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Republic v Temoannang [2014] KIHC 41; Criminal Case 7 of 2011 (29 September 2014)

IN THE HIGH COURT OF KIRIBATI 2014

CRIMINAL CASE NO. 7 OF 2011

BETWEEN

THE REPUBLIC
PROSECUTOR

AND

KATOAITI TEMOANNANG
TEEMA TAAKE
RIBANO TAMWERI
ACCUSED

Before: Hon Chief Justice Sir John Muria

23 May, 28 May, 30 July, 9 & 10 September 2014

Ms Tewia Tawita for Prosecutor
Mr Raweita Beniata for 2nd Accused, Teema Taake

JUDGMENT

Muria, CJ: The accused Teema Taake is one of the three accused jointly charged with the murder of the deceased, Namoriki Teiataake. The other two accused, Katoaiti Temoannang and Ribano Tamweri, had already been dealt with. Katoaiti pleaded guilty to murder and sentenced to life imprisonment with a non-parole period of 7½ years and pleaded guilty to one (1) count of accessory after the fact and sentenced to one (1) year imprisonment. The accused Ribano was acquitted on all counts following a no case submission. The accused Teema Taake also faces one count of Assault Causing Actual Bodily Harm and one count of Accessory after the Fact. He pleaded not guilty to all three counts.

It is also the case for the prosecution that the accused was acting in concert with Katoaiti to carry out a common purpose, that is, to kill the deceased or do him grievous harm and to help Katoaiti dispose of the deceased's body in the sea. In this regard the prosecution relies on section 22 of the Penal Code.

The prosecution called five witnesses. The accused gave sworn evidence on his own behalf. The accused also made a caution statement which was admitted in evidence.

On the charge of murder under section 193 of the Penal Code, the prosecution must prove that the accused caused the death of the deceased unlawfully and with malice aforethought. The evidence of Taketibwa (PW1) is that he was there when the two accused, Katoaiti and Teema, were fighting with the deceased. PW1 saw Ribano, Teema and Katoaiti fighting. He left to get help. When he came back Ribano was no longer there. Only Teema and Katoaiti were left with the accused when PW1 went to get help for the deceased. Ribano had already left and went away.

When PW1 returned with PW2 to the scene of the fighting, only Teema and Katoaiti were with the deceased. They surrounded him while he was lying down on a coconut trunk. PW1 and PW2 watched Katoaiti and Teema standing over the deceased. They went to get PW3 and on their way back to the scene of the fighting, they met Katoaiti and Teema on the road. When asked where the deceased was, Katoaiti replied and said that he did not know. Teema kept quiet. PW2 confirmed PW1's evidence on seeing the two accused Katoaiti and Teema standing over the deceased who was lying on a coconut trunk. He also confirmed meeting the accused on the road and that Katoaiti said that he did not know where the deceased was when they were asked.

PW3 also confirmed meeting the two accused on the road. He also confirmed that when asked where the deceased was, Katoaiti said that he did not know.

PW4 who is the Medical Assistant examined the deceased's body and concluded that the cause of death was severe assault with blunt force. She concluded also that the deceased was already dead when he was dumped into the sea.

PW5 is the arresting officer. He stated that Teema's body was full of blood when he was arrested in the morning. Katoaiti was also arrested. His clothes were a bit wet when he was arrested.

SUBMISSIONS BY COUNSEL

Relying on section 22 of the Penal Code, Ms Tawita submitted that the prosecution case is that the accused together with his co-accused Katoaiti jointly attacked the deceased with intent to cause his death or serious bodily harm to him. It is also the prosecution case that the accused assisted Katoaiti to drag the body from where the fight took place to the sea where they dumped the deceased's body.

To succeed in satisfying section 22 of the Penal Code (Joint Enterprise) the prosecution would need to establish that the accused and his co-accused jointly set out to carry out a common unlawful purpose and in the course of doing so an offence as committed. It must also be established by the prosecution that offence committed was the probable consequence of the execution of their common purpose.

The evidence for the prosecution on this aspect of the case came from the evidence of PW1, PW2 and the accused's caution statement. PW1 is the eye witness as to what had happened at the time of the incident - shortly after midnight on New Year's Eve 31 December 2010. Following an argument over drink, a fight took place between the deceased and the three accused in this case.

One of the accused (Ribano) left the fight and returned home. The other two accused Katoaiti and Teema remained behind with the deceased. PW1's evidence shows that the two accused continued to attack the deceased. PW1 saw the accused Teema and Katoaiti standing over the deceased who was then lying on a coconut trunk. PW1 went to get help and when he returned he saw the two accused still attacking the deceased. PW1 went to get further help and when he returned the deceased and the two accused were not at the place where they were fighting.

The accused Teema's evidence in his caution statement is that he helped to attack the deceased. He and Katoaiti were the only ones left behind fighting with the deceased. The accused realized that the deceased was seriously beaten and tried to help him. He put his hands around the under arms of the deceased and tried to sit him up. The accused was covered with blood from the deceased's body. He told Katoaiti that the deceased was dying but Katoaiti refused to listen. Instead Katoaiti told the accused Teema to leave the deceased alone. Katoaiti told the accused Teema that the deceased was not his (Teema's) responsibility.

The accused Teema left the deceased and Katoaiti. He said that when he left the deceased and Katoaiti, the deceased was still alive. He went to fetch his bicycle at Ribano's house. After he got his bicycle he met Katoaiti on the road. Teema asked Katoaiti where the deceased was, Katoaiti did not answer. When Teiaua (PW3) asked where the deceased was, Katoaiti answered and said "we did not know".

When the police arrested the accused Teema, he had blood all over his body. When Katoaiti was arrested, his clothes were noticed to have been a little bit wet.

The prosecution case is also built on the fact that the accused had blood all over his body, together with the fact that he and Katoaiti were the ones left with the deceased and hitting him.

The blood on the accused's body has three possible explanations. First, as the prosecution case envisaged, the blood were from the deceased spilled on to the accused in the course of fighting with the deceased. Secondly, as the prosecution case also envisaged, the blood were from the deceased and got on to the accused's body while helping the co-accused Katoaiti to drag the deceased's body from the scene of the fighting to the sea, and thirdly, as the accused stated in his caution statement and in Court, that he got the blood on his body when he tried to help the deceased by putting his hands around the deceased under his armpits, tried to sit him up, but fell with the deceased who was covered with blood. In the Court's view the third explanation is more plausible on the evidence. If the first and second explanations were to be accepted, there is a great possibility that the accused could have washed himself in the sea if he assisted the co-accused to drag the body of the deceased to the sea. There would also be real possibility that when the police arrested him, they could have found that his clothes would have been a little "wet" as they had found on Katoaiti when he was arrested.

The accused's meeting with the co-accused on the road did not help the prosecution case that the accused assisted Katoaiti to dispose of the deceased's body. Katoaiti was coming from the direction of Kariraia when he met him on the road. The accused had gone to fetch his bicycle at Ribano's house and was going to the main road when he met Katoaiti. It was there that the others met them.

The prosecution must prove the elements of the offence against each accused. Since the prosecution case against the accused is pivoted on section 22 of the Penal Code, the prosecution must establish that the accused and Katoaiti were acting in joint enterprise and together they carried a common unlawful purpose namely to attack the deceased with the intention to kill him or do him serious bodily harm and dispose of the deceased's body.

But the evidence of PW1 and the accused when put side by side, it cannot be said with certainty that this is a case of joint enterprise executing a common purpose. The accused and Katoaiti might be participants in a fight following an argument with the deceased who was the initial aggressor, but they cannot be regarded as having set out with a common unlawful purpose and jointly executed it.

The evidence does not support the charges of murder and accessory after the fact in this case against the accused Teema. On the other hand, the evidence of PW1, PW2 and the accused himself clearly shows that the accused Teema participated in the serious assault on the deceased causing him bodily harm. Both in his caution statement and evidence in Court, the accused admitted seriously assaulting the deceased even when he was on the ground. I am satisfied so that I am sure that the accused has committed the offence of assault causing actual bodily harm in this case to the deceased.

The result is that, the Court finds the accused Teema Taake not guilty of murder and not guilty of accessory after the fact. The Court, however, finds the accused guilty of assault causing actual bodily harm and he is convicted on that count.

VERDICT: Not guilty of murder
Not guilty of Accessory after the Fact
Guilty of Assault Causing Actual Bodily Harm

Dated the 29th day of September 2014

SIR JOHN MURIA
Chief Justice