Republic v Kaoma - judgment [2001] KIHC 57; Criminal Case 41 of 2000 (10 July 2001)

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

High Court Criminal Case 41 of 2000

THE REPUBLIC

vs

MOTINNANG KAOMA

For the Republic: Ms Pole Tebao
For the Accused: Ms Emma Hibling

Date of Hearing: 5 July 2001

JUDGMENT

The accused has been charged with assault (Penal Code section 240(a)), two counts of criminal trespass (Section 182(1)(a) and section 182(1)(c)), threatening violence (Section 83(1)(b)) and common assault (Section 237).

During the short hearing a lot of time was taken up on whether the accused and Nei Tonga Tekaua had had a relationship or not. Nei Tonga denied it: the accused insisted on it. I think there probably had been something between them. Several other witnesses rather confirmed the relationship. A relationship would explain the events giving rise to the charges. Whether a relationship or not is a peripheral issue, eventually relevant only to Nei Tonga's credit. There were three other witnesses to events, all of whom confirm either wholly or in part her evidence.

Apart from the question of a relationship or not, I do not hesitate to prefer the evidence of Nei Tonga confirmed by that of Tekimau Kauriri, Katimango Kauriri and Itinnang Burantiti to the evidence of the accused.

It happened on 20 May 2000 at Buota village North Tarawa. Nei Tonga was coming home from work at Bonriki airport. She was dropped at Molly's store at Buota. She was walking the rest of the way home:-

That's when accused appeared: he chased me to kill me. I heard him say it when he was chasing me. I went to Raurenti's and Tekimau's house: despite their telling me to go to village warden. I ran behind Katimango. (Examination in chief).

On 20 May I ran away: he ran after me. He said, "Wait. I am going to kill you". He was 5m away. He came to the house and was angry. (Cross examination).

Nei Tekimau Kauriri:

Know Nei Tonga – saw her on the road being chased. I was at my house. It was after 4.00. Chased by accused on the road, then they came down to our house. Tonga came straight in to our house: he opened the door and came in. .......... Then my brother held the accused from behind and took him away.

Katimango Kauriri:

Saw Tonga running - I was at Tekimau's house. She ran to house and accused was chasing her to house where my sister stays. Tonga hid behind me. "Let me go. I am going to kill that lady". I held him and he got angry. I took him out of the house as he had come into the house. The accused said to me, "You are a coward and afraid of me". That's when village warden came and took him away. Tonga looked afraid. "Help me".

The accused on the other hand gave a story as though butter would not melt in his mouth: that he had had a relationship with Nei Tonga: he merely wanted to talk to her: he followed her asking her to discuss things with him: he never threatened her at all.

I am satisfied beyond reasonable doubt that the accused did chase Nei Tonga threatening to kill her: she was in fear: he chased her into Tekimau's house still making the threat: he was restrained by Katimango and went outside. He was taken away by Itinnang Burantiti, the village warden.

With those findings of fact, what of each of the counts?

Assault

Penal Code Section 240.

Any person who –

(a) assaults any person with intent to commit a felony or to resist or prevent the lawful apprehension or detainer of himself or of any other person for any offence; ..... is guilty of misdemeanour and shall be liable to imprisonment for 2 years.

An assault is explained by Archbold (1992 ed. At 19-166). "An assault is any attack .... By which a person intentionally – or recklessly – causes another to apprehend immediate and unlawful violence: ..... The act must be accompanied by a hostile intent calculated to cause apprehension in the mind of the victim".

All elements of assault were present here – the chasing, the threat to kill, Nei Tonga's fear, the accused's hostile intent if not to kill then (despite his words) at lest to cause her grievous harm evidenced by his words and actions.

The accused is guilty of assault.

Criminal Trespass

Section 182(1)(a):-

Any person who –

(a) enters into or upon property in the possession of another with intent to commit an offence or to intimidate or annoy any person lawfully in possession of such property; ..... is guilty of a misdemeanour, and shall be liable to imprisonment for 3 months; ....."

The accused came into the house and was still threatening Nei Tonga: Katimango restrained him. The accused came into the house with intent to commit an offence. He is guilty of criminal trespass.

Criminal Trespass

Penal Code Section 182(c):-

Any person who –

(c) unlawfully persists in coming or remaining upon such property after being warned not to come thereon or to depart therefrom is guilty of a misdemeanour, and shall be liable to imprisonment for 3 months; ....."

I cannot be satisfied beyond reasonable doubt that the accused persisted in remaining in the house: Katimango was able to get him outside. Accordingly he is not guilty of this criminal trespass.

Threatening Violence

Penal Code Section 83(1)(b):-

Any person who –

(b) with intent to alarm any person in a dwelling-house, discharges loaded firearms or commits any other breach of the peace shall be guilty of a misdemeanour and shall be liable to imprisonment for 1 year.

There is no evidence that the accused assaulted any member of the household. Katimango restrained him but there is no evidence that the accused assaulted Katimango: technically he may have continued to assault Nei Tonga but I cannot be satisfied beyond reasonable doubt even of that. Accordingly he is not guilty of threatening violence.

Common Assault

Penal Code Section 237

Any person who unlawfully assaults another is guilty of a misdemeanour, and, if the assault is not committed in circumstances for which a greater punishment is provided in this Code, shall be liable to imprisonment for 6 months.

Katimango did not say that the accused assaulted him, merely that he restrained the accused. The accused denied fighting Katimango. He is not guilty of common assault.

In summary, the accused is guilty on counts 1 and 2, assault and criminal trespass and not guilty on counts, 3, 4 and 5.

Dated the 10th day of July 2001

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE