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Republic v Tauanibure [2003] KIHC 158; Criminal Case 21 of 2003 (26 November 2003)

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

Criminal Case No. 21 of 2003

THE REPUBLIC

vs

MIKAERE TAUANIBURE

For the Republic: Ms Tetiro M Semilota
For the Accused: Ms Taoing Taoaba

Date of Hearing: 24 November 2003

JUDGMENT

Mikaere Tauanibure is charged with larceny as a servant, an offence pursuant to section 266 of the Penal Code. The relevant part of the section:-

266. Any person who –
     
     • (a) being a clerk or servant or person employed in the capacity of a clerk or servant –
       
     • (i) steals any chattel, -------- belonging to or in he possession of his master or employer, or ........
       

is guilty of a felony, and shall be liable to imprisonment for 14 years.

Particulars of Offence

Mikaere Tauanibure, on the 9^th January 2002, whilst being employed by the Kiribati Shipyard Company as a Senior Storeman stole 40 bags of cement, worth $540 belonging to his employer.

Ms Semilota, prosecuting, in her helpful written opening address set herself the task of proving beyond reasonable doubt:-

That the accused is the servant at the time of the offence, and he steals any chattel ..... belonging to or in the possession of his employer.

There is no contest that the accused was employed by the Shipyard as Senior Storeman and that the Shipyard was the owner of the cement. The only contest is whether the accused "(stole) any chattel" – that is, intended permanently to deprive his employer of the bags of cement.

During the day of Wednesday the 9^th of January 2002 the accused and one other were seen at the Shipyard here in Betio to load 40 bags of cement on to a vehicle which the other man then drove away. There had been no payment. The accused, who gave evidence, asserted that he had authority to sign a Release Note so that the goods might be taken from the Shipyard on credit. Mr Teariki Kirite, the Marine Hardware Supervisor at the Shipyard, said that the accused had no such authority. Only the General Manager, the Finance Manager or the Supervisor could do that.

I accept Teariki's evidence and find beyond reasonable doubt that the accused did not have authority.

Two others, Roriki Iakobo and Tewanrenga Ruirate, saw what was going on. It was reported to Teariki.

Teariki spoke first on the day and then the next morning to the accused. The accused produced a cheque the next day, 10^th January, in favour of "B/Shipyard" for $540 but he was dismissed:-

On 9 January 2002 at Shipyard. Conversation with accused. 'Is it true cement had been released from Shipyard?' He said 'Yes'. Asked if it had been paid for or not and he said 'Yes' it had been paid for. In our branch at Bairiki.

On 10 January he visited me at home in morning 0700 to inform me that cement not paid off but he had a cheque from a customer payable to Kiribati Supply. I didn't see cheque but he said he'd returned it to customer to make it payable to Shipyard.

The accused admitted he lied about payment having been made at Bairiki: it had not been.

Nei Aileen Nitya was the only other prosecution witness. The accused came to her home on the evening of the 9^th of January and offered to get timber and roofing iron for the business which she and her husband run. The price would be $540. The accused came back the next morning and she gave him a cheque (now Exhibit P1):-

I gave it Mikaere: made out in favour of Shipyard. Nothing in return. It was presented and paid. Mikaere owes me $540: I expected to get timber and roofing iron: not cement.

The accused said the customer had wanted 40 bags of cement but did not have the money with him. The accused wanted to keep the customer for the Shipyard and so allowed him to take the bags on credit. When he was confronted he first lied by saying payment had been made at Bairiki. Later, instead of chasing the customer for payment he approached Nei Aileen Nitya and her husband. The arrangement, he said was that when the customer did pay, the Nityas would be given timber and angle iron for their $540. He did not chase the customer for payment as the customer "lived too far away, at Teaoraereke".

The accused went to Kiritimati in May of 2002 and in the four months before he left Tarawa he and the customer missed each other and so he did not approach the customer to pay.

Beyond reasonable doubt the accused and his mate (I have so far referred to him as a customer) loaded the 40 bags of cement and the mate drove off with them from the Shipyard. The accused lied first to Teariki Kirite and then to Aileen Nitya, trying, in different ways, to justify himself.

I have no doubt that the accused intended to steal, with the help of another, the 40 bags of cement: he intended permanently to deprive his employer, the Shipyard, of them.

The accused is guilty of larceny as a servant.

Dated the 26^th day of November 2003

THE HON ROBIN MILLHOUSE QC
Chief Justice