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Republic v Batirite [2008] KIHC 9; Criminal Case 31 of 2007 (8 February 2008)

IN THE HIGH COURT OF KIRIBATI
CRIMINAL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Criminal Case 31 of 2007

The Republic

v

Bootin Batirite
Ueein Maraki
Burangko Tinou
N. Anna Kou

For the Republic: Ms Pauline Beiatau
For the 1st & 2nd Accused: Mr Karotu Tiba
For the 3rd Accused: Mr Raweita Beniata
For the 4th Accused: Mr Banuera Berina

Date of Hearing: 28 January & 4 February 2008

JUDGMENT

All four defendants were charged jointly with causing grievous bodily harm. The prosecution alleged that the three young men, Bootin, Ueein and Burangko (together with another lad, Ianikarawa Tokobea who, having been granted immunity by the Attorney General from prosecution gave evidence) attacked the victim at the persuasion of the fourth defendant, Anna Kou.

Before the date of trial Bootin and Ueein pleaded guilty: were remanded on bail for submissions on penalty after the trial of Anna Kou, set to begin on Monday 28th January. At the trial the victim, David Jian Min Kou (the husband of Anna Kou), Ianikarawa, Bootin and Ueein gave evidence for the prosecution. Anna Kou gave evidence in her defence. Mr Berina for Nei Anna, called Burangko (who had not yet pleaded although I mistakenly believed he had). When Mr Berina was some way into examination in chief, although Burangko had begun by saying he had pleaded guilty, it became clear he had not pleaded at all. He was immediately arraigned: pleaded not guilty.

The trial of Anna Kou was adjourned: to be finished after the trial of Burangko. Last Monday when Burangko was re-arraigned he changed his plea to guilty. We went on with the trial of Anna Kou. Mr Berina decided not to continue with Burangko’s evidence and closed the defence case.

I consider the guilt (beyond reasonable doubt as Mr Berina several times in his address reminded me) or otherwise of Anna Kou.

The prosecution alleged that Anna Kou, while not participating in the physical attack on her husband, had persuaded the four lads, Ianikarawa and the three accused to attack him: had paid them money to look for an opportunity to do it. They found it on 25th October.

Pursuant to section 21 of the Penal Code, if the prosecution were to succeed on the facts Anna Kou would be guilty of the offence as if she had taken part physically in the attack herself.

The defence case was that, although Nei Anna did give the boys money it was only to buy themselves food while they kept an eye on her husband (who had a girl friend) and report to her, not to do David Jian Lim Kou physical harm. Mr Berina also argued strongly the attack was provoked on that evening because the victim had threatened to fight Ueein’s father: he was attacked primarily in some way to protect the father, not to carry out Nei Anna’s wishes.

It comes to this: on the evidence of the prosecution, taking into account all the evidence and remembering the accused did not have to prove anything, has the prosecution, bearing the onus, proved Anna Kou’s guilt beyond reasonable doubt?

I did not much like the victim. It seems he has not treated his wife well. Yet that does not mean I should not accept his evidence. I do accept it. Some time after 7 o’clock in the evening he was out on the causeway at Ambo sitting having a smoke:-

Heard people coming running. "Fuck! Fuck!" (Took no notice). "What happened, Boys?" Offered them a smoke. "Anna told us you fuck off. We are coming to fight you". All three of them hit me. I fell to beach. Lost consciousness.

No mention of Ueein’s father nor was the victim either examined or cross examined about wanting to fight the father: or anything else about the father.

As for the three young men, while the account of each of them differed a little from that of the other two (I would have been suspicious if it had not) the evidence of all three rang true. I conclude that each was telling the truth. Each asserted that Nei Anna had asked them to find an opportunity to beat up her husband. She had given them money in advance.

Ianikarawa Tokobeia:

David was attacked. I was one of those involved. Friends came to me. Bootin, Burangko, Ueein. Asked me to attack David. So we went and followed David to the causeway. One of us went and talked to him. Ueein. Didn’t hear what. David tried to hit Ueein. We ran back. Moonlight. We ran back to David and hit David – the four of us. Bootin, Burangko, Ueein. "Follow David". "Why". Ueein said David planning to fight his father.

A few days earlier Nei Anna had taken Ianikarawa, Ueein and Burangko in a saloon car with her when she followed a bus in which her husband, David, was a passenger:-

Anna told us when we followed the bus – to find the right time to beat him up. David got off to Nawerewere. Only that time she told us. She told us to stone his house.

Cross examination:

On 25 October at my house ..... Told me David was going to fight Ueein’s father. That’s why we followed him. We were planning to beat him up. N. Anna told us to beat him. In the saloon car. Another time she always told us to beat him up. In saloon car less than a month before 25 October. Anna told us to throw stones at David’s house.

Bootin Batirite:

A time when Anna told us to attack David – go to restaurant and to look for David: when he left restaurant to follow and beat him up. A week before assault .... 25 October 2007 attacked David on causeway. Purpose – because we had heard from Anna that we can beat him up 10m from house. I heard her say that at time she started to give us money ..... I hit David because we had been told by Anna to hit him. We owed it to her to hit David.

Cross examination:

She said to keep an eye on house, David. To get an opportunity to beat him up .... All three payments before beat up David. Paid in all $90.00. To keep an eye on husband. We did. Bought food with money. Keep an eye on David: watch out for him at restaurant. We did plan to beat him up because N. Anna told us to. Every time she gave us money .... Three of us went to see Ianikarawa. That he already know reason for following David. Nothing about fighting with Ueein’s father. We attacked David when we saw he was about to attack Ueein.

Ueein Maraki:

25 October 2007 I hit David at Ambo on causeway. I, Bootin, Burangko, Ianikarawa. We beat him up because we’d been told by N. Anna. Told us once when we were riding in her saloon car .... She told us to make some disturbances to the husband at home. That was night to attack David but on same night she told us to throw stones at his house. Instead of throwing stones we beat him up. We beat him up for two reasons – told to by Anna and he wanted to fight father.

Cross examination:

Payment from Anna – twice. To look out for David at restaurant: she told that if we saw David coming out of the restaurant we had to follow him, stone him and beat him up. Bootin and Burangko. Friends told me. If he did leave restaurant – beat him up and stone him ..... She didn’t tell us that night to attack David but she had told us many times before to attack David: that’s why we formed plan to attack him that night. She had told us only once .... Reason for attack – because he wanted to fight my father.

Mr Berina criticized Ueein’s evidence particularly. He pointed out that first Ueein said Anna had told him "many times" to attack David. Then Ueein admitted it was only once. Although Ueein had in examination in chief given two reasons for the attack, finally he said the reason for the attack was because David wanted to fight his father. I noted, though, that Mr Berina put that final question in leading form: Ueein merely answered "yes". Despite that answer I prefer Ueein’s evidence towards the end of examination in chief that there were two reasons – told to by Anna and "he wanted to fight father".

Nei Anna denied ever having asked the boys to attack her husband, had asked them merely to watch him and report to her. [This was to see whether he was with his girl friend.] She admitted giving them money but only to buy food. She still loves her husband and is a jealous woman. I noticed that at times giving evidence she was emotional, incoherent and went on and on:-

Three boys’ trip in saloon car. Took them for a ride. Tried to persuade husband not to go. He left on bus. I followed. To Betio, to Nawerewere. Taking boys for a ride: they live by me. Afraid he would hit me if I found him with girl friend .... No discussion to tell boys to attack David .... The restaurant my husband and the woman always went to. Buy the food and tell me if he comes in – told Burangko. I didn’t tell if he left to follow him, stone him, beat him up. Told them to look after woman: keep an eye on him .... I’ve never been violent to David. Very jealous when he having affair. Hurts: still loved him. Never do him any harm.

Cross examination:

Paid boys to watch my husband – nothing more. Didn’t pay anyone else to watch husband.

Mr Berina in his address emphasized two points – first that his client gave money to the boys only to buy food: on the day they went with her following the bus it was in appreciation of their accompanying her. Secondly, the reason the boys attacked the victim on 25 October was to protect Ueein’s father. Mr Berina also reminded me that Bootin and Ueein are co-accused: they may think they have something to gain if N. Anna is found to be the main culprit. I should treat their evidence with great care before accepting it.

In concluding that I may accept beyond reasonable doubt the evidence of Bootin and Ueein, particularly on the main point, whether Anna Kou asked them to beat up her husband, I have borne in mind Mr Berina’s caution to me.

Despite Mr Berina’s persuasiveness the prosecution evidence against his client, the thrust of which I accept beyond reasonable doubt, is too strong for me to have any reasonable doubt that the defendants Bootin, Ueein and Burangko attacked the victim if not entirely, at least mainly, because of the urging of Anna Kou.

Jealousy is perhaps the most destructive of the emotions to which we are all subject. Because of jealousy we may do and say things even in relation to a person we love, which we would not otherwise do or say. I have seen and heard Anna Kou in court. Her demeanour was such as for me to conclude that she could have acted as the prosecution alleges she did act.

That is merely a straw in the wind. Anna Kou did not have to prove anything: I certainly do not come to a conclusion on guilt or otherwise because of Anna Kou’s jealousy or what may have flowed from it. My decision is based on the prosecution case. It was too strong for me to have any reasonable doubt about Anna Kou’s participation as alleged.

There is one other element in the offence of causing grievous bodily harm to which little attention was given: proof of the nature and seriousness of the injuries. The victim had said:-

Hit on right side of face, back of neck, left side ribs. Took about 10 days for swelling to go down. Still some pain.

At the beginning of the hearing Ms Beiatau without objection, tendered two reports, one from Dr Bauro, medical practitioner, the other from Dr Tabuaka Nauan, dental practitioner. From the latter:-

Upon examination I found the following:

- Very noticeable swelling in the lower right facial region, in front of right ear extending down to angle of mandible and back to ethmoid region and down the upper right neck.
- Bruise at lower right neck.
- Mr David had limited head movement.
- Mouth had limited mouth opening (2 fingers)
- Intra Orally
- Chipped (fractured) enamel of palatal surface of 17 and distal buccal cusp of 47.
- Pain when trying to open mouth.

Reviewing X-ray

No sign of broken jaws (mandible and maxilla).

I have a doubt whether the injuries described amount to grievous bodily harm, really serious harm. No doubt about actual bodily harm. I should give the accused the benefit of the doubt.

Anna Kou is guilty of occasioning actual bodily harm.

Dated the 8th day of February 2008

THE HON ROBIN MILLHOUSE QC
Chief Justice