Republic v Iobi - judgment [2002] KIHC 76; Criminal Case 26 of 2001 (18 July 2002)

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

High Court Criminal Case No. 26/01

THE REPUBLIC

vs

TIMATA IOBI, NAMARORO NARINOKO
AND TABOMOA KAINONOKI

For the Republic: Mr Tion Nabau & Miss Ruria Iteraera
For the 1st Accused: Mr Aomoro Amten
For the 2nd Accused: Ms Emma Hibling
For the 3rd Accused: Ms Taoing Taoaba

Date of Hearing: 19, 20, 21 June 2002

JUDGMENT

The three accused are jointly charged with arson contrary to section 312(a) of the Penal Code Cap 67 in that on the early evening of the 20^th day of October 1999 at Marenanuka, North Tarawa wilfully and unlawfully set fire to a building namely a local house belonging to Bwebweieta Ruaia.

On the 19 June 2002 the three accused were arraigned for arson and each one of them pleaded not guilty.

The prosecution called two witnesses to prove its case. The first prosecution witness was Nei Tiae Tongaia (PW1) who is 36 years of age, married and has 9 children and unemployed. She lived at Noto village, North Tarawa.

She is the only eyewitness to the arson of Bwebweieta’s house.

In her evidence she testified that on 30^th October 1999, she lived at Marenanuka village, North Tarawa and early in the evening she left Marenanuka village to go Tabonibara village to sleep for the night in her sister’s house, Nei Bakinaua. She was alone that night because her husband Bwebwentarawa has been away in South Tarawa working for the Kiribati Housing Corporation.

On her way to Tabonibara and as she came near to the breadfruit tree growing to the southern part of Bwebweieta’s house she saw three young men walking on the beach on the lagoon side coming from the southern part of the beach and heading to the northern part.

As these young men were walking thus she hid herself from them by staying under the breadfruit tree and observed them from there through the forked branches of the breadfruit tree. She was about 10 yards from the three young men and Bwebweieta’s house.

That night the moon was out, shining bright and clear and could see clearly and she could recognized Timata (first accused) and Namaroro (second accused). She could see the third person standing behind the pandanus tree west of Bwebweieta’s house but could not recognize him because the pandanus tree blocked her view. There was nothing to block or obscure her view of what Timata and Namaroro did that night.

Whilst hiding and standing under the breadfruit tree, she then saw the three young men going to Bwebweieta’s house which is a local house with a raised floor costing about $350.00 to build.

Then she saw Namaroro sprinkling some liquid (gasoline) from a plastic white container onto the roofing of Bwebweieta’s house. She also saw Timata striking a match and started to set fire to the roofing of the house.

Consequently and suddenly the flame from fire from the burning house so illuminated the spot where the house stood and she also recognized Timata and Namaroro who were still there after they set fire to the house. Shortly after they set fire to the house the three accused ran away from burning house. The house and its contents were completely destroyed by fire.

Nei Tiae also testified and identified Timata as the one sitting on the extreme left side of the dock and also Namaroro as the one sitting in the middle of the dock between the first accused Timata and the third accused Tabomoa.

She also testified that the three accused lived at Marenanuka village. She knew them well and saw them regularly before the burning of Bwebweieta’s house on 30^th October 1999.

And because she and her husband sell sour toddy to the public from their house the three accused regularly visited the witness house to buy and drink sour toddy at their house. Timata and Tabomoa lived with Iotua at Marenanuka. Everybody knows each other in Marenanuka village.

Nei Tiae further testified that Timata the first accused had admitted to Tibo her nephew and herself that they (the three accused) were the ones who had burned Bwebweieta’s house. This happened about a month after the arson of Bwebweieta’s house in the evening just before Tiae and Tibo were about to leave Marenanuka to go to Tabonibara.

Nei Tiae was subjected to a moderately long and rigorous cross examination by three defence counsels and despite such cross examination she remained quite firm, consistent and unshaken in her evidence and answers to the number of questions put to her by the three defence counsels that she actually saw and recognized with her own eyes under the clear bright moonlight and from the flames from the burning house the two accused who set fire to Bwebweieta’s house.

Counsel for the first accused Mr. Amten asked Nei Tiae whether she knew, Timata and said she knew the accused quite well for more than two years and she actually saw their faces and recognized them (means the first and second accused) when they set fire to the house, and remained there at scene of crime for sometime till they finished the setting of fire to the house. Counsel asked also Nei Tiae about her statement which she had made to the police and confirmed she had made one. She was shown her statement and confirmed it was hers. The statement was admitted in evidence as Exhibit D1.

The second and last witness of the prosecution was Bwebwentarawa Teiti. He is 37 years of age he now lives at Tabonibara but he used to live at Marenanuka and Noto before. He is the husband of PW1. In his evidence he testified that in 1999 he lived at Marenanuka village which is situated between the villages of Abaokoro and Tabonibara.

On or about the middle of November 1999 (that is about 2 weeks) after Bwebweieta’s house was burnt down Tabomoa, the third accused and the witness were walking together to Abaokoro village and just before they reached Abaokoro Tabomoa spontaneously told the witness that “they” were the ones who had burned Bwebweieta’s house meaning the three accused namely Timata, Namaroro and Tabomoa himself. Tabomoa told the witness this without the witness having asked, or mentioned or discussed the matter first with him at all before he told the witness about the burning of the house. In his assessment of Tabomoa the witness believed Tabomoa was quite serious and he meant what he told him, and he was not under the influence of alcohol or other stimulant or drug. He was quite normal.

During his cross examination by the three defence Counsels the witness confirmed he knew Timata, Namaroro and Bwebweieta whose house has been burned down. He was quite firm, consistent and adamant about Tabomoa’s story in which he told him that Timata, Namaroro and Tabomoa had set fire to the Bwebweieta’s house. The witness also strongly denied that because the witness’s house has also been burned down after Bwebweieta’s house was burned and because he was upset about it he suspected the three accused to have done it and hence the reason and motive why he now came to court and told such a lie.

However he conceded that Bwebweieta is an unpopular man in Marenanuka village, the majority of people disliked him and has offended so many people including the three accused and their families and relatives. The witness further confirmed that during the year 1999 a considerable number of houses in Marenanuka village had been burned down and it was in the interest of the village that such burning of houses be stopped. He also conceded during cross examination that he had suspected that the three accused could have had carried out such burning of houses at Marenanuka village including the witness’s house itself but never actually saw them carrying out such burning.

That concluded the case for the prosecution.

I found there was a prima facie case for all the three accused to answer.

The three accused elected to give evidence themselves but did not call any other evidence.

The second accused Namaroro Narinoko testified that on 30 October 1999 he was at his house at Marenanuka village and at about 9:00 pm he left his house and went to Iotua’s house to attend a social night which was to be held there. He walked by himself and met no one on the way to Iotua’s house. He got to Iotua’s house and the social night had not yet started. He met Timata (the first accused) and discussed with him as when the social night was going to start. He also met Tabomoa, he spent 10 minutes only at Iotua’s house and then left and went to Tabonibara to see the social night there. Then he left the social night and went back home after 10:00 pm.

The witness was cross-examined by counsel for the prosecution about the allegation that the three of them namely Timata, Tabomoa and the witness had set fire to Bwebweieta’s house. The witness categorically denied such allegation However he agreed that his father and Bwebweieta have had a land dispute and as a son he naturally supported his father. He agreed also that Bwebweieta is a trouble maker and he didn’t like him.

He also confirmed that he met Timata and Tabomoa at about 9:00 pm at Iotua’s house and spent only about 5 minutes talking with them and then left.

He denied however when counsel for the prosecution put to him that he didn’t leave Timata and Tabomoa when he said he did but instead the three of them went together to Bwebweieta’s house armed with a plastic bottle full of benzine and a box of matches and set fire to it.

He also stated that that night he didn’t know anything about the arson of Bwebweieta’s house at all except when he got back home and his father told him then about it. He also stated that Bwebweieta’s house was still burning when he got back home but neither his father nor himself cared or did anything about it though he lived just around the corner from the burning house about 30 metres or so away.

Namaroro testified also that when he left Iotua’s house after 10.00 pm he never met the other two accused again that night until the next day.

The first accused Timata Iobi himself also gave evidence and testified that in 1999 he lived at Marenanuka village and on 30 October 1999 he was at Iotua’s house preparing for the social night when Nawira told him that Bwebweieta’s house has been burnt down. It was then about between 9:00 pm and 10:00 pm. By then a number of people had gathered together and were ready to start and enjoy their social evening. But then the accused told Iotua about the burning of Bwebweieta’s house and he reacted thus by telling everyone to forget about the social evening all together that night. The accused further testified that he never met Namaroro that evening and he said Nei Tiae was lying when she blamed him that he had set fire to Bwebweieta as he was at the social night playing or operating the audio tape. He also testified that Namaroro told him a few days after Bwebweieta’s house was burnt that he had burnt the said house.

When he was cross examined by counsels for the prosecution and the defence he agreed that he is a good friend of Namaroro and Tabomoa. They knew each for a long time and, they also like each other. He also said that he knew Bwebweieta (whose house has been burned down) who is an unpopular and disliked person at Marenanuka village.

He agreed also that he knew Nei Tiae well. He often visited Nei Tiae’s house and she lived near him at Marenanuka village. He agreed also that Marenanuka village is a small village and everybody knows each other there.

Timata confirmed also that after the social night held at Iotua’s house was over that night he went straight back to his house and slept.

The third accused Tabomoa Kainonoki also gave evidence and testified that on 30^th October 1999 he lived at Marenanuka village and at about noon that day Mawika, Timata and the accused Tabomoa went to Abaokoro and had few drinks. Then towards the evening they returned to Marenanuka village and attended a social night and Namaroro was with him. They were talking and discussed about them going out that night to attack Bwebweieta. Tabomoa refused and after that he left the social night and went back to Abaokoro with Mawika, at about 8:00 pm to have more drinks and stayed there all night and never returned to Marenanuka that night. In his evidence he denied having burned Bwebweieta’s house and also Bwebwentarawa’s story that he (Tabomoa) had told Bwebwentarawa that they (the three accused) were the ones who had burned Bwebweieta’s house.

He denied also that he was with the other two accused at Marenanuka village on the night of the alleged arson of Bwebweieta’s house.

And that concluded the case for the defence of the three accused.

I then heard addresses from counsel for the Republic, counsel for the second accused, counsel for the first accused and counsel for the third accused.

Section 312(a) of the Penal Code Cap 67 provides that:

“Any person who wilfully and unlawfully set fire to – (a) any building or structure whatever, whether completed or not; is guilty of a felony, and shall be liable to imprisonment for life.”

Counsel for the prosecution has submitted that the Republic has proved that Timata Iobi, Namaroro Narinoko and Tabomoa Kainomaki willfully and unlawfully set fire to Bwebweieta’s house beyond a reasonable doubt.

And the Republic has discharged this burden of proof by relying on the evidence of one sole eye witness, Nei Tiae Tongaia and a confession made by the accused.

The prosecution further submitted that Nei Tiae is a truthful and reliable witness despite some minor inconsistencies in her oral evidence and written statement as to time and date. The Court should therefore treat her as a truthful and reliable witness.

The prosecution also further submit that the sole issue in this alleged arson case is the identification of first and second accused and thus submit that as such the guidelines to be observed by the trial judge in cases of this kind are those guidelines as suggested by R v Turnbull (1976) 3 All ER 549.

The prosecution further submits the case against the first accused Timata was proved by the accused’s own confession made to Nei Tiae and Tiibo. The case against the third accused Tabomao is proved by the accused’s own confession which he made to the PW2 Bwebwentarawa.

The three counsels for the defence on the other hand submit that the three accused should be acquitted by reason of the poor quality of the identification evidence adduced by the prosecution witness Nei Tiae. Hence the three defence counsels also agree with counsel for the prosecution that the only issue in this case is the quality of identification.

Before addressing these issues I direct myself that the onus of proof beyond reasonable doubt remains upon the prosecution from first to last. The Republic must prove the charge and each element of the charge beyond reasonable doubt and if it fails to do so then the accused is entitled to be acquitted. There is no onus on the accused at any stage to prove his innocence.

I should say something now about the evidence and its quality.

At the outset I have no hesitation in stating that I accept the prosecution witnesses as truthful and reliable. They were tested in cross examination and they were not, to my mind, discredited at all. Apart from the minor inconsistencies in evidence of PW1 as to the duration of the times, dates and the length of observation of the accused when she saw them setting fire to the house of which I shall consider later I feel able to accept their evidence without hesitation.

As the only issue in this case is the reliability of identification evidence of prosecution witnesses I therefore find as proved that –

(1) On the 30^th day of October 1999 at Marenanuka North Tarawa, the local house belonging to Bwebweieta Ruaia was set to fire; and

(2) That the setting of the fire to the house was done willfully and unlawfully.

On the vital issue which I now have to decide the question is, Did the accused persons set fire to Bwebweieta’s house?

All counsels for the prosecution and the defence referred me to the Queen v Turnbull (1976) 3 ALL ER 549 and the guidelines set out in that case as how the Court should direct the jury, whenever a case against an accused person depends wholly or substantially on the correctness of one or more identifications of such accused. I have read the case itself and as I am sitting as a judge and a jury in this case I therefore warn myself of the danger, following the decision in Turnbull’s case, of the special need for caution in relying on the correctness of the identification evidence of PW1 Nei Tiae and of the possibility that a convincing witness can be a mistaken witness, in other words that Nei Tiae can be mistaken. (See also R v. Temeaua & Others No. 6 of 2000 Court of Appeal Kiribati April 2001.)

Secondly I have to examine closely the circumstances under which Nei Tiae made her identification.

Now I turn to consider the identification evidence of Nei Tiae. In her evidence she said that she actually saw and recognized with her own eyes, and unblocked view and under a clear bright moonlight and including light from the burning house Timata (the first accused) and Namaroro (second accused) setting fire to Bwebweieta’s house. She was about 10 yards from Timata and Namaroro where she hid herself. She could not however recognize Tabomoa (third accused) because she could not see him clearly as he was hidden behind a pandanus tree.

The circumstances in this case are that the actors or the peoples involved including the three accused live in a very small village on North Tarawa called Marenanuka. There are only about five or six households. They know each other well and have done so for years. Many of them are related. Most of them, if not all of them disliked Bwebweieta very much. It’s no little wonder that his house was burned down.

In this case the eye witness Nei Tiae first of all saw the three young men walking on the beach and then when they reached the spot where Bwebweieata’s house was the three accused walked to the house then she saw Timata (first accused) striking a match and setting fire to the roofing of the house and while Timata was doing this Namaroro (the second accused) was sprinkling some liquid (gasoline) from a white plastic container around and over the roofing of Bwebweieta’s local raised floor house. Then the house went up in flames and Timata and Namaroro were still there about the burning house and shortly afterwards left and again in a clear full view of Nei Tiae.

The above therefore could hardly be described as the case of a passerby catching a glimpse of robber running out of a bank and being driven off quickly in a get away car but rather it is a case where Nei Tiae made a sufficiently long enough observation of the two accused, Timata and Namaroro whom she knew well setting fire to the house.

Counsels for the defence have submitted that Nei Tiae’s evidence as to the length of time that she observed the accused is contradictory. In her written statement to the police she said that she observed the accused for one or two seconds setting up the fire before they ran away while in her oral evidence on the other hand she observed them for a longer period of time.

I accept these submissions but over estimate of time does not affect my belief that Nei Tiae’s evidence is reliable. In my experience and especially in a Kiribati village on the outer islands where time measurements and reckoning are made by way of sun, moon and star positions and movements in the heavens rather than by reading watches and clocks, estimates of time are frequently quite inaccurate but it does not follow that other parts of the witness’ evidence are inaccurate as well.

As against the direct identification evidence of Nei Tiae and other evidence implicating the third accused as set out above that she had seen and recognized the three accused to have set fire to Bwebweieta’s house during the early evening of 30^th November 1999 between 8.00 pm and 10.00 pm each of the accused have put up an alibi in which they vehemently denied having been there at all in, near or around that burned house that night.

In view of the circumstance in Marenanuka village as a small village on an outer island of Kiribati with a closely knit community holding a grudge against Bwebweieta which Nei Tiae and Timata (the first accused) supported in their evidence, I reject the alibi of the accused and I believe Nei Tiae’s evidence that she actually saw the first and second accused setting fire to Bwebweieta’s house.

In preferring Nei Tiae’s identification evidence than that of the alibi of the accused I am mindful of the fact there is no other evidence to support Nei Tiae’s evidence and thus I direct myself accordingly and bearing this in mind I feel able to say there is no slightest doubt in my mind that Nei Tiae is speaking the truth about the accused as being perpetrators of the brazen act of arson at Marenanuka village.

It has been submitted that the quality of identification evidence of Nei Tiae is poor because it was potentially affected by her suspicion of the accused that they have burned her house and it was only after her house was burned down that she gave her statement to police in which she said she saw the accused setting fire to Bwebweieta’s house.

Counsel for the prosecution in response to this point submitted that Nei Tiae did not report the arson of Bwebweieta’s house shortly after the event because she has been threatened by the accused especially the first accused not to tell anybody that she had seen them (he and the second accused) setting fire to Bwebweieta’s house.

I agree with counsel for the prosecution that Nei Tiae has, as she has established in her evidence, been threatened by the accused and in any case what she told the police in her statement relating to the arson of Bwebweieta’s house was as far as she is concerned a true account of what she had seen on the evening of 30^th November 1999.

I now consider the evidence against the third accused Tabomoa Kanonoki.

Nei Tiae the only eye witness to the burning of Bwebweieta’s house on the early evening of 30^th October said that she saw another person apart from the first and second accused around Bwebweieta’s house behind the pandanus tree. So she could not recognize that person. During her cross examination she said something to the effect that she recognized Tabomoa because the appearance of the person she saw was similar to or like that of Tabomoa, the third accused.

The second prosecution witness also testified that Tabomoa told him that he (Tabomoa) Timata and Namaroro were the ones who had burned down Bwebweieta’s house. This happened about two weeks after the arson of Bwebweieta’s house. This story of PW2 was denied by the third accused.

In evaluating their evidence I am not satisfied that Nei Tiae has actually seen and recognized Tabomoa. As to the confession of Tabomoa to Bwebwentarawa (PW2), at best such evidence is evidence only against the maker of the statement, Tabomoa himself but not against other person implicated by it R. v Spinks (1982) 1 ALL ER 588. In any case Tabomoa denied this story.

However Tabomoa himself denied having made the confession to Bwebwentarawa. Therefore upon consideration of all the evidence against Tabomoa, the third accused I am satisfied that the prosecution has not proved its case against Tabomoa.

I therefore found Tabomoa Kainonoki not guilty of the charge of arson.

Upon consideration of the whole of the evidence against the first and second accused I am satisfied that the prosecution have proved all elements of the charge of arson against the first and second accused beyond a reasonable doubt.

Each accused is therefore found guilty of arson contrary to section 312(a) of the Penal Code Cap. 67 and convicted accordingly.

Dated the 18^th day of July 2002

THE HON MR JUSTICE M N TAKABWEBWE
JUDGE