Republic v Terieta [2004] KIHC 71; Criminal Case 47 of 2003 (4 February 2004)

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

Criminal Case No. 47 of 2003

THE REPUBLIC

vs

BERENATO TERIETA

For the Republic: Ms Tetiro M Semilota
For the Accused: Mr Aomoro Amten

Date of Hearing: 2 February 2004

JUDGMENT

Three difficult questions to be answered in this trial:-

What constitutes a breaking?

Has an intent to commit a felony been proved beyond reasonable doubt?

Has the accused been identified beyond reasonable doubt as the culprit?

The accused is charged with three offences – burglary, house breaking with intent to commit felony and criminal trespass.

The three charges arise out of an incident early in the morning of Wednesday 25^th September 2002. The family of Tetabo Teatata were asleep in their house at Temakin, Betio. The family was made up of Tetabo and his wife, his wife's mother Nei Mireta Reirei and at least three of the younger of his five children of whom Rereua, aged nine or ten was one. He and his wife were sleeping in one part of the house. Nei Mireta and the three children were asleep in another. At about two or three o'clock in the morning Nei Mireta was woken:-

Suddenly my grand daughter Rereua screamed "Who covered me?" I sat up and saw someone squatting. Saw this man: I didn't recognise him...... I only saw him squatting: he went to door. Saw his hands beside child. "Tetabo: there's a person standing at the door!" He ran away from the child. I was sitting. I didn't see him doing anything to my grand daughter. I saw her face covered by a towel (which wasn't ours). Tetabo woke up. The man ran away. Tetabo went outside looking for him.

In cross-examination Nei Mireta agreed that the house was brick with walls and a door frame: no door was fitted to the main frame: the entrance was blocked with a piece of masonite which must be moved to get into the house.

Besides Nei Mireta, the other prosecution witness was Tetabo. He described his house as, "brick house, windows with security wire: door not complete: block with masonite – before sleeping closed with masonite".

Wife's mother screamed out "a person". Saw person running away from where daughter sleeping. Took my police baton: he hid near shop – he ran away again. Caught him at St John's school ....... I tripped him and he fell. Hit him on head. Recognized him – Berenato ..... "You are a big thief" "I'm sorry". Suddenly I had chest pains. He ran away. The door – I had closed it before I went to sleep: (masonite) moved from actual position to side of wall. Not broken in any way.

The towel is Exhibit A.

Tetabo in cross-examination:-

When I first saw him beside door about to leave house ...... I didn't recognize him ........ store 9 or 10m away ......... I saw him. It was the same man. Person ran to store as I chased him. I had already recognised him before I got to store. I chased him until we had a brawl. I didn't lose sight of him .......... He hid for a short time and then I ran after him.

At the close of the prosecution Mr Amten submitted on two grounds that his client had no case to answer:-

1. There had been no breaking.
2. There is no proof of intention to commit a felony
   
1. The question of when there has been or has not been a breaking is often a tricky one and in each case it comes down to a matter of fact. Mr Amten referred me to my judgment in the Republic vs Tembeti Raoboia (CrC 7/2001). In my reasons I referred to paragraph 130-5280 in 9 Halsbury's Laws of Australia. I did not mention section 290(1) of the Penal Code. Ms Semilota reminded me of section 290(1):-
   

A person who breaks any part, whether external or internal, of a building, or opens by unlocking, pulling, pushing, lifting or any other means whatever, any door, window, shutter, cellar flap or other thing intended to close or cover any opening in a building, or an opening giving passage from one part of a building to another, is deemed to break the building.

My remarks in Tembeti were obiter. I had decided the case on other grounds.

Section 290(1) puts beyond doubt that the accused broke into Tetabo's house. He got inside "by – pulling, pushing, lifting or by (some) other means ......." moving the piece of masonite. He had broken into the building. That disposed of Mr Amten's first point.

2. Although I was against Mr Amten at the close of the prosecution case I have now thought about it again. The defence was of mistaken identity: the accused was not the man who entered the house. He had been drinking, he said, that day with friends. The first he knew of the incident when he was by the store innocently sheltering from the rain (the first mention in the trial of rain). Tetabo suddenly appeared and attacked him with his baton. He ran away. He did not recognize the towel: it was not his: he did not take it into the house.
   

The defence being alibi there was nothing the accused needed to say about his intention. He denied he was there at all. That leaves me to speculate about the accused's intention (assuming it were the accused). I can decide on his intention only by his actions. His actions speak loudly. He had the towel. He had put it over Rereua's face. He probably was intending to commit a felony but can I be sure of that beyond reasonable doubt? I cannot. I must give the accused the benefit of the doubt. The Republic has not proved beyond reasonable doubt an intention to commit a felony.

The third difficult question to be answered in this trial is identification: was it really the accused in the house?

I considered both Nei Mireta and Tetabo honest and reliable. I accept their evidence. Tetabo had the man in view (except for a brief time when the man hid – I do not regard this as significant) all the time from when he first saw him by the door to when they were grappling on the road near St John's primary school. Tetabo recognized the man as Berenato. The accused was the man who went into Tetabo's house. I am satisfied the right man has been charged.

Both counts 1 and 2 require proof of intent to commit a felony. It follows that the Republic has not succeeded on those counts. Count 3, criminal trespass, does not require proof of any intent. The Republic had to prove only that the accused entered the house "unlawfully", that is without lawful excuse. The accused had no lawful excuse to be in the house.

I find the accused not guilty on counts 1 and 2 but guilty on count 3.

Dated the 4^th day of February 2004

THE HON ROBIN MILLHOUSE QC
Chief Justice