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Republic v Atiboto [2008] KIHC 39; Criminal Case 22 of 2008 (11 September 2008)

In the High Court of Kiribati
Criminal Jurisdiction
Held at Betio
Republic of Kiribati

High Court Criminal Case 22 of 2008

The Republic

v

Temau Atiboto
Tabokaai Aree

For the Republic: Ms Tewia Tawita
For the 1st Accused: Ms Meghann Everett
For the 2nd Accused: Mr Giles O'Brien-Hartcher

Date of Hearing: 10 & 11 September 2008

JUDGMENT

Temau Atiboto and Tabokaai Aree are jointly charged with assault occasioning actual bodily harm:

On the 1st January 2008 Temau Atiboto and Tabokaai Aree at Buariki village on the island of South Tabiteuea assaulted Kaoiaki Tekakoro thereby causing him actual bodily harm.

In Buariki village last New Year’s day Temau was a special sergeant of police, Tabokaai a special constable.

It was early in the morning, between 3 and 4 o’clock.

There is no need to go into the detail of the actions of each of those participating in this incident. I have formed a settled view of the situation.

The alleged victim, Kaoiaki and friends were drinking yeast in or near the KPC maneaba. Although there is no direct evidence of it I have no doubt they were making nuisances of themselves. Those in the maneaba threw sticks and stones at them to persuade them to leave. They left. The police heard shouting on the road way. They went to arrest Kaoiaki who was shouting. He resisted and the police, the two accused and two other police officers, had to walk him kicking and struggling to the police station. The police handcuffed Kaoiaki using ankle cuffs (they were all that were available) which had a longer chain between the cuffs. This allowed Kaoiaki more freedom of arm and hand movement. While going to the police station, not surprisingly, Kaoiaki and probably the police as well, received some injuries as they struggled together. Most significantly Kaoiaki had a nasty bruise on his left shoulder. Temau who admitted having hit Kaoiaki once with his baton (Temau said in self defence) said the blow was to the arm.

I wondered at first whether the injury amounted to actual bodily harm as there was no evidence of the breaking of the skin. Counsel guided me in the right direction.

"Bodily harm" has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the victim: such hurt or injury need not be permanent, but must be more than merely transient or trifling: R v Donovan [1934] 2 KB 498 ..... (Archbold (2003 ed) paragraph 19-197).

The point in dispute in the trial is whether Temau and Tabokaai used more force than necessary against Kaoiaki in arresting him and getting him to the police station. Such unreasonable force as amounted to assault occasioning actual bodily harm.

Kaoiaki in cross examination by Mr O'Brien-Hartcher:

Don’t know if I hit or kicked police officers ..... Doesn’t know if I had to be dragged.

Teiaoneaba Toumwane:-

He did nothing to police. He was struggling. Didn’t hear him say anything. While he was struggling I saw the hitting of the back of Kaoiaki. Tabokaai hit him with baton. Didn’t see Kaoiaki – hitting back. Handcuffed. Other two police officers dragged and led him away.

Teiwannang Raurenti:-

Saw Kaoiaki dragged along the road .... Kaoiaki shouting out to Titabu "Come and help me". Brought up with Kaoiaki. Related to both accused. ----- They hit Kaoiaki. Temau. I saw Temau bashing Kaoiaki up .... Baton. Kaoiaki was lying on his stomach. Didn’t see his hands. Can’t remember how man times – more than once – on the back ....

I saw Kaoiaki being bashed up, on ground. Didn’t see him struggling or kicking.

That was the prosecution evidence. If I were to accept it and there was nothing more then probably the accused are guilty. But there is more. Each accused gave evidence. I do not discount their evidence. Each asserted how difficult it was to get Kaoiaki to the police station. Neither was shaken in cross examination.

On the whole of the evidence I must have a serious doubt that Temau and Tabokaai, in a very difficult situation, early on the morning of New Year’s Day, trying to do their duty as special police officers, used more than necessary force in restraining Kaoiaki. I have at least a reasonable doubt that they should be blamed for the force they used or for the injuries Kaoiaki suffered as a result.

The accused are not guilty.

Dated the day of September 2008

THE HON ROBIN MILLHOUSE QC
Chief Justice