Republic v Narayan [2012] KICA 9; Criminal Appeal 2 of 2012 (15 August 2012)

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

Criminal Appeal No. 2 of 2012

BETWEEN

THE REPUBLIC
APPELLANT

AND

EDWARD NARAYAN
LOMI LOO
RESPONDENTS

Before: Paterson JA
Williams JA
Barker JA

Counsel: Pauline Beiatau for appellant
Botika Maitinnara for respondents

Date of Hearing: 13 August 2012
Date of Judgment: 15 August 2012

JUDGMENT OF THE COURT

1. Edward Narayan faced five charges in the High Court. Four were for various offences under the Customs Act 2005 and one for demanding money on forged documents under section 338 of the Penal Code.
   
2. Lomi Loo faced the same five charges plus a sixth of uttering a forged document under section 336(1) of the Penal Code.
   
3. A third person, Rajnesh Prasad was cited in a list of the same charges dated 19 May 2012. He was allowed to leave the jurisdiction, although we were not told whether he did so before or after the charges were laid. He has not been extradited from Fiji where he apparently resides. How he was allowed to leave Kiribati is hard to understand, given that the evidence in the joint trial of the First and Second Respondents made it fairly obvious that Prasad had been the person at the centre of the case. Given the geographical isolation of this country and the few international flights, it would be hard for anyone to leave unnoticed by the authorities. The apparent lack of vigilence and enforcement action is surprising. The learned Chief Justice in the High Court expressed similar views.
   
4. On 18 May 2012, the Chief Justice made an order under section 195 of the Criminal Procedure Code dismissing the prosecution case against the First Respondent on the basis of there being no case for him to answer. He was therefore acquitted on all counts.
   
5. On 15 June 2012, the Chief Justice delivered a reserved decision in which he found the Second Respondent not guilty on all counts. The Second Respondent had not made a 'no case' submission and had given evidence in his own defence. He was accordingly acquitted.
   
6. Acting pursuant to section 19B of the Court of Appeal Act 1980 – a section incorporated into the legislation in 2003 – the
   Attorney-General (appellant) appealed to this Court against both decisions of acquittal. As we shall comment later in this judgment, an appeal against an acquittal after a trial in the High Court is unusual in most common-law jurisdictions.
   

FACTS

7. Lomi, as owner of a business called Neotech Enterprises, was the consignee of a container sent from Fiji by a company called Pacific General Hardware Ltd of which Prasad was the owner. Prasad instructed Lomi to uplift an invoice and a bill of lading from TSKL which Lomi gave to a customs agent for processing. Prasad said that he and his friend, Narayan, would fly from Fiji to open the container for which Prasad had the key.
   
8. On 10 December 2010, a public holiday in Kiribati, the container was opened and inspected by two Customs officers in the presence of Prasad, Narayan and Lomi. Certain items corresponding to items specified in the bill of lading were identified and cleared. The inspection was halted around lunch time at Lomi's request. The customs officers took the key to the container.
   
9. Customs duty for the cleared items had been paid by Prasad. Narayan had accompanied Prasad from Fiji to Kiribati. Prasad and he were friends. Narayan was known to Lomi.
   
10. After the container had been closed at lunch time, Lomi offered each of the customs officers $100 for overtime for working on a public holiday. The money had come from Prasad who told him to give it to them. This amount was more than they were entitled to for an overtime payment. Moreover, the procedure for claiming overtime payments from a shipper in respect of overtime done by customs staff, is for the shipper to be issued with a debit note later. The customs officers said as much but were told that the $100 each was a gift. The customs officers took the money. They then had a discussion between themselves and decided to catch a bus to go to a shop and buy another padlock to place on the container.
    
11. Returning to the wharf office, they found Lomi, Narayan and Prasad. They re-opened the container and then discovered that 475 bags stated in the bill of lading to be pig food, flour or long grain rice were in fact 475 bags of sugar hidden in bags labelled for the other commodities. In explanation to the officers, Lomi said that it had been the other two who had packed the container in Fiji and that he was "aware of that but he was afraid to tell us". Narayan told one of the officers to get rid of the bags of sugar. There were suggestions from Prasad of bribing the officers up to $1,000 each. The officers said that they closed the container with the sugar in it and required Lomi to drive them home.
    
12. As they were passing the home of one of the officers, Lomi refused to stop the car to let the officer out despite his request. Prasad told Lomi not to stop. Lomi said he obeyed Prasad because he thought he would not get paid if he did. The officers were asked by the three for "help". Lomi asked for "mercy" because of his family. Narayan said he had a good record in Kiribati and that if they did not help, he would never return to Kiribati. The car drove past the homes of both officers eventually stopping at a wharf at Bairiki, (a distance of some 3 kilometres according to counsel). The officers had not wanted to go to the wharf. The customs officers said they were scared. During part of the drive, Narayan was using his mobile phone. Prasad asked whether the officers needed saloon cars. Lomi wanted to know if he was in trouble.
    
13. At the wharf, the officers managed to escape from the car and started to run off. They claimed that the car chased them. Eventually, they located someone to pick them up and take them home.
    
14. It was not until 30 December 2010 that Lomi made a first written statement to the Police – rather a long delay in investigating a serious offence. Charges were dated 19 May 2011. Optimistically, the charge list named Prasad as an accused person. Narayan was granted bail and allowed to return to Fiji pending trial.
    
15. Lomi told the Police that both Narayan and Prasad had contacted him about the shipment. In a later statement, he said that Prasad had admitted to the customs officers in his presence that the pig food bags contained sugar and asked that the Fiji Customs not be told about the incident. Narayan, he said, had accompanied Prasad to Kiribati because Prasad had not visited before.
    

CONDUCT OF TRIAL

16. Lomi and Narayan were tried together and were represented by the same counsel. The prosecutor did not open but referred to an agreed statement of facts as constituting her opening. We were told by Ms Maitinnara that in fact there was no such agreed statement of facts. Counsel appearing for the prosecution in the High Court was not the same counsel who appeared in this Court.
    
17. Consequently, because of the lack of a prosecution opening, the Judge and the defence were not told of the basis upon which each accused was to be made liable for all or any of the charges. In particular whether one or both were to be regarded as secondary parties under s.21(1) of the Penal Code. Clearly, Prasad should have been considered the principal potential offender and the two respondents should have been advised the basis in which their criminal responsibility was alleged.
    
18. It was surprising therefore that there were references in submissions before the Chief Justice to a 'joint enterprise' by counsel for the prosecution. Presumably, she was thinking about section 22 of the Penal Code. Quite rightly, the Chief Justice held there was no evidence of a joint enterprise in this case. We note that the situation set out in section 22 (which is to be found in most criminal law codifications in common-law jurisdictions) is notoriously difficult to establish.
    
19. We observe for the guidance of prosecutors in the future that there should always be an opening in a criminal trial. It is especially necessary where there is more than one accused and where there are more than one potential secondary parties who might be convicted on different basis within section 21(1) of the Penal Code. Such is an elementary requirement of prosecutorial fairness which places the evidence in focus and informs defence counsel and the judge right from the start what precisely is alleged against each accused in respect of each charge.
    
20. The prosecution called nine witnesses. There were the two rather junior customs officers who opened the container and discovered the contraband: the customs agent who cleared the container for Lomi: the customs officer who signed the Import Entry form: the cashier who received the duty, issuing a receipt to Lomi's firm for money paid by Prasad: the Acting Comptroller of Customs who said that the three had asked him for "administrative help" to resolve the matter out of Court: a witness who said Lomi had approached him to buy sugar from him, showing him an invoice for the items in the container: a businessman who had hosted a dinner for Narayan and Prasad at which Prasad offered to sell some of the contents of the container. Prasad had shown this witness pictures of these items which revealed the sugar hidden in pig food bags. Prasad told this witness that the contents of the container belonged to him. The police officer who took caution statements from Lomi was the last witness.
    
21. At the conclusion of the prosecution case, defence counsel sought an order under section 195 of the Criminal Procedure Code discharging Narayan on the basis of there being no case to answer. Counsel indicated that she wished to call Lomi as a witness in his own defence.
    
22. Although it would have been desirable for the discharge application by Narayan to have been heard at that point, given a timing option by the Chief Justice, counsel elected to proceed with Lomi's evidence before making submissions in support of Narayan's application. The reason we regard as desirable the hearing of the no-case submission first is that it would have been better for the Chief Justice to have considered Narayan's application before Lomi gave evidence, Lomi could have given evidence adverse to Narayan who was entitled to have had his application for discharge considered solely on the prosecution evidence. As it happens, the Chief Justice correctly did not take Lomi's evidence into account when considering Narayan's application.
    
23. Lomi, essentially, in his evidence denied any knowledge of the illegally imported sugar. Although the container had been sent to him, he was simply an agent for Prasad for whom he had not previously done business. He had met him in Fiji. At Prasad's suggestion, Lomi had registered a business name in Kiribati to enable him to receive the container. Prasad said he would come to Tarawa and pay the duty when the container arrived. He sent the documentation to Lomi from Fiji.
    
24. As to the incident when he refused to stop the car to let the customs officers out, Lomi said that Prasad had hired Lomi's car and that he was to be Prasad's driver for the day. He was too frightened to disobey Prasad's commands. He denied chasing the officers after they had eventually got out at the wharf. Prasad was sitting next to him. He had given the officers $100 each at the instruction of Prasad. He did not know whether it was for overtime. He said to the head of the Customs that he should not let Prasad leave the island but Prasad was allowed to go. He said the customs officers were prepared to release a container on a public holiday but required overtime. He was given the money for the customs officers by Narayan who was given it by Prasad. He was unaware of the procedure for claiming overtime back from a shipper. Lomi was extensively cross-examined and the Chief Justice had ample opportunity to observe his demeanour and form a view of his credibility.
    
25. At the conclusion of this defence evidence, the Chief Justice heard argument on Narayan's discharge motion. He reserved his decision and, on 18 May 2012, granted the application. Such a discharge is deemed to be an acquittal on all charges.
    
26. After hearing the argument in Narayan's case, the Chief Justice heard extensive submissions on Lomi's case and reserved his decision. On 15 June 2012 he issued a judgment acquitting Lomi in all charges. We propose to consider the appeal against each respondent separately.
    

REPUBLIC'S APPEAL AGAINST NARAYAN

27. The Chief Justice considered that in a judge-alone criminal trial in Kiribati – unlike in those jurisdictions where criminal trials were decided by a jury, as finder of fact, he was entitled to consider the sufficiency of the evidence at the end of the prosecution case. This is a slightly different test from the usual one in jury cases exemplified by R –v- Galbraith [1981] 2 All ER 1060: i.e. that if at the end of the prosecution case there is some evidence possibly implicating the accused, the reliability of what should be left to a jury . The judge must not in those circumstances stop the case whatever view the judge had formed of that evidence. The Chief Justice here held that the difference of approach which he took lay in the fact that the judge plays the role of the jury as well as that of the judge in this jurisdiction.
    
28. Despite the submission of counsel for the appellant that the Galbraith approach should be followed, we conclude that the Chief Justice was entirely correct in taking the approach he did in circumstances where the trial judge is the trier of fact as well as the arbitrator in law. As the Chief Justice pointed out, section 195 provides that if the case against an accused is not made out "the court shall dismiss the case and shall forthwith acquit the accused".
    
29. The Chief Justice rejected the unsubstantial theory of joint enterprise saying Prasad was the controlling figure. His findings in respect of Narayan are recorded as follows:
    

"The accused Edward Narayan has been charged together with Lomi Loo with knowingly evading payment of import duty. The offence has both the actus reus and mens rea that are required to be satisfied before the charge can be said to be established. There must be evidence sufficient to ground a conviction.

In this case, there is no evidence to show that Edward Narayan knew that duty was imposed by the Act; that he did something to avoid payment of duty and that he did what he did knowingly to avoid payment of duty. The prosecution simply assumed that by his association with the other accused, he must be presumed to know that duty is payable under the Act on the goods in the container. Due to the way the prosecution presented its evidence, questions had never been asked of the accused to establish each of the elements of the offence. The fact that Edward Narayan accompanied Rajnesh and Lomi to clear the container, to open the container, to the customs, is no evidence to prove the elements of the charge of knowingly evading payment of duty.

On the charge of concealment of goods, there is practically nothing at all on the evidence to suggest that Edward Narayan performed any act of concealment. The evidence does not show that Eddie had any part in concealing the sugar in the Pig Grower bags. The evidence from Karaiti Kirara that Eddie requested to close the container and to have it reopened later for inspection can hardly be any way near as evidence of concealment of goods. The evidence on this charge is as thin as a thread to ground any conviction against the accused.

On the charge of knowingly making false or misleading statement in so far as against this accused, the evidence is not there to show that Eddie knowingly made any false or misleading statement. Likewise on the charges of intimidating a custom officer and Demanding property on forged documents, the evidence is not there pointing to those charges, let alone grounding convictions on those charges".

30. Having considered the evidence – even without the advantage of seeing and hearing the witnesses – we consider that the Chief Justice applied the correct legal tests. His findings of fact were open to him on the evidence. Mere presence at the commission of criminal behaviour does not create liability as a secondary party under section 22(1) of the Penal Code. We have considered the appellant's submissions on the evidence but find nothing to compel us to say that the Chief Justice erred in any respect in Narayan's case.
    
31. The appeal against Narayan is accordingly dismissed. Costs are not permitted to be awarded in criminal appeals. We consider that an appeal by the State against an acquittal is so unusual that it is only fair that the Republic should assist the acquitted person in having to defend such an appeal as this. Consideration should therefore be given to empowering the Court to do so by an appropriate amendment to section 31(1) of the Court of Appeal Act.
    

LOMI'S APPEAL

32. The Chief Justice acquitted Lomi on all counts. In essence he held that he cold not infer on the facts that Lomi wilfully evaded duty since Prasad was in effect the 'mastermind' of the whole operation and the one with the means to send the container load and pay the duty. He found that there was no evidence that Lomi knew that the pig food and other bogus bogus contained sugar. Hence he could not be said to have knowingly made a false declaration. He was rightly critical of the two forgery-related charges. The documents might have given false information but there was no evidence of forgery.
    
33. We agree with the Chief Justice's view on all counts against Lomi except that of count 4 – intimidating a customs officer contrary to section 107 - Schedule 8 – Item 12 of the Customs Act 2005. Our reasons are essentially the same as they were in Narayan's case. We consider the Chief Justice applied the correct legal tests and that his factual findings in respect of all counts except count 4 were open to him in the evidence. In so finding, we have considered the submissions of counsel for the appellant on the facts. We note too that the Chief Justice saw and heard Lomi give evidence. As to Count 4, the Chief Justice said:
    

"I turn to Count 4. This count relates to taking the two Customs officer, Karaiti and Teem from Betio to Bairiki wharf at night on 10 December 2010. The accused, Lomi, agreed he was the driver of the vehicle in which the two Customs officers together with Eddie and Rajnesh were. The two Customs officers were given lift and were supposed to be dropped off at their homes. Instead they were driven to Bairiki wharf.

On the way and at Bairiki wharf, according to Teem's evidence, Lomi was talking to Karaiti in Kiribati language. Rajnesh wanted more time to talk to the Customs officers with a view to obtaining their assistance and so instructed Lomi to drive all the way to Bairiki wharf. At Bairiki wharf, the "3 guys" continued to talk, to the two Customs officers asking them for help.

Although both Karaiti and Teem said that they were afraid, there was no evidence of any threat of violence on the part of the "3 guys". The evidence of Teem is that they decided to find ways to run away from the "3 guys" because they were fed up with the "3 guys" continuous asking for help.

Asked by Counsel for the accused if they thought of reporting to the near-by police station in Bairiki about the threat or intimidation from the "3 guys" the two customs officers said that they did not.

On the evidence, the Court is satisfied that no intimidation or threat exerted on the two Customs officers at Bairiki wharf on 10 December 2010. The evidence shows more of a continuous insistence of asking for help from the two Customs officers who got fed up and decided to escape from the"3 guys", Eddie, Lomi and Rajnesh.

The Court cannot, on the evidence before the Court, be satisfied beyond reasonable doubt that the charge of intimidation of Customs officers is made out against the accused, Lomi. I find him not guilty of Count 4".

34. On the facts as found by the Chief Justice we are obliged to differ from him on his interpretation of the law when he said the offence of intimidation had not been made out. He seems to have considered that intimidation requires some sort of threat or violence. In the ordinary meaning of the word "intimidation", one can be intimidated by an intimidating situation or personality with no violence or threat offered.
    
35. These two young and relatively inexperienced customs officers were obviously keen to escape from these three men, one at least of whom they had caught out in a clearly criminal operation. After their experience – possibly feeling ambivalent about accepting the $100 each, they wanted to go home. Yet Lomi refused to stop at their homes when they asked him to do so. They said they were afraid and the Chief Justice did not say that he disbelieved them on this point. They were being bombarded by Prasad with suggestions of possible bribes, both monetary and cars, and were doubtless confused, to say the least. They were driven to a wharf. One wonders why a wharf was chosen as the destination.
    
36. All in all, we consider the conduct of Prasad and Lomi amounted to intimidating of these two young men and the appeal will have to be allowed in respect of Count 4. Lomi cannot escape liability, as he did on the other counts, because he was the driver who refused to stop. He says Prasad was telling him to drive on but there was no evidence of Prasad threatening violence. The reason that Prasad might not have paid him hardly qualifies as duress in these circumstances.
    
37. What is to happen, now that we have found that the appeal against acquittal is to be allowed in respect of Count 4, needs now to be addressed.
    

EFFECT OF SUCCESSFSUL APPEAL AGAINST ACQUITTAL

38. Section 19B of the Court of Appeal Act 1980 was inserted into the legislation in 2003. The section reads as follows:
    

"Appeal against acquittal

19B. Where the High Court has given judgment acquitting a person or confirmed the acquittal of a person by a magistrates' Court (whether in respect of the whole or part of any charge) the Attorney General may appeal to the court against the judgment, and the Court may –

(a) determine the appeal; and

(b) if the appeal is sustained make such order for the prosecution of the trial as it thinks necessary or desirable".

39. Section 19A, introduced into the Act at the same time, permits an appeal by the Attorney-General against sentence. Such a provision is not unusual in many jurisdictions.
    
40. However, an appeal against acquittal after a High Court trial is most unusual and unknown in many jurisdictions. The theory is that a person may appeal a conviction but once acquitted, is entitled to be free from further proceedings in respect of an alleged offence.
    
41. Some countries have introduced in recent times a limited right of appeal against acquittal but only usually after some safeguards such as prior leave of a judge and only usually for the most serious offences. Even then, the appellant for leave has to show prima facie that either compelling evidence not available at the original trial had come to light that would be likely to lead to a conviction (DNA evidence for example) or that the acquittal had been procured by demonstrable perjury.
    
42. No such safeguards or conditions precedent were thought necessary before this legislation was passed. Difficulties exist because the legislation did not follow through and make clear the powers of the Court when an appeal against acquittal is "sustained". No consequential amendments were made to the Act (as one might have expected). The relevant parts of the Act are geared to providing details for appeals against conviction and sentence.
    
43. The only comparative guideline as to what this Court may do in such a situation is found in the provision of the Act dealing with further appeals from the High Court sitting on appeal from a lower court. Most jurisdictions provide for an appeal to the High Court on a point on law against an acquittal in a lower court. This is often justified because judges in lower courts are sometimes not legally qualified and decisions are made on erroneous legal bases.
    
44. Section 21(3) of the Court of Appeal Act relevantly provides:
    

"(3) On any appeal brought under the provisions of this section the Court may, if it thinks that the decision of the magistrates' court or the High Court should be set aside or varied on the ground of a wrong decision on any question of law, make any order which the magistrates' court or the High Court could have made, or may remit the case, together with its judgment or order thereon, to the magistrates' court or to the High Court for determination, whether or not by way of trial de novo or re-hearing, with such directions as the Court may think necessary".

45. Also noteworthy is section 20 of the same Act which provides:
    

"20(1) Where the High Court has acquitted a person or confirmed the acquittal of a person by a magistrates' court (whether in respect of the whole or part of any charge) the Attorney-General may, if he desires the opinion of the Court on a point of law which has arisen in the case, refer that point to the Court and the Court shall, in accordance with this section, consider the point and give their opinion on it.

(2) For the purpose of their consideration of a point referred to them under this section the Court shall hear argument –

(a) by, or by a legal representative on behalf of, the Attorney-General; and

(b) by, or by a legal representative on behalf of, the acquitted person if he wishes to present any argument to the Court.

(3) A reference under this section shall not affect the trial or appeal in relation to which the reference is made or any acquittal in that trial or appeal".

46. It is interesting to observe that s.20(3) shows that an acquittal in the High Court was formerly regarded as sacrosanct even if it were shown that the acquittal was the result of an error of law discovered on an Attorney-General's reference under s.20(1).
    
47. So we think that just as the Court would have power on a further appeal from a magistrates' decision of acquittal as a summary offence, to enter a conviction (being an order the magistrate could have made – see s.20(3)), the correct course is to remit Lomi to the High Court to consider whether to enter a conviction against him on this charge and, if so, to impose the appropriate sentence.
    
48. An order for a new trial on one count would be otiose in this case. The evidence has all been heard. All that has occurred is that we take a different view from the Chief Justice on the law relating to one of the counts. We do not differ from him on the facts.
    
49. We would respectfully suggest leniency to the Chief Justice for the reasons:
    
    • (a) This is the first occasion there has been a successful appeal against acquittal.
      
    • (b) Lomi's offence of intimidation is at the lower end of the spectrum, given that there were no threats or violence.
      
    • (c) Lomi's behaviour was more stupid and self-interested than criminal. He was acting under some fear that Prasad would not pay him if he stopped the car to let the officers out.
      
50. Before parting with this appeal, we note with surprise counsel's advice to us that there is no offence in Kiribati of bribing a customs officer. Nor is there any offence of unlawfully detaining a person against his/her will (a lesser offence than kidnapping). Both types of offence may have warranted consideration in this case. We respectfully recommend that these offences would be suitable additions to the Penal Code.
    

RESULT

1. The appeal by the Republic against the acquittal of Lomi on Count 4 is allowed.

2. The said appeal is dismissed in respect of the other counts.

3. Lomi is directed to appear before the High Court at a time to be nominated by the Registrar for consideration by the Chief Justice of the entry of a conviction and sentencing.

4. The appeal by the Republic against the acquittal of Narayan on all counts is dismissed.

Paterson JA

Williams JA

Barker JA