IN THE KIRIBATI COURT OF APPEAL
CRIMINAL JURISDICTION
HELD AT BETIO
KIRIBATI

Criminal Appeal No 7 of 2009

BETWEEN:

MAKITERA TAMAROA
APPELLANT

AND:

THE REPUBLIC
RESPONDENT

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel: Abunaba Takabwebwe for appellant
Tewia Tawita for respondent

Date of Hearing: 20 August 2009
Date of Judgment: 26 August 2009

JUDGMENT OF THE COURT

[1] Makitera Tamaroa appeals against his conviction for murder, of which the Chief Justice found him guilty after a trial on 21 and 22 January 2009. The essential facts as disclosed in the evidence are quite simple and largely undisputed. It is the inferences to be drawn from them that are at issue in this appeal.

[2] The appellant, described as powerfully built, and then about 18 years of age, had been drinking with friends during Thursday 3 May 2007 and the early hours of Friday 4th. A 13 year old girl, Taeana Tebau, joined them and asked if she could sleep beside them, "so they could look after her", one said. They agreed, and she went to sleep. Some time later the appellant woke her, and asked her to go with him. She willingly went with him. His friends described him as "drunk, but not excessively so." She was "not so drunk..alright." The couple were not seen again until daylight on the Friday. But during the night witnesses heard noises coming from an unoccupied house some 10 metres away. One spoke of "a cry. Someone asking for help." Another described a "crying woman for not long." 

[3] However, they did nothing until the morning, when they went to the house from which the noises had come. They found the girl lying on the cement floor underneath the verandah, naked, face upwards, obviously dead. The appellant, also naked, was lying close to her, fast asleep. Several people gathered around, making a commotion. Someone went to the house and covered the girl’s body. The police were called. A constable arrived soon after. He found the couple in the same positions. The appellant was still asleep. The constable had to shake him several times to wake him and handcuff him. He described him as "healthy, sober," although looking as if he were suffering from the effects of alcohol. He said the scene at the house indicated a struggle: "things were in disarray or overturned", among them the couple’s clothing, scattered about. 

[4] A doctor who later examined the victim described scratch marks and bruises around her neck and jaw and concluded that the most likely cause of death was strangulation.

[5] The appellant gave evidence. He described how he and the girl had gone off to the unoccupied house, with which he was familiar, had had intercourse on a bed on the verandah, had put their clothes on again, and had gone to sleep. He said he remembered nothing more until the police officer was handcuffing him. The accused’s mother also gave evidence. She said that when her son was drunk it was very hard to wake him.

[6] In his final address, counsel then acting for the appellant submitted that one of the witnesses who had spoken of hearing noises in the night may himself have gone across to the house and attacked the girl while the appellant was sleeping alongside her. Counsel had cross-examined this witness at some length, but had not put this accusation to him. The Chief Justice rightly dismissed this possibility, which he described as fanciful.

[7] The Chief Justice summed up his conclusion in these words:

"I am left with these two people going off together and the next morning being found naked, in a vacant house, she having been strangled, he sleeping naked close by her. There is no other credible explanation but that he killed her and that he intended to kill her. Strangulation is a deliberate act: in the absence of explanation, beyond reasonable doubt this strangulation was a deliberate and intentional act. The accused’s intent to kill the victim is proved beyond reasonable doubt."

[8] The notice of appeal sets out four grounds:

1. The High Court erred in reversing the onus of proof by requiring the accused to give an explanation of what happened, rather than requiring the prosecution to prove the mens rea of the crime beyond a reasonable doubt.

2. The High Court erred in finding the identity of the killer proved beyond a reasonable doubt.

3. The High Court erred in finding the mens rea for the crime of murder proved beyond a reasonable doubt.

4. In the alternative, that in the absence of explanation, the prosecution case could go no higher than the mens rea required for manslaughter.

[9] The third ground raises the real issue in the case, which really encompasses the first. There is no substance in the second. In the circumstances we have described, there can be no doubt at all that it was the appellant who caused the death of this unfortunate girl. The evidence admits of no rational alternative. The issue then is whether, to use the words of the Chief Justice, "there is no other credible explanation but that he killed her and intended to kill her."

[10] In these words, the Chief Justice correctly directed himself in law. Where there is no direct evidence, and the prosecution relies on the inference to be drawn from such other evidence as there is, it must show not only that the inference is rational, but that it is the only rational inference that the circumstances allow; it must rest upon something more than mere conjecture. See for example the very helpful statement in the judgment of Brennan and Gaudron JJ in Knight v The Queen (1992) 175 CLR 495 at 509-510.

[11] When the Chief Justice used the words "in the absence of explanation", he was not shifting the onus of proof onto the accused, but rather was making a finding that there was no other credible (or rational) explanation. To put it another way, this was a finding that the injuries the girl sustained and that caused her death could not rationally have been inflicted other than as a deliberate act, intended to kill her or cause her grievous bodily harm. 

[12] But that finding does not in our view give sufficient weight to the very unusual aspects of this case.

[13] First, there is the appellant’s own evidence. It was apparently a clear account of what happened up to a certain point. All that took place after that point goes unexplained. It may be that the appellant’s state of intoxication meant that he really had no memory of what happened later. Or his evidence may have been a lie, either in respect of what he said had happened, or in deliberately concealing all else that followed. But the Chief Justice did not discuss that possibility and the effect if any that it may have had on the appellant’s guilt. The next unusual aspect of the case is the absence of any obvious motive or purpose. The girl had gone with the appellant willingly enough and on his account had consented to intercourse. Of course she may have objected to his advances, and he may then have attacked her in anger or frustration, but this is all conjecture. Then, there is his state of intoxication, judged not only by his friends’ estimate but also by the comment of his mother and by his virtually comatose state in the morning. And finally, and most significantly, there is the fact that he remained at her side and fell asleep, hardly the reaction of a man who had intended to kill and had succeeded. 

[14] These facts, in our view, leave the reasonable possibility that what happened was not the result of a killing with malice aforethought for the purpose of s 193 of the Penal Code. It is quite conceivable that death was the result of a sexual activity that got out of hand; or that in his drunken state he laid his hands on her without realising his own strength; or that in some other way he caused her death through the intentional application of force or negligence falling short of malice aforethought. The Court need not explore the possibilities further. It is sufficient to hold as we do that there are other rational explanations for what occurred than that the appellant had the necessary intent to kill or do grievous bodily harm.

[15] We are therefore satisfied that the conviction for murder is unsafe and must be quashed. In its place we substitute a verdict of guilty of manslaughter. 

[16] It is not appropriate for this Court to determine the appropriate sentence. We do not have sufficient material before us. We therefore remit the case to the High Court for the appellant to be sentenced for manslaughter.

Hardie Boys JA
Tompkins JA
Fisher JA