Republic v Tokiau - Judgment [2006] KIHC 82; 17-06 (7 June 2006)

IN THE HIGH COURT OF KIRIBATI
Criminal Jurisdiction
Held at Betio
Republic of Kiribati

High Court Criminal Case No. 17 of 2006

THE REPUBLIC

v

KAUABANGA TOKIAU

For the Republic: Ms Pauline Beiatau
For the Accused: Ms Taoing Taoaba

Date of Hearing: 7 June 2006

JUDGMENT

Kauabanga Tokiau was originally charged with house-breaking and committing a felony, contrary to s. 293(a) of the Penal Code, and with indecent assault, contrary to s. 133(1).

On the morning of the trial Ms Beiatau, saying she was not going on with the charge of house-breaking & committing a felony filed a fresh indictment, without opposition from Ms Taoaba. It charged "house-breaking with intent to commit a felony, contrary to s. 294(a)".

The charge of indecent assault remained.

The particulars of the house-breaking with intent to commit a felony in the indictment are given as:-

On 19 February 2005 at Tebike, Bikenibeu, Tarawa in the Republic of Kiribati KAUABANGA TOKIAU with intent to commit a felony namely indecent assault entered a dwelling house at night belonging to Maiango Tekanene.

It was not until submissions towards the end of the trial, when I pointed out to Ms Beiatau there was no evidence of a breaking, that I thought about the wording of the charge.
Section 294:-

Any person who, with intent to commit any felony therein -

(a) enters any dwelling-house in the night; or

(b) breaks and enters any dwelling-house ......

is guilty of a felony, and shall be liable to imprisonment for 7 years.

Ms Beiatau argued that even though house-breaking is charged the prosecution did not have to prove breaking: all she had to prove was an entry.

I then realized that whoever drafted the indictment had used the marginal note ("house-breaking with intent to commit felony") as the charge. That is a mistake. A marginal note against a section in a statute is not part of the section. The drafter has put it there merely as an aid to the reader to find the section he or she is looking for by giving a short description of the contents of the section. A marginal note is a convenience: nothing more. It should not be used when drawing a charge. The indictment should have read:-

Entering a dwelling-house in the night with intent to commit a felony.

That is the offence under section 294(a), the subsection relied on in the charge. The particulars support that offence but do not support breaking and entering, the offence under section 294(b).

The accused has been charged with one offence: the particulars support another and do not support the offence charged.

Confusion and ambiguity. A court should always lean in favour of an accused. The ambiguity should be resolved in favour of this accused.

By charging house-breaking the prosecution has given itself a more difficult task than it needed. It is now stuck with the charge as drawn. For a conviction on count 1 house-breaking must be proved.

There was no evidence of a breaking. The alleged victim said she locked the door but she and her husband were sleeping on the buia under a mosquito net: nothing to break and no suggestion the door was forced.

As well, there is no evidence as to the intent of the accused. Arguably there is an inference but that does not amount to proof of intent beyond reasonable doubt.

The prosecution has failed to prove count 1.

Before I set out the facts there is another matter. Kauabanga was arrested soon after the incident on the morning of 19th February. He was put in the cells at Bikenibeu police station.

His caution statement was taken some time on 20th February, more than 24 hours later. Ms Taoaba objected to the tender of the caution statement. We had a voir dire. The accused did not complain of the taking of the statement by the two police officers, Arinteiti Atarin and Tokataake Biriti. I accept that it was done with propriety after his rights were explained to him. Ms Taoaba made no complaint about that.

What she did complain of was that from the time the accused was arrested until he gave the caution statement he had no food or drink. The complaint was not rebutted. Neither Arinteiti nor Tokatake had been at the police station during the time Kauabanga was in the cell: no other police officers on duty at Bikenibeu on 19th or 20th February were called.

I refused, in my discretion, to admit the caution statement. I did so as a mark of disapproval at the way this man was treated. Once a person is arrested he is in the custody of the police. The police have a responsibility for his welfare. That includes giving him food and drink. If relatives are informed and come with food and drink, well and good. If not then the police must provide them. I suggest most strongly that the Commissioner, if he has not already done so, put in place arrangements to ensure that once a person is arrested he or she is properly looked after for all the time he or she is in police custody. Looking after him or her includes providing sustenance.

Nei Maiango Tekanene, aged 25, was asleep, naked, with her husband on a buia under a mosquito net. Sleeping nearby were the other occupants of the house, Tengkai Teikake, aged 28 and his wife. During the early part of the morning Nei Maiango felt someone on top of her massaging her clitoris. She felt a penis. Thinking it was her husband wanting sex she turned over on her back. As she did so she was startled to find her husband was still sleeping next to her!

I turned on to my right side and shut my legs tight. Woke husband - screamed out there was a person. ----- There was a person inside the mosquito net on the buia. Husband punched old man who kept on saying, "No. No". He ran away. He had t-shirt on, did not recognize the face but did recognize the voice .... He came back again to the sour toddy bar next to our house ----- he came with Tengkai, one of our house members. My husband hit him. No! No! in same voice as on buia.

The intruder left behind a yellow lavalava. Nei Maiango’s husband had grabbed it.

Tengkai chased the man:-

They yelled out to us to switch on light. I went outside, followed the man - I caught him - took him to Terata’s house - I called them to come. Identified accused. Tekanene punched him up. I punched him (at same time). Maiango ------ was carrying lavalava. "No No" Accused is man I followed from house to where I caught him.

Samuelu Johnny ran a sour toddy business where the accused had been drinking with two young men for three or more hours on the night before. Kauabanga had been carrying a yellow lavalava. He saw the accused about 4 o’clock when he still had the lavalava with him. He saw the accused then about 6 o’clock at the house of another sour toddy seller close to the house occupied by the two couples.

Saw accused early morning - about 0600 saw him at other sour toddy house - he came with other boy member of victim’s house: no lavalava - no t-shirt but only black shorts. Victim and husband came. "This is the man who came to the house". (Victim) "Why are you so concerned with me? What did I do?" (Accused) "Yes. That’s the man. That’s the voice". (Victim) He did not say any more. The other boy punched accused: accused fainted.

I accept beyond reasonable doubt the evidence of the prosecution witnesses.

Kauabanga gave evidence. At first he said he could not recall what he did after he had been to Mass at 5 o’clock on the preceding evening. He had been with his friend Bauro who has since died. Later it seemed he did remember drinking sour toddy from place to place. He had no idea he went into the house: he denied going into it. He had been wearing a yellow/orange lavalava, white t-shirt and khaki shorts.

The weight of evidence against Kauabanga is overwhelming. Nei Maiango did not see him but recognized the voice, especially "No, No" which she heard soon after discovery of the intruder and again at Samuelu’s house when it was undoubtedly the accused. Tengkai followed him from the house to Samuelu’s. There is the evidence of the yellow lavalava which the accused admitted having worn which he left behind in his flight.

The accused indecently assaulted Nei Maiango.

The accused is not guilty on count 1 and guilty on count 2.

Dated the day of June 2006

THE HON ROBIN MILLHOUSE QC
Chief Justice