in the report of 27 September). “He is sleeping alright but doesn’t want to eat”. All he wants are liquids and to smoke. This time the accused won. The police did not force him to come to court. The hearing was in his absence. Dr Yang said his resistance did not affect her diagnosis.

The doctor has undertaken to give another report before she goes on holiday on 10 November.

Dated the October 2002

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE