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

HCCrC 3/96

THE REPUBLIC

versus

TEMOAI NAKIMAI

Ms P Atanraoi for the Republic
Mr D Lambourne for the Accused

JUDGMENT

The accused is charged with the murder of Nei Ruita Smith at Betio village on or about the 13th October 1995.

The accused has never denied killing Nei Ruita. His case is that the offence does not amount to murder but only to manslaughter because of the existence of extreme provocation causing him to lose the power of self control.

He made a full confession to the police several hours after the killing. His cautioned statement was proved to have been made voluntarily and there was no objection to its tender as evidence in the prosecution case. In that statement he said that he had been living with Nei Ruita as man and wife. He gave a history of her somewhat wayward behaviour in the weeks leading up to her death. She began leaving home once or twice a week. Sometimes she would return of her own accord and at other times the accused would find her and ask her to come back. On one occasion he had been told by a relative that Ruita had been seen with a boyfriend near a boat at the shipyard but he did not believe this. In the few weeks immediately before her death she left the accused one Thursday and did not return until the following Sunday. They then lived together for two weeks after which she left him again on a Thursday, returned the next day and left again on the Saturday. He found her on Thursday of the following week and they stayed together that night at a friend's place. The next day, a Friday, the accused was asked by Ruita to pick her up from work at 7.00 pm to accompany her back to the house. However, when he arrived at her work place she had left so he returned home alone. Between the hours of 11.00 pm and midnight he left the house to go to the Matamata to watch the dancing. On his way he felt the need to relieve himself and so took the road leading to the shipyard and the beach. As he approached a wooden boat he heard a voice say, "Hurry up, lets make love quickly so that we can both be satisfied" or words to that effect. He recognised the voice as Ruita's. Three or four men approached and he walked beside them. At seeing a man on top of Ruita having sexual intercourse with her he grabbed a sharp piece of aluminium roofing and stabbed him. The piece of roofing was bent but the man ran away, apparently unharmed. Before he attacked he had heard Ruita call out that her husband was coming. He saw that she was lying naked on the ground with her underwear beside her. What happened next reads as follows: "I immediately put my leg on her stomach very hard so that she won't get a chance to escape and started straightening its bent end to proper position. When I released my leg she managed to get up but at that point of time I was out of control and therefore I stabbed her without knowing which part of her body was wounded. In my opinion I stabbed her two times. Once that piece of aluminium struck in her body she asked me, "Temoai, don't you love me?" I replied to her, "You don't love me because you come up here and get fucked", and after saying that I left to find her boy friend who had just escaped". The accused went on to say that he could not find the boyfriend so he went to the house to sleep. The police later found him there and arrested him. He ended his account of the incident by saying that according to custom house wives are not allowed to commit sexual intercourse with any man. The age of the accused, as appearing on the statement, is 57.

The prosecution called six witnesses, none of whom contradicted the version given by the accused in his cautioned statement.

The first witness was the nightwatchman at the shipyard. He said that between 10.00 pm and 11.00 pm on the night of the offence he was on duty at the gate of the shipyard and saw three women and one man in the vicinity of a boat on the lagoon side of the road near the shipyard. Two of the women went away leaving the man and the other woman alongside the boat. The watchman could not see what they were doing from where he was. He later heard a woman's voice give one high-pitched shout after which many people came running towards the place where the shout had come from. He heard someone tell a man not to do anything or he would get into trouble and the man answer that no one will stop him as the woman is his wife. The watchman was asked to telephone the police who came and took the body away. He did not see the body until the next morning at the police station.

In cross-examination he said he heard the shout between midnight and 1.00 am. He agreed that he had told the police that the actual words the man had said were, "Don't bother with her men, this woman is my wife and she is committing adultery".

The second prosecution witness was Corporal Toakauriri of the Kiribati Police. He answered the nightwatchman's call. When he arrived at the scene he saw a woman sitting up but bent over with her left hand under her breast. She was already dead. Police took the body to the hospital where it was examined by a Chinese doctor and later taken back to the police station. At about 3.00 am they arrested the accused.

The third prosecution witness was a man who lived near the accused at Takoronga. He said that he knew that the accused and Ruita had been living together as man and wife. However, when Ruita wanted to go away she just left. The accused had asked him on two or three occasions to let him know if he should happen to see Ruita but he was not able to help him.

The fourth prosecution witness was a woman who worked with the deceased at the Ruaibong bakery. She said that the accused came to the bakery after lunch on the 13th October 1995. He asked Ruita to help him with his teeth. She told him to find someone else to help him but he insisted and said that he would return when she finished work. After he had left, Ruita told her that he was her husband but that they had separated. The witness did not hear any strong words passing between Ruita and the accused.

The fifth prosecution witness was Constable Brian Ritang who produced the accused's cautioned statement. He gave evidence that the accused was given the usual caution after which he voluntarily made the statement. The document was then tendered in evidence without objection. In cross-examination the witness agreed that the accused had fully co-operated with the police and had seemed upset at what had happened.

The sixth and last prosecution witness was a Dr Shelby, an expatriate surgeon from China who has been working in Kiribati for the past year. He testified that he examined the deceased's body after it had been brought by police to the outpatients' department at the hospital at Bikenibeu. His examination was cursory and no post mortem was performed. He found four deep lacerations to the deceased's chest and abdomen. A wound under the right breast was particularly deep. He examined it with forceps and found that it was triangular in shape. Because of its shape he had difficulty in inserting the forceps to the depth of the wound but he was able to say that it was very deep. In his opinion death was caused by the stab wounds. In cross-examination he agreed that the wounds could have been caused by a sharp piece of metal. He estimated that the wound under the right breast was 4 cm in depth.

That was the case for the prosecution.

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 remain silent and did not call any evidence.

I then heard closing speeches by counsel for the Republic and counsel for the accused in that order.

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.

The elements of murder are:-

1.	causing death
2.	by an unlawful act or omission
3.	with malice aforethought (section 193 Penal Code Cap. 67)

Counsel for the Republic submits that all of these elements have been proved beyond reasonable doubt. Counsel for the accused concedes that the first two elements have been proved, and on the evidence, I am satisfied beyond reasonable doubt that such is the case. However, it is submitted for the accused that the prosecution have failed to establish malice, that is, that the voluntary act of the accused was not only intentional but unprovoked.

Under section 197 of the Penal Code where a person by an intentional and unlawful act causes the death of another person the offence committed shall not be murder but only manslaughter if it is proved on his behalf that he was deprived of the power of self-control by such extreme provocation given by the person killed as is mentioned in section 198. Section 198 provides that where on a charge of murder there is evidence on which the court can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be determined by the court, and in determining that question there shall be taken into account everything both done and said according to the effect which it would have on a reasonable man.

Despite the use of the words "proved on his behalf" in section 197, it is clear from the decision of the Kiribati Court of Appeal in The Republic v. Beretia Bakaatu (1996) that once there is evidence capable of supporting a finding that the accused was provoked, the burden is on the prosecution to prove beyond reasonable doubt that the case is not one of provocation. The Court of Appeal went on to discuss the dual test for provocation, namely:

(1)	was the accused actually provoked into losing his self-control as a result of which he committed the act which killed the deceased? and

(2)	was the provocation such that it was capable of causing a reasonable person to lose self-control and act in the way that the accused did.

The only evidence of what happened when the accused came upon his wife with another man comes from the accused's own cautioned statement. He said that he found his wife in flagrante delicto, lost control of himself and stabbed her with a piece of aluminium roofing which was apparently near to hand. That evidence is capable of proving that the accused was provoked into losing his self-control. What is more, extreme provocation of that nature is, in my view, capable of causing a reasonable man to lose self-control and act in the same way as the accused.

Counsel for the Republic argues that the evidence of the third prosecution witness, who testified that the accused had asked him to let him know if he happened to see Ruita, and the evidence of the fourth prosecution witness who worked with Ruita and testified that the accused had called in to see Ruita that morning, establish that the accused was monitoring Ruita's movements with the intention of murdering her. It was therefore irrelevant that when the accused did find Ruita she was engaged in an act of sexual intercourse with another man because he had already formed an intention to murder her in any event. It follows that what the accused did was not done out of provocation but was premeditated.

I must say that I am not persuaded by this argument. The fact that the accused asked his neighbour to keep an eye out for Ruita is more consistent with what the accused claimed to have done many times in the past, that is, to find out where his wife was living and ask her to return to him. As regards the accused's visit to Ruita's work place, the evidence indicated that he knew where she was and that he called in simply to ask her to help him with his teeth. While there they made arrangements for him to call for her after work. There was no evidence of the accused being surprised at finding her there or that any harsh words were exchanged. Nor was there any evidence that the accused had armed himself in anticipation of finding his wife and killing her. I therefore reject the submission that the evidence of these witnesses establishes an intention by the accused to murder the deceased, thus negativing provocation.

I would have thought the strongest argument for the prosecution was the evidence of the nightwatchman who allegedly heard a man say "not to do anything or he would get into trouble" and a second man answer that "they will not stop him because that woman is his wife". The second man of course could only have been the accused. It could be argued that such a statement is not consistent with a man who was bereft of self-control. However, I did not find this witness to be reliable. In cross-examination he altered what he had heard said to: "Don't bother with her men, this woman is my wife and she is committing adultery". Moreover, the witness apparently remained at the gate of the shipyard throughout the whole incident. Someone came over and asked him to telephone the police but even this did not spark his curiosity. Although he gave evidence that by the time the police arrived the woman had died and that the body was then taken away in the police car, he could not have seen any of this because he did not go to the scene, and later in his evidence he said that the first time he had seen the body was at the police station the next morning. The only inference that can therefore be drawn is that that part of his evidence was based on what was told to him by other people. I suspect that his evidence of the words he allegedly heard said may have a similar origin. I certainly am not satisfied that the evidence of this witness is capable of negativing provocation beyond reasonable doubt.

Looking at the whole of the evidence I am satisfied beyond reasonable doubt that the accused caused the death of the deceased by stabbing her with a piece of aluminium roofing. However, the prosecution have failed to establish malice aforethought in that I am not satisfied that the onus of excluding provocation beyond reasonable doubt has been discharged.

I therefore find the accused not guilty of murder but guilty of manslaughter and he is convicted accordingly.

THE HON R LUSSICK
Chief Justice
(26/04/96)