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Republic v Tokiraro - judgment [2002] KIHC 92; Criminal Case 10 of 2002 (5 November 2002)

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

Criminal Case No. 10 of 2002

THE REPUBLIC

vs

TEIWAKI TOKIRARO

For the Republic: Ms Tetiro M Semilota
For the Accused: Mr Aomoro Amten

Date of Hearing: 5 November 2002

JUDGMENT

There were two witnesses for the prosecution, an old lady, Nei Kinaua Bureua and police constable Tabuki Temaewe. The defence called one witness, Berenato Nawaia but his evidence, despite Mr Amten’s arguments to persuade me to the contrary, came to nothing.

The accused is charged with arson:-

Teiwaki Tokiraro on or about the 24^th day of January 2001, at Eita Village, Tab-North, unlawfully set fire to a dwelling house (raised floor house) owned by Bureua.

Nei Kinaua does not see well and Mr Tipstaff had to help her into the witness box and to go over to the dock so that she could see the accused clearly. She identified him as the man she had seen throw something lighted on to the roof of the house in which she had been lying. Despite her poor sight now I am satisfied that it was sufficiently good in January 2001, nearly two years ago, to recognise the accused.

Nei Kinaua said that the fire was “this year in January”. This was a mistake. I have no doubt that she was in the house when it was burnt down nor any doubt about her account of what happened:-

About midnight discussion with some people – people left. There was a couple I stayed with and we were having a conversation. When they left I went to Bureua’s house where I used to sleep. Sitting on buia. I went inside mosquito net: other lady already under the net with her child: conversation with the lady. I saw a person coming from the ocean side. Stood on the side of the house: close. I couldn’t recognise him properly as it was a bit dark. Stood there and set a thing he was holding on fire and that’s when I recognised him: Teiwaki: had on red shorts. He threw what he was holding on to roof of house. Just the red shorts. He ran away. We get our things and pulled down mosquito net before fire got to it: things out of house: threw them outside. A few minutes he came back and asked us “Why are you setting it on fire. Are you cleaning up”. I didn’t answer him: still had on red shorts. Knew Teiwaki before, very well.

PC Tabuki fixed the date of the fire as 24 January 2001: after the fire he was at the scene.

The defence was lack of reliable identification of the accused. The accused did not give evidence but Berenato Nawaia, a young man of 19, did:-

Lived with Bureua and Kinaua at Bureua’s house. When house burned at Bureua’s, sleeping. When I saw it, it was burning. I was looking for a knife I could see him holding something which looked like a knife. He was behind a tree. I don’t know who the person was. I was about 3m away. Kinaua was under the mosquito net and so was I. What I saw very hard to describe: it was a knife. Flame when house burnt.

Mr Amten argued that, as Berenato’s account was so different from Nei Kinaua’s, I should have a doubt about the old lady’s evidence. I do not. That Berenato told a different story and had not recognised the accused, does not affect Nei Kinaua’s evidence at all. Berenato was not asked whether he had known the accused before the fire. Perhaps if he had said he had known Teiwaki beforehand and if he had doubted the identity of the culprit, then maybe I would have had a doubt.

As I accept Nei Kinaua’s evidence beyond reasonable doubt, it is inevitable that I find the accused guilty of arson.

Dated the day of November 2002.

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE