Republic v Tiaon - judgment [2005] KIHC 164; Criminal Case 19 of 2005 (29 December 2005)

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

High Court Criminal Case No. 19 of 2005

THE REPUBLIC

vs

TAUATI TIAON

For the Republic: Ms Ruria Iteraera
For the Accused: Mr Glenn Boswell

Date of Hearing: 24 December 2005

JUDGMENT

The prisoner has pleaded guilty to burglary:-

Tauati Tiaon, on or about the 27th day of February 2005 at Rungata village on Nikunau Island in the Republic of Kiribati, about 10.00 pm and 11.00 pm, having entered as a trespasser a building known as a dwelling-house of Pastor Reerenga Betero, stole therein a walkman, cassettes and a small bag containing the sum of $2105.00.

The Summary of Facts handed up by the prosecution:-

The incident happened on the night of 27th day of February 2005 at Pastor Reerenga (the complainant) residence in Rungata village on Nikunau Island. That night Reerenga was packing her things in her room since she was due to fly out the next morning to Tarawa. She put her bags beside the bed in the room. She then put her small bag containing the sum of $2105.00 along with a walkman and cassettes on the bigger bags and cover them with some clothes. She locked her room took the key and went to the maneaba where a farewell celebration for her departure was held. Later the accused broke in to the house and the room while Reerenga was at the maneaba. He stole a small bag containing $2,105.00, a walkman and cassettes. Reerenga found out about this when she came back from the maneaba. She reported the matter to the police. The police investigated the matter straight away and found the money the walkman and cassettes with the accused at his house. The accused admitted to the offence when cautioned.

During submissions it came out that the police recovered only something over $1,700 after Tauati was apprehended. He admitted taking and using only $5.00. A dispute of facts as to how much Pastor Reerenga had had in the bag. She said $2,105. Tauati said he used only $5. $1,700 plus was recovered.

I heard evidence from Pastor Reerenga and from Tauati. The Pastor said she had counted the money twice before putting it in the bag: the total was $2,105. She again counted it – in front of the police and people in the maneaba – when the police returned it to her and there was only $1,700 plus.

Tauati said he had not counted the money but took and used only a $5 note with which be bought some batteries: he left the rest at home. He gave back to the police everything he had taken and knew nothing about $400 being missing. The police had come early the next morning. He had told in the meantime no one else what he had done.

It is word against word. I am most unwilling to reject the Pastor’s evidence but on the other hand Tauati’s account is believable.

I doubt if he had time to spend more than $5 and doubt if he had either the time or the wit to hide the money. If he did hide $400 why $400 and not the lot? And it is just possible that someone else took some of the money.

Where does the onus of proof live in a Dispute of Facts? Blackstone’s Criminal Practice (1991) (p. 1267 para D16.3) citing Ahmed (1985) 80 Cr App R 295:-

The burden of proof is on the prosecution to satisfy the judge beyond reasonable doubt that their version of events is the correct one.

As Parker LJ put it in Ahmed (at 297):-

The accused is given the benefit of the doubt (if there is one) by the necessity for (the Court) to direct itself (or any jury) that the accused’s account must be accepted unless that court is sure that it is untrue.

I cannot be sure that Tauati’s account is untrue. I will sentence him on the basis that he used only $5 of the money from the bag.

Dated the 29th day of December 2005

THE HON ROBIN MILLHOUSE QC
Chief Justice