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

Criminal Appeal No 3 of 2006

BETWEEN

URITI ROBWATI
Appellant

AND

THE REPUBLIC
Respondent

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel: Karotu Tibu for appellant
Birimaka Tekanene for respondent

Date of Hearing: 20 July 2006
Date of Judgment: 26 July 2006

JUDGMENT OF THE COURT

Introduction

[1] The appellant was charged that on 30 January 2005, he broke and entered a shop and committing a felony, namely larceny and that on the same day and place he committed larceny. In the alternative he was charged with receiving the property that had been stolen from the shop. The owner of the shop valued the stolen items at $10,036.00. He was uninsured.

[2] Following a trial before the Chief Justice he was, on 1 May 2006, found guilty of larceny but not guilty of breaking entering nor of receiving. He has appealed against his conviction on the charge of larceny.

The course of the trial

[3] The prosecution case relied on the evidence of a co-offender Teaitao Kabane. He had been charged with the same offences and had pleaded guilty. Because the prosecution had anticipated that he would be giving evidence for the prosecution in the trial of the appellant, his sentencing had been deferred until after the trial of the appellant.

[4] In his evidence in chief to the prosecutor, he said that when he entered the shop where the offences occurred, no-one was with him. The prosecutor then asked that he be declared hostile on the grounds that the evidence he had given was contrary to the statement he had given to the police and to the statements of his counsel at the time he pleaded guilty. This application was granted. The prosecutor then cross-examined him on the contents of the statement in which he had said that the appellant was with him when he broke into the store, but Teaitao, despite what he had said in his statement, persisted in his evidence that the appellant was not with him when he broke into the store. The statement to the contrary in his police statement, he said, was not true. After producing the police statement as an exhibit, the prosecution’s examination of Teaitao ended. At that stage, the prosecution had failed to prove that the appellant was involved in the break in or the larceny. The prosecution did not have any other witness to prove that involvement.

[5] However, the Chief Justice intervened. What follows are his questions and the witness’s answers:

"COURT:	Witness’ caution statement would be Exhibit P1.

GUILLEN:	No further questions Your Honour.

COURT:	Just a minute. You tell me that after you broke into the store you and this chap went drinking together?

TEAITAO:	Yes.

COURT:	Do you remember saying this to the police ‘I with Uriti took a walk around Bairiki heading to the Bairiki market and he told me to go and break into the store’?

TEAITAO:	Yes.

COURT:	Was that true?

TEAITAO:	No.

COURT:	Why did you tell the police that then?

TEAITAO:	Because I was given freedom to give my statement.

COURT:	Yes. Why then did you say that you were with Uriti when you broke into the store if you weren’t?

TEAITAO:	Because they were the ones that took away the remaining items. That’s why I blamed him.

COURT:	What do you mean they were the ones who took away the remaining items?

TEAITAO:	That’s the reason why I blamed them.

COURT:	Because they were with you. Uriti was one of those who was with you, isn’t that so?

TEAITAO:	Yes.

COURT:	So you did break into the store with this man.

TEAITAO:	I’m not sure because I was very drunk at that time.

COURT:	Come on. Was this man with you when you broke into the store?

TEAITAO:	No.

COURT:	Did he come into the store after you’d broken into it then?

TEAITAO:	As I’ve said I’m not really sure because I was so drunk at that time.

COURT:	Why then didn’t you tell the police you were so drunk that you weren’t sure who was with you?

TEAITAO:	I just give whatever according to what I could recall on that day.

COURT:	Then why did you tell the police that Uriti was with you breaking into the store?

TEAITAO:	Because he was drinking with us.

COURT:	Did he break into the store with you?

TEAITAO:	As I said I’m not really sure because I was very drunk.

COURT:	Why didn’t you tell the police on Abemama then that you weren’t sure because you were very drunk?

TEAITAO:	Because they wanted to take my statement so I just give them.

COURT:	So you told them lies, did you?

TEAITAO:	I’m not very sure.

COURT:	Come on. If you told them that Uriti broke into the store with you was that a lie or not?

TEAITAO:	A lie.

COURT:	Do you remember that you took away two sleeves of Rothmans?

TEAITAO:	Yes.

COURT:	How is it that you remember that but don’t remember who broke into the store with you?

TEAITAO:	Because when I first came I entered the shop and then I took two sleeves of Rothmans with me and we went to pawn it and then he was with me at that time.

COURT:	When did you first see him then?

TEAITAO:	When I came back from the store.

COURT:	Where did you see him?

TEAITAO:	Beside his house.

COURT:	Where’s that?

TEAITAO:	At Bairiki village.

COURT:	And did you have them with you, the two sleeves of Rothmans?

TEAITAO:	Yes.

COURT:	And did you tell him where you got them, that you’ve broken into the store and taken them?

TEAITAO:	Yes.

COURT:	So he knew you’d stolen these two things.

TEAITAO:	Yes.

COURT:	But you’re sure that even though you told the police on Abemama that he broke into the store with you he didn’t in fact break into the store.

TEAITAO:	Yes.

COURT:	I’ve made this note. I think it sums up what he said. I’ll read it out to you because I want to make sure that you accept that it’s accurate. The witness now says he was too drunk to remember. He broke in on his own, took two sleeves of cigarettes and went to the accused’s house, told him he’d broken in and taken them. The accused was not with him when he broke in despite what he said in his caution statement. That sums up his evidence I think.

GUILLEN:	Yes. I have further questions –

COURT:	Of course but that sums up what he said so far.

GUILLEN:	Yes I agree.

COURT:	When you took the two sleeves of cigarettes to the accused’s house what did you do with them?

TEAITAO:	I went and pawn them in a shop.

COURT:	Did the accused go with you?

TEAITAO:	Yes.

COURT:	What did you do with the money?

TEAITAO:	I bought our drinks.

COURT:	And you and the accused then drank what you bought?

TEAITAO:	Yes.

COURT:	Where did you pawn the cigarettes?

TEAITAO:	I’ve no idea. I’m not sure of the name of the shop.

COURT:	I’ve made this note further. I went with the accused and we pawned the cigarettes. With the money we bought drinks which we drank. That sums it up. Why did you say to the police that Uriti was responsible for the lost items, those are the things that disappeared from the shop. Why did you say Uriti was responsible?

TEAITAO:	Because there were some items that went missing after we have been drinking and that’s why I blamed him.

COURT:	Had you seen those items?

TEAITAO:	No.

COURT:	Where did they come from?

TEAITAO:	From that shop.

COURT:	Who took them?

TEAITAO:	After we had drank the first time from there we went again to the same shop, entered the same shop again and stole some more items.

COURT:	So you went into that shop twice did you?

TEAITAO:	Yes.

COURT:	And the second time this man Uriti was with you.

TEAITAO:	Yes I think he was with me at that time.

COURT:	And he took things out of the store the second time?

TEAITAO:	Yes as I said I’m not really sure because I was very drunk but we only went in together then we came out together.

COURT:	I think this is right. Listen carefully. After we have been drinking we went back to the same store and Uriti was with me. We took other items but I was drunk and not sure what Uriti took. Is that accurate?

TIBA:	Yes.

GUILLEN:	Yes Your Honour.

COURT:	More questions?"

[6] Counsel for the appellant then cross-examined the witness, during which the following exchange occurred:

"TIBA:	Teaitao you said that you were with Uriti the second time when you went back to the shop.

TEAITAO:	Yes.

TIBA:	That cannot be true Teaitao.

TEAITAO:	Yes."

[7] Later:

TIBA:	"Yes. I put to you Teaitao that Uriti never was with you when you went to the shop in the first place and in the second time that you allege.

TEAITAO:	Yes that’s true."

[8] Later:

TIBA:	"So what you have been telling or put in your statement to the police were all lies.
TEAITAO:	Yes."

[9] A prosecution witness produced the statement that Teaitao gave to the police at the time he was charged. In it he said:

"I with [appellant] took a walk around Bairiki heading Bairiki market and he told me to go and break a store. We did no know whose store is [appellant] break the store lock and he entered into. I took away two sleeves of Rothmans." 

[10] It was the correctness of this statement that the appellant denied when cross-examined by the prosecutor and by counsel for the appellant. The store owner told the court that the lock was not broken – entry was gained through the roof.

[11] There was no other evidence called by the prosecution tending to support the allegation that the appellant was with Teaitao on either the first or the second occasion that he was in the store.

[12] The appellant gave evidence. He denied that he was at any time in the store with Teaitao. He said that he met Teaitao later when he had a plastic bag. He said that Teaitao gave him a watch and three rings. He gave the watch to a friend, a ring to an old lady and he did not know what happened to the other two. He also said Teaitao gave him a walkman which he gave to one of the boys. He knew that these items were stolen.

[13] At the end of his evidence, the court adjourned for the break until 2 pm. On resumption the Chief Justice said:

COURT: Before we go any further I noticed during lunch time that what came out in your cross examination of the first witness was that the accused was with him the second time he went into the shop and you didn’t refer to that in your examination in chief of your own client and you didn’t cross examine on it and of course it’s a vital thing and I want to give you the opportunity because as it stands you see your client hasn’t denied it. He hasn’t agreed that it happened or anything. So it stands. I think in fairness you should be given an opportunity to consider that and may be want to recall your client to examine him on that. I think it was something I put to him but it was in cross examination and it’s there and you or Ms Guillen ought to have an opportunity to cross examine the accused if he goes back into the box.

[14] When counsel for the appellant recalled him, he said that he did not on any occasion enter the shop. He maintained that denial when further cross-examined by the prosecutor.

Judgment in the High Court

[15] After setting out passages from the evidence of some of the witnesses, the Chief Justice expressed his conclusion:

When I put to the accused what Teaitao had said, that he, the accused had been with Teaitao the second time Teaitao went in, he replied that Teaitao had been vague as to whether he, the accused had been with him. That was not the impression I had of Teaitao's evidence. He was finally quite definite that the accused had been with him the second time he went into the store.

Considering all the evidence at the trial I have no reasonable doubt that the accused was one of those who entered Mr Torote's store: and together with Teaitao stole the items which Mr Torote found missing. I cannot, however, be certain beyond reasonable doubt that the accused actually broke into the store. If Teaitao's story is correct (which I doubt but cannot be sure) that he broke in the first time on his own and went back a second time in company with the accused, then the accused is not guilty of breaking: he merely entered the store after Teaitao had broken into it. I therefore find him guilty only of larceny and not guilty of house-breaking.

[16] Because of the finding of guilty on the larceny charge, he was found not guilty of receiving.

[17] It is apparent from the Chief Justice’s conclusion that he found the appellant guilty in reliance solely on the statement Teaitao made when being examined by the Chief Justice that the appellant was with him when he went into the store on the second occasion.

Conclusion.

[18] Counsel for the appellant advanced two grounds in support of the appeal, namely that the Chief Justice erred in accepting the evidence of Teaitao and in becoming involved in the trial to the extent that he did.

[19] Taken separately, neither of these grounds would support the appeal. But taken together, along with a further aspect to which we refer, we conclude that the verdict is unsatisfactory.

[20] Assessing the credibility of a witness is an issue of fact that is particularly within the province of the trial judge. We set out authorities for this proposition in our judgment in Terara v The Republic CA no 4 of 2005, judgment 8 August 2005. We do not repeat them here.

[21] But in the present case the evidence of Teaitao must give rise to some concern. As is apparent from the passages to which we have referred, he changed his account of the appellant’s involvement several times.

[22] The further aspect is that Teaitao was an accomplice. Indeed, not only had he pleaded guilty to two of the charges, his sentencing had been deferred until after the hearing of the charges against the appellant. Since the passing of s 11 of the Evidence Act 2003, it is no longer a requirement of the law that the evidence of an accomplice relied on by the prosecution be corroborated or that a judge must direct a jury that it is dangerous to act on the uncorroborated evidence of an accomplice. But, the trier of fact should still normally be careful before accepting as proof the uncorroborated evidence of an accomplice, particularly where as here the accomplice was awaiting sentence. There was no evidence to corroborate Teaitao’s evidence that the appellant was present when he entered the store the second time. The Chief Justice in his judgment made no reference to Teaitao being an accomplice.

[23] The final issue is the extent of the Chief Justice’s intervention in the examination of Teaitao that is set out in full above. We accept that a judge is entitled to question a witness to clarify an aspect of the witness’s evidence or to resolve an apparent inconsistency or uncertainty. But in the common law system of adversarial trials, it is essential that any intervention is done in a way and to an extent that does not give an appearance of a lack of judicial impartiality. This is particularly so in a trial before a jury where excessive judicial intervention may have a significant influence on the jury’s decision. But it also applies, albeit to a lesser degree, in a trial before a judge sitting without a jury. As was said by Cooke P, delivering the judgment of the Court of Appeal in R v Fotu [1995] NZLR 129 at 142, ". . . a scrupulously and demonstrably fair trial is of first importance in the public interest and for the justice system."

[24] In the present case, the prosecutor in his cross-examination of Teaitao had failed to obtain evidence of the appellant’s involvement in either of the occasions when Teaitao had entered to store. However, it appears from the transcript that the Chief Justice then set out to remedy this failure and after a long and detailed cross-examination of the witness, succeeded in obtaining the necessary evidence from the witness. In our view, this degree of judicial intervention, where the Chief Justice appears to have assumed the role of prosecutor, goes beyond that which is appropriate in a criminal trial.

Result

When the unsatisfactory nature of Teaitao’s evidence, the fact that he was an accomplice and the degree of judicial intervention are considered together we have reached the conclusion that the verdict is unsatisfactory.
The appeal is allowed. The verdict of guilty on the larceny charge is quashed. As any new trial would also have to be before the Chief Justice and that is clearly inappropriate, we do not order a new trial. 

Hardie Boys JA
Tompkins JA
Fisher JA