Republic v Timea [2002] KIHC 88; Criminal Case 06 of 2002 (24 September 2002)

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

High Court Criminal Case 6 of 2002

THE REPUBLIC

vs

BERENATO TIMEA

For the Republic: Ms Pauline Beiatau
For the Accused: Ms Batitea Tekanito

Date of Hearing: 24 September 2002

JUDGMENT

This is a prosecution under the Kiribati Ports Authority Act. There are two counts. First, the defendant is charged with Evasion (S. 27(1)):-

Berenato Tiimea sometimes in July 2001 while being the master of “St Mikaere” evades its wharfage and dockage dues by means of making a voyage after being informed not to do so, unless such due is cleared.

Secondly the defendant is charged with refusing, without lawful excuse, to obey directions issued by the Ports Master (S. 29(2)):-

Berenato Tiimea sometimes in July 2001 at the Betio port while being the master of a vessel namely “St Mikaere”, without lawful excuse refused to obey directions issued by the Port Master not to make a trip until the docking and wharfage dues is cleared.

The defendant was, and is, the Master of the “St Mikaere”, a double hulled canoe owned by the Catholic parish of Abaiang.

It will be noticed that the date in both sets of particulars has been left vague (“sometimes (sic) in July 2001”). Nor was it established definitely by evidence. This was an omission unfortunate for the prosecution. The prosecution tendered, through Mr Anterea Tawaia, the Kiribati Ports Authority Finance Manager, the “Customer Activity Statement since 1/8/00” for St Mikaere. The statement shews a running balance opening at $452.43 on 1 December 2000, peaking at $813.76 on 17 July 2001 and a closing of $396.61 on 23 July 2001. On 17 July 2001 a payment of $424.15 was made.

The date of that payment is significant. Whether the incident which I shall describe occurred before or after the payment is not established beyond reasonable doubt. The principal prosecution witness, Mr Sanelivi Aireti, said he had “forgotten exact date, 16^th or thereabouts” (examination in chief): “I don’t recall days of month” (re-examination). The defendant said, “I recall the supercargo telling me something on 9^th or 10^th July. I think it was a public holiday, may be the 11^th July”. Just what the defendant was told is not known and he was vague about the date. The defendant had already said that the payment had been made the week before they sailed.

If the incident occurred after 17 July then the defendant may not have been evading payment of dues and may have had a lawful excuse for refusing to obey the direction. There is a reasonable doubt that the incident was before payment, before 17 July.

Now to describe the incident itself. Sanelivi is employed by the Port Authority. In 2001 he was wharf police. Some time in July 2001 he was advised by the Ports Master to tell the defendant, the Master of the St Mikaere not to leave the port until all dues were paid. He spoke to the Master directly. Part of the conversation:-

“What are we going to live on while you detain us? “But in the past you’ve stayed overnight”.

The next day the ship had gone. Sanelivi maintained that, although he also spoke to the Supercargo, he had given the direction personally to the Master. Yet the defendant, giving evidence, just as definitely denied ever having had a conversation with Sanelivi:-

Before 10 July 2001 received no notice of outstanding dues. No instruction. I was on board with supercargo. He told me not to leave for Abaiang: something to do with unpaid dues. I didn’t agree as all dues paid. We had to go as all cargo loaded and we had made the payment the week before. Supercargo paid to KPA. If they’d told me personally or had put something in writing we would not have left. Told supercargo he could remain behind and he could stay. Sanelivi never spoke to me personally. It’s a lie when he said he spoke to me personally. Only information I had was through supercargo.

The test is not who of Sanelivi and the defendant I believe: it is not a choice between one witness and the other. The test is whether the prosecution has proved its case beyond reasonable doubt. The defendant does not have to prove anything: the burden of proof remains always on the prosecution.

When Sanelivi gave evidence he seemed credible even if over assertive, perhaps a little aggressive towards the defendant and I was prepared to accept him. However, having heard the defendant I have a reasonable doubt about Sanelivi’s evidence. It may be, not only that the incident occurred after the payment of 17 July but that Sanelivi did not speak to the defendant. He may have spoken to the Supercargo and has now confused the Supercargo with the defendant. Apart from the Finance Manger, Sanelivi was the only witness for the prosecution.

I cannot find the prosecution has proved the case beyond reasonable doubt.

The defendant is not guilty on either count.

Dated the day of September 2002

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE