Republic v Pine [2007] KIHC 136; High Court Criminal Case 17 of 2007 (20 September 2007)

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

High Court Criminal Case No. 17 of 2007

BETWEEN:

THE REPUBLIC

AND:

TANUA PINE

For the Republic: Mr Birimaka Tekanene
For the Accused: Mr Banuera Berina

Date of Hearing: 17 & 18 September 2007

JUDGMENT

Tanua Pine is charged with False Pretences, Uttering a False Document and in the alternative, Uttering an exhausted document.

Particulars

Count 1

On or about the 16th day of May 2006 at Betio, South Tarawa in the Republic of Kiribati, Tanua Pine, by falsely pretending to Koubwere Ienraoi and others that he had incurred additional expenses in respect of his accommodation rental, obtained from the Kiribati Ports Authority the sum of $940.43, with intent thereby then to defraud.

Count 2

On or about the 16th day of May 2006 at Betio, South Tarawa in the Republic of Kiribati, Tanua Pine, knowingly and fraudulently uttered a false document purporting to be a receipt issued by P Singh for rent at Vatuwaqa, Suva.

In the alternative

On or about the 16th day of May 2006 at Betio, South Tarawa in the Republic of Kiribati Tanua Pine knowingly uttered as and for a subsisting and effective document a document purporting to be a receipt issued by P Singh for rent at Vatuwaqa, Suva, the operation of which document had ceased by virtue of the fact that the sum to which the said receipt referred had been refunded.

When he was arraigned before trial I directed that he be arraigned only on counts 1 and 2, not on the alternative count. He pleaded not guilty. During the trial I concluded I had made a mistake and he should have been arraigned on the alternative as well. At the end of the trial, before addresses, with no objection by Mr Tekanene and with the consent of Mr Berina I arraigned Tanua on the alternative and he pleaded not guilty to that as well. His late plea to the alternative count made no difference to the course of the trial.

In February 2006 the Kiribati Ports Authority, by direction of the Board, sponsored Tanua, a Human Resources Officer, to go to USP in Suva to study for an MBA. Amongst other benefits his accommodation allowance was fixed at FJ$490 per month. This was the recommended USP rate. Tanua soon asked for an increase to FJ$800. The Human Resources Manager, Mr Willie Karakaua Maen who was the only witness for the prosecution, wrote a cordial letter to Tanua dated 6th April 2006:-

INCREASE TO HOUSING ALLOWANCE

I am pleased to inform you that the General Manager has approved the requested increase to meet rental rates of houses now available in Suva by FJD400.00. The increase would be effective once confirmation is received from you that you have secured such house. A written confirmation by the landlord is therefore required to support the release of additional funds. Please kindly send by fax or electronic mail. -----

Mr Maen’s evidence proved a number of documents (Exhibits 1 to 10) being letters passing between the KPA (most addressed to or written by Mr Maen) and Tanua.

From the evidence, both of Mr Maen and of Capt Koubwere Ienraoi, then General Manager of KPA, it appears that the condition requiring "A written confirmation by the landlord" was added by Mr Maen on his own initiative and not at the direction of Capt Ienraoi. The General Manager was quite clear – rather to my surprise – that in consenting to the payment of the increase in the accommodation allowance he had stipulated no condition: he was happy to take Tanua’s word, not require a written confirmation that the extra was needed for rent, content to allow Tanua to spend the money as he liked. [This view is echoed by Tanua himself in a letter he wrote on 16th March 2007:-

Personally, I considered the increase as part of the allowance where I am not held accountable for it. Because I am not accountable for it I am not required to give explanations and how I used it or to provide any kind of evidence. For such reasons, I still consider myself innocent and therefore tender no resignation.]

In May 2006 Tanua came back to Kiribati on holiday. As confirmation that he had paid extra for rent he attached to a letter to Capt Ienraoi dated 15th May 2006 a receipt purporting to be the sum of $800 being for April 2006 rent at Vatuwaqa, Suva signed by somebody named Singh. Capt Ienraoi remembered seeing the receipt but not reading the letter.

It seems – but in the absence of evidence (the accused did not give evidence) I am unclear – that Tanua found Singh’s accommodation unsatisfactory, stayed there less than 24 hours. That was on 28th February 2006. He then went to stay with Mr Tebau Awerika, Secretary to the Kiribati High Commission in Suva. He claimed he had paid Singh FJ$2,400 but produced a receipt dated "1/4/2006" for $800 only. He said he had paid Singh for three months’ rent when he moved in in February and later Singh returned the money. Why Singh should have given a receipt for $800 over two months later is not clear.

In May, during his holiday, Tanua called on Capt Ienraoi. He admitted to the captain that the receipt is not genuine. Capt Ienraoi told him it did not matter: he had not put any condition on the payment of the extra accommodation allowance: there was no need for him to produce any evidence of payment: he could spend the allowance as he liked.

Even on the circumstantial evidence – apart from Tanua’s confession – the receipt was probably a forgery: his confession puts that beyond doubt.

What follows? Tanua has not been charged with forgery. What of the offences with which he has been charged?

Clearly he is not guilty on Count 1. He did not "falsely pretend to Koubwere Ienraoi" that "he had incurred additional expenses for his accommodation rental". Having made that confession to the Chief Executive of the KPA, his employer, it does not matter to whom "others" he made a pretence. As a juror or as finder of fact I could not be satisfied beyond reasonable doubt of guilt.

Likewise on the second. On the 16th May 2006 he did not "knowingly and fraudulently (utter) a false document". He told the General Manager the receipt was false. It cannot be said that he "fraudulently uttered" it.

The same goes for the alternative charge. He told the General Manager it was false.

The accused is not guilty either on count 1, on count 2 or on the alternative charged.

Dated the 20th day of September 2007

THE HON ROBIN MILLHOUSE QC
Chief Justice