Republic v Kaakati & Marewentebuke - Judgment [2007] KIHC 57; Criminal Case 57 of 2006 (20 February 2007)

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

High Court Criminal Case No. 57 of 2006

THE REPUBLIC

v

BWARAIRAI KAAKATI
ARONA MAREWENTEBUKE

For the Republic: Ms Pauline Beiatau
For the 1st Accused: Ms Joelle Grover
For the 2nd Accused: Mr Stephen Earl

Date of Hearing: 20 February 2007

JUDGMENT

Bwarairai Kaakati and Arona Marewentebuke were charged jointly with causing grievous harm with intent and criminal trespass. On arraignment Bwarairai pleaded guilty to causing grievous harm (section 220 of the Criminal Code) (which plea the Republic accepted) and to criminal trespass. He has been remanded for submissions on penalty. Arona has pleaded not guilty to both counts.

Particulars

(Causing grievous harm with intent) Bwarairai Kaakati and Arona Marewentebuke on the 8th June 2005 at Teaoraereke village, South Tarawa in the Republic of Kiribati unlawfully wounded or did grievous harm to Taburoro Tabokai, with intent to cause him grievous harm.

(Criminal trespass) Bwarairai Kaakati and Arona Marewentebuke on the 8th June 2005 at Teaoraereke village, South Tarawa in the Republic of Kiribati entered into a dwelling house of Taburoro Tabokai with intent to commit an offence namely causing grievous harm with intent.

On Wednesday 8th June 2005 Bwarairai, who lives at Teaoraereke where the incident subsequently took place, went to visit his cousin Arona at Temaiku. Arona went with Bwarairai on the bus back to Bwarairai’s house at Teaoraereke. They were in the house. Arona was drinking: Bwarairai was not. Accounts differ as to what attracted their attention to the victim’s house close by. Arona said someone threw stones at Bwarairai’s house. Other witnesses say the victim Taburoro and his wife, Nei Tekoa Tabutorin were making a lot of noise. Whatever it was, the evidence which I accept beyond reasonable doubt is that both men went over to Taburoro’s house. That is a local house made up of a sleeping house and cooking house. It seems that Taburoro and Nei Tekoa had been in the cooking house. [Arona said he stayed at Bwarairai’s house and went to sleep: Bwarairai went alone to Taburoro’s house.] Bwarairai had a torch and knife. He chased Taburoro into the sleeping house and attacked him causing serious injury. Arona threw a hammer at Nei Tekoa and hit her on the hip causing a bruise. Nei Tekoa ran away. Arona chased her.

That is an outline of the evidence which I accept beyond reasonable doubt.

Taburoro said he saw no one with Bwarairai. Because of later evidence I think Taburoro was mistaken. He probably was so concerned with Bwarairai’s attack on him that he did not notice Arona.

Bwereta Koraua is a boy of 14:-

Taburoro and his wife were making a noise. Bwarairai walked to Taburoro’s house: with that old man (Arona). Bwarairai carried torch and knife. Arona carried a hammer. Saw Bwarairai enter house. I only saw the old man going after Taburoro’s wife. I was beside Bwarairai’s house which was quite far from Taburoro’s house. I heard banging sound of wood or stick. Arona chased after Taburoro’s wife – he didn’t catch her.

Nei Tekoa:-

I was at the house with my husband. Cooking. Bwarairai came and disturbed us: he came with Arona (ID). Arona threw a hammer at me: Bwarairai carrying knife chased after Taburoro to the house. I ran away ..... Arona was then outside: Bwarairai inside the house ------ I saw Bwarairai enter the house. When Bwarairai shone a torch at me I ran away – then Arona threw hammer at me. Hammer hit me on left hip. Didn’t catch me.

Arona gave evidence. He did not go with Bwarairai after the stone throwing but stayed in the house and went to sleep. He had not been affected by what he had drunk and remembers what happened. Later on police came and arrested him.

There are a couple of unlikely things about Arona’s story. First, it is strange that Arona had no interest in knowing what Bwarairai found out about the stone throwing or what he did as a result. Second, he said he had told Bwarairai earlier that he would go home about 10 o’clock. Yet he was still sleeping when the police came.

Arona does not have to prove anything: the prosecution must prove its case beyond reasonable doubt. It has proved beyond reasonable doubt that Arona went with Bwarairai over to Taburoro’s house: a good beginning but the prosecution had to prove more than that.

Arona is not charged with any offence relating to Nei Tekoa. On the evidence he could have been but he is not.

The particulars on count 1 alleged that he "unlawfully wounded or did grievous harm to Taburoro Tabokai, with intent to cause him grievous harm".

Arona can be guilty on count 1 only if there were a joint enterprise between Arona and Bwarairai to do grievous harm to Taburoro. There may not have been such a joint enterprise. Arona went with Bwarairai to the house but there is no evidence that he had any idea what Bwarairai intended to do: nor evidence even that he knew Bwarairai had a knife with him. Arona did not go with Bwarairai into the sleeping house where Bwarairai caused the harm to Taburoro. I have a reasonable doubt about a joint enterprise between the two to cause Taburoro grievous harm.

As to count 2, criminal trespass, under s.182(1)(a) some intent must be proved – either to commit an offence or to intimidate or to annoy. The allegation in this charge which the prosecution had the task of proving is "an intent to commit an offence namely causing grevious harm with intent". Neither the intent alleged nor any other intent has been proved. He did attack Nei Teekoa but there is no evidence that he entered the house with that intent.

On both counts Arona is not guilty.

Dated the day of February 2007

THE HON ROBIN MILLHOUSE QC
Chief Justice