Toani v Republic [2002] KICA 4; Criminal Appeal 05 of 2002 (12 August 2002)

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

Criminal Appeal No. 5 of 2002

BETWEEN:

BETERO TOANI
Appellant

AND:

THE REPUBLIC
Respondent

Coram: Casey JA
Hardie Boys JA
Tompkins JA

Counsel: Taoing Taoaba for appellant
Polo Tebao for respondent

Date of hearing: 8 August 2002
Date of judgment: 12 August 2002

JUDGMENT OF THE COURT

[1] The appellant seeks leave to appeal against his conviction on a charge to which he pleaded guilty in the course of the trial. To explain the grounds of the appeal, it is necessary to refer in some detail to the charges and course the trial took.

[2] The accused was charged with five counts:-

Count 1

Statement of Offence

ATTEMPTED MURDER contrary to section 208(a) of the Penal Code Cap. 69.

Particulars of Offence

Betero Toani on or about the 14 October 2000, between 11 and 12 in the night at Rungata village on the island of Nikunau, attempted to murder Nei Maria Beetero.

Count 2

Statement of Offence

ATTEMPTED MURDER contrary to section 208 of the Penal Code Cap. 69

Particulars of Offence

Betero Toani on or about the 15 October 2000 between 6 am and 8 am, at Rungata villge on the island of Nikunau attempted to murder Nei Maria.

Count 3

Statement of Offence

DEFILEMENT OF A GIRL UNDER 13 YEARS contrary to section 134(1) of the Penal Code Cap. 69.

Particulars of Offence

Betero Toani on or about the 15 October 2000, in the early morning, at the village of Rungata, Nikunau island had unlawful sexual intercourse with Teaoruru Kautu who was 11 years old on five occasions on that same day.

Count 4

Statement of Offence

ASSAULT CAUSING ACTUAL BODILY HARM contrary to section 238 of the Penal Code Cap. 69.

Particulars of Offence

Betero Toani on or about the 15 October 2000 assaulted Nei Maria by punching her on the face and as a result Maria suffered injuries.

Count 5

Statement of Offence

INDECENT ASSAULT contrary to section 133(3) of the Penal Code Cap. 69.

Particulars of Offence

Betero Toani on or about the 12 October 2000 at Rungata village on the island of Nikunau intended to insult the modesty of Nei Teaoruru Kautu by telling her that he will rape her.

Background

[3] The Chief Justice outlined the background of the case in this passage:

"The accused, a married man with eight children, had been for some time the boy friend of Maria, a widow. He did not live with her but used to spend several days at a time at her house. On the early evening of Saturday 14 October, the accused turned up. He brought with him some alcoholic drink. He drank it. He said Maria had some but she denied that. The accused may have been drunk but drunkenness was not put as a defence. I need not mention it again."

Counts 1, 2 and 4 concern what happened between the accused and Maria. The accused and Maria had a domestic quarrel. The accused said it was over Maria’s abortion: Maria said it arose out of the accused asking whether Teaoruru had begun menstruating yet. The quarrel became a fight which ended with Maria running away and not coming home until the morning.

That left the accused alone in the house with Maria’s two young daughters. Counts 3 and 5 concern his treatment of the elder, that in her mother’s absence he had sexual intercourse with Teaoruru against her will."

[4] It will be seen that this passage is not quite correct. Count 5 did not relate to the same series of events that were alleged to have occurred on 15 October 2000. It related, as is apparent from the particulars of offence, to events alleged to have occurred three days earlier on 12 October 2000. Count 5 did not allege sexual intercourse with Teaoruru against her will. It alleged that on that earlier occasion, he told her that he would rape her.

[5] The trial commenced on 4 June 2002. At the conclusion of the prosecution case, Ms Hibling, counsel for the appellant submitted there was no case to answer on any of the counts. The Chief Justice ruled that there was no case on counts 2, 3 and 4. Overnight he realised that he was in error. On the morning of 5 June he ruled that the appellant did have a case to answer on count 3, reduced from a charge of defilement to one of unlawful and indecent assault contrary to s 133 (1) of the Penal Code. He also ruled that the appellant had a case to answer on count 4, reduced from assault causing actual bodily harm to common assault. The Chief Justice in his judgment then recorded what occurred:

"Ms Hibling took instructions from her client. As a result the accused was re-arraigned on counts 4 and 5 and pleaded guilty to them. [I assume he pleaded guilty to count 5 because he said later, in his evidence, that he had grabbed at Teaoruru's vagina, when she was importuning him to have sex with her, in an attempt to dampen her ardour.]"

[6] Again, it appears that this passage is not quite correct. Count 5 does not relate to the appellant’s acknowledgment that in the course of the events that occurred on 15 October he grabbed at the victim’s vagina. It relates, as we have pointed out, to events that occurred on a different earlier occasion.

The plea of guilty

[7] The appeal against the appellant's conviction on count 5 is on the ground that the guilty plea was entered in error, and that there was no evidence to support the appellant's conviction on count 5.

[8] In support of the appeal, an affidavit by Ms Hibling, counsel for the appellant at the trial, has been filed in this court. No formal application for leave to call evidence at the hearing of the appeal has been made, but in view of the nature of the appeal, leave is granted.

[9] Ms Hibling's affidavit is commendably frank and fair. She deposes to the events that occurred when she made the no case application. In respect of count 5 she submitted that there was no evidence at all called by the prosecution to support that count. She says that the Chief Justice replied that there was definitely a case to answer because in cross-examination the defence had put forward a case of indecent assault by touching the victim's vagina.

[10] She refers to the events that occurred the following morning when the prosecution made further submissions as a result of which the Chief Justice made the orders to which we have referred above. She goes on to say:

"Following the further submissions by the prosecution the Chief Justice adjourned the case for five minutes to allow me to take further instructions on the lesser charges. Upon my advice my client agreed to plead guilty to common assault on Maria, the mother of the victim. Also upon my advice he agreed to plead guilty to count 5. I now accept that my advice was given in error and I should not have advised him to plead guilty.

The reason for this mistaken advice arose out of the Chief Justice's comments when I submitted that there was no case to answer in respect of count 5."

[11] She deposes that, because the adjournment was short and she was under pressure to resume the trial, her advice to her client was given in haste and she now believes that it was incorrect.

The respondent’s response.

[12] At the commencement of the hearing of the appeal, the court sought from Ms Tabao, counsel for the Republic, an indication of the respondent's response to the submissions and evidence on behalf of the appellant. Ms Taboa responsibly acknowledged that the respondent accepted that there had been an error when the appellant, on his counsel's erroneous advice, pleaded guilty to count 5. She also accepted that the prosecution had not called any evidence to establish the charge in count 5.

The result

[13] In view of the evidence submitted on behalf of the appellant and the approach adopted on behalf of the respondent, we do not find it necessary to refer to the authorities relevant to an appeal against conviction following a plea of guilty. We are satisfied that in the present case an error was made when the guilty plea to count 5 was entered. We are also satisfied that the prosecution had not called evidence that could justify a verdict of guilty on that charge.

[14] Accordingly, leave to appeal is granted, the appeal is allowed, the conviction on count 5 is quashed, as is the sentence imposed of three months’ imprisonment. The sentences of three and a half years for the unlawful and indecent assault and two months for the common assault are confirmed. The total period of imprisonment of three years and eleven months is therefore reduced to a total period of imprisonment of three years and eight months.

Casey JA
Hardie Boys JA
Tompkins JA