In the High Court of Kiribati
Criminal Jurisdiction
Held at Betio
Republic of Kiribati

Criminal Case No. 28 of 2002

The Republic

vs

Batiua Obaia
Rakaiti Obaia
Kobuti Rakaiti

For the Republic: Mr Tion Nabau
For the 1st Accused: Ms J Huston
For the 2nd Accused: Mr John O'Sullivan
For the 3rd Accused: Mr Aomoro Amten

Date of Hearing: 24, 25, 26 & 27 February 2003

JUDGMENT

The accused are charged with murder. Particulars:-

Batiua Obaia, Rakaiti Obaia and Kobuti Rakaiti on the 22 July 2002 between 11 and 12 pm at Kabuna village on Tabiteuea North murdered Tebarerei Itaia.

The victim died either very late in the evening of Monday 22nd July or very early in the morning of Tuesday 23rd July. He was the caretaker for the clinic at Kabuna village. He slept on a buia while his wife, children and others slept in the walled house nearby.

The story begins 10 days earlier, on Independence Day, 12th July. This is the account of Nei Tekaennang, the widow of Tebarerei Itaia:-

I was at a house at the clinic with the nurse and with Batiua. Marian used to stay with me. In the evening Batiua was with us. My husband asked him to stay with us. Early in the evening Marian, the nurse, my young son and grand daughter and Batiua..... Husband used to sleep on a buia: Marian and kids and I slept in walled house. Just before husband went to see his mother, he told me to prepare food. When he returned, Batiua said he would leave. He returned later and he started hacking at walls of house. I saw him but didn't (recognise him then). He cut walls. I ran out to tell husband. We found a place cut, where he had entered...... Husband saw Batiua hiding in cupboard. Husband struck Batiua on head with piece of iron wood. Batiua called out husband's name. "Why didn't you call out long ago? Get out of the house. By mistake I have hit you". Cut on Batiua's head.

Counsel agreed the fact that "on 12th July Batiua was at Tebarerei's house to see the nurse". After this incident Batiua was sent away from Kabuna village to live at Utiroa village.

Nei Tekaennang again:-

On 22 July between 2300 and 2400 I was at home sleeping with son and granddaughter and Tananteronaba and his wife. Husband on buia. I heard a blow, looked out and saw husband jump off buia. Buia 8m from where I was sleeping. Husband shone torch on Batiua --------. At end of house fight between Batiua and husband. Husband on top of Batiua. Like daylight – sky clear, moon bright. I hid, heard thud of feet, recognised Rakaiti who ran and struck husband. Rakaiti walked on path to left of house and told others who were coming to let fighters have it out. Distance between Rakaiti and me 7-8m. I was inside house – he was 10m away. Rakaiti had an axe: Rakaiti struck husband on leg with axe. "Let the fighters sort themselves out" – Rakaiti to elderly neighbour. After that saw Kobuti strike husband. After Rakaiti had talked to old couple, Kobuti talked to Rakaiti and then went and struck my husband. Talking and 15m from me. Saw Kobuti carrying something. He hit my husband: I hid. Husband still fighting with Batiua and were on ground. Kobuti struck blow – Rakaiti said "Why did you leave them?" didn't hear Kobuti's reply. Husband called out to me: my name in a faint voice. I went to him: heard Batiua laugh at my husband, "What is the matter? Are you calling for help?" "I'm not calling for help like you who called for help from brother and uncle". Batiua, "People in house have woken up ----" My husband told me to run away. "I'm not calling out for help from household. Not like you". He told me to hide with son and granddaughter: he was OK these people have killed him anyway. Kobuti and Rakaiti were on road south of house. Batiua and husband lying on ground, very close.

In cross-examination by Ms Huston:-

Husband chased and caught Batiua: husband on top. Fighting beside house: when fell husband on top. Fighting beside house: when fell husband on top. Our house inside clinic compound. Anyone who wants to come in has to ask permission of watchman. When they were fighting I was very close but still inside house. I didn't see it if Batiua carrying anything. I only heard a blow which woke me up.

Nei Tekannang denied in answer to Mr O'Sullivan that she or their old neighbours, Iuka and Nei Tekoiti, had been involved in the fight. Iuka and Nei Tekoiti, an elderly couple in their 60's, each gave evidence. Iuka said that early in the evening Rakaiti came to their house and said, "Now I'm going to cause trouble. I don't mind if I'm banished".

Notes of Iuka's evidence in chief:-

Long time after trouble started. I saw two people come out from Rakaiti's house: headed to victim's house. Saw them from my toddy tree: late: about 2300. [Reasons for not cutting earlier.] Bright moon light: no clouds. Saw Rakaiti come out gate on western side of fence:........ I saw one long bush knife in Rakaiti's left hand. I climbed down. Stood at base of tree: (lost sight of him). Heard blow from direction of victim's house – as if someone had thrown a stone. Heard sound of scuffling. I went to get torch from house. Took torch: surprised when someone threw something at me, a stick from uri tree sharpened on both sides. I retreated. Saw Rakaiti running towards me with long bush knife: looked as if he were going to hit me. He went to hit me but I dodged...... Rakaiti ran back to fight and I followed some time later. Stood 20 paces from victim's house and shone torch. Saw victim clearly Batiua lying on ground, victim on top and a spear in his back. Kobuti was holding the other end of the spear in his left hand: with his right hand drew out another knife and stabbed victim with it. Rakaiti approached with his bush knife and struck victim on his back. Rakaiti chased after me.

Nei Tekoiti Teroutaki:-

Rakaiti visited........ told me he was aggrieved with me ....... he was prepared to be banished from Kabuna as he was going to cause trouble. Going on for 2200 husband cut toddy. I about to enter house, saw two people on bikes to south of our house, towards Rakaiti's house. Moon bright. Batiua and Kobuti. Parked bikes at Rakaiti's house..... Sound of blow from Tebarerei's house. I saw Rakaiti walk on western side of house. Disappeared on northern side. Took torch outside: someone threw something at us: piece of uri tree with sharpened end. Saw Rakaiti coming towards us with bush knife in his hand: raised his hand..... When Rakaiti got there victim and the other person had fallen to the ground and Rakaiti struck victim on the back, with bush knife. Tebarerei and Batiua lying on ground, Tebarerei on top. ------- After Rakaiti struck Tebarerei no longer moving. Batiua and Tebarerei were between Rakaiti and Kobuti. Didn't see Kobuti do anything.

In cross-examination by Ms Huston:-

Saw Batiua and Kobuti leaving on their bikes. Only time I saw them together that night.

In re-examination Nei Tekoiti reiterated that she had seen Batiua and Kobuti both early in the evening and later when they left. Despite her agreeing in cross-examination with Ms Huston that she had seen Batiua and Kobuti only once, when they left, I accept beyond reasonable doubt that Nei Tekoiti saw Batiua and Kobuti riding bikes both before and after the fight.

Those three witnesses were the substance of the prosecution case. They were good and reliable witnesses. I shall come later to the versions of events given by Rakaiti and Kobuti.

Iuka and Nei Tekoiti are both in their 60's. They are elderly. Rakaiti is 41 and the other two defendants are young men, I should say in their late teens or early 20's. It is unbelievable that Iuka and Nei Tekaennang, the wife of the deceased, took part in the fight which killed the deceased.

Other witnesses strengthened the prosecution case in one or more respects.

Pastor Bauro Kaitu of the Assemblies of God, in the early evening of 22nd July visited Rakaiti at his house. He stayed several hours. The purpose of his visit was to reconcile, console and restrain:-

[Rakaiti] was that day going to seek revenge for what had been done to his brother Batiua.

The Pastor went to the scene of the fight after it was over and saw there a spear, two knives and a lavalava. The spear and knives are exhibited. He denied in cross-examination by Mr O'Sullivan that his discussion with Rakaiti was about Kobuti, not Batiua.

After 1 o'clock in the morning Bakabane Kabaki saw Batiua and Kobuti riding bikes very fast. Rakaiti was carrying a bush knife. He recognised one of the knives, exhibited, and which I describe as a flick knife, as belonging to Rakaiti. He "used to see him using it at his shop, cutting his tobacco".

Nei Ngarengare Moneteti, the medical assistant at Utiroa village, examined the body of the deceased at twenty past one in the morning. She made a report and drew a sketch. She described a wound which she marked as 3(b) on the sketch, caused by an object with a sharp point:-

(b) wound – length 2 inches to 2 ½ inches
Depth – as far as to internal organs (lungs)
2nd, 3rd & 4th ribs from the lower are broken

In Nei Ngarengare's opinion this wound was fatal but the other wounds, in combination, could have caused death, apart from 3(b).

It is difficult to see how these wounds, most on the deceased's back, could have been caused in any other way than described by Nei Tekaennang, Iuka and Nei Tekoiti. Batiua and the deceased were grappling on the ground: the deceased was lying prone, on top of Batiua: his back was exposed. Counsel for the one of the accused suggested faintly that perhaps Batiua, lying under the deceased, had somehow reached over with a weapon and inflicted the wounds. I replied that Batiua would need to be an acrobat, the better word is contortionist. The suggestion is fanciful.

I accept the evidence of all prosecution witnesses.

At the close of the prosecution case Ms Huston submitted that her client, Batiua, had no case to answer. I was against her. The prosecution had made out a prima facie case against him.

Rakaiti and Kobuti each gave evidence and were supported by other witnesses.

Rakaiti said he had been responsible for sending Batiua away after the incident on 12th July. He did not see Batiua again until the fight on 22nd. Bauro did come to visit him during the evening of the 22nd but it was to talk about Kobuti who was drinking a lot. The first he knew of the fight was being woken up by his wife. He went to have a look.

Batiua a little east of watchman's house ...... I picked up coconut, threw it at Iuka..... I didn't have any dispute with Iuka and his wife: may be they are getting old and senile: they accused me of all sorts of things including taking their seaweed.

In cross-examination by Mr Nabau, Rakaiti said Batiua is his younger brother. Rakaiti denied having told Bauro that he was going to take revenge on Tebarerei.

Kobuti cut toddy in the earlier part of the evening. He went to the house in which he lived at Tabouea and then went to his father's, Rakaiti's, house in Kabuna.

Saw father sleeping beside cooking hut. Commotion from watchman's house. Went to watch: by sound seemed to be a fight. Saw people fighting. Tekoiti was hysterical. Saw fighters and people beside them – Fighters – recognised them later: someone shone torch from house of person fighting – victim's – saw Iuka and Tekaennang. Tekaennang carrying a spear: Iuka carrying bush knife I was 50m. Heard a shout. One torch fell to ground, shining: other switched off. Saw Tekaennang and Iuka run to lagoon side. I went home: reached house. Father sitting on buia. I said, "Rakaiti: Batiua is dead". Went into cooking house. Later father called me to take Batiua to clinic.

Kobuti denied that he had been in the fight: those who said so were lying.

In cross-examination by Mr Nabau Kobuti said he liked his uncle Batiua:-

Knew Batiua in big trouble. I didn't do anything: just stood and watched. Then went to Rakaiti's house: father sitting in house. Not sure if I saw father near fight – didn't recognise some people. Only told Rakaiti "Batiua is dead". 

When cross-examined by Ms Huston Kobuti said he did not see Batiua between the 13th and 22nd July: the first time was during the fight.

Neither Rakaiti nor Kobuti had to prove anything. The onus of proof of their guilt beyond reasonable doubt rested throughout on the prosecution. The prosecution has proved beyond reasonable doubt that Rakaiti and Kobuti carried out a concerted attack on Tebarerei. The intent to cause at least grievous bodily harm if not death is clear from their actions. Rakaiti and Kobuti killed Tebarerei. I accept the evidence of Nei Tekaennang, Iuka and Nei Tekoiti as to how they did it. Their evidence is confirmed by the wounds. Both are guilty of murder.

What of Batiua? Perhaps he was wise to exercise his right to silence, not to give evidence. He may have been away from Kabuna for the 10 days between 12th and 22nd July but he rode a bike to Kabuna early on the evening of 22nd. Ms Huston called Nei Romana Teteki, Batiua's sister with whom and whose family Batiua was staying in Utiroa village. Batiua has been despatched to Kabuna as it was getting dark, between six and seven in the evening. He was to pick up some things. Nei Romana could not say how long it would take to ride a bike from Utiroa to Kabuna. Her husband, Keau Ntabo could: over an hour.

That would have Batiua in Kabuna by 8 o'clock or a little after at latest. The fight was about 11 o'clock or after. Batiua had two or three hours to spare in Kabuna. What was he doing? Probably talking to Rakaiti and Kobuti concerting an attack on the victim. That surmise is strengthened by the only evidence we have of his movements. Nei Tekoiti had seen Batiua and Kobuti riding together towards Rakaiti's house "going on for 10 o'clock" and saw them again after the fight. Batiua had time to concert a plan with the other two.

Next was Tebarerei chasing and catching Batiua, the two fighting, falling to the ground, Batiua underneath. Apart from counsel's suggestion which I have rejected, of Batiua somehow reaching around and wounding Tebarerei on the back, there is nothing to shew that Batiua attacked Tebarerei. Batiua's being near Tebarerei's house and the buia probably was part of a plan to give Rakaiti and Kobuti the opportunity to attack Tebarerei. I can't be sure: there could be some other explanation.

Counsel for Batiua and Rakaiti addressed at length on joint enterprise. Yet finally it comes to a jury question, a question of fact, "Can I be satisfied beyond reasonable doubt that Batiua was part of the plan with Rakaiti and Kobuti, which led to Tebarerei's death?" I have concluded that I cannot. I have a reasonable doubt and Batiua must have the benefit of it. I find Batiua not guilty of murder.

Rakaiti and Kobuti are both guilty.

Dated the 		day of March 2003

The Hon Robin Millhouse QC
Chief Justice