Republic v Toora [2006] KIHC 3; Criminal Case 36 of 2005 (5 January 2006)

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

High Court Criminal Case No. 36 of 2005

THE REPUBLIC

vs

REKAU TOORA

For the Republic: Ms Pauline Beiatau
For the Accused: Mr Karotu Tiba

Date of Hearing: 4 January 2006

JUDGMENT

The accused has been charged:-

Count 1

Statement of Offence

House-breaking and committing a felony, contrary to section 293(a) of the Penal Code, Cap. 67.

Particulars of Offence

On the unknown date between the 27 January and the 4 February 2003, at Takoronga, Betio in the Republic of Kiribati, Rekau Toora broke and entered a dwelling-house belonging to the Republic and committed a felony, namely larceny.

Count 2

Statement of Offence

Larceny, contrary to section 254(2) of the Penal Code, Cap. 67.

Particulars of Offence

On the unknown date between the 27th of January and the
4th February 2003 at Takoronga, Betio in the Republic of Kiribati, Rekau Toora, stole three mattresses from the house belonging to the Kiribati Housing Corporation;

And further that the said Rekau Toora had previously, namely on 19 January 1994, at Betio, been convicted in the Betio Magistrates’ Court of a felony, namely simple larceny.

On arraignment Rekau pleaded not guilty to count 1 and guilty to count 2.

He admitted that he and a friend took the mattresses but denied breaking into the house to take them. In his evidence he said that between 10 and 11 o’clock one night – he did not challenge that it was between the dates charged – he and his friend went on to the beach to relieve themselves. They saw the three mattresses stacked one on top of another by a saltwater pump on the wall about 10 metres from the house. They took the mattresses. They did not break in to the house: the mattresses were already outside.

They sold the mattresses that night for $55 to John Moote.

The prosecution had called Mr Salona Resture who in January and February 2003 was Project Manager for the Kiribati Housing Corporation. Mr Resture had helped the occupant of the house pack up and leave. The house was left with no occupants and in good condition. Mr Resture had the key. Some days later he noticed double doors open, a hole large enough for a man to get through in the inner panel of a wall, the outer panel opposite the hole acting like a flap to be lifted up and three mattresses missing from bedrooms.

By consent the accused’s caution statement was tendered. The relevant questions and answers:-

I agreed that I took 3 mattresses from the house belonged to Housing in Takoronga at Betio, opposite the police barrack ........

1. Could you recall what day was it when you took 3 mattresses from one house at Betio?
   

Ans: I could not really recall what day was it.

2. Whose house was that and where was it?
   

Ans: It belonged to Housing.

No mention of the mattresses being outside by a saltwater pump. Mr Tiba argued that in the Kiribati language the words used could mean the mattresses were taken from outside the house or that they were taken from inside: the word “inanon” (“inside”) had not been used. His client’s admission was consistent with his evidence that the mattresses were outside when stolen.

I reject the argument. It is entirely unlikely that someone else, having taken the trouble to break into the house, would have left the mattresses stacked outside for someone to steal.

The accused has admitted stealing the mattresses. There was a hole in the wall of the house and doors open. He has admitted taking the mattresses from the house.

The prosecution has to prove the charge against the accused beyond reasonable doubt. If there is a reasonable doubt then the accused is entitled to it: a doubt which is merely fanciful, not reasonable, is not sufficient.

I have seen and heard the accused. The irresistible conclusion is that he and another broke into the house and stole the mattresses from it. Any doubt about it is fanciful, not reasonable. The prosecution has proved the charge against the accused beyond reasonable doubt.

The accused is guilty of house-breaking and stealing.

Dated the 5th day of January 2006

THE HON ROBIN MILLHOUSE QC
Chief Justice