IN THE HIGH COURT OF KIRIBATI
(BEFORE THE HON R LUSSICK C.J.)

HCCrC 8/95

THE REPUBLIC

versus

TOVIA UEANTEITI

Mr T Tabane for the Republic
Mr T Teiwaki for the Accused

JUDGMENT

The accused is charged with the murder of Arawatau Atanibora at Betio in February of 1995.

The prosecution case is that in the early hours of Saturday 4th February 1995 the accused and the deceased fought each other outside the National Bar. The fight was stopped and the accused went away but he returned not long afterwards. Another fight took place between the accused and the deceased. This time the deceased fell to the ground. He was found with two stab wounds to the stomach from which some intestines were protruding. He was taken at first to Betio Base Hospital and later to the Central Hospital but was found to be dead on arrival.

No weapon was ever found, there was no evidence of the accused being seen with a weapon and there was no medical evidence as to the cause of death.

The first prosecution witness was Ieie Rereimata, a 31 year old man who was a friend of the deceased and was also related to him as a third cousin. He testified that on the night of Friday the 3rd of February 1995 he, the deceased and two friends went to the Seamen's Hostel for drinking and dancing. The deceased had commenced drinking earlier that day. They stayed for three or four hours then the four of them went to the National Bar, again for drinking and dancing.

The deceased, while at the National Bar, had been going outside from time to time. On one occasion he came back inside and told the witness that he had just had a fight with a man named Tovia. The witness identified the accused as the Tovia referred to. He and the deceased went outside to look for him. There were some people outside including the accused's brother and his wife. Someone shouted that Tovia was coming and the witness moved to meet him but the deceased came between them. The deceased and Tovia then fought, exchanging blows and holding each other. The witness did not take part and did not try to break them apart. The deceased fell down with the accused on top of him and the witness then attempted to get the accused away from him. They struggled and exchanged punches. The fight stopped when the witness grabbed the accused's hair and held his head down. Someone shouted for him to release the accused and he did. The accused was then led away.

At this stage the witness felt a pain at the back of his left leg. It was bleeding from a wound. He went over to see to the deceased who had tried to stand up but had fallen down again and was lying on his back. The witness saw two wounds to the stomach of the deceased, one on either side of his body below the navel. About two inches of intestine was protruding from one of the wounds.

The deceased was taken to Betio Base Hospital where a nurse tried to help him but advised that he be taken to the Central Hospital. He was taken there on the back of a truck, accompanied by the witness and others.

At the Central Hospital the deceased was examined immediately on arrival by Dr Kautu. The doctor pronounced him dead and the body was then taken back home.

The witness estimated that he had drunk 5 or 6 cans of beer that night and that for every can he had drunk the accused had drunk 2 or 3.

In cross-examination he conceded that he had been feeling the effects of drinking. He agreed that he had not seen the accused with a knife but added that he knew it was the accused who had injured his leg. He further agreed that there was no mention of his leg being injured in the statement he had given to the police. He said he had told them about it but they had not included it in the statement.

He said in re-examination that the nurse had wanted to stitch his wound but he would not agree to it and asked for an injection instead. He showed the court a raised scar about one inch long and a ½ inch wide. He said that the wound had taken longer than a month to heal. He also said that after the fight he searched the ground in the vicinity for any sharp objects but found nothing but sand.

This witness impressed me as truthful. He seemed to have a good memory of what had happened and gave his evidence frankly and without any attempt at embellishment. He was not the least bit shaken in cross-examination.

The second prosecution witness was a young man aged 22 named Bouamatang Rui. He not only knew the deceased very well but is also a third cousin of the accused. His evidence was quite consistent with what Ieie had said.

Sometime after midnight he was on his way into the National Bar when he saw the accused fighting with the deceased. They were holding each other and exchanging blows. With the help of another person he separated them. He took the deceased over to a nearby car and someone led the accused away.

The deceased went back into the bar but came out a short time later - perhaps 5 or 10 minutes - with Ieie. Not long after that he saw the accused approaching them walking very fast. The witness shouted to the deceased that Tovia was approaching. Ieie went to meet him but the deceased intervened and he and the accused fought a second time.

The witness saw the deceased fall down whereupon Ieie stepped in and fought with the accused. The witness stopped Ieie and then led the accused away. The witness then went to the accused and saw that he was lying facing upwards. Someone had placed a cloth over his stomach. He did not see any blood.

At no stage did he see the accused use a knife.

I could see nothing to indicate that this witness was not telling the truth. He was not drinking with either the accused or the deceased that night and is in fact related to the accused. He also stood up well to cross-examination.

The third prosecution witness was Boota Otea, a 33 year old primary school teacher who teaches at the same school as the father of the accused. He knew the deceased quite well and also knows Ieie.

He was drinking at the National Bar that night with some other people. Upon hearing that the deceased had been injured he went outside and saw him lying on the ground with some people standing over him. He saw two wounds to the right and left of his stomach. He could not see any blood but saw intestines protruding from both wounds. Someone gave him a piece of cloth and he covered the wounds with it.

He went with the deceased and others to the National Hospital where he saw Dr Kautu examine the body. He saw the doctor put the intestines back into the stomach and then cover the wounds with plaster. The witness estimated that the wounds were very small.

In cross examination he said that when he arrived at the National Bar that night Ieie was already there. He had a few drinks with Ieie and in his opinion Ieie was not drunk.

The fourth and last prosecution witness was Atanibora Tetaua, the father of the deceased. He gave evidence that he was called to go to Betio Hospital to see his injured son. The son was later put in the back of a pick-up and he cradled his son's head in his arms as they headed for the Central Hospital. They had not travelled very far, in fact they were only in the vicinity of the Marine Training Centre, when his son grabbed his hair and apologised to him and asked him to apologise to "that man". He then released his father's hair. The father shook him and called his name but he was dead. They were close to Betio Police Headquarters at that stage.

At the Central Hospital he saw Dr Kautu examine his son. He saw the doctor put his index finger into the wound to the right of the stomach. He put the intestines back into the stomach and then firstly inserted his index finger into the wound and then his middle finger. The doctor told him his son was dead. He waited some time for the police to arrive but when they failed to do so he persuaded the doctor to allow him to take his son's body home.

This was the last witness for the prosecution. Counsel for the Republic informed the court that Dr Kautu is currently studying in New Zealand and the prosecution were unable to obtain the necessary funds to bring him back.

I found that there was a case to answer and explained to the accused his rights in accordance with section 256 of the Criminal Procedure Code Cap. 17. He elected to give evidence but did not call any witnesses in his defence.

The accused is a 31 year old man. He is presently in custody but before that he lived at Temakin, Betio. He spent 5 years in Hawaii from 1987 studying at Brigham Young University but did not complete his course and returned to Kiribati in 1992.

His evidence was that on the 3rd February 1995 he started drinking at around 7.00 pm. He and his brother-in-law had two cans of beer each in his car which was parked outside the National Bar. He then dropped off his brother-in-law and went looking for his wife who arrived home about one hour later. Their plan was to go to a party at Ambo but it was still too early so he and his brother went with their wives to the Royal Saloon. The accused said he was drinking lightly because he was driving. After about an hour there they drove to Ambo and stayed until around 2.00 am. On the way back they decided to stop at the National Bar for a few drinks. At this stage their party numbered 6 people. He was unable to remember the names of the other two men who had joined them.

They reached the National Bar at about 2.30 am and went inside to drink a few more beers. There were a lot of people there. When they were outside again he looked back and saw that a man was holding his sister-in-law "as though he were going t please himself". The accused said he pulled this man away from her and the man punched him. The accused returned the punch and a fight started. It lasted about a minute and then some people separated them.

The accused said that he then looked around for his wife but she was not there. He drove home but she was not there either so he returned to the National Bar. There he was confronted by "some mean looking people". He said he was attacked by a bunch of 5 people. They came at him all at once, throwing punches to his face. He fought back but there were too many of them; to use his words: "I was incapacitated by the tremendous force. I wasn't strong enough for 5 of them".

He remembered one of them being Ieie who gave him a black eye. He also remembered that the deceased was another of them. One of the group - he cannot remember who - hit him on the forehead with a stone. After that he was a "little bit unconscious" and was rescued by Bouamatang, the second prosecution witness. He said he was quite badly beaten up. He was taken to some place right by the shops where he was left on his own.

The accused said that he then continued the search for his wife. His car had been "repossessed" by his parents so he had to walk. He first walked home to Temakin but she was not there. He then walked to his father-in-law's house at Takoronga where he found his wife. Police arrested him there at about 6.00 am. He has been in prison ever since.

The accused said that he did not stab the deceased, nor did he cut Ieie's leg. He said that he did not have a knife or anything else.

During his examination-in-chief I indicated to his counsel that I would only allow the accused to give evidence of matters which were not put to the prosecution witnesses on the terms that the prosecution witnesses could be recalled to give evidence in reply to rebut those matters.

Later in his examination in chief the accused explained that he had not told his counsel that he had been attacked by a group and struck on the forehead with a stone because he had not given a statement to counsel until he had been behind bars for three months. He later went on to explain why he did not tell his counsel how the fight started, i.e. by someone grabbing his sister-in-law. His words were: "I didn't put that in my statement to counsel. I just forgot to put it in my statement. I didn't expect the question to be asked what caused the fight".

That was the case for the defence.

I then allowed the prosecution to recall the first and second prosecution witnesses to give evidence in reply to the matters raised by the accused which had not been put to them in cross-examination. Ieie was very certain that only the deceased had fought the accused in the second fight and that no others had joined in. Ieie himself became involved only when the deceased had fallen to the ground. Bouamatang was unable to say what caused the first fight but his evidence was the same as Ieie's in regard to the second fight.

Counsel for the Republic and counsel for the accused then made their closing speeches.

Before addressing the issues, I remind myself that the onus of proof beyond reasonable doubt remains upon the prosecution from first to last. The Republic must prove the charge and each element of the charge beyond reasonable doubt and if it fails to do so then the accused is entitled to be acquitted. There is no onus on the accused at any stage to prove his innocence.

It is submitted for the accused that the evidence adduced by the prosecution is unsatisfactory and that it is therefore unsafe to convict because no knife was produced, there was no evidence that a knife was seen and no evidence that the accused stabbed the deceased, and there was also no medical evidence as to the cause of death.

The elements of murder which must be proved beyond reasonable doubt are:

1.	that the accused caused the death of the deceased
2.	by an unlawful act or omission
3.	with malice aforethought (section 193 Penal Code Cap. 67).

Section 195 of the Penal Code provides that "malice aforethought may be expressed or implied and express malice shall be deemed to be established by evidence proving either of the following state of mind preceding or co-existing with the act or omission by which death is caused, and it may exist where that act is unpremeditated -

(a)	an intention to cause the death of or grievous bodily harm to any person, whether such person is the person actually killed or not; or

(b)	knowledge that the act which caused death will probably cause the death of, or grievous bodily harm to, some person whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused".

At the outset I must say that I did not believe the accused. His demeanour and the illogicality of his version of events led me to conclude that he was not telling the truth.

He seemed to have been in remarkably good shape after the severe beating he allegedly underwent. Afterwards his main concern was not to seek medical attention as one might have expected but to look for his wife. In pursuit of this purpose he apparently had no difficulty in walking to his home at Temakin and then to his father-in-law's place at Takoronga. This was not consistent with his having been badly beaten up. Why he again went to his home in search of his wife is difficult to understand because he had gone there searching for her after the first fight, which was not long before the second fight, and she had not been there then.

He said that after the first fight he had looked around for his wife at the National Bar and she had not been there. It does not follow that he would return to the National Bar not long afterwards knowing that his wife had left there and that there was nothing but trouble waiting for him. If he was genuinely looking for his wife surely having already searched his home and the National Bar he would have gone straight to her parents' place, which was where he said he later found her.

I also find quite incredible the accused's allegation that when he returned to the National Bar after the first fight he was attacked by at least 5 men and given a severe beating. Surely if this had really happened then it was a matter of the utmost importance which he would have mentioned to someone before now, given that he was facing a murder charge. Yet apparently the matter first came to light during this hearing. Not even his counsel had heard of it before.

I therefore do not think that the accused was telling the truth and I reject his evidence. On the other hand, I accept the evidence of the first two prosecution witnesses Ieie and Bouamatang as to what happened that night at the National Bar.

I am satisfied beyond reasonable doubt that the deceased collapsed while fighting with the accused and that what caused him to collapse were two wounds to the stomach through which intestines were protruding. In view of the evidence of the deceased's activities earlier that night it would be absurd to suggest that he was already carrying those wounds before he engaged in the fight with the accused. Nor can I infer on any reasonable basis that the deceased suffered those wounds by falling on some sharp object on the ground. Ieie, the only other person to fight the accused, also suffered a wound to his leg which he said was inflicted during his fight with the accused and I have no doubt that it was Ieie who went to the trouble of searching the ground for any sharp object and found nothing but sand.

It does not follow that the accused could not have inflicted the injuries simply because he was not seen with a weapon or because a weapon was never found. The only logical inference that can be drawn from the facts is that the deceased suffered the wounds to his stomach during a fight with the accused and that it was the accused who deliberately inflicted those wounds with a sharp object which had been concealed on his person. I am satisfied beyond reasonable doubt that that is what happened and that the accused acted with malice aforethought i.e. with intent to cause at least grievous bodily harm to the deceased.

As counsel for the accused submits, there was no medical evidence of the cause of death. The Kiribati Court of Appeal expressed the view in Tentoa Auatabu v. The Republic (1989) that although medical evidence of the cause of death is in general highly desirable, it is not in every case essential to establish the cause of death by medical evidence and that in some cases the cause of death can be established by rational inference. In the present case the deceased collapsed from the wounds while fighting with the accused and died on his way to hospital. In the circumstances the only reasonable inference that can be drawn is that the wounds inflicted by the accused were a cause of the death and I am satisfied of this beyond reasonable doubt.

Counsel for the accused has not raised the issues of provocation or self-defence and I am satisfied that the prosecution have proved beyond reasonable doubt that the case is not one of either provocation or self-defence.

The prosecution having proved all of the elements of the crime beyond reasonable doubt, I therefore find the accused guilty of the murder of Arawatau Atanibora contrary to section 193 of the Penal Code and he is convicted accordingly.

THE HON R LUSSICK
Chief Justice
(03/05/96)