Nakau v Republic [2002] KICA 8; Criminal Appeal 01 of 2002 (12 August 2002)

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

Criminal Appeal No. 1 of 2002

BETWEEN:

KABOTAU NAKAU
Appellant

AND:

THE REPUBLIC
Respondent

Coram: Casey JA
Hardie Boys JA
Tompkins JA

Counsel: Emma Hibling for Appellant
Polo Tebao for Respondent

Date of hearing: 6 August 2002
Date of judgment: 12 August 2002

JUDGMENT OF THE COURT

[1] On 22 August 2001 Kabotau Nakau was convicted on a charge of criminal trespass contrary to s182(1)(c) of the Penal code Cap 67; and on one of unlawfully performing development on land within a designated area, contrary to s17 of the Land Planning Ordinance (Cap 48). On 29 October he gave an undertaking not to return to the land, following which he was released on probation on 20 November, subject to entering into a bond for two years to keep the peace and to be of good behaviour. He seeks leave to appeal against conviction but his notice was late and he applied for an extension of time, accompanied by a supporting affidavit from Mr Allen, the people's lawyer then acting for him. The Respondent raised no objection, and we granted the application and give leave.

[2] The Republic alleged that he was unlawfully occupying land, namely Nanontekoro in Betio, which was leased to the Government of Kiribati; and that he erected a house on it without permission when it was designated under the Land Planning Ordinance and approved by the local Land Planning Board for housing development. In the High Court the learned Chief Justice accepted the evidence of the Chief Land Surveyor placing the building squarely on land leased to the Government, and he found it to have been duly designated as alleged. He rejected the Appellant's evidence that it was on land outside that area.

[3] The only question raised in the appeal was the admissibility of the evidence about the position of the building given by the Chief Land Surveyor, Mr Tebutonga Ereata. He said that at the request of the local Land Planning Board his staff prepared a site plan showing the position of the Appellant's house, and that this was done by way of addition to an earlier base plan which showed existing houses, cadastral information and the shore line. He produced a photo-copy of the site plan made in July 2000 and he identified the Appellant's building indicated and named in it. However, in cross-examination he said he did not go on the site himself, and that the plan had been prepared by his surveyors, describing how they had gone about their work, and expressing his satisfaction that their plan was accurate.

[4] Objection was taken to this evidence on the ground that it was hearsay, and that the surveyor who actually prepared the site plan should have been called. His Honour rejected this, pointing out that the witness was the Chief Land Surveyor taking responsibility for work done by those under this direction, and who said the plan was accurate. We discussed this approach with counsel, neither of whom suggested any authority for that conclusion, which would appear to constitute an exception to the hearsay rule generally applicable in such circumstances, as emphasized by the House of Lords in Myers v DPP [1965] AC 1001, holding that any exception must be made by legislation. We were not referred to any providing for this situation in Kiribati, although in England (and in other jurisdiction) there are provisions for the admissibility of statements in business records, s this plan undoubtedly was: see s24 of the Criminal Justice Act 1988.

[5] There is the long-standing common law rule applying to public documents, which may be accepted by themselves as evidence of the truth of their contents, and Ms Hibling rightly conceded that the base plan relied on to mark the position of the Appellant's house would be such a document. Had it been shown that this addition was made to the base plan itself, it could have been regarded as part of that public document and be admissible accordingly, but the evidence on the point is ambiguous. It leaves us with the impression that the Appellant's house had been added only to the copy of that plan made for production to the Land Planning Board and if so, that particular plan would not qualify as a public document.

[6] That is not the end of the matter, however. In his evidence the Chief Surveyor said he knew the Appellant and where he lived, demonstrating a personal familiarity with the situation of his house, and he was not cross-examined about this. We think this evidence adds sufficient confirmation from his own knowledge of his statement to the Court that he was satisfied the site plan was accurate. Accordingly we agree with the learned Chief Justice (although for a different reason) that the Appellant's house was on the leased and designated area as charged.

RESULT

[7] The appeals against conviction are dismissed.

Casey JA
Hardie Boys JA
Tompkins JA