Republic v Marenaiti [2004] KIHC 15; Criminal Case 37 of 2003 (23 January 2004)

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

Criminal Case No. 37 of 2003

THE REPUBLIC

vs

TARAWA MARENAITI

For the Republic: Mr Tion Nabau
For the Accused: Ms Jacqueline Huston

Date of Hearing: 19 & 20 January 2004

JUDGMENT

The accused, Tarawa Marenaiti, is charged with arson. The particulars:-

Tarawa Marenaiti on Friday the 22^nd November 2002 at Bikenrakaraka Buariki on North Tarawa willingly and unlawfully set fire to a building namely a local house belonging to Nei Bwereia Marenaiti.

The defence is an alibi. Tarawa was not at Bikenrakaraka Buariki when the house was burnt down.

The prosecution called three witnesses. The first was Nei Bwereia Marenaiti, the owner of the house and sister of Tarawa. On the evening of the 22^nd November she and her husband were cooling off on the beach. About 9 o'clock she went back to their house. She saw a man hiding behind a tree:-

Recognized him. Tarawa. Saw his face when he was lighting fire. He lit something with his light: saw his face. Then he threw the something on to the house. Don't know what it was. On fire. He watched for a while and went off quickly.

Tarawa is Nei Bwereia's younger brother. She said they were not, at that time, on good terms. Tarawa had hit her son.

Nei Bwereia ran and called her husband. They rescued some things from the house. The house was burnt down and a lot of their personal possessions burnt. Nei Bwereia made what I find was an inflated estimate of the value of their losses. I am satisfied though, that their losses were substantial, probably worth up to $1,000.

In cross-examination Nei Bwereia said she could see "quite clearly: full face ............good view of him". She said that her eyesight was good, "saw his face from the flame. Whole body".

Nei Teitikai Rutio also saw what happened. She was breastfeeding in a house close by. She saw the dark shape of a person she did not recognize near Nei Bwereia's house, went and hid 10 metres away to watch what was happening:

Saw something lighting – fire started to burn – saw whole of Tarawa's face – he set house on fire. Sufficient light to see the whole of his body. I know him very well. Could recognize him. One of my husband's relatives, used to come to our house. After he ran off I stood for a while ...........Could recognize him from light of the fire: both from (fire torch) and from the burning house. On good terms with him.

The other prosecution witness was Teroutaki Kauaa, Tarawa's first cousin. About 2 or 3 o'clock in the afternoon on the day this happened, a Friday, he saw Tarawa riding a bike in the village. The next morning, Saturday, he again saw Tarawa, "with his sea cucumber mates. Heading for islet. About 1000". A little later that day he saw a catamaran sailing away:-

I saw Tarawa, didn't recognize anyone else. The boat was quite near – less than 100m. I know him very well: that's how I recognized him ..........I was cycling on Saturday – saw guys loading – saw Tarawa. He was on boat. Didn't speak to him. I know (him) since kids ........ I saw them loading the boat and then saw them sailing away.

The prosecution case, quite a strong one, rested on identification, the two ladies who purported to identify the accused at the fire and Teroutaki who said he saw him in the village both before and after the fire.

Ms Huston called the accused and five witnesses to the contrary. Their assertion: on the night in question Tarawa was on Teteirio islet, off Abaiang. Tarawa was there from the Friday to the Sunday. He was the member of the group who smoked the sea cucumber which the other members harvested. The group did not do well on the trip and Michael Moote, the manager, came over on Sunday and called them back to Buariki.

The group had left Buariki on the afternoon of the Friday and, after a voyage of an hour or more, reached Teteirio. Tarawa did not leave the islet until the Sunday:-

Got back in pm. Wife told me my sister accusing me of burning down their house.

Tarawa said his relationship with his sister was no problem. He denied being involved in the burning.

Of the five other witnesses the evidence of only one, Taam Teitikai, had any probative value.

Katarake Tebinou finished his evidence in chief at 4 o'clock last Monday and was warned he must return at 9.30 on Tuesday morning. He did not. He was reported to have gone back to Buariki. Ms Huston applied for an adjournment to give an opportunity to induce Katarake to return. I refused the adjournment. He should have been in court as I am satisfied he knew and he may not have come anyway. His evidence in chief not having been subject to cross-examination, I ignored it.

All the defence witnesses stuck doggedly to their story that Tarawa had left Buariki on the Friday. There were denials – which I find difficult to accept – of having discussed the case among themselves. While they asserted it was on a Friday, none could give the day or the month nor how they were so certain it was a Friday. For example Nei Kaie, Tarawa's daughter, now about 20, who cooked for the group:-

Only trip we made was on a Friday but can't say how I'm certain it was a Friday. Not the Saturday. Never discussed with father.

Ms Huston tried to persuade me to allow her to break the rule and allow the introduction of self serving evidence by tendering her witnesses' caution statements. She argued that people in Kiribati are often vague about dates and times and that the rule against self serving evidence should be relaxed. Many people are vague but so long as the law remains as it is – Parliament could change it if it wished – the Court here as courts elsewhere must follow the rules of evidence which have been established by common law and statute.

Taam Teitikai was another member of the group. They had left Buariki on Friday afternoon arriving at Teteirio islet before dark. They returned on Sunday.

Only Taam could link the trip to the day of the fire. He was told that the house in the bush had burnt down on Friday "when he was back in Buariki". Nei Kaie, Atarake Ioane and Michael Moote, neither knew date of the trip to Teteirio nor did they hear of the fire when they returned to Buariki.

The courts have often spoken of the unreliability of identification evidence. It is easy for a person to make a mistake in identification, however confident he or she may be that they have recognized a particular person. Identification evidence must be treated with reserve.

The two ladies knew the accused well but they saw him only by the flickering light of the fire – not daylight, not moonlight nor by torch light. A flickering fire casts shadows: the shadows may distort features.

Of course the other witness, Teroutaki, saw the accused twice in daylight. Ms Huston in her final address, countered his evidence by pointing out that on the Friday, Teroutaki may have seen Tarawa cycling in the afternoon before the group left for the islet. As for the Saturday morning the person identified as the accused was some distance away, "less than a hundred metres" (I take that to mean not much less than 100 metres): it was curious that Teroutaki believed he recognized Tarawa but none of the other members of the group. Teroutaki, too, may be mistaken.

The accused appeared to be telling the truth both in examination in chief and in cross examination. I have no reason from the way he presented to reject his evidence. Likewise Taam.

The onus on the prosecution is the heavy one of proving every element of the charge beyond reasonable doubt. Considering the whole of the evidence of this case I have a reasonable doubt that the arsonist was Tarawa. It may have been someone else: the prosecution witnesses may have been mistaken. Tarawa's denial and assertion that he was not in Buariki on the night of Friday 22^nd November and the corroborative evidence of Taam may be true.

I find the accused not guilty.

Dated the 23rd day January 2004

THE HON ROBIN MILLHOUSE QC
Chief Justice