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Republic v Wanikaie [2003] KIHC 95; Criminal Case 28 of 2003 (5 August 2003)

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

Criminal Case No. 28 of 2003

THE REPUBLIC

vs

KAITITI WANIKAIE

For the Republic: Mr Tion Nabau with Ms Melissa Kent
For the Accused: Ms Jacqueline Huston

Date of Hearing: 5 August 2003

JUDGMENT

The accused and the deceased had an unhappy relationship, perhaps best described as a love-hate relationship: they used to drink together alone and in the company of others, but the deceased teased, tormented really, the accused: several times the tormenting became physical.

That is the background to the charge of murder on which the accused has been arraigned:-

Particulars of Offence

Kaititi Wanikaie on the 18^th January 2003 murdered Tekabu Kaitia at Tebao's house at Utiroa village on North Tabiteuea.

On Friday 17^th January Kaititi, a man of 23, married with a child, was out fishing. After he returned in the evening he went out drinking with companions. The drink was a yeast mixture, intoxicating. His wife was left home. He had asked his mother to stay with his wife. Unfortunately his mother did not stay with her but went to the house of her daughter, Riine, Kaititi's sister. Kaititi was drinking most of the night at one place or another and with a changing group of men. By the time he was arrested the next morning – the time variously given as going on for 7 o'clock and around 8 o'clock – Kaititi was very drunk. At the earlier time of the incident leading to Tekabu's death he was affected but not to such an extent as not to know what he was doing. There is no defence of drunkenness and Ms Huston did not suggest it.

At some stage, at Tebao's house, Kaititi and Tekabu were alone together. Tekabu went out, saying that he was going to the beach to relieve himself. He was away rather a long time. When he came back he told Kaititi that he had been to Kaititi's house where Kaititi's wife was alone. There is no evidence of anything significant having happened between Tekabu and the wife but the mere thought that something might have gone on was enough to infuriate Kaititi. He left to try to find his wife. He found her. She was frightened of him and ran away. As she ran she was saying something but Kaititi did not hear what. He had a knife with him. In the meantime Tekabu had gone to sleep in the house. Kaititi went back and stabbed the sleeping man in the chest. His body was found about 6 o'clock lying in the corner of one of the two rooms of the house, in a pool of blood.

Sergeant Tebau:-

In house lying face up – no shirt, only shorts, zip undone to expose penis. Serious chest wound on right side, small cuts on stomach. Area near deceased – 2' from deceased head empty basin – remains of mixture of yeast and sugar. Deceased lying on concrete floor: pool of blood under him. Thought water had been poured over deceased's body. Lying closer to eastern door.

Nei Tireta Beriki, the nursing orderly made a report:-

Called to see the above after 7.00 am. On arrival he was already dead lying with blood around him. On examination there is an open wound on right chest – injury 3^rd and 4^th rib and deep as far as the internal organs. Also four small cuts on left chest. Length of wound on right chest is 6 centimetres. The wound is caused by a sharp object.

In her oral evidence Nei Tireta said the cause of death was "heavy loss of blood, internal injuries".

I have no doubt from the prosecution witnesses that Kaititi came back to Tebao's house. Tekabu was asleep in the corner of a room. Kaititi stabbed him. Tekabu did not die immediately: he was heard calling for his wife. He soon bled to death.

Kaititi does not deny that he must have stabbed Tekabu. He says they grappled at the door and he forgot he had a knife in his left hand – but claimed he was acting in self defence and moreover had been provoked.

I accept the defence evidence that for some time Tekabu had been tormenting Kaititi. Kaititi has a deformity and weakness of his right hand. When he wrote his name during the voir dire I saw that he wrote with his left hand. It having come out that his right hand is deformed I noticed that particularly while he was giving evidence, Kaititi kept his right hand down and out of sight. I doubt if Kaititi was doing that consciously: it is probably force of long habit: a good indication that he is sensitive about the deformity.

Several defence witnesses described incidents a week or so earlier in which Tekabu had teased Kaititi about his hand. I accept the incidents occurred, that the conduct of Tekabu towards Kaititi was quite cruel. Yet they drank together either in the same group or alone in the hours before the death.

Kaititi's version of events leading to the death is that, his wife having run away, he returned to Tebao's house. It was still dark. As he approached the door of the house he saw a silhouette. At first he thought it was his wife, she having taken refuge from him there. He approached the door and the figure barred his entry. They grappled. Kaititi forgot he had the knife in his hand. The figure dropped to the floor by the door. Kaititi left, not knowing the injury he had inflicted.

The body was found lying in a pool of blood. No evidence of blood at the door or of trail of blood from the door to where the body was found. One would expect a trail if the deceased had fallen at the door and dragged himself into the corner.

After Kaititi had been back to Tebao's house he was heard walking away and loudly calling out his own name. He told several people that he had killed Tekabu.

The killing occurred as the prosecution alleged. What then of the defences of self defence and provocation?

As to self defence, even on Kaititi's own version he was the aggressor. He went back to Tebao's house and tried to force his way in. He had a knife. Although Kaititi said he believed (when he realized it was Tekabu and not his wife) that Tekabu had a knife and that Tekabu leapt at him, he did not suggest Tekabu used the knife. Kaititi was not acting in self defence.

In any case, that is not how Tekabu died. He died in the way which the prosecution has proved beyond reasonable doubt. I need say no more about self-defence.

What of provocation? I have described the earlier incidents of teasing, tormenting, and accept that Kaititi is sensitive about his deformity. Yet he and Tekabu were drinking together that night before Tekabu died. Provocation caused by the earlier incidents ( a week or so earlier) was not sufficient to provoke Kaititi to kill Tekabu. The straw which may have broken the camel's back was Tekabu's assertion to Kaititi that he had been to Kaititi's house and found his wife there alone. Kaititi is the only one who does, indeed who can, tell what Tekabu said to him. There is other evidence, from his wife and mother, of how angry or upset he was that his wife had been left alone in the house. I accept the evidence and it corroborates Kaititi.

I-Kiribati men are well known to be intensively possessive of their wives and jealous of any other man who may threaten the possession.

The Court of Appeal in Ruoikabuti Mataroa v Republic (CrA 2/1997) considered provocation. The facts were similar to the present, even the same village Utiroa on Tabiteuea North:-

There is a dual test for provocation. First, was the accused actually provoked into losing his self-control as a result of which he committed the act which killed the deceased? Secondly, was the provocation such that it was capable of causing an ordinary person to lose self-control and to act in the way that the accused did? The burden of negativing provocation lies on the prosecution... we consider that it is not possible to be satisfied, beyond a reasonable doubt, that the Appellant did not lose his self control as a result of Koru's (the deceased's) actions and words, past and present. The final approach of Koru was, if we may resort to metaphor, the spark that lit the tinder already made inflammable, or the extra weight that turned the burdened scale. Taken in conjunction, the three provocative incidents made the Appellant lose his self control, and were capable of causing an ordinary inhabitant of Tabiteuea North to act as the Appellant did – or, more precisely, that this was so has not been excluded beyond reasonable doubt.

I am in the same position. It may be that Tekabu's assertion that Kaititi's wife was at home alone and he had been there was the straw which broke the camel's back (to use again the metaphor which I prefer). The prosecution has not negatived beyond reasonable doubt provocation.

Pursuant to sections 197 and 198 of the Penal Code (to be interpreted in accordance with the decision of the Court of Appeal Republic v Beretia Bakaatu, Criminal Appeal 1/1995) extreme provocation reduces murder to manslaughter in the circumstances set out in section 198.

I am satisfied beyond reasonable doubt that Kaititi's "intentional and unlawful act (caused) the death of" Tekabu. I have a niggling doubt, niggling but reasonable, that he may have acted under provocation, even extreme provocation. Kaititi is entitled to the benefit of the doubt. The prosecution has proved all the other elements of murder.

There is one final matter. Through the first prosecution witness, Sergeant Taubuki Tebau, Mr Nabau applied to tender Kaititi's caution statement. Ms Huston objected. We had a hearing on the voir dire. Kaititi asserted that when he was waiting in the cell before he made his statement Special Constable Akau "told (him) to say everything: only way (he'd) get out". Kaititi was not cross examined on that. Neither Akau, nor Constable Romatoa, present during the taking of the caution statement, was called. Kaititi's evidence on Special Constable Akau's advice to him was unchallenged.

I could not be satisfied that the caution statement was voluntary and I excluded it.

I find the accused guilty of manslaughter.

Dated the day of August 2003

THE HON ROBIN MILLHOUSE QC
Chief Justice