Teitikai v Republic [2004] KICA 9; Criminal Appeal 09 of 2004 (23 August 2004)

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

Criminal Appeal No. 9 of 2004

BETWEEN:

URIAM TEITIKAI
Appellant

AND:

THE REPUBLIC
Respondent

Coram: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel: Jennifer Troup for the Appellant
David Lambourne, Solicitor General for the Respondent

Date of Hearing: 17 August 2004
Date of Judgment: 23 August 2004

JUDGMENT OF THE COURT

[1] The appellant was charged with two counts of theft. He was acquitted on one but convicted on the other. He appealed against his conviction.

[2] When the appeal came before this Court, Mr Lambourne advised that the Republic conceded that the decision of the High Court should be set aside and the conviction quashed. He did not ask for any other order.

[3] The allegation against the appellant was that he received money on behalf of his employer, which he was required to pass on to another employee. After holding on to the money for a number of days, he passed on a sum that was $331.75 less than he had received. He was charged with the theft of that sum under S.251 of the Penal Code, and was convicted.

[4] The facts alleged however did not support a charge of theft under S.251, which deals with someone who "takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof". The appropriate charge would have been one of conversion under S.271(1)(c) of the Code, which covers the situation where a person receives money on behalf of another, and fraudulently converts it to his own use.

[5] Mr Lambourne in this Court conceded that the charge had been wrongly laid and that the conviction could not stand.

[6] He could perhaps have sought an amendment, even at this stage, by substituting a charge under S.271 but considered it inappropriate to do so in the circumstances.

[7] The appeal is therefore allowed, the decision of the High Court is set aside, and the conviction is quashed.

Hardie Boys JA
Tompkins JA
Fisher JA