Timeon & Butiaua v Republic [1989] KICA 6; Criminal Appeal No 1 of 1988 (16 March 1989)

IN THE COURT OF APPEAL OF KIRIBATI

Criminal Jurisdiction

Criminal Appeal No 1 of 1988

BETWEEN:

MATIETA TIMEON AND TIIMI BUTIAUA
Appellants

AND

THE REPUBLIC
Respondent

Mr. Binataake for first Appellant
Mr. Koaru for second Appellant
Mr. Tabane for Respondent

Date of Hearing: 14th March 1989
Date of Judgement: 16th March 1989

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

The appellants were convicted of the offence of office breaking with intent to commit a felony contrary to section 294(b) of the Penal Code (Cap 67). Each was sentenced to twelve months imprisonment.

Particulars of the offence alleged against each were that on the 9th January 1988 at Kariatebike, Abemama, with intent to commit arson they broke and entered the police office. Each seeks leave to appeal against conviction and sentence. The learned trial judge refused to grant to the first named appellant a certificate, under s. 19(b) of the Court of Appeal Act (Cap 16B), that the case was fit for appeal. The second named appellant did not apply for such certificate. Section 25 of the Act provides that the notice of appeal shall be given within 30 days of the date of conviction, but that time for making the application may be extended at any time by the Court. The applications in the instant matter were made on 30th December 1988, the convictions having been dated 7th September 1988.

An undisputed fact was that on 8th January the second named appellant went to the house of Corporal Bureteiti Tongai, a member of the Kiribati Police Force stationed at Abemama, and told him that the first named appellant intended to burn the police office in the early morning of the following day. It was also undisputed that both appellants went to the police office at about 3 a.m. on 9th January; that they opened a window of the office, that the second named appellant entered and the first named appellant waited outside; that Tiimi lit a match and Matieta waited, intending to help him out again when Tiimi had lit a fire, that someone flashed a torch in Matieta's face and Matieta then ran away. Matieta said, in evidence, that it was Tiimi who suggested burning the police station in order to destroy the records and that Matieta agreed to lend a hand.

The two appellants were in disagreement as to who had suggested that the police station should be burned and there was disagreement between Corporal Bureteiti and his wife on the one hand and Tiimi on the other hand as to what was said during the interview between the police officer and the second appellant on 8th January. Bureteiti said that when Tiimi said that Matieta intended to burn the office he, Bureteiti, told Tiimi "not to do any action but to leave that man alone to do what he wants....not to bother about what Matieta would do." Bureteiti's wife, who was present at that time, said that her husband told Tiimi "that he should inform Matieta to carry out whatever he intended to do, that is burn the office of the police." Tiimi said that when he told Bureteiti that Matieta intended to burn down the police office Bureteiti said that Tiimi "could go ahead and they were prepared to made an ambush." Tiimi said "Is there any trouble for me if I go along with all this?" Bureteiti replied "No problem at all". He therefore went ahead with the plan, went with Matieta to collect some diesel oil, went through the window into the police office, found a piece of paper, dripped some diesel, applied a light to the paper and, when the police came, extinguished the fire and went out.

Corporal Bureteiti had arranged for Constable Kourataake Koura to be on duty from midnight on 8th January to watch for the proposed burning, and Bureteiti and his wife went to the police office at 3 a.m. It was therefore clear that he took seriously the statement made by Tiimi.

The learned trial judge said in his reason for decision:-

"Corporal Bureteiti gave his evidence in a straight forward manner, so did accused T. Matieta. I did not find accused Tiimi to be an impressive witness. Logic and common sense do not support his evidence. It cannot reasonably be true and I reject it - where it conflicts with that of Corporal Bureteiti and accused 2."

His Honour found that there was "not reason to believe" that Corporal Bureteiti has offered any indemnity to Tiimi, he accepted the evidence of Bureteiti as to what he had said to Tiimi.

Of course the advantage which a trial judge has in that he sees and hears the witnesses must never be overlooked or indeed, underestimated. But why should Tiimi have proceeded to carry out the plan which he had unfolded to Corporal Bureteiti unless he had reason to believe that he would not be subject to prosecution? The evidence leads to the conclusion that when Tiimi entered the police office he had no intention of committing the offence of arson but believed that he was assisting the police to apprehend Matieta.

As regards the appellant Matieta it is possible to reach any conclusion other than one of guilt from his own evidence. He believed that Tiimi intended to burn down the building. He assisted Tiimi to enter, watched him set fire to the paper and waited to help him depart through the window. He did take part in the office breaking and did have the intention of committing the felony of arson.

Sections 49-52 of the Criminal Procedure Code 1977 (Cap 17), which relate to prevention and reporting of crime by police officers, do not affect the issue. The fact that a police officer has not acted to stop the commission of an offence does not result in a prohibition against the prosecution of the offender.

The maximum penalty for the offence of housebreaking with intent to commit felony is imprisonment for 7 years. A sentence of 12 months imprisonment imposed upon a person who has had previous convictions is not, in our opinion, manifestly excessive.

The orders of the Court are:-

1. That the time for applying for leave to appeal be extended, in the case of each appellant, until 30th December 1988.

2. That each appellant have leave to appeal.

3. That the appeal of Matieta Timeon against conviction and against sentence be dismissed.

4. That the appeal of Tiimi Butiaua against conviction be allowed, that the conviction be quashed and the sentence of imprisonment set aside.

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