Taungea & 7 Others v Republic [1990] KICA 5; Criminal Appeal No 2 of 1989 (29 March 1990)

IN THE COURT OF APPEAL OF KIRIBATI

Criminal Jurisdiction

Criminal Appeal No 2 of 1989

BETWEEN:

TAABE TAUNGEA AND 7 OTHERS
Appellants

AND

THE REPUBLIC
Respondent

Mr. Koaru for Appellant
Mr. Tabane for Respondent

Date of Hearing: 26th March 1990
Delivery of Judgment: 29th March 1990

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

The 8 appellants in this appeal were jointly charged with arson; malicious damage to property; and unlawful wounding. By consent, counsel for the appellants agreed that the appeals be heard together. The appeals are against both convictions and sentences of 9 years imprisonment imposed on each of the 8 appellants.

On the evening of the 26th October 1986 in the village of Utiroa on Tabnorth one Bruno, his wife, and a visitor called Tekina were asleep on the raised floor of their house; Bruno's younger brother Matereei, his wife and children were asleep on the ground floor.

Later in the evening at a time which was not established, some 20 people attacked this house. Matereei and his family fled, but missiles were thrown at Bruno and Tekina, inflicting injuries on them, and the house was set alight. The police were called and those trapped in the burning house were saved.

Bruno, Tekina, and Bruno's wife Eren positively identified the 8 appellants among the 20 or so people who carried out the attack. The trial judge carefully analysed all the evidence adduced in the course of a long trial (it commenced in February 1989 and continued intermittently until July 1989). He set out his conclusions in detail in his 17 page judgment and described the three principal witnesses for the prosecution, Bruno, Eren and Tekina as -

".....truthful, straight forward and convincing witnesses. They all had the opportunity and ability to recognise their assailants and they have told the Court the truth."

Mr. Koaru, in his submissions made on behalf of the appellants, advanced three main arguments in support of his contention that the convictions should not stand. He submitted, that the evidence of identification was insufficient, and that the learned trial judge did not properly weigh that evidence; secondly, that the learned judge erred in not taking judicial notice of an earlier criminal case, decided by Topping J., in which two of the witnesses for the prosecution had given evidence against three of the appellants, and, thirdly, that the learned judge had erred in considering a defence of alibi.

Bruno, Eren and Tekina said in their evidence that they recognised the eight appellants by the light provided by the moon, the fire and torches carried by some of the assailants as well as by torches used by Bruno and Tekina themselves. Mr. Koaru relied on the circumstances that Bruno, Eren and Tekina were frightened and were taking action to avoid the missiles and had no time properly to appreciate the situation. He submitted also that the learned judge had failed to direct himself in accordance with the guidelines regarding evidence of identification given in R v Turnbull (1976) 3 All E.R. 549.

As the learned judge pointed out, the case was one of recognition rather than one of identification of strangers, for the witnesses had known the appellants for many years, and lived in the same village. Of course, mistakes in recognition even of close relatives can sometimes be made. However, in the present case, the three witnesses for the prosecution gave positive evidence that they clearly saw and recognised the eight appellants. The learned judge carefully reviewed all the evidence. He mentioned, in his judgment, the difficulty of determining the identity of an offender when that is in dispute and the need to determine the quality of the identification evidence and the reliability of the witnesses. Indeed he said: "If I came to the conclusion that even though I believe the prosecution witnesses if the evidence given by the accused is true or could reasonably possibly be true then however convincing the evidence of the prosecution's witnesses, I must give the benefit of the doubt to the accused persons and acquit them."

We find it impossible to accept the submission that either the identification evidence was insufficient to sustain a conviction or that the judge failed adequately to warn himself of the need for caution in considering it.

The second of Mr. Koaru's submissions was based on the fact that on 10th March 1988 Topping J., had convicted three of the present appellants, Tanawai, Ruateki and Tekarawa, of offences of assault occasioning bodily harm, causing grievous bodily harm and unlawful wounding. The offences had occurred on 15th August 1986 when a mob of which the three appellants formed part had burnt the house of one Tanre, and had attacked and seriously injured Tanre. Bruno and Eren had been witnesses at that trial; of their evidence Topping J., had said: "I do not think that the evidence of Nei Eren and Tem Buruno adds greatly to the sum of things. They explained how complainant was found on the beach and rescued." The submission put to us was that the part played by these witnesses in the earlier case gave them a motive to fabricate a case against the appellants or that the earlier attack led the witnesses wrongly to conclude that the appellants were involved in the later attack.

Apparently the judgment of Topping J., was not known to counsel for the appellants although the facts on which it was based must obviously have been known to the three appellants who had earlier been convicted. No evidence was given at the trial concerning the earlier case and no questions concerning it were put to the prosecution witnesses. The matter was apparently mentioned to the trial judge before sentence. The doctrine of judicial notice has no application to this situation. The circumstances of the earlier incident might have been put to the prosecution witnesses in cross-examination, in support of a suggestion that they had a motive to lie or were lying or mistaken, but since that course was not taken it would not have been right for the learned judge to attach any weight to these matters which were not in evidence before him.

Next, there is the submission that the learned judge failed properly to consider the evidence of alibi. In summary, the appellants - Taabe Taungea; Iannang Boubou and Baibuke Boubou claimed as their alibi that they were at the house of Boubou Kitei in the 26th October 1986; that they were either asleep or involved in the consummation of the marriage of Iannang Boubou; and that none of them left the house that night. However the date of the wedding was never confirmed by the simple production of the marriage certificate or the attendance as a witness by the bride, who, it appears, had since separated from Iannang. The attention of both counsel at the trial was directed rather to the custom of consummating a marriage than to establishing the date of the marriage and its relationship to the 26th October 1986. The appellants Tanawai, Tekarawa, and Ruateki claimed that on the night of the 26th October 1986, the three of them were living at the house of Ruateki Teoti; and that they were all asleep when the complainant was attacked and his house burnt. The appellant Iannang Teekea claimed that at all material times on the night of the 25th of October 1986 he was at his father's house where he slept until woken up by his father because the Police wanted him in the morning hours of the 27th October 1986. Finally the appellant Tabuia Teoti in his defence of alibi claimed that he was at his house sleeping when the crime was committed.

In support of these alibis relied upon by the appellants six witnesses gave evidence supporting that given by all the appellants on their own behalf. This additional evidence was provided by the wives of Taabe, Ruateki, Baibuke, Tabuia, and Tekarawa. The father of Iannang Teekea supported his son's alibi.

The trial judge in considering these eight alibis and the evidence tendered to support them concluded that -

"I haven't the slightest doubt that all accused and their witnesses without exception have lied to me. There is no possibility that they were asleep all night as they claim and I have no doubt they committed the offences and each one of them played the part as described by prosecution witnesses."

We do not intend to set out in detail some of the extra ordinary evidence tendered by the appellants and their wives to support the various alibis. The trial judge has done that. He has seen the witnesses, heard what evidence they gave, and assessed how they gave it. Upon an analysis of all that evidence we are satisfied that the trial judge was quite justified in rejecting the alibis. There is nothing to suggest that he failed properly to consider this question.

We are of the opinion that the eight appellants were properly convicted on the three counts against each of them.

Finally, it is necessary to consider the submission that the sentences were excessive. The learned judge imposed the same sentence on each appellant, although Ruateki, Tanawai, Tabuia and Tekarawa each had previous convictions.

The convictions of Ruateki, Tanawai and Tekarawa included convictions for assault occasioning actual bodily harm, causing grievous bodily harm and unlawful wounding which offences were committed on 15th August 1986 in the course of the incident already mentioned. In respect of those offences Ruateki, at that time a first offender, was sentenced to three years' imprisonment, and the other two who had previous convictions, were sentenced to four years' imprisonment. Tanawai had previously (in 1972) been convicted of arson and sentenced to 12 months' imprisonment. Tabuia had no previous conviction for arson or for any other offence as serious as those committed by Ruateki, Tanawai and Tekarawa.

In imposing a sentence, a judge must of course consider the previous conduct and character of an offender, and in the circumstances of the present case it was not justifiable to impose the same sentence, of 9 years' imprisonment, on persons with no previous records, as were imposed on their accomplices who had previously and recently been convicted of serious crimes.

There is no doubt that the offences in the present case were serious. They involved violence causing injury to the person and damage to property. This was the second similar occurrence in the village of Utiroa in the space of two months. It was clearly necessary for the trial judge to impose terms of imprisonment calculated to deter others from this type of offence which appears to be all too common.

However, we had had the advantage, denied to the learned judge, of having had supplied to us particulars of sentences previously imposed for arson in Kiribati. They range from suspended sentences to imprisonment for 4½ years, and sentences for 9, 12 or 18 months have been imposed. Having regard to this pattern of sentencing, we regard the sentences of 9 years' imprisonment as unduly severe, even though the offences were serious ones.

The appeals against conviction will be dismissed but the appeals against sentence will be allowed.

Order that the sentences of 9 years' imprisonment in each case be set aside and that the following sentences be substituted:

In the cases of Tanawai Tenneke, Ruateki Teoti and Tekarawa Rabaere, a sentence of five years' imprisonment, to be consecutive to the sentences of imprisonment imposed on them by Topping J.;

In the case of the other five appellants, a sentence of three years' imprisonment.

Vice President
Judge of Appeal
Judge of Appeal