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Republic v Taiau - judgment [2004] KIHC 39; Criminal Case 68 of 2003 (4 March 2004)

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

Criminal Case No. 68 of 2003

THE REPUBLIC

vs

MARUIA TAIAU, TEEA MAREWE,
TENNANG RURUNGA & TEREREI TABURIMAI

For the Republic: Ms Pole Tebao
For the 1st Accused: Ms Jacqueline Huston
For the 2nd Accused: Mr Aomoro Amten
For the 3rd Accused: Ms Taoing Taoaba
For the 4th Accused: Ms Taoing Taoaba

Date of Hearing: 2, 3 & 4 March 2004

JUDGMENT

The four men, Maruia Taiau, Teea Marewe, Tennang Rurunga and Tererei Taburimai, were charged with murder. The particulars are that:-

On or about 20 October 2003 (they) murdered Kaewaniti Tekareurua at the Island Council's office on the island of Teraina.

Some time before the trial Tennang agreed to give evidence for the Republic in exchange for immunity from prosecution. Before arraignment Ms Pole Tebao, Director of Public Prosecutions, entered a nolle prosequi. I noted that and discharged Tennang.

Because the Court on Kiritimati Island is not equipped with a recording equipment Ms Reiher has taken the evidence in shorthand: all but the evidence of Tennang, the first witness for the prosecution. His evidence is unrecorded except for my notes. I shall therefore quote at some length from the notes.

The outline of the facts is this. During the day on 19^th October last year, a number of men, mostly young, in their late teens, were drinking yeast. The drinking extended into the night and early next morning. It seems that all the actions in this tragedy, including the victim, were more or less affected by their drink. Nevertheless those who gave evidence had a recollection of events. The defence of drunkenness was not raised by any accused. As I must, I have considered it but have concluded that the facts do not support the defence of drunkenness. Lowered their inhibitions, so that they took the law into their own hands, having heard gossip of the victim's sexual activities: nothing more.

The group, of varying membership, moved from place to place drinking. The victim, Kaewaniti, was left asleep on the verandah of the Council office. He must have been very drunk for, despite the treatment he received, he does not seem ever to have woken up before he died.

There is no need to set out the detail of the movements. I come straight to the time when Tennang left Kaewaniti sleeping on the Council verandah. He and Tererei went to the house of Kabokia. There they found Maruia and Teea:-

I told Teea that Kaewaniti had been sleeping: Maruia said the same thing. Maruia said "Why didn't you punch him at that time?" Teea stood up and went to his room and took his boots – black, like party boots. Teea gave them to Maruia and they went away. I stayed back and drank. May be after 0300. They came back half an hour later. They told us the news, myself and Teea. Maruia told us not to tell: Tererei said nothing. Maruia spoke: the others were there. Maruia said to myself and Tererei to follow them. Tererei was carrying a stone – 10 cm. Teea was carrying a stone also but not as big. Maruia not carrying anything. We all went to the government house. Maruia was wearing the boots. Teea was first to hit Kaewaniti who was lying down – not sure if sleeping – dark. Teea with his feet: many times – chest and head: not wearing any clothes: nothing on his feet. Maruia kicked him many times in chest and neck: wearing boots. Tererei threw a stone at his head: didn't see if it hit. Tererei was throwing stones at Kaewaniti's head: 6 stones. Tererei said "We should kill him". Didn't hear Maruia say anything. Teea said he should be killed also. Kaewaniti did not cry out: made no sound. Quite bright, moonlight. We returned to Kabokia's house: finished our drinks. We all drank and finished it..... Maruia said "We shall go back to kill him. Teea – didn't hear him – Tererei "We shall return to kill him"..... When we got to Kaewaniti he was lying down under verandah in same position. Hit him again, Tererei , Maruia and Teea. Tererei hit his chest and back with his feet many times. Maruia hit him on chest and neck – many times with his boots. Teea hit him on chest and stepped on head. Maruia told me to hit him..... Teea also told me to punch him: afraid. Tererei didn't say anything. Teea and Maruia dragged Kaewaniti. Got hold of his neck lifted it higher ...... and stepped on his neck. Maruia and Teea – didn't' see Tererei. Dragged him to the sea – Maruia and Teea by the hands, myself and Tererei by the legs. Stopped and had a rest. Maruia broke his neck by twisting. We let him float away – dragged him to edge of beach. Teea held him by head. Kaewaniti floated away. We washed in sea and went back to Kaewaniti's house. Washed with fresh water. Separated to our own houses.

In answer to Ms Huston in cross-examination Tennang admitted that he, too, hit Kaewaniti:-

I did kick him when the others told me – twice but third time I slipped in his chest – nothing on my feet.

Tennang took some part of the attack but has been granted immunity in return for giving evidence in the prosecution of his three companions. He was an accomplice and I should be very careful before I accept his evidence. I do accept it. I concluded beyond reasonable doubt that he was telling the truth and giving an accurate account of what happened. It shews that the three accused, in a joint enterprise, attacked this man Kaewaniti when he was helplessly drunk and asleep. They went on attacking him until he was dead. They then dragged his body to the shore and into the sea. The only discrepancy of any significance – and it is not much – is that Tennang speaks of three visits to the Council verandah by Maruia and Teea whereas in statements the accused say there were only two.

Accepting Tennang's account beyond reasonable doubt, in the absence of other evidence which might shake my acceptance – there is none – would be sufficient to find all three guilty of murder.

Tennang's account of what happened was the first part of the prosecution case. The second part was the admission of each accused.

The hardest fought issue was the objection to receiving in evidence the caution statements of Maruia and Teea. Ms Taoaba for Tererei made no objection to my receiving his statement.

We had two voir dire hearings, the first relating to Teea's statement, the second to Maruia's. After evidence and argument I gave separate reasons for receiving each.

Each statement contains full admissions of the maker's part in the crime. I shall quote from each and have regard in each only to the admissions of his own actions. Admissions by one accused are not evidence against other accuseds.

In the order in which they were tendered:

Tererei

I certify that Tekaewaniti Tekareurua (the victim) died as a result of being beaten up by ........ and myself ........ Later I returned to Kabokia's house to continue drinking ....... Kaewaniti Tekareurua stayed under the verandah of the Council office sleeping. While we were drinking ........ Teea, Marewe and Maruia Taiau disappeared. About an hour later, they (Teea and Maruia) returned and Teea called me and Tennang to go with them. ------ The four of us (Teea, Maruia, Tennang and myself) went back to the place where Kaewaniti was sleeping. I saw him lying facing westwards i.e. facing the sea. No chance was given to Kaewaniti as he was beaten up by Maruia and Teea in that they stepped on his face and chest. Kaewaniti did not wake up nor did he make any sound. I myself threw a big stone at his head which I held in my two hands and bashed his head. There was no sign of any movement from Kaewaniti when we did all this attack. I threw at his head twice with a stone but I am not sure whether the second one really hit him. After attacking him someone (I cannot remember who) said that we have to put his body in the sea to be washed away. I certify that Kaewaniti was already dead before we dragged his body to the sea.

Tererei was the only accused to give evidence. He made some attempt to exculpate himself, admitting that he did throw stones at Kaewaniti's head:

When we went to Kaewaniti I didn't mean to kill him – only went to see what would happen. It was in my mind to throw a stone at him. I meant to throw a stone at him but not to hurt him.

Tererei did not have to prove anything. All I need say is that I find beyond reasonable doubt that his account set out in his caution statement tendered by the prosecution is the accurate account of his part in this tragedy. Tererei took part in the joint enterprise to kill Kaewaniti.

Teea

I believe that the loss of Kaewaniti Tekareurua's body was due to the result of our bad work to him, which resulted to his death, and that we threw his body in the sea, opposite the Council's office. It is our idea, Maruia and I, when we were drinking at Kabokia Teiaa's house ....... After we finished our second cups of drink Maruia Taiau and I went to Kaewaniti who is fast asleep under the verandah of the Council's office. The purpose of our going there was to kill Kaewaniti. When we reached Kaewaniti I tried to wake him up. I only tried (to wake him up) once and he was not awake so I hit him on the face with my left fist. He did not wake up and then Maruia kicked his face. From that moment on, we both hit him, we kicked his neck and chest. We did that for quite a long time...... After that we went and call our friends whom we left behind at Kabokia's house. They are Tennang and Tererei. We told them that we should all be going back and beat Kaewaniti up. The four of us went ......... When we reached Kaewaniti we beat him up by using our hands. We also kicked his face, his chest and neck using our feet. I remember that Tererei and I also hit his head with the stone ...... I also remember that we lifted him and placed his neck on the stick used for the Council's fence ........ After that we dropped him to the sea. When we reached the beach, before throwing his body into the sea, the four of us beat him up again to the stage that I believe that he died. After that we threw his body into the sea.

Maruia

I certify that Kaewaniti Tekareurua had died by us as a result of attacking him and then dragging his body out to sea. This was in the early hours of 20/10/03 about 0400 hrs....... it was Teea and myself who first beat Kaewaniti up at about 0230 hrs ....... We went back to kill him. We did not have any weapons such as knives etc. but only a pair of shoe. Teea was going to wear them but I took them from him and put them on. Then we went to the place where Kaewaniti was sleeping which was under the Council Office verandah. When we got to him (Kaewaniti), I saw that he was alone and fast asleep. Teea tried to wake him up but Kaewaniti was knocked out (fast asleep). I believe that he was asleep at that time. After trying to wake him up and finding that he was fast asleep, we started beating him up. Teea was the first one to kick him with his foot and I jumped on him too. We punched him with our fists and we stamped on him. This went on for about half an hour and I knew that he was badly wounded. I also believe that Kaewaniti did not run away nor did fight back. I also believe that Kaewaniti cried out a little when we first beat him up and afterwards, nothing else. I certify that the parts of Kaewaniti's body that we beat, stamped on and kicked were his head, his back, neck and his chest. We left him after this and went back to join our friends ...... at Kabokia's house. We drank with them and then told them that we had beaten Kaewaniti and later we all left with them to go back to Kaewaniti..... we all began beating him up again like before. I think this went on for a much longer time than the first time may be a hour. At that time I dragged him onto the verandah post and positioned his head on the verandah post and kicked his head. I did this twice. After this, we (the 4 of us) dragged his body out to sea, which was right opposite the Council Office.

Neither Teea nor Maruia gave evidence or called any. This means that their respective admissions stand unchallenged. They are sufficient to prove beyond reasonable doubt the guilt of each accused.

In deference to Ms Huston, before coming to a decision, I shall deal with her most thought provoking final submission.

Ms Huston submitted first that there is no body: if there is any other rational hypothesis but death then the prosecution has not proven its case. Perhaps, Ms Huston argued, Kaewaniti wanted to disappear and had done so. In the light of the evidence of his condition when Tennang saw him under the verandah and that he was already dead when put in the sea, the suggestion strains credulity too far.

Ms Huston argued that perhaps he was already dead before he was attacked the first time: may be he had died of natural causes while sleeping under the verandah. That I regard as only a fanciful possibility and disregard it. As well, Ms Tebao in reply pointed out that her own client in his caution statement said he believed Kaewaniti was asleep when he and Teea first went back to him: indeed he cried out a little when they first beat him up.

Ms Huston complained of shoddy police work and the failure to carry out any tests on the blood to confirm it was human. I must reject these complaints as well. It all happened on Teraina, a remote island with, I assume, only a medical assistant. One cannot expect tests to be carried out there or even on Kiritimati: may be not even at Tarawa. Likewise, I cannot accept that the police investigation was shoddy. It was well up to standard in Kiribati. Even if it were shoddy what follows from that? Nothing that I know of.

Despite her best efforts and the efforts of Ms Taoaba on behalf of her client (Mr Amten adopted Ms Huston's arguments) I find that the Republic has proved the case beyond reasonable doubt: twice over, really: once through Tennang's evidence and again in the admissions. The prosecution case against all three accused is overwhelming.

Each accused is guilty of murder.

THE HON ROBIN MILLHOUSE QC
Chief Justice