IN THE HIGH COURT OF KIRIBATI

CRIMINAL CASE NO. 56 OF 2020

		[THE REPUBLIC			PROSECUTOR
		[
BETWEEN	[AND
		[
		[TERITE TEITIOMA		ACCUSED

Before:			The Hon. Chief Justice William Kenneth Hastings

Date of Hearing:		30 November and 1 December 2021
Date of Judgment:		3 December 2021

Counsel:			Ms. Pauline Beiatau for the Republic
Mr.  Raweita Beniata for the Accused

JUDGMENT OF HASTINGS CJ
1.	Terite Teitioma is charged with store breaking and committing a felony contrary to 293(a) of the Penal Code.  The prosecution alleges that he and Kaete Baraniko broke and entered the Mini Market on 3 July 2019 and stole a cap and $400.  The defendant has pleaded not guilty.  His co-accused Kaete has pleaded guilty.

2.	There were two issues in this trial.  The first relates to the admissibility of the defendant’s statement to the police made on 28 July 2019.  The second is whether that statement actually discloses the offence with which he is charged.

3.	The prosecution produced two witnesses.  The first was Detective Sergeant Mareko Kabuati, who interviewed the defendant.  The second was Constable Mwaio Benuaki, the arresting officer.  A third witness, the defendant’s co-accused, was on the witness list but he did not come to Court and Ms Beiatau did not request a warrant.  The prosecution closed its case without evidence from the co-accused.  The defendant elected not to give or call evidence.

4.	I will deal with the evidence of each police officer first. I will then consider Mr Beniata’s challenge to the admissibility of the defendant’s statement.  Finally, I will consider whether or not the statement actually reveals an offence.

The evidence

5.	In his statement dated 12 September 2019, Constable Mwaio Benuaki said he was on duty from midnight to 10 am.  He said he responded to a call from the Peter & Sons store about a young man who had been seen on the roof of that store.  In his statement he said when he arrived, the young man was with the security guard “who explained that the suspect had been involved in the alleged break-in at the Mini Market store a few weeks ago.”  He said he arrested the suspect and interviewed him under caution.  He said the suspect admitted that he “accompanied Kaete” who broke and entered the Mini Market.  Constable Mwaio said The defendant was arrested “after midnight” and that he “handed him over to CID officers straight away to deal with him.”

6.	In Court, his evidence differed from the content of his statement.  He said he was not sure about who called or whether the call was from the Mini Market or Peter & Sons.  In Court, he said the defendant told him in the car on the way to the police station that “he was the one who helped out” by receiving items Kaete stole from inside the Mini Market.  This was not in his statement.  He said in Court he arrested the defendant between 4 and 5 am, not “after midnight” as he said in his statement.  He said he arrested the defendant for climbing onto the roof on 28 July 2019, and detained him further as a result of his statement that he was involved in the 3 July 2019 offending.  He said whilst the defendant was detained, the defendant did not ask for water or food and Constable Mwaio did not give him water or food.  He said he did not interview the defendant under caution as he said in his statement; that interview was conducted and the caution statement was taken by Detective Sergeant Mareko.  He did not hand him to CID officers “straight away” as he said in his statement; Detective Sergeant Mareko started his shift at 8 am and did not interview the defendant until 10.20 am.

7.	Detective Sergeant Mareko gave evidence about the content of, and the circumstances in which, the defendant’s statement was made.  

8.	With respect to the circumstances in which the defendant’s statement was made, Detective Sergeant Mareko said when he arrived at work at 8am the defendant was in the cell.  He said he asked the defendant if he was in good health.  That question is not recorded in the statement he took from the defendant at 10.20am.  He said he did not give the defendant water, but the police officer looking after him “probably” did.  He agreed he questioned the defendant without knowing if he had had anything to eat or drink.

9.	With respect to the content of the statement, Detective Sergeant Mareko recorded that he put the following allegation to the defendant (at Part 3 of the statement):
	You were alleged that you were involved with the breakin and entering Mini Market and took properties such as money in the amount of $1,600 and other properties on 3/7/19 before midnight at Betio.
There is no answer recorded to the question “do you understand?”

10.	Part 5 of the statement has the heading, “Suspect’s respond to allegations and questions.”  This is where the prosecution submits the defendant admitted the store breaking on 3 July 2019.  It is worth reproducing in full:
	I recall well that on that day 3/07/19 at about before midnight, I met Kaete at St Bauro camp and had a chat with him and later accompanied him to Mini market store.
	On arrival there, he climbed up the post of the fence and jumped over onto the roof of Peter & Sons store closed to Mini Market.  He told me to climb up with him but I refused as I was frightened.  I did not see how he entered into Mini Market store as he was out of sight.
	He climbed up from behind that store. I was waiting for him behind the store then left toward the mainroad and saw a security guard on the truck infront of Mini Market store.  I did not see how he entered but I believe that he climbed up to the roof of Peter & Sons store.
	He stayed inside Mini Market store for quite long and that I was waiting for him at Fish Market.  He came over to me with a black bag that contained clothes such as lee short pants and tshirts as well as nike boots.
	He showed the money be also stole from the store which were a $10 notes x 10 = $100 and gave me $50.
	After that we went to gateway bar where we bought and drank some beers.  We did not stay there for a long time as we then left to the Mariner Bar and drank there.  I did not know what happened after that.
11.	Although there appear to be two admissions, one in the car, the other reproduced above, there is no independent record of the car admission beyond what Constable Mwaio said the defendant said to him.  I will therefore consider the evidence I have, which is the passage reproduced above from the caution statement taken by Detective Sergeant Mareko.  It was common ground that this passage reflected Constable Mwaio’s hearsay account of what was said in the car.  I consider first the admissibility point.

Admissibility

12.	Mr Beniata’s submission focused on the credibility of the police officers and the reliability of the statement.  With respect to credibility, Mr Beniata submitted that as an experienced police officer of some 30 years (10 of them in the Criminal Investigation Department), Detective Sergeant Mareko ought to have recorded whether or not the defendant understood the allegation, and ought to have recorded asking the defendant about his health.  He submitted Constable Mwaio ought to have recorded the time of the defendant’s arrest.  He submitted that it was not good enough that they both attempted to correct these omissions in Court over two years later.

13.	With respect to reliability, Mr Beniata submitted Constable Mwaio should have offered sustenance to the defendant at breakfast time, and not doing so made the statement less reliable as a result of thirst, hunger and tiredness.  He also submitted the admission of involvement in the 3 July 2019 incident was not voluntary because the fact of the defendant’s arrest pressured him into making the statement.  He submitted that the police took advantage of his arrest on 28 July 2019 to get information about the 3 July 2019 incident, and that the defendant did not realise his statement about the 3 July 2019 incident would be held against him because he thought he was being arrested only for the 28 July 2019 incident.

14.	Ms Beiatau submitted that it was clear from the defendant’s response under Part 5 that he understood the allegation put to him under Part 3.  She also submitted that no pressure was applied to him in the car; he just blurted out the admission of his involvement in the 3 July incident. 

15.	There was a certain amount of sloppiness on the part of the police on 28 July 2019. Purporting to fill gaps in statements more than two years after they were made by means of oral evidence in Court is not good practice.  As both Constable Mwaio and the statement from the defendant taken by Detective Sergeant Mareko were made much closer to the time of the alleged incident, what is said in the statements is likely to be more reliable than what was said in Court.  For this reason, I will take the time of arrest to be just “after midnight” which means the defendant would have been detained for over 10 hours without food and water.

16.	Although neither counsel referred to s 12 of the Evidence Act 2003, no doubt because it refers to a direction to juries about unreliable evidence, it is good advice to judges sitting alone to remind themselves of the need for care in determining whether to accept the evidence and the weight to be given to it in a case where the reliability of evidence may be affected, in the words of s 12(1)(b), by “age, ill health (whether physical or mental), injury or the like.”  This provision is relevant to Beniata’s submission about the lack of food and water offered to the defendant, and the length of time he was detained.

17.	In Republic v Kauabanga Tokiau, Millhouse CJ refused to admit a caution statement taken from a defendant who had been held in custody without food or drink, and without complaining, for more than 24 hours.  His Honour did so “as a mark of disapproval at the way this man was treated:”
	Once a person is arrested, he is in the custody of the police.  The police have a responsibility for his welfare.  That includes giving him food and drink.  If relatives are informed and come with food and drink, well and good.  If not then the police must provide them.  I suggest most strongly that the Commissioner, if he has not already done so, put in place arrangements to ensure that once a person is arrested, he or she is properly looked after for all the time he or she is in police custody.  Looking after him or her includes providing sustenance.

18.	On the other hand, the New Zealand Court of Appeal has said that exclusion of a statement cannot be used as a “tool for disciplining police” or as a mechanism for creating “the necessary incentive for the police to get the law right.”   What is important is that reliance on the statement must “not undermine the credibility of the criminal justice system by eroding public confidence in it,” and this was essentially why Millhouse CJ excluded the statement in Tokiau. 
 
19.	It is not useful to compare the 24 hours in Tokiau with the 10 hours in this case.  It is not a numerical counting exercise.  The individual circumstances of each case must be considered to assess the reliability of the contested statement.  In Attorney-General v Tebana, the Kiribati Court of Appeal said “it is clear law that no statement made by an accused person is admissible in evidence unless it is shown by the prosecution to have been voluntary.”  Mr Beniata submitted that the defendant was “overborne.”  I do not think he was overborne in the sense of the examples given in McDermott v The King cited in Tebana, which include “duress, intimidation, persistent importunity, or sustained or undue insistence or pressure.”  Nor do I think the mere fact of his arrest constituted the sort of pressure contemplated in Tebana and McDermott.  I am however concerned about the effect that the combination of circumstances in this case – the duration of the detention, sloppy police practice, the potential for confusion in the defendant’s mind about the purpose of his arrest and detention, and the lack of food and water following the defendant’s arrest and continuing beyond breakfast time – has on both the reliability of the statement and public confidence in the credibility of the criminal justice system.  For these reasons, the statement is ruled inadmissible.

Does the statement disclose the offending alleged?

20.	In the event I am wrong about the admissibility of the statement, I will consider the merits of the prosecution case as revealed by the statement.  The only evidence of what happened on 3 July 2019 is found in the statement. 

21.	To be guilty of the offence in s 293(a) of the Penal Code, the prosecution must prove beyond reasonable doubt that the defendant broke and entered a shop.  It is clear from his statement that the defendant did not break and enter a shop on 3 July 2019.  It was his co-accused Kaete who did so.  The prosecution relied on the party provisions of ss 21 and 22 of the Penal Code.  Ms Beiatau submitted that the defendant enabled or aided Kaete to commit the offence to which he has pleaded guilty in terms of s 21(1)(b) and that he and Kaete formed “a common intention to prosecute and unlawful purpose in conjunction with one another” in terms of s 22.  The prosecution must prove the elements of the party provisions beyond reasonable doubt, in this case, with the statement.  I am left with reasonable doubt for the following reasons.

22.	Ms Beiatau invited me to draw inferences from the content of the statement.  She relied on Tawanang Tenikomu and 12 Others v The Republic in which the Kiribati Court of Appeal said “proof of a common intention to prosecute an unlawful purpose in conjunction with others is often a matter of inference to be drawn or deduced from the proved overt acts of the accused person which clearly show an apparent criminal purpose in common between them.  If some positive act of assistance or involvement in the commission of a crime is voluntarily done, with knowledge of the circumstances, then in our view this is sufficient to support a conviction.”  She submitted that the “chat” the defendant had with his co-accused before the alleged offending, and their travelling together to Betio, show the required intention.  She submitted I can infer the defendant knew what would happen.

23.	I am less convinced.  The Court of Appeal in Tenimoku said “a statement by an accused person in a confession to the police made after the happening of the alleged crime cannot be treated as an act or declaration made in pursuance of a common design to prove the existence of such a common intention.”  That is what we have in this case.  Even putting that aside, the Court of Appeal in Tenikomu required the overt acts from which the inference is to be drawn to “clearly show” a common intention to prosecute the acts forming the offence with which he is charged.  The Court of Appeal also required proof of knowledge of the circumstances.  I do not think there is sufficient clarity in the statement to show a common intent or knowledge.  

24.	First, the statement does not reveal the content of the chat, only that there was a chat. They accompanied each other into Betio, but there is nothing in the statement from which it can be inferred that the required common intention was formed in the chat or that the subsequent trip to Betio was to prosecute that common intention by breaking into the Mini Market.  Second, the defendant said he refused to climb onto the roof.  This tends to show an unwillingness to prosecute the offending with Kaete, which is supported by his statement that despite seeing a security guard, he did not do anything to warn Kaete.  Third, although he waited some distance away at the Fish Market, about two blocks from the Mini Market, the Court of Appeal said in Tenimoku that “mere continued voluntary presence at the scene of the crime, even though it was not accidental, this of itself does not necessarily amount to participation in the crime.”  Subsequent enjoyment of the fruits of Kaete’s offending is as much a sign of teenage opportunism as it is evidence of a common intention previously formed.

25.	For these reasons, even if I had ruled the statement admissible, I find the prosecution has not proved the alleged offending beyond reasonable doubt.  Had I not ruled the statement inadmissible, I would have found the defendant not guilty.  

26.	The charge is dismissed.

Dated 3rd day of December 2021.

Hon William Kenneth Hastings
Chief Justice