Tarabo v Republic [2006] KICA 12; Criminal Appeal 08 of 2005 (26 July 2006)

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

Criminal Appeal 8 of 2005

BETWEEN:

KAOTINTEUN TARABO
Appellant

AND

THE REPUBLIC
Respondent

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel for the Appellant: Taoing Taoaba
Counsel for the Republic: David Lambourne

Date of Hearing: 20 July 2006
Date of Judgment: 26 July 2006

JUDGMENT OF THE COURT

[1] This appeal against conviction for murder arises out of a shocking attack by a large number of men upon three families in the appellant’s own village of Temanokunuea. The Chief Justice concluded that the appellant was the ring-leader, and held him responsible for what occurred.

[2] The appellant was chairman of the Butaritari Unimane Association. The three families fell out with the Association, indeed with most of the rest of the island, because they had queried its accounts and had refused to give financial support to the Butaritari soccer team. Various sanctions had been imposed upon them, but to no avail. On the night of 27 October 2004 men from all over the island were collected in trucks and taken to an assembly point from where they proceeded to Temanokunuea village. There were some hundreds of them, and they were armed with sticks and clubs and stones. The appellant was not with them. He had taken his family away from home to another village for the night. When the mob arrived at Temanokunuea, they attacked the houses and businesses and other property of the three families who were to be punished. They set fire to them, and caused severe financial loss.

[3] A young man from another family, Tooni Timon, was bold enough to protest. The mob chased him, beat him and stoned him, and threw him over the sea wall. He was found the next morning. He was dead.

[4] The Chief Justice summed up his findings of fact in these words:

"Kaotinteun was the ring leader: counseled the unimane who counseled the people of their villages. Kaotinteun made the decision to attack. He organised the operation. He caused the men to carry out the attack. They did carry it out and in the course of it Tooni was killed."

[5] Kaotinteun stood trial on three counts, murder, aggravated riot and directing intimidation. The Republic entered a nolle prosequi on the third, and the Chief Justice found Kaotinteun guilty on the first two. This appeal is against those convictions, and the sentence of 8 years imprisonment imposed on the charge of riot.

[6] As the appellant was not part of the mob, the Republic based its case for riot on section 21 (1)(c) and (d) and its case for murder on both that provision and section 23 of the Penal Code which are as follows:

21(1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say - .....

(d) Any person who counsels or procures any other person to commit the offence.

23. When a person counsels another to commit an offence, and an offence is actually committed after such counsel by the person to whom it is given, it is immaterial whether the offence actually committed is the same as that counseled or a different one, or whether the offence is committed in the way counseled or in a different way, provided in either case that the facts constituting the offence actually committed are a probable consequence of carrying out the counsel.

In either case the person who gave the counsel is deemed to have counseled the other person to commit the offence actually committed by him. -----

[7] The grounds of appeal against conviction are first that the Chief Justice "erred in law and in fact in finding that the appellant counseled and procured the commission of the offence when there is no evidence to support such finding"; and secondly that the Chief Justice "erred in law by applying an erroneous test as to whether the death of Tooni Timon was a probable consequence of the carrying out of the appellant’s plan."

[8] As to the first ground, Ms Taoaba’s submission was that the evidence went no further than to show that the appellant organised the transport, and that in doing so he was merely carrying out the decision of the old men. But the evidence went further than that. Several witnesses spoke about a meeting of the Association on 23 October, which the appellant chaired. One of them, Anginteaba, said that the appellant stood up and said "it is best that they be mobbed" Another, Tokamaitarawa, agreed, when it was put to him by counsel, that the appellant was advocating immediate action. All said that the decision was that the dissentients were to be punished: "stoned’, "mobbed" "their houses were to be burnt’ were the words the witnesses variously used. However, the local Member of Parliament arrived and opposed the proposed action, and it was then agreed not to continue with it. One witness, Tawita, said that the matter was deferred to a later date for discussion at a later meeting, while the minutes recorded that "if there is no movement by the opposition from T/nuea then a decision is to be made for them."

[9] There was no further meeting of the Unimane. Instead, on 27 October, the appellant got on his motor cycle and rode around the villages telling the old men and others that transport would come to pick them up that night. Anginteaba said that the appellant told him "get your people ready because your transportation is coming for you tonight." He also said words to the effect that it was time for Butaritari to rise up. When he asked the appellant "has this matter really been decided?" the appellant said "I’ve just come back from informing everyone else." Asked by the Judge if the appellant had said what they were getting ready for, he replied "we were going to mob the families at that place." Tawita said that when the appellant came to speak to him, he told him "the old men’s decision have been confirmed so get your men ready because they’ll be picked up tonight"; and that the purpose was to burn down the houses. Tokamaitarawa was another who the appellant told to get his men ready. Asked if he knew what the appellant was talking about, he said "we knew because it had already been decided last time and deferred and when he came it was time to carry out that decision." Later in his evidence, when asked how he knew what he was to do when he got to Temanokunuea, he replied:

"It was because last time it had been decided that they were to be visited and their houses burnt down and things like that but it was then deferred and then later on this man the accused came and told us to gather. He gathered us and told us to go and so we carried out those things."

[10] There are two other telling aspects of this evidence. The first is the significance several of the witnesses placed on the fact that it was the chairman of the Association who was giving these instructions, for the chairman’s instructions must needs be obeyed. The second is that there was obviously no doubt what the instructions meant, even if the appellant had not in every case made it clear himself, because those who set out in the transport were armed for attack. The word to do so had come from the local unimane, and they had clearly got it from the appellant.

[11] It will be apparent from the foregoing, which must of course be considered as a whole, that the appellant was more than a messenger from the Association. He had promoted the attack at the meeting on 23 October, there had been no other meeting, and he had taken it upon himself not only to arrange the transport on 27th, but also to ensure that the men were assembled and appropriately prepared for the attack upon the dissenters. The Chief Justice was therefore quite entitled to conclude that, though he may not have been the only one to do so, the appellant had certainly counseled or procured the commission of the offence of riot. Whether or not he was properly to be described as the ringleader does not matter. The first ground of appeal fails.

[12] We turn now to the second ground of appeal. After setting out the relevant parts of sections 21 and 23 of the Penal Code, the Chief Justice said:

"When an attack is carried out at night by a large group of armed men against a village with the intent of intimidation by stoning and burning, a death of someone is a foreseeable and probable consequence."

[13] That of course was a finding of fact, but counsel for the appellant submitted that it was based on an erroneous understanding of the meaning of "probable consequence." (Section 23 does not use the word "foreseeable" but its use by the Chief Justice is immaterial to the point in issue.) This submission must be considered in the context of what the Chief Justice went on to say.

[14] The Chief Justice continued by quoting from the judgment of Gibbs J in the High Court of Australia in Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426, one of several Australian cases dealing with provisions similar to our Penal Code, that the appellant’s then counsel had cited to him. In this particular passage of his judgment, Gibbs J quoted in turn this passage from the judgment of Starke J, again in the High Court, in Brennan v R (1936) 55 CLR, 260-261:

"A probable consequence is, I apprehend, that which a person of average competence and knowledge might be expected to foresee as likely to follow upon the particular act; though it may be that the particular consequence is not intended or foreseen by the actor."

[15] The Chief Justice then concluded:

"Eventually it is a matter of applying common sense to a situation. Would "a person of average competence and knowledge" (as I find Kaotinteun to be) have realised as a matter of common sense that someone could be killed? The answer is "Yes." The death of Tooni Timon was a probable consequence of the carrying out of Kaotinteun’s plan and he had counseled that the plan be carried out. Kaotinteun is as guilty of the murder of Tooni Timon as if he had been present and had killed Tooni himself."

[16] It is on that word "could" in the first paragraph that this second ground of appeal is founded. It is a word that generally conveys the sense of possibility rather than likelihood, and had the Chief Justice used it without more he would certainly have appeared to have adopted the wrong test. But one must look at the context in which he used it. He had just quoted a classic definition of "probable consequence", which clearly set out the test to be applied, and it is inconceivable that he would immediately have parted from it and applied a different test. We are therefore satisfied that there is no substance in the second ground of appeal.

[17] The appeal against conviction on both charges is therefore dismissed.

[18] This conclusion makes it unnecessary to consider the appeal against sentence on the charge of riot, as that sentence is subsumed in the mandatory life term imposed on the murder charge. We say only this, that we regard the sentence as entirely appropriate, having regard to what occurred, and to the need to demonstrate that this kind of conduct is totally unacceptable in a civilized society. Every person living in these islands is subject the law. No-one is above it.

Hardie Boys JA
Tompkins JA
Fisher JA