Republic v Taburuea [1989] KICA 5; Criminal Appeal No 4 of 1988 (16 March 1989)

IN THE COURT OF APPEAL OF KIRIBATI

Criminal Jurisdiction

Criminal Appeal No 4 of 1988

BETWEEN:

THE REPUBLIC
Appellant

AND

TOROMON TABURUEA
Respondent

Mr. Tabane for Appellant
Mr. Koaru for Respondent

Date of Hearings: 15th March 1989
Delivery of Judgment: 16th March 1989

JUDGMENT OF THE COURT
(Gibbs V.P., Frost, Donne, Dillon and Mitchell J.J.A.)

The respondent was charged with one count of theft and one count of conversion and pleaded not guilty. Particulars of the offences were as follows.

The theft offence:

"TOROMON TABURUEA on the 25th December 1987 at Bonriki Fire Station stole 4 gallons of benzine from the Fire Truck the property of the Republic."

The conversion offence:

"TOROMON TABURUEA on the 25th December 1987 at Bonriki Fire Station being entrusted with keeping of the fuel supply for the Fire Truck belonging to the Republic in order that he may retain in safe custody, fraudulently converted 4 gallons of benzine fuel to Atireta's use or benefit."

He was tried before the learned Chief Justice and was acquitted and discharged. The Attorney-General has referred two points of law to this Court under section 20 of the Court of Appeal Act 1980.

The two charges arose out of an incident on 25th December, 1987. The respondent, who is a police officer, was on that day in charge of a fire truck at Bonriki Fire Station and for that reason was entrusted with the fuel in the petrol tank of the truck. The only direct evidence of what occurred was given by three other police officers, Constables Tito Turerei, Tabuia Kaiekieki and Tuare Tikataake. The effect of their evidence was as follows. They received a call to go to Bonriki Airport on police duty and proceeded there with another police officer, Police Constable Atireta. On the way they met the accused and Police Constable Atireta had a conversation with him. According to the evidence he asked the accused "Do you have what I want?" and the accused replied "Yes" and asked him to go to the fire station. The four constables then proceeded to the airport, but en route stopped at Bonriki village where Police Constable Atireta obtained a 4-gallon drum. At the airport the respondent was standing by the fire truck. Police Constable Atireta carried the drum to him and the respondent sucked petrol from the petrol tank of the fire truck into the drum. Later, the drum with the petrol in it was taken to Bonriki village in the police car driven by Police Constable Tito.

Two other witnesses gave evidence, but it is nevertheless apparent that if the evidence of the three police officers first mentioned be disregarded, the learned Chief Justice was right in discharging the accused.

The learned Chief Justice found that the three witnesses first mentioned were accomplices of the accused and that the evidence of the other witnesses did not confirm the evidence of the accomplices in any material particular. He further said that he found the evidence of the three police witnesses suspect and unreliable and that he had doubts in his mind as to what happened on 25th December.

The two points of law submitted by the Attorney-General are the followings:

"(1) Is there any principle of law that the evidence of an accomplice must be corroborated in every case?

(2) Was the Court correct in law on the facts of this case to regard the police officers whose evidence it regarded as in need of corroboration as accomplices to the commission of the offence with which the accused was charged?"

It is true that in general, Courts are reluctant to act on the uncorroborated evidence of an accomplice. This reluctance results from the danger that such evidence will be unreliable. However even if not supported with or corroborated by other evidence, a jury may still convict provided of course the trial Judge gives an adequate warning as to the dangers of so doing. Likewise in a criminal trial before a Judge alone, as in this case, the Judge, aware of the dangers of relying on the uncorroborated evidence of an accomplice may nevertheless convict.

The answer to question 1 of the Reference therefore is No.

The second question of the Reference is not a point of law. Rather this Court is being asked whether on the facts the Chief Justice, sitting without a jury, correctly declared the three police constables to be accomplices.

In his judgment the Chief Justice directed himself on the law in the following terms:

"In jurisdiction where trial by jury exists, it is the function of the trial judge to leave to the jury to decide on the evidence before them whether a witness is an accomplice and if the witness is considered to be an accomplice to remind them that it would be dangerous for them to convict upon his evidence unless it is confirmed in some material particular."

Then he applied those directions to the present case -

"In this case I am sitting as both a jury and as a Judge. I find as a fact that the first second and third prosecution witnesses are accomplices to the crime committed by the accused."

Although we are not required to answer what is really a question of fact, it is convenient to add that it was settled by the decision in Davies v Director of Public Prosecutions [1954] A.C. 378; 38 Cr. App. R. 11 that the term "accomplice" includes persons who are participes criminis in respect of the crime charged, whether as principals or accessories before or after the fact. Under the Penal Code of Kiribati any person deemed by section 21 to have taken part in the commission of the offence would be an accomplice. The question whether the three police officers in the present case were accomplices within this test was a question of fact for the learned trial judge.

Accordingly, Question 1 will be answered No, and Question 2 will not be answered.

Vice President
Judge of Appeal
Judge of Appeal
Judge of Appeal
Judge of Appeal