Republic v Toora [2004] KIHC 228; Criminal Case 51 of 2004 (10 September 2004)

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

High Court Criminal Case No. 51 of 2004

THE REPUBLIC

vs

REKAU TOORA

For the Republic: Ms Eveata Maata
For the Accused: Mr Aomoro Amten

Date of Hearing: 30 & 31 August 2004

JUDGMENT

The accused Rekau Toora had been charged with simple larceny after having been convicted of a felony contrary to section 254(2) of the Penal Code Cap. 67 in that on 13 March 2003, at Betio, stole a pram the property of one Mrs Anjie Reiher Steve. The accused Rekau Toora has been previously convicted of felonies namely: (1) theft on 19 January 1994 at Betio by the Betio Magistrates’ Court; (ii) theft on 23 July 1995, at Betio by the Betio Magistrates’ Court; and (iii) theft on 14 April 2000 at Betio by the Bairiki Magistrates’ Court.

On arraignment the accused pleaded not guilty. And in order to prove the charge the prosecution called four witnesses.

Anjie Reiher Steve: (PW1). She is 25 years of age and live at Takoronga, Betio. She testified that on 14 February 2003 she recalled that her baby son’s stroller or pram went missing from their house. She said that her pram is black and has three wheels. So she rang the police and informed them about it. Two days later the police told her that they had found the lost pram at Mote Teraoi’s house (also called Michael Teraoi’s house) at Takoronga, Betio. And the police returned her pram to her about a month after it was found.

She returned the pram to the police on 30 August 2004 for the purposes of the trial in the present case. The pram was shown to the witness and she recognised it as her pram that had gone missing from her home.

Timon Mote (PW2): Aged 44 and lives at central Betio. He testified that on 13 February 2003 at about 7 pm he was at his father’s house – Mote Teraoi’s house at Takoronga, Betio. Whilst there “that man” (the accused) called out for “Michael”, his brother who happened not to be at the house at that time. So the witness went out from the house to see him. When the witness saw the man he did not recognise him as it was his first time to see him. The witness and the visitor talked to each other for more than five minutes. They both stood up and were about one metre away from each other. The witness said he could recognise that person as being the accused now sitting at the dock.

The witness also said that that person, the accused wanted to sell a pram which belonged to his family. The witness then told the accused to leave the pram with his mother.

The pram in question was shown to the witness and he recognised it as the one which the accused brought and showed it to the witness that night in question.

The pram was produced into evidence and marked as Exhibit “P1”. The witness said he took the pram from the accused and kept it. The accused told the witness he would return but never did.

When cross examined the witness confirmed the accused was the person whom he saw and who came to Mote Teraoi’s house on the evening of 13 March 2003. The witness also said he remembered having seen some tattoo marks on the forehead of the accused. The witness also said in cross examination that the accused went back to the spot near the road where he left the pram and brought it back with him and gave it to witness to keep it. The witness also said in cross examination that he did not see anybody standing near the side of the road where the accused went to in order to fetch the pram and showed it to the witness.

Karea Tio (PW3). He is a police constable and has been in the Police Force for about three years. He testified he is the investigating officer in the present case and he was the one who took and wrote out the accused’s caution statement on 14 February 2003. At that time he was stationed at Betio Police Station.

The witness said he knew the accused as his name is Rekau Toora and he is the one sitting at the dock.

He testified also that before he took the accused’s caution statement he cautioned him in the normal manner as they are trained to do so when taking accused’s caution statement. This means that he explained to accused why he has to take his statement and the offence he (accused) has been charged with. At the time he took the caution statement of the accused the accused was perfectly normal and his workmate Teunaia was a witness to everything he did when he took the accused’s caution statement. The witness also stated that he wrote out the accused’s caution statement and signed it too himself. The witness, Teunaia also signed the caution statement. The caution statement of accused was shown to him (witness) and confirmed his signature on the caution statement.

Counsel for the prosecution Ms E Maata wished to tender into evidence the accused’s caution statement but Mr Amten objected on the ground that the caution statement has not been voluntarily given by the accused. Hence the necessity for Voire Dire.

Karea Tio (PW3). He is the investigating officer in the present case. He testified he took the caution statement of the accused in a small office room which is normally used for such purpose. He said also that Teunaia, another police officer was with him throughout as a witness when he took the accused’s caution statement.

The witness also said that before he took the accused’s caution statement he told him he was not obliged to say anything. In response the accused nodded and thus the witness interpreted this to mean that the accused understood what he had explained to him. He further explained to the accused that if he said anything they will be recorded in writing and could be used as evidence.

The witness then wrote down everything which the accused stated. He further stated that the accused was quite willing and cooperative right throughout when he took his caution statement. The witness also stated that when he finished writing down the accused’s caution statement, he gave it to the accused to sign it and explained to him that he could change it or add anything to it if he wanted to. The accused however remained silent. The witness further stated that the accused sat near him when he took his caution statement.

When cross examined the witness confirmed that Timon (PW2) told him that the accused took the pram and the accused also agreed when asked that he took the pram. The witness also confirmed in cross examination that the accused voluntarily gave his caution statement. The witness however denied in cross examination that he rebuked the accused for having taken the pram.

Again the witness in cross examination denied that the caution statement of the accused was just recently signed in July 2004, but that it was signed on 19 February 2003.

Teunaia Ieremia (PW3). He is a police officer with more than seven years standing in the Kiribati Police Force. He testified that in February 2003 he was stationed at Betio Police Station. He also testified that he recalled that he was with Karea (the investigating officer in the present case) as a witness when he (Karea) took the caution statement of the accused. The witness said he sat next to Karea on a separate table whilst Karea was sitting opposite to the accused and facing each other, on another table inside a small room. The witness also said he heard clearly everything that the investigating officer, Karea was saying to the accused during the interview. Then Karea proceeded in the normal manner by taking the accused’s caution statement by interviewing him. He said during the interview Karea explained to the accused why he wanted to take his (accused) caution statement and he (Karea) wrote it out for him. The witness further stated that during the interview Karea informed the accused he was not obliged to give his statement and that anything he said may be put down in writing and may be given in evidence. And after Karea explained everything to the accused about the caution statement Karea then asked the accused as whether he accepts the complaint against him and he said that he did. Karea then wrote out the accused’s caution statement and after he finished writing it out he gave it to the accused to read it or changing it or adding anything to it if he so wished. The witness said the accused did not change or add anything to the caution statement but instead he signed it and the witness also signed and everything was done properly in accordance with the Judges Rules. The witness also said he never heard the accused telling Karea that he did not want to give his caution statement to him (Karea) nor did the accused ever mentioned to Karea the name “Rakenang Urio” during the interview.

Following the conclusion of the voire dire and having considered the whole of the evidence especially that of Karea (PW3) and Teunaia Ieremia (PW4) I applied my discretion by allowing the caution statement of the accused into evidence as in my opinion it was voluntarily given and signed on 19 February 2003.

Having ruled that the caution statement of the accused was voluntarily given by the accused the prosecution then tendered the caution statement and was admitted into evidence as Exhibit “P2”.

In his caution statement the accused Rekau confessed he was guilty of the charge perhaps because he was drunk and he confirmed that the allegation against him that he took the pram is true and he did it voluntarily.

In the answers he gave to the questions put to him by police officer Karea, the accused admitted having taken the pram (Answer Question 5) from a European house but he did not know the European’s name. And after he took (stole) the pram he then took it to Michael Teraoi’s house (also known as Mote Teraoi’s house) at Takoronga, Betio (Question 6 and answer) to sell it but no money was given to him for it.

Having admitted the accused’s caution statement into evidence then counsel for the prosecution and counsel for the defence tendered by consent the following previous convictions of the accused to be formally admitted under section 126A of the Criminal Procedure Code (Cap. 17). The previous convictions are as follows:

KIRIBATI POLICE FORCE

CB FORM 16

Criminal Records Office

Police Headquarters

BETIO, TARAWA

POLICE CLEARANCE CERTIFICATE

This is to certify that a search of the records in the Criminal Records Office reveals that following previous convictions are recorded against:

Rekau Toora of Nonouti

Date & Place of Court Offence 1st Count Sentence

19/01/94 Bet M Ct Theft cs 254(1) PC 2 yrs impr

23/07/95 Bet M Ct Theft cs 254(1) PC 9 months impr

14/08/00 Bai M Ct 1. Theft cs 251(1) PC 3 months impr

(Sgd) Allan Timona (D/Insp.)

Officer Commanding

Criminal Records Office

The previous convictions of the accused are thus admitted into evidence and marked as Exhibit “P3”.

The accused himself then elected to give evidence without calling any evidence or witness.

Rekau Toora (the accused): He is 36 years of age and said that he is in court because he has been charged with the theft of pram. He testified that:

“Got pram from Rakenang. I knew Rakenang. I was coming back from labour line. I was not with Rakenang at labour line. I met Rakenang at near Timon’s house at about 7 pm. Rakenang was carrying a pram. I did not carry anything. I then asked him as what he was carrying and said he was carrying a pram which belonged to his family and he then handed it over to me and told me to take it to “that house” namely Michael’s house. I then approached Michael’s house but left the pram near the road. On reaching Michael’s house I then called out for Michael but he did not respond and instead his brother Timon (PW2) came out from the house and when he came near me I asked him whether he wanted to buy the pram. Timon told me he did not want to buy the pram. I then went back to the spot near the road where I left the pram and brought it over to Timon and left it with him. I then went back to my friend”.

The accused further testified that he could not remember as when he was arrested but remembered he was arrested by the police and Karea (police officer) took him to Betio police station.

The accused also said that when he was at the Betio Police Station office Karea told him that he wanted to take his caution statement concerning the theft of the pram.

On hearing this the accused told Karea he did not know anything about the pram. The accused further stated that Karea got cross with him when he told him he knew nothing about the pram and spoke angrily at him and told him “he took the pram” and he must not waste time but that he should tell him (Karea) truth. The accused however said he persisted in saying he knew nothing about the pram throughout the interview.

The accused also testified that he told Karea he did not want to give his caution statement and that he did not take the pram but that Rakenang did.

The accused also said he never signed his caution statement after Karea took it and it was only before he came to the court for the trial that he then signed his caution statement.

The accused was then shown his caution statement and said he was given to sign it but he had never read it and no explanation was given to him by the police as what the caution statement is all about.

In cross examination the accused confirmed that on 13 March 2004 he had been drinking and thus he was drunk.

Further in cross examination the accused also confirmed that when his caution statement was taken by Karea another police officer was with Karea, as a witness.

The accused in cross examination denied having voluntarily given his caution statement.

In cross examination the accused also confirmed that when he was forced by the police to give his caution statement he did not complain to the authority as he did not know how to lodge his complaint.

In cross examination the accused stated he signed his caution statement during August 2004.

Further he confirmed he never read his caution statement before he signed it and thus he did not know what he was signing.

That concluded the case for the defence.

I then heard closing speeches by counsel for the prosecution Ms E Maata and counsel for the defence Mr A Amten. Ms E Maata submitted that the prosecution has proved its case beyond reasonable doubt through the evidence of its witnesses and also the caution statement of the accused where he had confessed that he took the pram from the complainant’s house (Mrs Anje Reiher Steve).

Mr A Amten on the other hand submits that if the court accepts the defence version of facts namely that the accused had denied he had taken the pram from Ms Anjie Reiher Steve’s house but that one Rakenang Urio had given it to him when he met him at about 7 pm on 13 February 2004 on a road near Mote Teraoi’s house at Takoronga, Betio then the accused should be given the benefit of the doubt and be acquitted. However should the court accept the prosecution’s version then the accused should be convicted as charged.

Before I consider the evidence I direct myself that the burden of proof beyond reasonable remains on the prosecution from the beginning of the trial to the end. The prosecution 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.

The prosecution had called four witnesses to prove its case. I have observed them closely and listened to them carefully when testifying and had impressed me as being reliable and truthful. Under cross examination all these four witnesses had been consistent and unshaken in their evidence. I therefore accept their evidence. The accused in the present case has been charged with simple larceny after having been convicted of a felony contrary to section 254(2) of the Penal Code (Cap 67).

In order to prove the charge of simple larceny the prosecution must prove beyond reasonable doubt the following elements of the offence of larceny namely that the accused:

Without consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen, with intent, at the time of such taking permanently to deprive the owner thereof.

There is no dispute that in the present case the owner of the pram is Ms Anjie Reiher Steve and that such pram was taken or went missing from her house on 13 March 2003. And as such therefore there is no dispute again that it is capable of being taken or stolen.

The issue therefore in the present case is whether the accused Rekau Toora took the pram fraudulently with intent to permanently deprive the owner thereof.

From the evidence of Timon (PW2) I am satisfied that Rekau (the accused) had brought the pram to Mote Teraoi’s house at Takoronga, Betio on
13 March 2003 at about 7 pm in order to sell it. However because Timon was not interested to buy the pram (he offered no money for it) the accused left the pram with Timon and even though he said he was going to return to Timon he never did. I am also satisfied from Timon’s evidence that the accused’s allegation that one Rakenang Urio had first taken the pram and then gave it to the accused when he met him on the road opposite Mote Teraoi’s house and told him to sell it at this same house has no ring of truth about it as when Timon cast his eyes to the spot where the accused went near the road to fetch the pram in order to show it to Timon, there was no sign of Rakenang Urio at all waiting for the accused nor any other person for that matter.

Beyond reasonable doubt I am satisfied that Rakenang Urio never gave the pram to Rekau to sell it at Mote Teraoi’s house but that the accused himself had taken the pram from Anjie Reiher’s house and then took it to Mote’s house to sell it.

From the accused’s own caution statement which has been admitted into evidence as Exhibit “P2” I am also satisfied beyond reasonable doubt that the accused took the pram from Anjie’s house which the accused called a “European’s” house whose name he did not know and then took the pram to Michael Teraoi’s house which is also known as Mote Teraoi’s house to sell it.

So taking into account the whole of the evidence in the present case I am satisfied that the prosecution had proved beyond reasonable doubt that the accused took the pram fraudulently with intent to permanently deprive the owner of such pram and I therefore found him guilty of the offence of larceny under section 251 of the Penal Code (Cap 67) and I convict him accordingly.

Further and as counsel for the prosecution Ms Maata and counsel for the defence Mr Amten had by consent formally admitted into evidence and proved the previous convictions of the accused (Rekau Toora) under section 126A and also section 125 of the Criminal Procedure Code (Cap 17) namely:

Rekau Toora of Nonouti

Date & Place of Court Offence Sentence

19/01/94 Betio M Ct Theft cs 254(1) PC 2 yrs impr

23/07/95 Betio M Ct Theft cs 254(1) PC 9 months impr

14/08/00 Bairiki M Ct Theft cs 251(1) PC 3 months impr

I am therefore satisfied that the prosecution has proved beyond reasonable doubt that the accused has been previously convicted of the following felonies:

(i) theft under section 254 of the Penal Code (Cap 67) by the Betio Magistrate on 19/01/94;

(ii) theft under section 254 of the Penal Code (Cap 67) by the Betio Magistrates’ Court on 23/07/95; and

(iii) theft under section 251 of the Penal Code (Cap 67) by the Bairiki Magistrates’ Court on 14/08/00;

and I therefore found the accused guilty of simple larceny after having been convicted of the above mentioned felonies under section 254(2) of the Penal Code (Cap 67) and I convict him accordingly.

Dated the 10th day of September 2004

THE HON MR JUSTICE MICHAEL N TAKABWEBWE
Judge