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

High Court Criminal Case 25 of 2008

The Republic

v

Burakai Teitiaki
Bangao Temeri
Teroutaki Taake

For the Republic:		Ms Tumai Timeon
For the 1st Accused:	Sr Bernadette Eberi
For the 2nd Accused:	Mr Giles O’Brien-Hartcher
For the 3rd Accused:	Mr Karotu Tiba

Dates of Hearing:	15 & 16 September 2008

JUDGMENT

Burakai, Bangao and Teroutaki are jointly charged with murder:-

On 25 November 2006 at Tekaraobwerena area Betio South Tarawa in the Republic of Kiribati, Burakai Teitiaki, Bangao Temeri and Teroutaki Taake murdered Arorerei Ribwaai.

During the evening of Saturday 24 November all those taking part in this incident had been drinking. Most, if not all, were drunk. Drunkenness may have reduced their inhibitions but I am satisfied it did not interfere with their powers of observation. Each has given a coherent account – albeit somewhat different from every other – of what happened.

The three accused, all young men and others were drinking together near the biscuit factory in Betio. Arorerei (aged 19) came along to join them. Some time after midnight there was fighting. The outcome was the death of Arorerei on Sunday 26 November.

In dispute are only two of the elements the prosecution must prove beyond reasonable doubt to obtain convictions for murder – the cause of death and the identity of those who were responsible for Arorerei’s injuries.

I consider first identity by reference to the evidence of the various witnesses, including the three accused.

Only Tiritoka Tenano said all three were involved in the attack on Arorerei:-

…..there was a fight. Burakai, Bangao and Teroutaki. Bashing up one person, Arorerei. I came past them. I tried to hold them back and took away the man they were bashing, Arorerei. Bashed him by kicking him. I tried to hold him back and looked for help to take the other man to his house. Arorerei lying on road. He didn’t move. Lying on his back. Kicks on the face and the way down to the chest. Unconscious and some injury on the leg. (Examination in chief).

Saw Bangao kick Arorerei when Arorerei was on ground and Burakai on top of him. Bangao was kicking him when he was lying on the ground. Maybe right shoulder or face. Right shoulder upwards. I’m not wrong: they were bashing him up. Three people involved – the three accused. (Cross examination by Mr O'Brien-Hartcher).

Only the three of them there before me. They were fighting the other man and I came and tried to stop them. What I saw was fighting. There were three persons there and what I saw was them bashing Arorerei. Teroutaki was not trying to hold back Burakai. (Cross examination by Mr Tiba).

Tiritoka was a good witness on whose evidence I felt I could rely. If his evidence stood alone I would have no hesitation in accepting it as an accurate account of events. I must however qualify that acceptance: of all the witnesses he is the only one (except for the accused Burakai in his caution statement) who said all three attacked Arorerei. I set out the evidence of each of the other witnesses, none of whose evidence I feel able to reject out of hand.

Otam Tebinaa (aged 15):-

Fight between Burakai and Arorerei. He wanted to fight with him: Arorerei fell down. He fell on a nail. He got up, they, Burakai and Arorerei started fighting again and Arorerei was held back by Teroutaki. Arorerei punched Teroutaki on jaw. Arorerei was being pushed. Arorerei and Burakai had another fight. Arorerei was wanting to fight with Burakai. Arorerei fell again – kicked once on chest and neck by Burakai. Saw him. (Examination in chief).

Saw Burakai kick Arorerei on ground. Dark. I was close by. I could see what was happening. Kicked maybe on left shoulder or at junction and neck. (Cross examination by Sr Bernadette).

Moriti Abera (an older man and the only witness who had not been drinking):-

Loud noise – shouting – people challenging – young boys – on road next to my house. About 15 minutes past midnight. Fighting. Punching and wrestling. Someone fell. 4-5 (of them). He fell and was unconscious. Can’t tell if all involved in fight. Arorerei and Burakai. Arorerei fell. Burakai pulled away by the other boys. Knew Burakai. Arorerei was being kicked by Burakai: only once as he was taken away. Saw Burakai jump. Arorerei lying facing down. Boys took Arorerei away. Other boys trying to hold Burakai back. (Examination in chief).

When he fell down he could not move. I didn’t see Burakai actually kick but only jump. (Cross examination by Sr Bernadette).

Nei Tarawa Tokamaan (Arorerei’s natural mother):-

I was with him in the hospital: he can’t move. I stayed with him. He was crying. In Nawerewere he was x-rayed. X-rayed by a lady doctor. Died on night of Sunday. I was with him. Crying, hurt. Spoke to him on the night he died …… I asked him who did that to him. He didn’t mention any names. He mentioned the names he gave to the police. Burakai, three others beside him. (Examination in chief).

[I admitted Nei Tarawa’s evidence as to identity as a dying declaration, there being no objection by counsel.]

That was the evidence for the prosecution.

Teroutaki Taake (aged 18):-

Arorerei came to challenge Burakai. Made him stand up, fight him. They fought. Arorerei caused the fight. They were fighting each other and we were holding them back. I was holding Arorerei. He punched me on the jaw. I pushed him away on the chest. I picked him up. Arorerei fell on ground and was being bashed up by Burakai. Kicked him – somewhat on right side of the chest, right shoulder. Kicked him, once or twice: I don’t know. Arorerei on his back lying across. Lying unconscious. We held Burakai back. We left and went back drinking. Arorerei lying: some people came and took him away. Tiritoka. (Examination in chief).

I was not involved in the fight. We were not all bashing up Arorerei. (Cross examination by Ms Timeon). 

Burakai Teitiaki:-

Arorerei started challenging us – later calling my name. At first I didn’t want to fight him. When I got up he hit me. I hit him back started fighting. Teroutaki came and restrained us. I ran away ….. Went back. Hit me again: on the chest. I fell on road. I got up, looked at him Arorerei – I faced him again. He kicked me and fell down. I dodged kick, not that hard. He fell down. I got up. Wrestling. He fell. I kicked at him on the head. Kicked him twice. Later kicked him on shoulder. I then got back ….. Kicked him because I was very cross. He always liked to fight with me. Apologized – friend neighbour, relative. I was bare foot. (Examination in chief).

I kicked him when he was struggling to get up – so he wouldn’t get up. (Cross examination by Ms Timeon).

Burakai’s caution statement was admitted by consent:-

I have a fight with Arorerei. During the fight Arorerei fell down then I kicked his face, Teroutaki and Bangao came and punched Arorerei, too. After I kicked Arorerei’s face then I left him but Teroutaki and Bangao were stayed behind and attacked Arorerei ….

Bangao Temeri:-

Arorerei challenged Burakai – Burakai maybe becoming cross – fight. Fists. Burakai first fell down. Teroutaki separated them. Burakai went away: Arorerei was restrained, then went after Burakai again, hit him again. Burakai chased Arorerei fighting again. Arorerei fell again. He was being kicked at by Burakai ….. I did not kick Arorerei. Didn’t hit him.

I must bear in mind in assessing the accuseds’ evidence that it is self serving.

Only Burakai involves both Bangao and Teroutaki in the attack on Arorerei and that only in his caution statement. 

Burakai is identified by all witnesses as kicking Arorerei (and he himself admits it).

The evidence of the witnesses other than Tiritoka raises a doubt in my mind as to whether Tiritoka may not be mistaken in implicating all three young men in the attack. It is a reasonable doubt. I must give Bangao and Teroutaki the benefit of it.

I consider more closely Burakai’s actions.

The Penal Code:-

193.	Any person who of malice aforethought causes the death of another person by an unlawful act …. Is guilty of murder ….

194.	Malice aforethought may be expressed or implied and express malice shall be deemed to be established by evidence proving either of the following states 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; ------

I have no doubt that Burakai kicked Arorerei when he was down. The fight was over. Burakai had won. Arorerei was on the ground. There was no need for Burakai to do anything more. To avoid unpleasantness he could simply have gone away. Instead he deliberately kicked Arorerei. The very act of deliberately kicking Arorerei on the neck and shoulder leads to the irresistible inference that Burakai intended to do Arorerei grievous bodily harm.

The other element in dispute is that requiring proof beyond reasonable doubt by the prosecution of the cause of death. It was contested by all counsel, hotly by contested by Mr O'Brien-Hartcher. Each counsel argued at the end of the prosecution that his or her client had no case to answer: the prosecution had not proved that Arorerei’s injuries caused his death. I rejected the submissions: the trial proceeded.

The submissions were renewed in final addresses.

Dr Turia Tetaake had been on duty at the Betio hospital when Arorerei was brought in:-

… conscious. Main complaint swollen left shoulder. Not sure what was happening on the night. Laceration of top of head ½" long: not bleeding ….. soft tissue injury and cervical displacement fracture – possibility of pulmonary haemorrhage. Transferred to TCH the next day. Respiratory distress. Suspected cervical injury. Causes – hit or kick. Fracture of the neck. (Examination in chief).

Mother said he suffered from asthma. Possible cause of death cervical injury. (Cross examination by Sr Bernadette).

The doctor at the TCH who examined Arorerei has gone back to Cuba. No medical practitioner from TCH was called but, by consent, a bundle of medical notes and reports (including 
Dr Tetaake’s) were tendered. 

By the late morning of Sunday 26 November Arorerei was "paralyzed below the neck (arms and legs). Sensation felt".

Mr O'Brien-Hartcher argued that the cause of death had not been proven. Yet it is a matter of common sense. What other explanation of cause of death is needed? A young previously healthy man bashed up early on Saturday morning, suffered serious injuries, died on Sunday evening. What cause of death other than his injuries could there have been?

Kiribati is fortunate to have the medical facilities it has but they are unsophisticated. It is unrealistic to expect the same standard of evidence in proof of death as in a place with more advanced facilities. We do our best but must make do with what we have.

Both Mr O'Brien-Hartcher and Sr Bernadette clutched at a straw. In the medical notes Arorerei’s medical history is given as "known asthma". Nei Tarawa told the doctor he suffered from it.

Perhaps, Mr O'Brien-Hartcher and Sr Bernadette submitted, he died of an asthma attack: nothing to do with his injuries at all? So he may have but I regard that as a fanciful possibility. I discount it altogether.

I notice that the person, Nei Tarawa, who could have given evidence of an asthma attack - she would surely have recognized it immediately - and who was with him when he died, did not mention such a thing – nor did counsel ask her.

I have no reasonable doubt about the cause of death: the kicks inflicted on Arorerei led to the paralysis, respiratory distress and death. 

Sr Bernadette in her final address mentioned briefly self defence and provocation. She did not elaborate. The facts do not raise either as a possible justification for Burakai’s actions. 

The prosecution has proved beyond reasonable doubt against Burakai all the elements of murder. The prosecution has not proved all the elements against either Bangao or Teroutaki.

Burakai is guilty of murdering Arorerei. Bangao and Teroutaki are not guilty.

Dated the 17th day of September 2008

THE HON ROBIN MILLHOUSE QC
Chief Justice