In the High Court of Kiribati
Criminal Jurisdiction
Held at Betio
Republic of Kiribati

High Court Criminal Case No. 9 of 2007

The Republic

v

Kooka Eebwara

For the Republic: Mr Birimaka Tekanene
For the Accused: Mr Karotu Tiba

Date of Hearing: 15 May 2007

JUDGMENT

The accused has been charged with child stealing contrary to section 246 of the Penal Code:-

Particulars

On or about the 27th day of November 2005 at Antenon, South Tarawa in the Republic of Kiribati KOOKA EEBWARA (also known as Karameru) forcibly took away Nei Roonete Tuingata, a child under the age of 14 years, with intent to deprive Nei Tetobi Aata, who had then the lawful care of the said Nei Roonete Tuingata, of the possession of the said child.

The facts are clear beyond reasonable doubt.

The victim was a little girl, a baby "one plus" years old according to her grandmother Nei Tetobi Aata. The two of them were sleeping together on a buia. It was very early in the morning, before dawn. Nei Tetobi, after having given Roonete some milk, the last feed for the night, went to sleep. She had not earlier slept well: during the night on a buia a few metres away was a group of people drinking. The accused, Karameru, was one of them. Nei Tetobi had been disturbed by their noise.

In her sleep – she must only have been dozing – she sensed movement on or near the buia: she got up, saw no one, went off to sleep again. Later two members of the drinking group, Eriu Rootinta and Mark Rakaiti got on the buia and invited Nei Tetobi to join them drinking. She scolded them, told them to be careful not to sit on Roonete. Roonete was not there. 

Both Eriu and Mark said they had seen Karameru, having left their buia, come over to the buia where Nei Tetobi and Roonete were. He had a red t-shirt wrapped round his head. They saw him leave Nei Tetobi’s buia. It was before dawn but clear moonlight.

Roonete being missed, Eriu and Mark went looking for Karameru. He was not at his house: they went to the bushes: heard a baby crying: saw Karameru run away. From Eriu’s evidence in chief:-

Early dawn accused said he was going back – on his way back saw him to go buia first. Later on he went away from the buia. We had it in mind to wake Tetobi up to drink. (Went over) told us we might wake grand daughter: no longer there. Went looking for him in his house and he wasn’t there. Looked for him among bushes. As we arrived heard crying of baby. Saw accused run away – recognise. Took baby home. Went to his house – he was lying there. Karameru had tied his head with a red cloth (before he left buia). Saw him beside child. Moonlight. Ran away – cloth still tied round head.

Mark’s evidence was to the same effect but Mr Tiba managed in the last answer in cross examination to get Mark to say he "could be mistaken it was the accused" running away from the bushes.

Mark is a younger man than Eriu and I thought less intelligent. Despite Mark’s final ambivalence I accept beyond reasonable doubt the accuracy of Eriu’s evidence of identification. [I do so bearing in mind the difficulties and dangers of identification evidence.]

At the end of the prosecution case Mr Tiba submitted no case to answer: insufficient evidence of identification. It was a hopeless submission. The prosecution had made out a strong prima facie case identifying the accused as the one who had taken the child and run away when detected leaving the baby in the mao.

The accused in his evidence said he was so drunk he did not know what he was doing. He left the group some hours earlier than Eriu and Mark had said:-

When I left friends walked on way to our house: didn’t manage to reach home: fell down among grasses: went to sleep: woke up among grasses – it was very light. Woke up on my own – felt very cold. Went to my house: went back to sleep.

I find proved beyond reasonable doubt that the accused took the little victim off the buia, took her to the bushes and ran away when Eriu and Mark saw him.

In his submission of no case Mr Tiba might have submitted that – whoever took the child – there was no proof she was taken "forcibly". He did not take the point and the trial proceeded.

I put the point to counsel before they addressed. The plain meaning of "forcibly" is "by force": there was no evidence the accused used force to take the victim.

Mr Tekanene cited the decision in the Republic v Bauro Tabaki (HCCrC 27/00). The accused was found guilty of indecent assault and child stealing. It seems from my judgment the point about force was not raised even though there was no evidence the accused had used force in taking a little girl.

Section 246 of the Penal Code is based on section 56 of the Offences against the Person Act 1861. The wording is not quite the same but both sections uses the phrase "either by force or fraud". The present law in England is the Child Abduction Act 1984. It no longer requires the taking to be "by force or fraud" as did section 56 of the Offences against the Person Act. Consequently editions of Archbold since 1984 are no guide.

Mr Tekanene was able to give me an extract from the 39th edition, published before 1984:-

An indictment under this section is supported by evidence of force or fraud exercised upon the guardian of the child, or upon the child so taken or detained, or any other person (paragraph 2947 "Evidence"). 

So far the paragraph does not help the prosecution but it concludes:-

By force or fraud.

Similarly, it is submitted that the child’s age is the appropriate yardstick for determining whether this element of the offence has been established, particularly where the removal is alleged to have been achieved "by force". It would be an affront to common sense to suggest that a person who took a baby from a pram in circumstances which in every other respect constituted a contravention of section 56, had not taken the child "by force".

The situation described by Archbold, taking a baby from a pram, is the same as the situation here, taking a baby off the buia.

I wish Archbold had cited authority to support the final assertion. Archbold itself, even though technically only a text book (and in the old days at least a text book was not regarded as authoritative) does have by now an authority of its own. Apart from that it is difficult to argue against the logic of the assertion, "it would be an affront to common sense …."

I accept the authority of Archbold that it "would be an affront to common sense" to suggest that the accused had not taken Roonete "forcibly". Apart from the influence and authority of Archbold, on reflection I accept it would be absurd to find otherwise then that the accused had taken the victim "forcibly".

The accused is guilty of child stealing.

Dated the 17th day of May 2007

THE HON ROBIN MILLHOUSE QC
Chief Justice