Kabure v The Republic [2005] KICA 3; Criminal Appeal 03 of 2005 (8 August 2005)

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

Criminal Appeal 3 of 2005

BETWEEN:

TIRAE KABURE
Appellant

AND:

THE REPUBLIC
Respondent

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel for Appellant: Aomoro Amten
Counsel for The Republic: Ruria Iteraera

Date of Hearing: 2 August 2005
Date of Judgment: 8 August 2005

JUDGMENT OF THE COURT

Introduction

1. Tirae Kabure was convicted of murder and sentenced to life imprisonment on 21 February 2005 in the High Court of Kiribati. He appeals against conviction.
   

Background

2. The Republic’s case was that the appellant had taken his female cousin aged 15 years down a road past a Catholic cemetery, had had sexual intercourse with her without her consent, had strangled her so that she could not tell on him, had put her body in a sitting position next to a pandanus tree, had torn her shirt into strips, and had tied them around her neck in an apparent attempt to make the incident appear to be a suicide. The appellant admitted those facts in a formal statement to the police.
   
3. The trial came on for hearing before the Chief Justice on 16 February 2005. Appearing for the appellant were Ms Taoing Taoaba and Mr Karotu Tiba. It was Mr Tiba’s first criminal trial.
   
4. The first day of the trial was occupied by a voir dire in which the defence challenged the admissibility of the police statement. The accused gave evidence on the voir dire but confined the evidence to events after the fatal incident had occurred.
   
5. On the following morning, 17 February 2005, the Chief Justice announced his decision on the voir dire. He rejected the challenge to the police statement and admitted it into evidence. On the same morning Mr Tiba applied for an adjournment on the ground that senior counsel for the defence, Ms Taoaba, was ill. The Solicitor General supported him in the application.
   
6. The Chief Justice refused the application, essentially on the grounds that junior counsel should always be in a position to take over the conduct of a case, that it was not known when Ms Taoaba would be well enough to resume the trial, and that the court lists were congested in the days to follow. As it was Mr Tiba’s first criminal trial, the Chief Justice allowed him an hour in which to become fully familiar with the brief. He also suggested that he seek the assistance of the People’s Lawyer, Ms Troup.
   
7. When the case was called again later that morning Ms Troupe appeared with Mr Tiba. She had no prior knowledge of the case. The trial then resumed.
   
8. By consent the evidence given on the voir dire was admitted as evidence in the trial. In addition to the appellant’s formal police statement, the prosecution relied upon evidence that the appellant had been seen to go off with the victim late in the evening in the direction in which her body was ultimately found; that the body was found sitting on the ground tied to a pandanus tree by the neck; that medical opinion was that the injuries to the victim’s neck were consistent with strangulation rather than hanging; and that the appellant had made a further admission. The further admission was contained in the evidence of a witness who stated that outside the courtroom on the first day of the hearing the appellant had said:
   

“There’s no problem. I’ve revealed everything related to me killing that girl. “Why?” “Because she was my relative and I was ashamed...:”.”

9. Other than his voir dire evidence the appellant did not give evidence and did not call any in his defence. The Chief Justice found the charge proved beyond reasonable doubt.
   

The appeal

10. In this court Mr Amten’s sole ground of appeal was that the appellant ought to have been granted the adjournment requested.
    
11. We agree that the adjournment should have been granted. We respectfully question whether there is, or should be, any convention that junior counsel must at all times be ready to take over a case in the absence of senior counsel. Whether that is a reasonable requirement in a particular case will turn on all the circumstances. These will include the experience of junior counsel, the gravity of the case, and the degree to which junior counsel was personally involved in the preparation. But in our view there could be no blanket convention of the kind suggested. It would be unfortunate if potential responsibility for running the whole case discouraged the wholly desirable practice of allowing inexperienced counsel to appear as juniors for educational reasons.
    
12. In this case the charge was a grave one. This was Mr Tiba’s first criminal trial. We accept that in an ideal world the trial would have been adjourned for a period long enough to allow Mr Tiba and Ms Troup to regroup.
    
13. However the real question is not whether a longer adjournment should have been granted but whether it could have made any difference to the outcome. We invited Mr Amten to suggest how counsel with adequate experience and preparation time could have overcome the formidable difficulties this appellant faced.
    
14. By the time Ms Taoaba fell ill, the Court had already completed the voir dire which resulted in admission of the appellant’s police statement. In this statement the appellant admitted all ingredients of the crime. He repeated the essentials in an informal admission to a bystander on the first day of the trial. He was last seen with the victim heading in the direction in which her body was found. His responsibility for her death was supported by the position of the body, the nature of the cloth binding, and medical opinion as to the cause of her injuries.
    
15. Mr Amten submitted that counsel with adequate experience and preparation time might have called the appellant to give evidence resiling from the statement he had made to the police. We do not accept that giving evidence could have helped him. By this stage in the trial the Court had already rejected the evidence he had given in an attempt to have the statement excluded. Nor was there any affidavit or signed brief of evidence before this Court to indicate what evidence the appellant would wish to have given had he been given the opportunity. Given the evidence at the scene, we are unable to conceive of any account from the appellant which might have raised a reasonable doubt.
    
16. Mr Amten also submitted that experienced counsel might have objected to the evidence that the appellant made an informal admission on the first day of the trial. For obvious reasons, the prosecution had not been able to forewarn the defence of this evidence. But at most, an objection might have resulted in a ruling that the witness in question be recalled for cross-examination later in the trial or that there be a brief adjournment to allow the defence time to prepare a response. It could not be suggested that such evidence was inadmissible or intrinsically unfair.
    
17. The prosecution case was an overwhelming one. We are satisfied that an adjournment could not have affected the outcome of the trial.
    
18. The appeal is therefore dismissed.
    

Hardie Boys JA
Tompkins JA
Fisher JA