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High Court of Kiribati |
IN THE HIGH COURT OF KIRIBATI
Criminal Jurisdiction
Held at Betio
Republic of Kiribati
High Court Criminal Case No. 46 of 2005
THE REPUBLIC
v
URITI ROBWATI
For the Republic: Ms Olga Guillen
For the Accused: Mr Karotu Tiba
Date of Hearing: 26 April 2006
JUDGMENT
Over the weekend of 29/30 January 2005 Mr Taareti Torote’s store in the TUC market at Bairiki was broken into. When Mr Torote went to open up at 8 o’clock in the morning on Monday 31st January he found the store still locked but a hole in the ceiling and goods worth $10,036.20 missing. He had no insurance: hardly anything has been recovered.
On 10th March 2006 Teaitao Kabane pleaded guilty to house breaking and committing a felony and to larceny, in relation to the break in. I heard submissions on 14th March but adjourned them until after the trial of the present accused, on being told that Teaitao had undertaken to give evidence against this accused, charged with the same offences in relation to the same break in and charged in the alternative with receiving.
The reasons why the two men were not jointly charged are not now relevant.
The charges against the accused are:-
House-breaking and committing a felony.
On 30 January 2005, at Bairiki, Tarawa in the Republic of Kiribati, Uriti Robwati broke and entered a shop (TUC Market) and committed a felony, namely larceny.
Larceny
On 30 January 2005, at Bairiki, Tarawa in the Republic of Kiribati, Uriti Robwati stole $100.00 cash, 58 piece wedding rings, 8 male watches, 6 sleeve cigarettes, 9 walkmen and 6 perfume bottles being the property of Taareti Torote
OR IN THE ALTERNATIVE Receiving
On 30 January 2005, at Bairiki, Tarawa in the Republic of Kiribati, Uriti Robwati received property, namely rings and Alpine sleeves, knowing the same to have been stolen or obtained in a way under circumstances which amount to a felony.
Teaitao was the first witness at the trial. At the beginning of his examination in chief he asserted that no one had been with him when he broke into the store by forcing the lock: he was looking for money to buy drinks.
[The witness maintained he obtained entry by forcing the lock: Mr Torote said the lock was intact but there was a hole in the ceiling. I accept Mr Torote’s evidence beyond reasonable doubt on this and all matters. In deciding guilt or otherwise it does not matter which way entry was obtained.]
Ms Guillen applied to have Teaitao declared a hostile witness. In coming to a decision on the application I first recalled the submissions which Mr Aomoro Amten made on Teaitao’s behalf: that Teaitao and a couple of friends had broken in. I also received, without opposition from Mr Tiba, Teaitao’s caution statement in which he implicated "Kuriti" (the misspelling of the name of the accused) in the break in. I granted the application.
I make it clear that for the purposes of deciding the accused’s guilt or otherwise I put out of my mind both Mr Amten’s sentencing submissions and Teaitao’s caution statement. Neither may be used as evidence against the accused in his trial. I had reference to the sentencing submissions and the caution statement only for the purpose of deciding whether to grant the application to have Teaitao declared a hostile witness.
It was obvious that Teaitao, for reasons at which one may guess, was doing his best in his evidence not to implicate the accused. Under cross examination he eventually said that he had been to the store twice, the first time on his own and then in company with Uriti. These are my notes (which I read back to counsel to ensure accuracy) after I had questioned Teaitao:-
Witness now says he was too drunk to remember: he broke in on his own: took two sleeves of cigarettes and went to accused’s house: told him he’d broken in and taken them. The accused was not with him when he broke in despite what he said in his caution statement. Witness went with the accused and we pawned the cigarettes: with the money we bought drinks which we drank.
After we had been drinking we went back to the same store and Kuriti was with me: we took other items but I was drunk and not sure what Kuriti took.
We took some rings - no idea what happened to them. He was with me. Watches as well. $100 cash. Walkmen - x perfume bottles.
In cross examination:-
Was with Uriti second time went into shop. Uriti not with me the first time I entered store.
My assessment of Teaitao was that he eventually told the truth. Whether he made one entry or two into the store, on one occasion the present accused went in with him and between them (and maybe others) they took the items which Mr Torote found missing on Monday morning.
Incidentally there was some confusion in the evidence as to whether the break in was on Saturday night or Sunday night. Both men have been charged with the offences on 30th January, the Sunday. It does not matter. Certain it is that the break in occurred some time during that weekend.
In his caution statement admitted through the police officer present when it was taken, the accused denied being involved at all:
I have no connection with the alleged offence took place at Taareti store. I do recall at the beginning of this year in January and there’s a theft case which occurred at Taareti store. At that time Teaitao called me for drinking. I did not know anything happen as I was stayed in my house and he paid visit me at the house and took with him a plastic which content with the following items such as watch, rings, necklace. He, Teaitao give me rings but I had already give it to Taareti. I convert his Alpine sleeves. After finished and we both returned back as he said that he was working at Taareti store as a watchman. The next day he visit me for the second time with his plastic for the second time and told me to go for a drink.
In his evidence the accused maintained his denials. He admitted he had been out drinking with Teaitao, that he had been with Teaitao when he sold a sleeve of cigarettes, that Teaitao had given him a watch and a ring (later he said three rings). It did not occur to him that the things Teaitao had in the plastic were stolen: Teaitao said they had come from his sister, married to an I-Matang overseas and he, Teaitao was sending them to an outer island for sale. The accused did have "strange feelings when he gave me the watch and rings".
When I put to the accused what Teaitao had said, that he, the accused had been with Teaitao the second time Teaitao went in, he replied that Teaitao had been vague as to whether he, the accused had been with him. That was not the impression I had of Teaitao’s evidence. He was finally quite definite that the accused had been with him the second time he went into the store.
Considering all the evidence at the trial I have no reasonable doubt that the accused was one of those who entered Mr Torote’s store: and together with Teaitao stole the items which Mr Torote found missing. I cannot, however, be certain beyond reasonable doubt that the accused actually broke into the store. If Teaitao’s story is correct (which I doubt but cannot be sure) that he broke in the first time on his own and went back a second time in company with the accused, then the accused is not guilty of breaking: he merely entered the store after Teaitao had broken into it. I therefore find him guilty only of larceny and not guilty of house-breaking.
The accused was charged in the alternative with receiving. I told Ms Guillen at the beginning of the trial, given the way in which the indictment had been drawn, the prisoner could not be found guilty on all three counts: either guilty on counts 1 or 2 or on count 3. He is guilty on count 2 and is not guilty on counts 1 and 3.
Dated the day of May 2006
THE HON ROBIN MILLHOUSE QC
Chief Justice
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URL: http://www.paclii.org/ki/cases/KIHC/2006/121.html