Republic v Mantaia [2014] KIHC 29; Criminal Case 65.2010 (18 July 2014)

IN THE HIGH COURT OF KIRIBATI 2014

CRIMINAL CASE NO. 65 OF 2010

BETWEEN

THE REPUBLIC
PROSECUTOR

AND

IOTUA MANTAIA
RABAERE KIBOBOUA
ACCUSED

Before: Hon Chief Justice Sir John Muria

26 August 2013, 4 & 5 June 2014

Ms Tewia Tawita for Prosecutor
Mr Banuera Berina for 1st Accused
Ms Jessica McLaren for 2nd Accused

JUDGMENT

Muria CJ: The two accused were police officers. They were charged with offences in connection with assaults on the complainant victim. In Count 1, the accused, Iotua Mantaia, was charged with causing grievous harm to Tourake Bwebwe contrary to section 220 of the Penal Code. In Count 2, both Iotua Mantaia and Rabaere Kiboboua were charged with assault causing actual bodily harm upon Tourake Bwebwe contrary to section 238 of the Penal Code. Both accused pleaded not guilty to the charges.

CASE FOR PROSECUTION

The case for the prosecution is that on the date of the incident the victim Tourake Bwebwe ("Tourake") was drinking with his friends at Buota. An argument arose betweenTourake and his brother regarding Tourake's girl friend. In the course of argument, Tourake shouted with the word "fuck" in anger. It was at that time that the two accused came by in a police vehicle and heard the shouting. They stopped and enquired about what had happened. Tourake explained to the two police officers (accused) that he shouted angrily at his brother. He apologised. The two accused left.

Just as the two accused were leaving, Tourake again shouted. The two accused went back to Tourake who was then fighting with his brother. The two accused arrested Tourake, handcuffed him and took him into the police vehicle to be taken to Bonriki Police Station. It is the prosecution case that while on the way to Bonriki Police Station, the accused Iotua punched him on the right cheek and back of the head several times.

The victim's evidence also is that because both accused hit him in the vehicle and that since he heard them say that they would further hit him when they reached the airstrip, he had to defend himself by controlling the steering wheel of the vehicle. He did actually got hold of the wheel and the vehicle stopped. He then got out from the vehicle through the window at the driver's side. In the course of doing so, the accused (Rabaere) tried to prevent him from escaping through the window by holding onto his legs. The victim struggled to free himself and in the course of doing so, fell from the window onto the ground outside the vehicle. He said it was then that Iotua came out from the vehicle and kicked him on the mouth which resulted in one of his teeth broken.

The evidence also shows that the victim tried to run away but he was grabbed and placed at the back of the vehicle. Shortly thereafter, he jumped out of the vehicle again. He said that the accused (Iotua) again hit him. He fell down and when he stood up, he escaped from the two accused. He went to a nearby house where he told the occupants what happened and hid. Later he went to the sea and walked to his house. He was taken to hospital by his family after that.

DEFENDANT'S CASE

The defence case is that the victim was resisting being arrested right from the beginning. He was finally arrested and handcuffed at the front. He was then placed in the vehicle to be taken to Bonriki Police Station.

While in the vehicle, on the way to Bonriki Police Station, the victim tried to escape. He got hold of the wheel, managed to stop the vehicle and jumped out of the vehicle through the window by the driver's side. The driver (Rabaere) fell as he was struggling to contain the victim from escaping through the window. He fell onto the hard surface road outside of the vehicle.

The other accused (Iotua) then had to get out from the vehicle and assisted Rabaere to prevent the victim from escaping. They managed to hold the victim and tried to put him at the back of the vehicle following a struggle with him. Throughout the time, the victim was resisting all the accused's efforts to contain the victim because he did not want to be taken to Bonriki Police Station.

The accused's efforts to put the victim at the back of the vehicle was not successful because the victim was still resisting. In the course of the resistance, Iotua's evidence shows that the victim struggled and kicked Rabaere's chest. It was then that the victim found a space and managed to escape.

Rabaere's evidence reiterated the evidence of Iotua on the behaviour of the victim. In particular, Rabaere's evidence on the victim's stunt in his attempt to escape through the window of the vehicle by the driver's side.

The victim fell out from the window and landed on his face on the hard surface on the road, while Rabaere also fell out from his driving seat. Iotua came out from the vehicle to assist Rabaere to prevent the victim from escaping. Their efforts were not very successful because the victim eventually escaped.

ASSESSMENT OF EVIDENCE

The evidence shows that right from the beginning, the two police officers who are the accused in this case, had to deal with a young man (victim) who was under the influence of alcohol, resisting arrest at the first place, continuing to struggle to resist every effort to be brought to the Police Station, and taking every chance to escape from the lawful custody of the two police officers. Such conduct on the part of the victim was, of course, not an excuse for the accused to assault (if they did) the victim. We must therefore consider the evidence of the alleged assault and the injuries in this case.

The victim's evidence is that the accused (Iotua) was punching him from the back and that the accused (Rabaere) was also hitting him at the front. The evidence also shows that the accused (Iotua) was sitting at the back seat of the vehicle with his girl friend while the victim was sitting at the front seat next to the driver (Rabaere). The victim also said he was punched and kicked several times outside of the vehicle. He said he was kicked by Iotua on the mouth while he was on the ground.

Then there was the struggle when the victim took control of the steering wheel and jumping out from the window of the vehicle. In the course of the struggle the victim fell out from the window and landed on his head and face on the ground. The police vehicle was a high double cabin hilux.

Both accused denied punching and kicking the victim. They did not deny having to struggle with the victim to contain him in the vehicle and outside of the vehicle on the way to Bonriki Police Station.

The injuries as found by the doctor were on the forehead, right cheek, two chipped teeth, laceration to the lips and left eye-lid. The injuries were consistent with being hit on the face. They were equally consistent with being hit against hard surfaces even from a fall. In this regard, I have to bear in mind that in this case the escape and falling out from the window of the hilux vehicle were not gentle actions. It happened following a considerable struggle and falling onto the hard surface of the road. The doctor's evidence is that the injuries could also be caused from a fall from the vehicle onto a hard surface on the ground. It is therefore for the prosecution to exclude the possible cause of the injuries as suggested by the doctor. In my view, in the present case it is open to the Court to accept either the injuries were caused by the assault from the accused (if the Court accepts the assaults took place) or from the fall.

Interestingly, the only injuries reported to the doctor were those on the victim's face – forehead, right cheek, left eye-lid, lips, chipped teeth and wrists (handcuff marks).

It is therefore necessary to consider the surrounding circumstances of the case as presented in evidence. Christopher also known as Kuriti Bakaea (PW2) told the Court that he was the one who was arguing with the victim and the police came. He asked the police to arrest the victim. He also testified that there was a violent struggle between the victim and Rabaere because the victim was resisting arrest. He saw the victim being arrested, handcuffed and put in the vehicle. He did not see any injury on the victim's body before the police took him away but that he saw the injuries on the victim in the morning.

Nei Taake (PW3) said in evidence that she saw the victim with blood on his face when he came to her house the night of the incident. She said that the victim told her that the police beat him up. However, she agreed that she never mentioned that to the police when she gave her statement to the police after the incident in 2010.

Nei Nang Nakau (PW4), a nurse, saw the victim when he came to her house that night of the incident. She saw the victim's hands handcuffed and blood on his face. The victim told her that he ran away from the police.

Katia Korio (PW5) testified that he was asleep: when he woke up he saw a police vehicle and a drunken person being restrained by the police. He saw the victim trying to escape from the police. He was only two to five metres away. He saw the victim running away.

DECISION

It was submitted by Ms Tawita of Counsel for the prosecution that Iotua kicked the victim with a boot. There was no evidence of kicking with a boot. Counsel also submitted that the doctor's evidence corroborated the accused's evidence that his teeth got chipped off from the hit to his mouth. Equally, however, the doctor's evidence corroborated the defence's evidence that the accused's injuries were caused by a fall from the window of a hilux vehicle and landing head-on on the hard surface on the tar-sealed road.

I have to say that even on his own evidence, the victim has shown that he was a young man who was prepared to do whatever it took to resist lawful apprehension by police officers.

I have considered the evidence of the witnesses, PW2, PW3, PW4 and PW5, but their evidence do not sufficiently help to ascertain the cause of the injuries or to exclude the possibility that the injuries were consistent with a fall head-on to the hard surface of the road from the window of a hilux vehicle. Accepting that the two possible causes of the injuries on the victim's body are equally plausible and looking at the circumstances of the case presented by the evidence, I am left with a lingering doubt as to the cause of the injuries in this case.

I cannot therefore be satisfied to the required standard that the accused are guilty of the offences with which they were charged in this case. Both accused are found not guilty and must be acquitted.

Dated the 18th day of July 2014

SIR JOHN MURIA
Chief Justice