Attorney General v Mbwe [2006] KICA 3; Civil Appeal 02 of 2006 (26 July 2006)

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

Civil Appeal 2 of 2006

BETWEEN:

ATTORNEY-GENERAL
Appellant

AND:

TEINAI MBWE
Respondent

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel for appellant: David Lambourne (Solicitor-General)
Counsel for respondent: Aomoro Amten

Date of Hearing: 21 July 2006
Date of Judgment: 26 July 2006

JUDGMENT OF THE COURT

Introduction

1. The Attorney General appeals against a decision of the High Court of 21 December 2005. By that decision the High Court quashed an order that the respondent be imprisoned for six months for contempt of the Nikunau Magistrates’ Court, ordered that he be immediately at liberty, and ordered that the Attorney General pay him the sum of $1,250.00 by way of redress. The appeal is brought solely in relation to the redress order.

Background

2. The respondent was originally charged with common nuisance. He was brought before the Nikunau Magistrates’ Court on 31 July 2005 (CN 220/05). The proceedings on the charge of common nuisance were adjourned to the next sitting due to the unavailability of prosecution witnesses. However before adjourning the Court committed the appellant for contempt. The Court Minute records the following:

"Pros: I am not ready to proceed as I do not have any witness, I request for an adjournment of this case to the next sitting. And beside, your worships, look at this man, he comes to court drunk.

Ct: Police, could you smell Teinai Mbwe’s breath? He smell Teinai Mbwe’s breath and he could smell alcohol on him, and he was talkative to this court and he was stubborn and lie to this court that he was drunk and he did not want to plea guilty to the charge he was charge with."

Ct: "Since you are drunk to this court you would be imprisoned for 6 months for contempt of court, and for responding to their worships’ questions, and your case now would be adjourned for want of witness (the police’s witness)".

3. It seems reasonable to infer that the reasons for the six months imprisonment were those given in the final paragraph of the minute, namely that in the Magistrates’ view the respondent was intoxicated and impertinent.

4. The respondent was taken into custody immediately. There is no prison on the island of Nikunau. Upon arrest a prisoner is kept in police custody until he can be brought to Tarawa. Bringing him to Tarawa must await the first opportunity upon which there is both a police officer available to escort him (there are only two officers on Nikunau) and a visiting boat. Nor are there lawyers on Nikunau who could advise a prisoner of the right to appeal and apply for bail.

5. The respondent therefore remained in police custody on Nikunau until he was brought to Tarawa a little over two months later. On arrival he was advised of his right to appeal against the contempt committal and to apply for bail pending the hearing of the appeal. Those procedures were immediately set in train with the result that the respondent was released on bail. In all he was in custody for approximately two and a half months.

High Court proceedings

6. The respondent brought the matter before the High Court by way of appeal, notice of motion for certiorari and declaration, and an originating summons to determine specified questions.

7. The learned Chief Justice held that the actions of the Magistrates’ Court had been irregular on a number of grounds – the smell of liquor on a person’s breath was not enough to indicate drunkenness; there was insufficient evidence before the High Court to come to any conclusions as to the respondent’s sobriety and behaviour; any implied criticism of the respondent’s refusal to plead guilty was misconceived; six months was far too severe even if ythe respondent had been drunk and abusive; one month’s imprisonment was the most that could have been justified; and as he had already served two and a half months by that stage, he should be immediately released.

8. The Chief Justice then addressed the respondent’s application for redress for the period that he had spent in prison and the further periods that he had spent, and would be spending, on Tarawa awaiting the determination of his case.

9. After referring to Ramesh Lawrence Maharaj v Attorney General of Trinidad and Tobago (No. 2) ((1979) AC 385) and Simpson v Attorney General [Baigent’s Case] ((1994) 3 NZLR 167), the Chief Justice accepted that the respondent was entitled to redress in principle. He noted that Art 17 of the Kiribati Constitution entitled a person alleging contravention of sections 3 to 16 ofCthe Constitution to apply to the High Court for redress. The palar Article he considered to have been brea breached is not identified but he was presumably referring to a person’s right to a fair hearing under s 10. In consequence he awarded the respondent redress of $1,250.

The Appeal

10. In this Court Mr Lambourne made it clear that the Attorney General’s concern was confined to the possibility that individuals adversely affected by procedural irregularities would rely on this as a precedent for a right to compensation.

11. Mr Lambourne accepted that in special circumstances compensation could be granted for procedural irregularities amounting to breach of constitutional rights but submitted that redress should be reserved for the most extreme of cases. Redress would not normally be available because appeal rights represented an adequate remedy.

12. We accept that in the normal case of procedural error, a wronged litigant will have no right to constitutional redress. There are two reasons for this.

13. First, the remedy is reserved for "rare cases where there had been a fundamental subversion of the rule of law": Forbes v A-G of Trinidad and Tobago [2002] UKPC 21 at para 18 per Lord Millet. As a matter of degree, few cases will qualify. Not regarded as sufficiently serious was the treatment of the appellant in Forbes. After two periods of 19 months and 11 months imprisonment he was ultimately released when it was shown that he had been wrongly convicted. The fact that in the end it was shown that he had been wrongly convicted did not mean that he had not been afforded his constitutional rights for redress purposes.

14. Secondly, conventional processes of review, rehearing and/or appeal will normally provide an adequate remedy, whatever the nature of the initial error. In the normal case there is no justification for duplicating those avenues with constitutional redress as well: Maharaj v A-G of Trinidad and Tobago (No 2) [1978] UKPC 3; [1978] 2 All ER 670, 679 (PC); Independent Publishing Co Ltd v A-G of Trinidad and Tobago [2004] UKPC 26; [2005] 1 AC 190.

15. The latter point was illustrated in Independent Pubishing, supra. In that case an order for assessment of damages for breach of constitutional rights was discharged in the Privy Council in circumstances where the respondent had been able to secure his release on bail within four days. His committal for contempt had breached his constitutional rights but normal processes of appeal and bail represented an adequate solution. There was no justification for resorting to the additional jurisdiction of redress for breach of constitutional rights. Such redress was a matter of last resort to be reserved for those cases in which the litigant had been left with no alternative.

16. In Kiribati the last point is reinforced by the proviso to s 17(2) of the Constitution which gives the Court the discretion to refuse relief under that section where an adequate alternative remedy exists.

17. On the other hand it is also clear that where there has been both a fundamental subversion of the rule of law, and absence of any other effective avenue of redress, constitutional redress may be the only real possibility. Thus in Maharaj (No 2) a lawyer who was committed to prison for seven days for contempt in denial of natural justice was awarded monetary compensation by way of constitutional redress. The procedural error had been serious: the appellant was given no particulars of the contempt with which he was charged and thus had no opportunity to explain his conduct before being committed to prison. There was no alternative avenue of redress, there being no right of appeal from committals in Trinidad and Tobago at that time.

18. The two questions in the present case are therefore (a) whether this respondent suffered a fundamental subversion of the rule of law and, if so, (b) whether he had any effective means of obviating the wrong done by securing his release until the matter could be properly examined.

19. As to the first, Mr Lambourne did not attempt to justify the conduct of the Magistrates concerned. Particularly scrupulous observance of natural justice requirements is important when committal for contempt is in contemplation. In such cases the defendant lacks all the normal procedural protections of substantial notice, written particulars of the alleged offence, opportunity to prepare, and opportunity to present a coherent defence. In addition the closeness of the judicial officer to the issues involved creates a heightened risk of overreaction to the defendant’s conduct.

20. In the present case the Magistrates ought to have given the respondent particulars of his alleged contempt and allowed him adequate time and means with which to respond. The procedural irregularities were at least as serious as those which the Privy Council condemned in Maharaj (No 2). In addition six months imprisonment was wholly disproportionate to any contempt which might have occurred. We accept that this was a fundamental subversion of the rule of law for the purposes of constitutional redress.

21. The second element which must be satisfied is the absence of any effective avenue for addressing the constitutional breach. Mr Lambourne pointed out that Kiribati law made provision for the respondent to file an immediate appeal against the committal and apply for bail pending its hearing.

22. We can see that in most cases the availability of appeal and bail rights in Kiribati would be fatal to proceedings for constitutional redress. In the present case, however, the respondent had no access to lawyers, and therefore no practicable means of securing his release, until he was brought to Tarawa.

23. It would have been different if the Magistrates or court officials had advised the respondent of his appeal and bail rights, and facilitated his exercise of them, while still on Nikunau. There may well be room for improvement in training and instruction on that subject. But there is no suggestion that the respondent was afforded that opportunity in the present case.

Conclusion

24. This is one of those rare cases in which a man has suffered from both a fundamental subversion of the rule of law and lack of any effective means of overcoming the problem through conventional procedural channels.

25. The consequences were serious. Mr Lambourne did not argue that the $1,250 awarded was excessive as a matter of quantum

26. The appeal is dismissed.

Hardie Boys JA
Tompkins JA
Fisher JA