Republic v Tekeaua - judgment [2002] KIHC 59; Criminal Case 24 & 40 of 2001 (16 May 2002)

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

High Court Criminal Case 24 of 2001
High Court Criminal Case 40 of 2001

THE REPUBLIC

vs

KAIBAKETE TEKEAUA

For the Republic: Ms Pole Tebao
For the Accused: Mr Aomoro Amten

Date of Hearing: 15 & 16 May 2002

JUDGMENT

The accused was charged, in two indictments, with three counts of arson and one of attempted arson.

CrC 40/2001

Count 1

Statement of Offence

Arson contrary to section 312(a) of the Penal Code Cap. 67

Particulars

Nakaibakete Tekeaua on the 19^th of April 2001 at Makin Island willfully and unlawfully set fire to a structure made out of local materials namely the garage the property of the Makin Island Council.

Count 2

Statement of Offence

Arson contrary to section 312(a) of the Penal Code Cap. 67

Particulars

Nakaibakete Tekeaua on the 29^th of April 2001 at Makin Island willfully and unlawful set fire to a local building namely “te buia” (small raised floor house) the property of the Makin Island Council.

CrC 24/2001

Count 1

Statement of Claim

Attempted Arson contrary to section 313 of the Penal Code Cap. 67

Particulars

Kaibakete Tekeua on the early evening of 6^th June 2001 at Kangitano, Makin attempted unlawfully to set fire to a building namely a local house belonging to Nei Atantaake Keakea.

Count 2

Statement of Offence

Arson contrary to section 312(a) of the Penal Code Cap. 67

Particulars

Kaibakete Tekeua on the early morning of 8^th June 2001 at Kangitano, Makin unlawfully set fire to a building namely a local house belonging to Nei Atantaake Keakea.

The accused pleaded not guilty to all counts.

At the close of the prosecution case, Mr Amten submitted that his client had no case to answer except on the count of attempted arson. I ruled that the accused had no case to answer on two counts, CrC 40/2001 count 2 (the Council buia) and CrC 24/2001, count 2 (Atantaake’s house).

The accused elected not to give evidence. There was no evidence for the defence.

All the offences alleged occurred on Makin Island between 19 April 2001 and 8 (I think it may have been 9) June 2001. The accused was alleged to have burned down a garage belonging to the Makin Island Council on 19 April, a buia (small raised floor house) belonging to the Council on 29 April, attempting to burn down a local house belonging to Nei Atantaake on 6 June and finally, with having succeeded in burning that house down on 8 June.

Various witnesses gave evidence in relation to various counts but only one witness, Nei Motirere Rineta, gave evidence in relation to more than one count.

The Court of Appeal in England set out guidelines on how a judge should approach a submission of no case to answer in George Charles Galbraith (73 CAR 124). The Lord Chief Justice (at 127):

How then should the judge approach a submission of “no case”? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury. It follows that we think the second of the two schools of thought is to be preferred.

Earlier the Chief Justice has cited (at 126) what Lord Widgery CJ had said in Barker (65 CAR 287):

It cannot be too clearly stated that the judge’s obligation to stop the case is an obligation which is concerned primarily with those cases where the minimum evidence to establish the facts of the crime has not been called. It is not the judge’s job to weigh the evidence, decide who is telling the truth and stop the case merely because he thinks the witness is lying. To do that is to usurp the functions of the jury.

The guidelines have been the same, both before the English Criminal Appeal Act 1966, and after. They are the guidelines I should use.

Mr Amten in his submissions reminded me of what I said a few days ago in the Republic v Tamoa Nawere that, “suspicion does not amount to proof beyond reasonable doubt”. I must say that in this case my suspicions are even stronger than they were in that. Yet on each count 2, burning of the Council buia on 29 April and Atantaake’s house on 8 June, that’s all there is: no direct evidence that the accused set fire to either. I may be very suspicious that he did but the suspicion is not enough to find him guilty beyond reasonable doubt.

Mr Amten succeeded in his submission on those counts.

Mr Amten’s submission on the burning of the Council garage on 19 April (CrC 40/2001 count 1) was that the two ladies who gave evidence of having seen the accused setting fire to it, Nei Tokaieta Natu and Nei Teroreti Kouramaere, had given statements to the police which differed from their sworn evidence. Nei Tokaieta in the first part of her statement to the police said she “did not recognize” the accused then later she did recognize “that it was Nakaibakete who was carrying that fire”. In her evidence she said “I recognized Nakaibakete as the one carrying the lighted leaf”. She explained her failure at first to tell the interviewing officer that she recognized the accused by saying she was afraid of him but, “I mention everything afterwards when we arrived here” (presumably South Tarawa).

Mr Amten referred to R v Golder, Jones and Porritt (1960) 3 All ER 457 @ 459 per Lord Parker CJ):

In the judgment of this court, when a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable; they should also be directed that the previous statements, whether sworn or unsworn, do not constitute evidence on which they can act.

I emphasize the Lord Chief Justice’s words, “should be regarded as unreliable”. A direction is to be given to the jury who make the decision. The dictum must be read in conjunction with the passages I have cited from Galbraith and particularly with the passage from Barker:

It is not the judge’s job to weigh the evidence, decide who is telling the truth and stop the case merely because he thinks the witness is lying. To do that is to usurp the functions of the jury.

Later in her statement Nei Tokaieta did name the accused.

As for Nei Teroreti, I could not follow Mr Amten’s argument. It was the same as for Nei Tokaeita. Nei Teroreti does name the accused: “we recognize the man carrying it as Nakaibakete”. In her evidence she identified the accused as the man who lit the fire:-

We didn’t see person at first but saw him when something started to burn. Didn’t speak to him. After swinging coconut leaves started to light council garage. Distinguishable – enough light from flame. I saw his face (walking away).

Had I been sitting with a jury I would not have directed that the evidence of either of these ladies should be regarded as unreliable.

There was direct evidence, which a jury properly instructed could accept, that it was the accused who burned the garage. The Republic made out a prima facie on this count. I rejected Mr Amten’s submission.

As the accused did not give evidence or call any other, there was no answer to the evidence of Tokaieta and Nei Teroreti that the accused set fire to the garage. I found their evidence credible. I accept it beyond reasonable doubt. I find the accused guilty on this count.

That leaves only the attempt to burn Nei Atantaake’s house on 6 June.

There was direct evidence from two witnesses, Nei Motirere and Tokabure Terua of the accused with a burning “oi” (a torch made of dried coconut leaves), jumping on to the buia and applying the torch to the thatch, thinking better of it and putting the fire out. Nei Atantaake said that the next day she saw the “mark of fire” on the thatch.

I accept this evidence, credible as it seemed and. unchallenged as it is, beyond reasonable doubt.

I did for a moment wonder whether the accused had appropriately been charged with “attempt” when he had actually succeeded in setting fire to the house but changed his mind and put it out. However consideration of section 371(1) of the Penal Code, to which Ms Tebao referred, satisfied me that this was an “attempt”.

I find the accused guilty on this count.

The accused is guilty of arson (burning the Council garage on 19 April) and of attempted arson (the attempt to burn Nei Atantaake’s house on 6 June).

Dated the day of May 2002

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE