Taabu v Republic [2006] KICA 10; Criminal Appeal 05 of 2006 (26 July 2006)

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

CRIMINAL APPEAL 5 of 2006

BETWEEN

TAKIRUA TAABU
Appellant

AND

THE REPUBLIC
Respondent

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel: Aomoro Amten for appellant
Olga Guillen for respondent

Date of Hearing: 20 July 2006
Date of Judgment: 26 July 2006

JUDGMENT OF THE COURT

Introduction

[1] The appellant was charged with an offence against the customs laws contrary to section 134 (1) (a) of the Customs Act. The particulars charged that on 16 February 2005 he made a false statement orally and in writing in a matter relating to the customs laws. Following a defended hearing, the Chief Justice in a judgment dated 28 March 2006 found him guilty. He has appealed against that conviction.

Factual background

[2] The facts are not in dispute. They are set out in detail in the judgment the subject of the appeal. The following summary will suffice for the purposes of determining the appeal.

[3] The appellant is a senior customs officer. On 16 February 2005 sometime after 4 pm he and others boarded a ship. Included in the others were two or three persons well-known in Kiribati. The appellant anticipated making only a routine inspection. However he found there was cargo on the ship consisting of three motor cycles, a digital copier and some other items for which there were no customs documentation. He assessed the customs duty at over a thousand dollars and filled out the necessarily paperwork. Two of the persons present, apparently the owners of the cargo, offered to pay the duty immediately. The appellant would not accept payment because he did not have his receipt book with him.

[4] The goods were brought back to the wharf and loaded onto trucks. The appellant decided to trust these two persons to pay the duty later and gave them permission to take the goods that night. He went home. When the two trucks reached the main gate of the wharf the security guard refused to allow them through because there were no release documents either from the Ports Authority or from customs.

[5] The appellant returned to the wharf. He told the security guard to release the goods but the guard refused. There were discussions by radio between the appellant and the guard's superior. The appellant then wrote a certificate that he gave to the guard. It read:

"This is to certify that the items released from this gate have been cleared from customs.

(Signed) Takirua Taabu"

[6] The guard then allowed the goods to be taken from the wharf.

Customs Act

[7] Section 134 (1) of the Customs Act provides that any person who, in any matter relating to the customs laws, makes or causes to be made any false statement orally or in writing commits an offence.

[8] The appellant relied on s 126 (1):

"Without prejudice to any protection afforded to the Board or any officer by this Act or any other law, no criminal or civil proceedings shall lie against any officer for any act done

In good faith and

Without gross negligence

In the exercise of any power or the performance of any duty confirmed or imposed by or under this Act."

Judgment in the High Court

[9] The Chief Justice expressed his finding on this submission as follows:

"I suspect that Takirua may have felt in an embarrassing and difficult position. Mr Tito and Dr Taitai are amongst the most prominent gentlemen in Kiribati, both have held 'high office, Mr Tito the highest in the Republic. They were anxious to have their goods. Takirua may have felt under pressure. These considerations are relevant to penalty on conviction but are nor relevant to a finding- of guilt or otherwise: Takirua may well have acted with good intentions but he did not act in good faith."

False Statement

[10] Counsel for the appellant in his written submissions submitted that the statement was not false. However, in the course of oral argument, he accepted, in our view rightly, that this submission could not be supported. Clearly it was false. The items could not be cleared from customs until the duty of over $1,000 had been paid, which it had not.

[11] Further, there was evidence from the security guard that the appellant had told him to tell anyone that the release documents were available with him at his office, but the office was closed and they could be picked up later. That statement also was false. There were no release documents at the office.

In Good Faith

[12] Counsel for the appellant submitted that even if the statements were false, they were made in good faith. He submitted that the appellant only made the statement when the security guard insisted and that it was made only for that purpose. However mistaken of negligent the appellant was, he was acting honestly in complying with the demand of the security guard.

[13] In Central Estates (Belgravia) v Woolgar [1972] 1 QB 48 Denning MR at 55 noted that a claim is made "in good faith" when it is made honestly and with no ulterior motive. In the same case, Megaw LJ at 57 held that "in good faith" meant "honestly".

[14] In Chief Commissioner for Business Franchise Licenses (Tobacco) v Century Impact Pty Ltd (1996) 40 NSWLR 511 the issue was whether an inspector had acted in good faith in taking part in the seizure of tobacco. The Commissioner argued that the inspector’s acts fell within s 27 of the Business Franchise Licenses Act which provided that an officer shall not be subject to any action of liability if ". . . the matter or thing is done in good faith for the purpose of executing this Act . . ." The New South Wales Court of Appeal held that " . . . the officer is protected from liability so long as what the officer did was intended to be in furtherance of the officer’s duty to the general citizenry and was not done maliciously or for any reason other than carrying out of the officer’s public duty." .

[15] To act "in good faith" in the execution of a statutory duty or office, the person must have acted honestly, that is the person must be under the honest belief that he or she was acting within the boundaries of the duty or office. Whether a person acted honestly is a question of fact.

[16] We are satisfied that the appellant, in making the written and oral statements, was not acting in good faith. He knew that the statements were false. They could not be said to have been made honestly when he had that knowledge and when he knew that the purpose of the statements was to obtain the release of goods for which no customs clearance had been given and for which customs dues remained unpaid.

The result

[17] The statutory defence does not apply. The appellant was rightly convicted. The appeal is dismissed.

Hardie Boys JA
Tompkins JA
Fisher JA