Home | Databases | WorldLII | Search | Feedback High Court of Kiribati

Tekinano v Republic [2021] KIHC 11; Criminal Appeal 4 of 2021 (22 November 2021)

IN THE HIGH COURT OF KIRIBATI

CRIMINAL APPEAL NO. 4 OF 2021

[MEERE TEKINANO APPELLANT
[
BETWEEN [AND
[
[THE REPUBLIC RESPONDENT

Before: The Hon. Chief Justice William Kenneth Hastings

Date of Hearing: 18 November 2021
Date of Judgment: 22 November 2021

Counsel: Mr. Tabibiri Tentau for the Appellant

Ms. Pauline Beiatau for the Respondent

JUDGMENT OF HASTINGS CJ

1. Meere Tekinano was charged with criminal trespass contrary to s 182(1)(a) of the Penal Code, and threatening violence contrary to s 83(1)(a) of the Penal Code. She pleaded not guilty to both charges and went to trial before a Single Magistrate. The Magistrate found her not guilty of threatening violence, but guilty of criminal trespass. Meere Tekinano appealed her conviction before she was sentenced.
2. With respect to the conviction for trespass, s 182(1)(a) provides that:
   182. (1) Any person who –

(a) enters into or upon property in the possession of another with intent to commit an offence or to intimidate or annoy any person lawfully in possession of such property;

is guilty of a misdemeanour, ... and if the property upon which the offence is committed is any building used ... as a human dwelling ... the offender shall be liable to imprisonment for 1 year.

3. The Magistrate appears to have believed Tirian Robuti’s evidence that the defendant entered her veranda and that “this veranda is part of a place owned by Tirian” despite having no ownership certificate because no distribution had been made. The Magistrate recorded that the defendant said she owned the land and “tendered her ownership and map to the Court.”
4. Mr Tentau for the appellant appeals on three grounds: first, the magistrate erred in holding the complainant had lawful possession of the property; second, the evidence tends to show the complainant was residing at her grandparent’s home at the time and had no standing to complain; and third, the prosecution did not prove beyond reasonable doubt an intention to commit an offence when the defendant entered the property.
5. Ms Beiatau for the respondent submitted that the building entered by the defendant was occupied by the complainant at the time of the offending and had been since she was a child. The complainant was in custody of the house and thus in possession of it. She submitted that until a Court orders her to leave the house, she is in lawful possession of it. She submitted that evidence of intent to annoy at the time of entry can be inferred from the fact she was angry about smoke from the open fire next to her toilet and she entered the house carrying a stone.
6. There is no real dispute that the defendant entered the property. The evidence of the complainant, that “Meere came and infiltrated my home” and hit the table located in the verandah with a stone, does not appear to have been undermined when the complainant was questioned, and appears to have been confirmed by the defendant herself in her evidence where she admitted accidentally hitting the table with her hand. There was sufficient evidence to the required standard for the Magistrate to find that the defendant entered the property.
7. I agree with Ms Beiatau that an intent to annoy can be inferred from the fact she entered the property in an angry state holding a stone. The Magistrate considered the defendant’s account that she had the stone in her hand to ward off a dog, but found she “intended to fight and to cause annoyance and intimidation when she brought the stone and hit Tirian’s table with it.” There was sufficient evidence to support this finding.
8. The issue is whether the prosecution proved beyond reasonable doubt that the property “was in the possession of another” as required by s 182(1)(a).
9. Ownership and possession are different concepts. The definition of “possession” in the Penal Code refers to “actual possession or custody.” The Shorter Oxford English Dictionary (1973 edition) defines possession as “actual occupancy, as dist. from ownership.” Section 182(1)(a) does not require proof of legal ownership, it requires proof of possession.
10. In The Common Law,^[1] Oliver Wendell Holmes asked, “Why is possession protected by the law, when the possessor is not also an owner?” Holmes wrote that the principle was ancient, founded on the desirability for courts of law, rather than individuals, to regulate competing interests in property. In McPhail v Persons Unknown,^[2] Lord Denning MR discussed the difference with respect to the position of tenants vis-à-vis the legal owner: “If he remains in possession and occupation, there is high authority for saying that the owner is not entitled to take the law into his own hands and remove the tenant by force. He should go to the court and get an order for possession. Otherwise he is guilty of a criminal offence ...”.
11. It seems in this case that both the complainant and the defendant have competing claims to ownership that will not be resolved until a distribution is made or the matter is resolved in the Magistrate’s Court. The Magistrate erred in focusing on ownership instead of possession, but the evidence before the Magistrate was that Tirian Robuti was living at the property where she said she had lived since childhood.
12. This is a criminal appeal. It is not a land appeal determining who has the better claim to the property. I agree with Ms Beiatau, that to assert her claim to the property, the proper course of action is for the defendant to resolve the issue before the land magistrates.
13. There was sufficient evidence for the magistrate in this case to have found the complainant was in possession of the property, and that, not ownership, is what is required by s 182(1)(a). There is nothing in the evidence to show the complainant was residing at her grandparent’s home at the time as Mr Tentau submitted.
14. For these reasons, the appeal is dismissed. The matter is referred back to the magistrate for sentencing. Leave to appeal sentence is granted.
    

Dated 22^nd day of November 2021.

Hon William Kenneth Hastings

Chief Justice

^[1] Holmes, O W, The Common Law (1881), pp 206-213.
^[2] McPhail v Persons Unknown [1973] Ch 447, [1973] 2 All ER 393.