[1979] KILR 96

COURT OF APPEAL OF KIRIBATI

Criminal Appeal No 1 of 1979

TAWANANG TENIKOMU AND 12 OTHERS

v

THE REPUBLIC

(Spring P. Thompson and Nicholson J.J.A.)

Bairiki: 16th and 19th October 1979

Appeal to Court of Appeal - Arson contrary to section 312(d) of the Penal Code (Cap 8) - section 22 of Cap 8 - common intention - continued voluntary presence at scene of crime - question for Court to decide - section 21 of Cap 8 - statement made by one accused after event - not act or declaration made in pursuance of common design - section 120(c) (i) of Cap 7 - not essential for prosecution to prove ownership - section 8 of Cap 8 - bona fide claim of right - no evidence to support honest claim of right - sentences of 3 years' and 18 months' imprisonment not manifestly excessive or wrong in principle - appeal dismissed.

This was an appeal against the decision of the High Court held at Betion on 23rd April 1979 (O'Brien Quinn C.J.) in which all the accused, together with two others who were acquitted, were convicted of arson contrary to section 312(d) of the Penal Code (Cap 8) in respect of the burning of certain mining equipment belonging to the British Phosphate Commissioners on Banaba (Ocean Island) on 15th February 1979. The appeal was based on the grounds that there was no evidence of arson against those accused who were merely present without participation, that the trial judge erred in holding that a statement to the Police by one of the accused was proof of common intent on the part of the other accused, that the trial judge had no jurisdiction to try the case, that the ownership of the property burnt was not proved and that the defendants acted on a bona fide claim of right.

HELD: (1) That 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 and if some positive act of assistance or involvement in the commission of a crime is voluntarily done, with knowledge of the circumstances, then this is sufficient to support a conviction;

(2) That the appellants had formed a common intention to damage the machinery and plant of the British Phosphate Commissioners and that, following sections 21 and 22 of the Penal Code, each of the appellants was a principal offender;

(3) That 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 a common intention;

(4) That, as was conceded by Counsel for the appellants, it was not essential for the prosecution to prove ownership by virtue of section 120(c) (i) of the Criminal Procedure Code;

(5) That the unsworn statements of the appellants did not amount to a claim of ownership of the land on which the machinery, which was damaged by the appellants, was situated and that the appellants did not, on the evidence, bring themselves within the ambit of section 8 of the Penal Code;

(6) That the sentence of 3 years' imprisonment on four of the appellants and 18 months' imprisonment on the others were not manifestly excessive or wrong in principle.

(The ground that the High Court lacked the jurisdiction to try the case was abandoned).

Authorities referred to:-

R v Coney (1882) 8 Q.B. 534

K.C. Ramrakha, Barrister, for the Appellants
M. Takabwebwe, State Advocate, for the Republic

SPRING P. (delivering the judgment of the Court):-

The above named appellants each appealed against his conviction by the High Court of the Gilbert Islands sitting at Betio on 23rd April 1979 of the offence of arson. TAWANANG TENIKOMU, KANENEI TEABOKA, ROKOUEA TEMAURI and TIRIOBO IOANE were each sentenced to 3 years imprisonment; the remaining appellants were each sentenced to 18 months imprisonment. Notices of appeal against conviction only were lodged. On the 12th July 1979 the independent Republic of Kiribati came into being. This Court established by the Constitution of Kiribati is now charged with the duty of deciding these appeals.

At the hearing Counsel for the appellants sought leave to appeal against the sentences imposed by the High Court upon the ground that the sentence were harsh and excessive; leave was granted accordingly.

The facts may be briefly stated.

The Appellants, and 2 others who were acquitted by the High Court, were charged with Arson contrary to Sec. 312(d) of the Penal Code which states "Any person who wilfully and unlawfully sets fire to...a mine or the workings fittings or appliances of a mine is guilty of a felony".

It was alleged that at approximately 8 p.m. on the evening of 15th February 1979 at a place known as the "Unit" on the island of Banaba they wilfully and unlawfully set fire to a gantry control cabin, a primary Crusher Motor, and an Ml conveyor belt at W5 conveyor, the property of the British Phosphate Commissioners. All appellants pleaded not guilty; 15 witnesses were called by the prosecution. The evidence established that a large number of persons went to the area mined by the British Phosphate Commissioners on Banaba and some of them were seen throwing or pouring benzine on to machinery and equipment at the mine; igniting the benzine with matches with the result that machines, motors and conveyor belts used in the crushing of phosphate were extensively damaged.

The appellants neither gave, nor called, evidence although some of them made unsworn statements from the dock claiming that they owned the land and phosphate on Banaba and that they set fire to the machinery and equipment to prevent phosphate being crushed and removed.

Four Grounds of Appeal were argued namely -

(1) There was no evidence of arson against those accused who were merely present without participation.

(2) The learned trial Judge erred in holding that a statement to the police by one of the accused was proof of common intent on the part of the other accused.

(3) The ownership of the property burnt was not proved.

(4) The defendants acted on a bona fide claim of right.

Counsel for appellants abandoned the ground of appeal that the trial Judge lacked jurisdiction to hear the prosecutions. Mr Ramrakha argued grounds (1) and (2) together and submitted that the evidence led by the prosecution was vague, confusing and lacked clarity and precision as to the actual offenders; that a large number of persons were standing around the machinery and equipment at the mining area and that the prosecution failed to prove beyond reasonable doubt who set fire to the machinery. Further, that there was insufficient evidence showing the existence of a prior common intention or design on the part of the appellants to set fire to the machinery and that the trial Judge had merely presumed the formulation of such a common intention design or purpose; that the trial Judge had treated statements made to the Police by some appellants as acts or declarations made in furtherance of a common intention or design and that such were admissible as proof of such common intention against the other appellants.

Mr Takabwebwe for the respondent submitted that there was ample evidence which established the guilt of the appellants beyond reasonable doubt; that there was direct and positive evidence either from witnesses or contained in confessions or admissions made, which positively proved that at least 7 of the appellants namely TAWANANG TENIKOMU, TIONIKAI BETERO, TAWAIA TEBANO, ROKOUEA TEMAURI, UTIA IOTIRA, KANENEI TEABOKA and TIAON SMITH committed the offences alleged against each of them. That it was not disputed that the remaining 6 appellants were seen at the scene of the crime, some carrying benzine and generally associated with the setting on fire of the machinery; and that the trial Judge had not treated or used an unsworn statement made by one accused person as being admissible against other co-accused.

Turning now to a consideration of the Law.

Section 22 of the Penal Code (Cap 8) states

"When two or more persons from a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose each of them is deemed to have committed the offence".

It is clear from the authorities that where the evidence shows mere continued voluntary presence at the scene of a crime, even though it was not accidental, this of itself does not necessarily amount to participation in the crime.

However, where a person is voluntarily and purposely present witnessing the commission of a crime and offered no opposition though he might reasonably be expected to prevent and had the power to do so, or at least express his dissent, might in some circumstances afford cogent evidence upon which a court would be justified in finding that he was acting together with others in a common unlawful enterprise; it would, however, be purely a question for the Court to decide having regard to all the surrounding circumstances R v Coney (1882) 8 QB 534.

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.

Turning now to the evidence; it is clear that the appellants travelled to the mining area together at night on 15th February 1979 at approximately 8 p.m.; the mining area is, according to the map put in evidence, a considerable distance from the residential area of Banaba where the appellants resided; they were seen carrying benzine from vehicles which took them took them to the scene was deliberate and undisputed: they embarked on a setting fire to machinery using the benzine which they had brought with them; after setting fire to some machinery they moved, as a group, to damage other plant at the mine.

The learned Chief Justice in the Court below, carefully analysed the evidence referable to the 6 appellants against whom there was no direct evidence of setting fire to the machinery and plant.

In the course of his judgement the learned Chief Justice said -

"The evidence before me was that a land Rover belonging to the Rabi people carrying more than 10 persons arrived a the Unit or Phosphate House at about 8 p.m. on the evening of 15th February 1979; that the purpose of this body of people was to carry out the burning of the machinery at the Unit; that the body was formed into three distinct groups; that most of these 6 accused were actually or when he spoke with B.P.C. employees; that they were all seen there before, during and after the fires were lit by more than one witness and in some cases by more than 3 witnesses……In my opinion all these 6 accused did more that just stand idly by while the fires were lit and the property destroyed. They took part in a common unlawful purpose namely the burning of the machines and thus brought themselves within the scope of section 22 of Cap 8."

Upon a consideration of the whole of the evidence we are driven to the inescapable conclusion that the appellants had formed a common intention to damage the machinery and plant of the British Phosphate Commissioners.

Further, it is clear that apart from Section 22 of the Penal Code, the evidence in our opinion clearly supports a finding that each of the appellants was a principal offender within the provisions of Section 21 of the Penal Code (Cap 8) in that they aided and abetted each other in the commission of the crime of arson.

Complaint was levied by Mr Ramrakha that the learned Chief Justice had misdirected himself in holding that a statement to the police by one appellant was proof of common intent on the part of the other appellants.

The Statement complained of reads -

"Further where two of more persons are engaged in a common enterprise the acts and declarations of one in pursuance of that common purpose are admissible against the other or others (Phipson 12th Edn 261) and in the confessional statement of TIONIKAI 6th Accused, Exhibit 14, it was clear that it was a concerted action and that the accused persons came together in a Land Rover belonging to the Rabi people divided into three groups with the intention of stopping the working equipment of which warning had been given the previous day".

We agree with Mr Ramrakha that a statement by an accused person in a confession to the police made after he 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.

However, in our opinion there was an abundance of evidence from which the learned Chief Justice could very properly conclude that the appellants were acting in concert with the common intention of damaging the mining plant of the British Phosphate Commissioners and accordingly while the statement made by the learned Chief Justice was no doubt made per incuriam the Court could not in our view on the evidence come to any conclusion other than a verdict of guilty; further as we have stated the evidence in our view clearly supports a finding under Section 21 of the Penal Code (Cap 8).

None of the appellants gave testimony; some made statements from the dock acknowledging that they burnt or set fire to the machinery of the British Phosphate Commissioners. We reject the submission made by Mr Ramrakha that the learned Chief Justice used the admissions made by some appellants as proof of the complicity of the other appellants in the commission of the offence. The learned Chief Justice carefully detailed in his judgment the evidence against each appellant and painstakingly distinguished the evidence applicable to those appellants who had made admissions, and those appellants who had not.

Accordingly we are satisfied that the grounds 1 and 2 must fail.

We turn now to the 4th and 5th grounds of appeal.

Mr Ramrakha conceded that it was not essential for the prosecution to prove ownership by virtue of Section 120(c) (i) of the Criminal Procedure Code which provides -

"the description of property in a charge or information shall be in ordinary language, and such as to indicate with reasonable clearness the property referred to, and, if the property is so described, it shall not be necessary (except when required for the purpose of describing an offence depending on any special ownership of property or special value of property) to name the person to whom the property belongs or the value of the property."

Mr Ramrakha submitted that the appellants in setting fire to the machinery of the British Phosphate Commissioners acted on a bona fide claim of right and he called in aid Section 8 of the Penal Code (Cap 8) which reads -

"A person is not criminally responsible in respect of an offence relating to property if the act done or omitted to be done by him with respect to the property was done in the exercise of an honest claim of right and without intention to defraud".

Mr Ramrakha submitted that the appellants were not arsonists in the true sense of the word; that they had acted openly and not with stealth; that in setting fire to the machinery they acted in the exercise of an honest claim of right.

Six of the appellants made unsworn statements from the dock claiming -

"Banaba is our land and the phosphate is ours and we burnt down the machines because we don't want any phosphate to be taken away. That is all".

No evidence was led in support of the submission that the appellants acted under a bona fide claim of right. The unsworn statements did not in our view amount to a claim of ownership of the land on which the machinery, which was damaged by the appellants, was situated. The statements made by the appellants were of a nationalistic flavour related to the island of Banaba generally as a political entity. In the circumstances obtaining and having regard to the statements made there was not, in our view, any obligation cast upon the prosecution to call evidence to disprove the alleged claim of right as the appellants did not on the evidence bring themselves within the ambit of Section 8 of the Penal Code (Cap 8).

Accordingly we reject grounds 4 and 5 of the appeal.

We now consider the appeal against sentence. Mr Ramrakha urged upon the Court that the sentences imposed were harsh and excessive. The four appellants who were each sentenced to 3 years imprisonment were seen by witnesses to be actively engaged in pouring benzine on, and setting fire to, the machinery at the mine. The other appellants whom the learned Chief Justice considered played a lesser role were nevertheless purposely present and assisting in the commission of the crime and each was sentenced to 18 months imprisonment. In our opinion the learned Chief Justice took into account all the mitigating factors urged upon him. We are satisfied that the sentences imposed were not manifestly excessive or wrong in principle.

Accordingly the appeal by each appellant against sentence is dismissed.

In conclusion the trial was in many respects complex, difficult and lengthy; there were a large number of accused persons; and many witnesses were called by the prosecution. The learned Chief Justice dealt with the evidence and all other matters raised in the trial with care and attention.