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Republic v Bwateriki [2009] KIHC 48; Criminal Case 28 of 2009 (12 October 2009)

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

HIGH COURT CRIMINAL CASE 28 OF 2009

THE REPUBLIC

V

BIIRA BWATERIKI

For the Republic: Mr Monoo Mweretaka
For the Accused: Sr Bernadette Eberi

Date of Hearing: 12 October 2009

JUDGMENT

Biira Bwateriki has been charged with murder:-

Particulars

Biira Bwateriki, on 27th March 2008 at Bairiki village on South Tarawa in the Republic of Kiribati, murdered Utire Tekiata.

There was a fight one night – probably between 11 pm and midnight – in the area of the intersection outside Mary’s Motel at Bairiki. Biira was fighting with Utire.

The prosecution called three witnesses who described what they saw.

Tebuke Raebwati:-

Saw Biira being chased by two men. Recognized [him]. First saw him hit under a light by Mary’s. Did not recognize the two men. The two men did not catch him. They seemed happy. Few minutes later Biira came back with another boy. They then started fighting in two pairs. Recognized Kirata and Biira: they were each fighting another man. Fighting in pairs. Fighting with Biira did not recognize. At end of maneaba fence. Fighting separately and apart. I was watching [the Biira pair] as they were closer to the maneaba. I 5+m away. Light not very good but I could see. While fighting Biira fell down, got up and started fighting again. In front of gate – same place as before. The other man fell down. Kirata then came along and took Biira to the wharf. Others and I came next to the person who fainted. Biira did nothing to him. Nose and mouth bleeding: eyes swollen. I turned him on his side: blood flowed ..... Loaded two injured men on to truck.

There is no dispute about the facts. No evidence from the defence.

Where death results from a fight the killing is murder unless there is sufficient provocation to reduce the offence to manslaughter ..... (10 Halsbury, 3rd edition @ 714).

During the evidence I formed the opinion that there may have been sufficient provocation to reduce the crime from murder to manslaughter. I told counsel as much and they did not demur.

The prosecution had two other difficulties. First the witness (a medical practitioner) whom they had intended to call to prove the death was not available. Sr Bernadette refused to allow a report to be tendered.

Secondly there had been no identification by any of the three witnesses of the victim.

At the last minute Mr Mweretaka called another witness whom he had not intended to call, Senior Constable Kaitangare Toka:-

..... on duty at Bairiki. Drunkards went to maneaba. Two men lying separately: faces full of blood: loaded on to van. Took Titau by hand: other man had to carry him on to van. Blood. To Betio hospital. Sitting on back. Severely injured. Unloaded the two men: message saying Utire had died. Doctor came out and told us.

[Titau, the brother of Utire, had been in a separate fight in the same area at the same time with Kirata.]

Part of this evidence was hearsay but there was no objection to it. In the circumstances of this case I accept the evidence as sufficient to prove the death of the victim alleged in the indictment.

The accused is guilty of manslaughter.

THE HON ROBIN MILLHOUSE QC
Chief Justice