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Republic v Tarabo [2005] KIHC 41; HCCrC 010 2005 (18 July 2005)

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

High Court Criminal Case No. 10 of 2005

THE REPUBLIC

vs

KAOTINTEUN TARABO

For the Republic: The Solicitor General, Mr David Lambourne with Ms Eweata Maata
For the Accused: Mr Glenn Boswell

Dates of Hearing: 4, 5 & 6 July 2005

JUDGMENT

Kaotinteun Tarabo was originally charged with three offences – murder, aggravated riot and directing intimidation. At the end of the prosecution case the Republic entered a nolle prosequi on count 3, directing intimidation.

[I am puzzled why the Republic used the term “aggravated riot” in the charge. The Ordinance (s. 22) speaks only of “riot”.]

The particulars of murder and aggravated riot:-

On the 27^th day of October 2004, at Temanokunuea, Butaritari in the Republic of Kiribati, Kaotinteun Tarabo murdered Tooni Timon.

On the 27^th day of October 2004, at Temanokunuea, Butaritari in the Republic of Kiribati, Kaotinteun Tarabo, with other persons, took part in a riot and unlawfully destroyed: three local houses, the property of one Baretarawa Bio; three local houses, a store and a motel, the property of one Nakareke Benson; and one local house, one aluminium boat and one motorcycle, the property of one Airan Muller.

The charges arise out of the same incidents on Butaritari as I had to consider in HCCrC 65/04, the Republic vs Tioti Toromon and Tokantetake Katia.

In this trial Tioti and Tokantetaake each gave evidence for the prosecution. Each denied that he had been offered any inducement for giving evidence against Kaotinteun. Nevertheless I should treat their evidence with special care. Likewise three of the other prosecution witnesses: Anginteaba Ienimoa, Tawita Kautunimakin and Tokamaitarawa Barekiau. They were three who took part in the events of 27 October. They have been granted immunity from prosecution and like Tioti’s and Tokantetaake’s evidence I should treat theirs with care. I have in mind section 12 of the Evidence Act. Even so I have concluded that I may accept beyond reasonable doubt the truth of what the five of them told me.

In the latter half of 2004 there was trouble on Butaritari which came to a head on 27 October. The trouble arose out of the dissatisfaction of the members of the Butaritari Unimane Association with three families, those of Baretarawa Bio, Nakareke Benson and Airan Muller, all of the village of Temanokunuea. They were the rebels. They had refused to support financially the Butaritari soccer team and had queried the accounts of the Association. They were at odds with the rest of the island. Various sanctions had been imposed on them – refusal to buy their fish or deal at their stores and so on. No sanction had worked. They remained defiant.

On 24 October the Unimane met. Kaotinteun, the chairman of the Association, chaired the meeting. The defiance was discussed. The unimane were on the point of resolving Temanokunuea village should be visited – I use a neutral word as there is some dispute as to the word used: it may well have been “mobbed” – to bring the rebels to see reason. Before a final decision was made the MP Mr Tinian Reiher came to the meeting. Tinian, according to the minutes of the meeting with some eloquence, persuaded the unimane not to take any action at least for the time being. Tinian left. The final decision after Tinian had gone is not clear: probably that the matter be deferred to see whether the families could be made to see reason. Kaotinteun was to be the judge of that and to authorise action if he thought necessary. Beyond reasonable doubt no future date was fixed on the 24^th October for further action.

On Saturday the 27^th October Kaotinteun went round on a motorbike from village to village telling the unimane that a decision had been made, that night one man from each family in each village was to assemble for a visit to Temanokunuea.

Kaotinteun arranged the transport. He hired three trucks, two from the Co-op, one from the Council (the Unimane Association paid for them) to pick up men from each village. The result: some hundreds of young men and unimane assembled at the airfield. They were taken by vehicle to Watikano village and walked the remaining three or four kilometres to Temanokunuea.

1. Why was the visit to be at night?
2. Who organised it?
3. What were they to do when they got there?
   
   1. A visit during the day would have been more appropriate if the aim were simply to reason with the rebels. I can only conclude that the visit was to be at night to be the more intimidating for the local people: they would not know who had come, how many there were, why they were there or what they meant to do. Very frightening.
      
   2. Anyone who at night has had to move a large body of men knows that it does not just happen. It must be carefully organised. Men had to be assembled in the assembly area, the airport, moved to the forming up place, Watikano village, given their final orders as to their particular objectives in Temanokunuea, given the order at H hour, the agreed time, to move across the start line from Watikano village and approach their objectives. Kaotinteun in giving evidence said he gave no directions, only the time transport would arrive: it must have been the unimane from the various villages who decided on the plan of action. That is absurd. The unimane had no time. I do not accept that they met somehow in the dark at the airfield and agreed on a plan. Besides there is no evidence of it apart from Kaotinteun’s suggestion. Although I doubt it matters who made the final plan as Kaotinteun had already set the operation in motion there is only one person, Kaotinteun, who could have organised this: he admits organising the transport and going round to give the signal for the operation that night. He admitted in answer to me:-
      

Not to be done that very day (24^th October) but if they still refused later on the punishment was to be carried out. I was entrusted with job if they refused to obey I was to go round and get transports ready. It was left to me if they refused – Under the obligation entrusted to me I decided that this should be done on 27 October. No one told me this to happen on 27 October.

Kaotinteun made the decision, planned the operation and gave the signal and counselled the unimane in each village that the operation was to take place that night. If he had not gone round from village to village that day the visit to Temanokunuea would not have happened that night.

Kaotinteun lived at Temanokunuea. He made sure he was not there that Saturday night, the 27^th October. He took his family to Onomaru village. He said he was tired and needed a good sleep: if he stayed at Temanokunuea his sleep would have been disturbed. During the night he saw flames from Temanokunuea, watched, did nothing, went back to sleep. Kaotinteun had left Temanokunuea with his family to be out of harm’s way, out of the way of the violence he knew there would be.

3. What were they to do when they got there? Just surround the houses of the three families as a shew of force? Say nothing? Kaotinteun said he knew of no one nominated to speak. There would have been no point in it: some hundreds of men, armed, with hostile intent to stand there mute. That also is absurd. The unimane were angry with the rebels. They were counselled by Kaotinteun: they recruited their young men. They went to Temanokunuea to cause trouble: to burn and to stone. There was ample evidence that they took weapons. Tioti, for example:-
   

People had sticks, clubs: I had stick – ordered to do so by unimane.

I have mentioned the word “mob”. I am handicapped by not knowing the Kiribati word used but I am satisfied that whatever the word used at the meeting on the 24^th October it implied the doing of violence.

And there was violence. Baretarawa, Nakareke and Airan, the rebels, gave evidence of that. Their houses were stoned and burned. They were in fear for themselves and their family. They gave estimates of the loss of their property:-

Baretarawa about $5,000

Nakareke $70,000-$80,000

Airan $14,837

Worse than the property damage was the death of Tooni Timon. Tooni, a young man, protested, was chased by the mob, beaten and stoned to death: his body was thrown over the seawall where it stayed until the next day.

At the trial of Tioti and Tokantetaake I accepted the evidence of the three ladies, N. Baaboo Burantemwanoku, N. Tabwakea Timon, N. Kaboo Botara that that happened. They gave evidence again in this trial and again I accept beyond reasonable doubt their evidence. Likewise N. Buniita Tioti, the nursing officer. She gave evidence at both trials that when she examined Tooni’s body about 7 o’clock the next morning he was dead. He had severe wounds to the back of his head.

I find beyond reasonable doubt that Tooni was beaten and stoned to death and his body thrown over the seawall.

Mr Boswell in making the submission of no case to answer argued that may be Tooni was still alive when he was thrown over the seawall and drowned lying on the beach. First I do not accept that he was still alive when he was thrown over and, even if he were alive, it would have made no difference in law if he were lying there incapacitated and drowned: his attackers would have caused his death just the same.

To sum up the facts. Kaotinteun was the ring leader: counselled the unimane who counselled the people of their villages. Kaotinteun made the decision to attack. He organised the operation. He caused the men to gather to carry out the attack. They did carry it out and in the course of it Tooni was killed. Meanwhile Kaotinteun made sure he and his family were out of harm’s way.

What of the law?

The Solicitor-General relied on section 21(1)(d) of the Penal Code and section 23:

21(1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say - ....

(d) Any person who counsels or procures any other person to commit the offence.

23. When a person counsels another to commit an offence, and an offence is actually committed after such counsel by the person to whom it is given, it is immaterial whether the offence actually committed is the same as that counselled or a different one, or whether the offence is committed in the way counselled or in a different way, provided in either case that the facts constituting the offence actually committed are a probable consequence of carrying out the counsel.
    

In either case the person who gave the counsel is deemed to have counselled the other person to commit the offence actually committed by him.-----

When an attack is carried out at night by a large group of armed men against a village with the intent of intimidation by stoning and burning, a death of someone is a foreseeable and probable consequence.

Mr Boswell most helpfully referred me to a number of Queensland decisions on sections 7, 8 and 9 of the Queensland Criminal Code. Sections 21, 22 and 23 of our Penal Code are in similar form. I need refer only to the judgment of Gibbs J in Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426 @ 442):

The question posed [in section 8 (Kiribati Section 22)] is whether in fact the nature of the offence was such that its commission was a probable consequence of the prosecution of the common unlawful purpose and not whether the accused was aware that its commission was a probable consequence. This was recognised by all the members of this court in Brennan v R. Starke J said (55 CLR at 260-1):

“A probable consequence is, I apprehend, that which a person of average competence and knowledge might be expected to foresee as likely to follow upon the particular act; though it may be that the particular consequence is not intended or foreseen by the actor”.

Eventually it is a matter of applying common sense to a situation. Would “a person of average competence and knowledge” (as I find Kaotinteun to be) have realized as a matter of common sense that someone could be killed? The answer is “Yes”.

The death of Tooni Timon was a probable consequence of the carrying out of Kaotinteun’s plan and he had counselled that the plan be carried out.

Kaotinteun is as guilty of the murder of Tooni Timon as if he had been present and killed Tooni himself.

What of count 2, aggravated riot?

Section 22(1) of the Public Order Ordinance:-

22(1) Any person taking part in a riot who unlawfully pulls down or destroys or begins to pull down or destroy any building, machinery, structure, vehicle, vessel or aircraft shall be liable to imprisonment for 14 years.

That is what happened.

Section 20 defines an unlawful assembly:

(1) When 3 or more persons –

(a) assemble or are assembled with intent to commit an offence; or

(b) being assembled conduct themselves in a manner intended or likely to cause any person reasonably to fear that the persons so assembled will commit a breach of the peace or will by such conduct provoke other persons to commit a breach of the peace,

they are an unlawful assembly.

The assembly of the young men was an unlawful assembly.

Section 21 makes what happened a riot:-

21(1) When any person taking part in an assembly which is an unlawful assembly by virtue of section 20(1) commits a breach of the peace the assembly is a riot.

There was certainly a breach of the peace.

For the same reason as Kaotinteun is guilty of the murder of Tooni Timon, so he is guilty in taking part in the riot by the application of section 23 of the Penal Code.

I find the accused guilty of both murder and of aggravated riot.

Dated the 18^th day of July 2005

THE HON ROBIN MILLHOUSE QC
Chief Justice