Berata v Republic [2001] KICA 19; Criminal Appeal 06 of 2000 (5 April 2001)

IN THE KIRIBATI COURT OF APPEAL
CRIMINAL JURISDICTION
HELD AT BETIO, KIRIBATI

Criminal Appeal No. 6 of 2000

BETWEEN:

TEMEAUAA BERATA
EWENIMATANG TABUAREREWA
TUARI TIONVIRI
ABERAAM TEKAIEA
ROUTAABA RUATU
Appellants

AND:

THE REPUBLIC
Respondent

Before: Casey JA
Bisson JA
Tompkins JA

Counsel: The Appellants in person
Ms Pole Tebao for the respondent

Date of Hearing: 28 March 2001
Date of Judgment: 5 April 2001

JUDGMENT OF THE COURT

[1] The appellants seek leave to appeal against their convictions for murder by the Chief Justice in the High Court at Betio on 21 November 2000. Along with four others who were acquitted, they were charged with this offence, the prosecution case being that they were part of a group that set out on the evening of 30 September 1999 in accordance with a pre-arranged plan to attack the deceased (Tanentoa) because of a Church dispute about money. There was evidence that some of the group carried sharpened sticks and attached palm leaves to their bodies for either disguise or decoration. They found Tanentoa at his house and after a chase assaulted and injured him so badly that he died a few hours later in hospital through internal bleeding from wounds to his chest caused by a sharp object. Ten men were originally charged, but shortly before the trial was due to start the Republic filed a nolle prosequi in respect of one of them (Tanawai), who gave evidence for the prosecution.

[2] His Honour was satisfied that all the members of the group had a common purpose to do Tanentoa violence, arrived at in a meeting earlier that evening at the house of Tebwe. Reflecting the provisions of s22 of the Penal Code, he held that each man was equally liable for the actions of the others, including unusual consequences such as his injuries and death, which His Honour rightly found were reasonably foreseeable in the circumstances. The case against each accused turned ultimately on the reliability of identification evidence given by the prosecution witnesses, and he reminded himself of the risks inherent in cases depending substantially on visual identification, citing the well-known passage in R v Turnbull (1976) 63 Cr App R 132, 137. He also mentioned the need to be particularly careful of Tanawai's evidence as an accomplice and looked for corroboration of his testimony. We grant leave to appeal and consider the case of each appellant in turn.

[3] Temeauaa Berata The evidence against him came from Tanawai and the deceased's wife, Ene Tanentoa. The former said the group picked him up at his house and he was with them, while the latter claimed to have known him very well for ten years and recognised him as one of the group chasing her husband by the light of torches they were carrying. Temeauaa gave evidence denying that he was with the group at any time that night and said he was at home sleeping. His Honour had some reservations about Tanawai's evidence, but found it corroborated by Ene's testimony and expressed himself as satisfied beyond reasonable doubt that this appellant was a member of the group engaged in the joint enterprise.

[4] In this Court he submitted that there was no evidence that he was aware of the plan to attack the victim, but in the light of the evidence that he was seen chasing him, the inference is inevitable that he knew this was going to happen. He also referred us to a passage in the record which he claimed amounted to an indication at the outset that his defence of alibi was going to be rejected, but we see nothing in the those preliminary remarks of His Honour suggesting anything more than recognition that such a defence might be raised. For these reasons we are satisfied that this appeal must be dismissed.

[5] Ewenimatang Tabuarerewa Tanawai said he was one of those at Tebwe's house where the decision was made to attack Tanentoa was made. The appellant did not give evidence but claimed in his submissions to us that while he was part of the group at the house, he excused himself and left before the end. Tanawai said in cross-examination that he knew nothing about his leaving. There was also evidence from this appellant's cousin, Moannari, who was near the scene of the assault and claimed to have recognised him there, along with another appellant (Routaaba Ruatu), from seeing their backs by the light of a nearby fire. The Chief Justice had understandable reservations about the reliability of that identification. However, he referred to evidence of a conversation between the appellant and Moannari next morning when, in response to the latter's question of how he came to be associated with the incident, the appellant cried and said it was his brother-in-law's plan. His Honour accepted this as an admission and held that the evidence as a whole satisfied him beyond reasonable doubt that the appellant took part in the joint enterprise. He was clearly entitled to reach this conclusion and the appeal must accordingly be dismissed.

[6] Tuari Tionviri Tanawai identified him as one of those at the meeting at Tebwe's house. Tauaketia, the victim's uncle, gave evidence that he was woken up after midnight by stones being thrown at the house and clearly recognised Tuari, who was also a nephew and whom he had known for years, by the light of torches shone on his face. He said Tuari was carrying something and was dressed with coconut leaves around his body. The Chief Justice regarded this evidence corroborating that of Tanawai, and being satisfied the appellant was part of the enterprise, convicted him.

[7] Tuari did not give evidence, but in his submissions to us he said the deceased had been killed by a knife (there was no evidence about the fatal weapon), and that while he was a member of the group, he was not carrying a deadly weapon. This, of course, cannot excuse him if he was one of those engaged in a joint enterprise to attack the deceased where grievous injury or even death was a foreseeable probability, as His Honour found was the case here. Nor is the appellant helped by his claim that he went along only out of fear of reprisals against him and his family if he did not co-operate, and that he never took part in the actual attack. His presence at the scene along with the others, knowing what they intended, encouraged them in their joint enterprise, thereby making him equally guilty of the murder as a party aiding them, pursuant to s22 of the Penal Code.

[8] Tuari said he wanted to give sworn evidence but his lawyer told him he should not do so and did not call him. He waived privilege and we arranged to receive an affidavit from his counsel in which he confirmed that his client wished to give evidence, but he explained to him that it would be against his interests to do so. He deposed that the appellant told him he followed the group to Tanentoa's house and threw a stick at him. Then he followed them slowly to see what would happen, and realised there was a possibility that he could be stabbed. He saw Tanentoa's body on the ground with a crowd around it. Counsel deposed that he made it clear the decision whether or not to give evidence rested with the appellant, and that he accepted his advice and chose not to do so.

[9] A translation of this affidavit was supplied to Tuari and he confirmed that he threw the stick at Tanentoa, but denied that he accepted the advice not to give evidence, maintaining that he still wished to do so. His counsel was acting for other accused as well, and Tuari said he told him that if he gave evidence he would not continue to represent the others, to which he replied that was a matter for him to decide. Thus there was a clear conflict between counsel's affidavit and what Tuari told us about their discussion, but the affidavit contains a detailed account of those discussions and of the instructions given to him, which we are prepared to accept as accurate. In any event, for the reasons outlined above we are satisfied that Tuari's conviction for murder would have been inevitable if he had testified. Accordingly his appeal must be dismissed.

[10] Aberaam Tekaiea Tanawai said this appellant was one of three who went with him to the meeting at Tebwe's house. He was recognised among the group that went after Tanentoa by Tauaketia, who said he saw him dressed in palm leaves along with Tuari, identifying both (whom he knew well) by the light from torches shone upon their faces. His Honour was satisfied on this evidence that he also was part of the enterprise and convicted him. In his submissions to us the appellant said he was not a member of the group and had no knowledge of the attack to be made or of the dispute involving the deceased. He said he went to the meeting and tried to dissuade them, and went with the others to Tanentoa's house, but did not do anything. He told his lawyer he wanted to give evidence, but she told him he would get into trouble if he did; otherwise he might not be recognised as having been at the scene, and so she would not let him testify. Nevertheless he said he still wanted to give evidence, but that due to his ignorance of the law and his inability to consult another lawyer, he thought what she said was best.

[11] As with Tuari, we thought it desirable to obtain an affidavit from counsel after the appellant had waived privilege, and in it she gave a very full account of the instructions she received from him to the effect that he was part of the group that went to throw sticks at Tanentoa's house to frighten him, believing they could injure someone but not kill. He was not carrying a knife but knew that others customarily did, though he did not see any among the group. Counsel deposed to the discussions they had before and after the close of the prosecution case about the desirability of his giving evidence, advising him that if he did so he was likely to be convicted, but otherwise there was a possibility of the Court finding a reasonable doubt. This appears to have been appropriate advice in the circumstances, and counsel said she made it clear that the choice was his, and that ultimately he decided to follow her advice and not give evidence. Although in his submissions to us on this affidavit the appellant said he still wanted to give evidence, we have no hesitation in accepting his counsel's version, and reject this ground of appeal. As we see nothing to criticise in His Honour's acceptance of the identification evidence, the appeal must be dismissed.

[12] We would comment in respect of these last two appeals that counsel should always try to get instructions in writing from their clients about whether they wish or do not wish to give evidence. This obviates misunderstandings or arguments of the kind arising in those cases.

[13] Routaaba Ruata His Honour recorded that Tanawai named this appellant as one of those at the meeting at Tebwe's house. He then referred to Moannari's evidence in which he claimed to have seen Routaaba and Ewenimatang near the scene of the assault on Tanentoa, identifying them from by their backs from the light of a nearby fire. His Honour referred to the reservations he expressed about the reliability of that evidence in dealing with Ewenimatang's appeal. However, in spite of those reservations he thought it corroborated Tanawai's sufficiently to satisfy him that Routaaba was part of the enterprise. But Tanawai merely placed him at the house meeting, and made no mention of any later involvement by him in the assault.

[14] Moannari's purported identification from the rear is so suspect that we do not think it should have been accepted as evidence placing the appellant beyond reasonable doubt at the scene of the assault, and for the same reason we do not regard it as capable of corroborating Tanawai, even if the latter had implicated Routaaba in the assault itself The Chief Justice was apparently not prepared to accept it as corroboration in Ewenimatang's case and looked to the evidence of the admission he made next morning before convicting that accused. In these circumstances we do not think Routaaba's conviction can safely stand and he must be acquitted.

Result

The appeals by Temeauaa Berata, Ewenimatang Tabuarerewa, Tuari Tionviri and Aberaam Tekaiea are dismissed.

The appeal by Routaaba Ruatu is allowed and his conviction and sentence are quashed, and a judgment and verdict of acquittal is to be entered.

Casey JA
Bisson JA
Tompkins JA