Tabokai v Office of the Attorney General [2025] KIHC 112; Criminal Appeal 02994 of 2024 (30 April 2025)

IN THE HIGH COURT OF KIRIBATI
Criminal Jurisdiction
(South Tarawa)

HIGH COURT CRIMINAL APPEAL NO: 2024-02994

BETWEEN

TAMUERA TABOKAI _________________________________ The Appellant

AND

OFFICE OF THE ATTORNEY GENERAL iro
THE REPUBLIC ___________________________________ The Respondent

Date of Hearing: 24^th March 2025

Appearances: Ms. Aana Temaia for the Republic
Mr Banuera Berina for the Accused

RULING

AMTEN, J – A criminal case number BikCrim 597/22 was filed in the Magistrates’ Court between the Republic and Tamuera Tabokai (herein referred to as the appellant). He was charged with Assault Causing Actual Bodily Harm contrary to section 238 of the Penal Code. The particulars of the offence provide that he struck Michael Naaman’s (herein referred to as the victim) head with a handcuff. He pleaded not guilty to the charge. After the hearing, her worship found the appellant guilty as charged. He disagreed with this decision and filed an appeal.
Before me now is this appeal by the appellant against his conviction, dated 19^th of October 2023.
The circumstances surrounding the case were relatively straightforward. The victim, accompanied by his twin brother and a friend, went to have a drink behind the museum. While there, the appellant, along with three other officers, approached them. An exchange took place, leading to the incident. There were different versions regarding the nature of the occurrence.
The victim and his witnesses, the prosecution’s witneses, blamed the appellant and his companions that they started the altercation. They approached to apprehend them due to their underage status and consumption of alcohol. The appellant went to the victim and pulled him up. The victim's twin brother attempted to intervene but was pushed aside by the appellant, causing him to fall. Meanwhile, two officers restrained the victim by holding his arms. As the appellant proceeded to arrest the victim, he dropped his handcuff, retrieved them, and then struck the victim on the head with it. Subsequently, he secured the victim's hands with the handcuff and took him to their vehicle.
The appellant’s account, however, stated that when attempts were made to remove the victim and his companions from the location, the victim instigated a disturbance. He approached the victim, who was sitting then, and seized his right hand in an effort to detain him; his hands were positioned within the loop of the handcuff. When he grasped the victim’s hand, the victim forcefully pulled him down with his other hand. Consequently, he fell onto the victim, and the handcuff he was holding struck the victim's head. At that moment, he did not observe any signs of bleeding.
Upon reviewing the arguments presented by both the prosecution and the defence, as well as the submissions from their respective counsels, her worship concluded that the appellant struck the victim's head with his handcuff, resulting in the injury. In her assessment, she referenced the victim's testimony, which was supported by his twin brother, a friend, and a doctor who confirmed that the injury was inflicted by a hard object. She dismissed the appellant's claim that the handcuff hit the victim's head when he fell on him due to the victim's abrupt movement. Consequently, she determined that the appellant was guilty as charged.
The accused through Mr Banuera appealed against these findings vide a Notice of Appeal dated 15 November 2023. He presented two arguments: firstly, that her worship did not adequately recognize the discrepancies in the testimonies of the prosecution witnesses; and secondly, that she neglected to properly consider the potential for collusion, given that the second witness is the victim's brother and the third witness is a friend of theirs.
Having heard Mr Berina and Ms Aana, I am of the view that the grounds can be consolidated into one ground, namely that her worship has failed to properly consider the nature of the inconsistencies and therefore the possibility of the danger of collusion between the witnesses.
There are two types of collusion; intentional (or advertent) and unintentional (or inadvertent) collusion among witnesses. Authorities^[1] commented that the intentional collusion involves two or more witnesses getting together and deciding what exactly they will be saying when they are questioned under oath. Unintentional collusion, on the other hand, arises when a witness hears another witness’ recollection of events. As to the former, if established, will affects credibility. As to the latter, it only affects the reliability of the evidence.
Mr Berina argued that the witnesses’ inconsistent statements were so distinct and clear, and as such should not have been easily brushed aside. He concluded that her worship failed to properly consider whether the evidence of the prosecution witnesses, especially the victim, his twin brother, their friend and their mother, affected their credibility and reliability.
A trial judge confronted with evidence suggesting possible collusion is required to thoroughly evaluate the evidence and assess its effect on the credibility and reliability of each witness. The trial judge may choose to accept the witness's testimony, provided there is clear assurance that the purported collusion has not compromised the witness's credibility or reliability.^[2]
The case of R. v. Burnie (D.)^[3] establishes the necessary criteria. First, the trial judge was obligated to assess whether the prosecution had established that the evidence provided by the victim and his witnesses was not tainted by collusion. Aside from her worship’s brief mention of inconsistencies in the witnesses' accounts regarding the incident, she did not address the potential for collusion in her judgment. Secondly, the trial judge failed to address the significant discrepancies between the victim's testimony and that of the witnesses. Her worship did not conduct any analysis of the prosecution witnesses' credibility or reliability at all. While she ultimately stated that she accepted the prosecution witnesses’ version of events beyond a reasonable doubt, it was impossible to follow the path she took to that conclusion.
I concur with Mr. Berina that her worship failed to sufficiently address the evidence of possible collusion and did not adequately explain why this factor did not create a reasonable doubt in her mind.
For the reasons mentioned above, the appeal is allowed. I hereby set aside the conviction and ordered a new trial. I do recommend that this case be heard before the Chief Magistrate.

Dated this 30^th April 2025

.......................................
JUSTICE AOMORO. T. AMTEN
Puisne Judge

---

^[1] For example see Regina v C.G., 2021 ONCA 809
^[2] See R. v. Burnie, 2013 ONCA 112
^[3] (2013) 303 O.A.C. 76 (CA)