Tebenga v Republic [2003] KIHC 124; Criminal Appeal 01 of 2003 (23 October 2003)

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

CRIMINAL APPEAL 1 OF 2003

TEBENGA REMUERU

VS

THE REPUBLIC

For the Appellant: Mr Aomoro Amten
For the Republic: Ms Ruria Iteraera

DATE OF HEARING: 23 OCTOBER 2003

JUDGMENT
(Ex Tempore)

The appellant has been convicted of the larceny of a drum containing oil.

The appellant was employed as an instructor by the FTC. He had the drum, which had come from the FTC, left on a truck when other items were unloaded on the wharf at Betio. He then drove the truck to his house at Banraeaba and unloaded the drum there.

The Single Magistrate heard six prosecution witnesses but for one reason or another disregarded the evidence of four. She relied only on the third witness Obeti Raatu, who described having seen the drum on the truck, left on the truck at the wharf and then taken back and unloaded at the appellant's house.

The appellant's caution statement was put in evidence through the sixth witness, Tawita Kauongo, the Investigating Officer. The appellant did not give evidence and called no witnesses.

Mr Amten has sought to rely on the caution statement in which the appellant gave an innocent explanation. The caution statement is not evidence: had it contained admissions, it could have been evidence against the appellant. It cannot be evidence in favour of the appellant of self serving statements. The Single Magistrate did not refer to the caution statement in her reasons: she could have but was not obliged to. As Ms Iteraera reminded me the Single Magistrate saw and heard the witnesses. She rejected most of them. She came to her conclusion and Mr Amten has not been able to shew any error, arguing only that she should have taken account of the caution statement. The caution statement is not to be regarded as evidence for the very good reasons that it is not evidence on oath and the appellant was not cross-examined on it. The Single Magistrate was not obliged to place any weight on it at all.

The appeal is dismissed.

THE HON ROBIN MILLHOUSE QC
Chief Justice