Attorney-General v Li Jian Pei [2015] KICA 5; Criminal Appeal 05 of 2015 (19 August 2015)

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

Criminal Appeal No. 5 of 2015

BETWEEN

ATTORNEY-GENERAL
APPELLANT

AND

LI JIAN PEI
TAAITEITI AREKE RESPONDENTS

Before: Paterson JA
Blanchard JA
Handley JA
Counsel: Pauline Beiatau for appellant
Botika Maitinnarafor respondent

Date of Hearing: 14 August 2015
Date of Judgment: 19 August 2015

JUDGMENT OF THE COURT

Introduction

[1] The High Court has granted the respondents a permanent stay of criminal proceedings brought against them charging the making of false statements on oath (s.97 of the Penal Code Cap 67) and false statutory declarations (s.100(1)(a) of the Penal Code). The charges relate to a late birth registration of the first respondent, Li Jian Pei.

[2] Under s.19A(b) of the Court of Appeal Act 1980 the Attorney-General has a right of appeal to this Court against an order of the High Court staying proceedings or further proceedings on an information or charge and has brought this appeal. The intituling for such an appeal should name the Attorney-General rather than the Republic as appellant. The Court will formally correct the record.

[3] The stay was granted because the High Court took the view that delay in the prosecution of the case had grossly prejudiced the respondents.

Procedural History

[4] The charges related to events in 2007 and 2008. The allegedly false statements were that Mr Li was the son of Reeti Tomi, a Kiribati citizen. Questions subsequently arose about the late birth registration of the first respondent. There was a Parliamentary Committee investigation in 2009 and then a police investigation commenced in May 2010. The charges were not laid until 25 October 2011, approximately 18 months later. By that time the aunt of the second respondent, Mr Areke, from whom he says he received information about the family tree, had passed away. We were told from the bar that the aunt, Erika Kauongo, had died on 21 February 2011. In an affidavit Mr Areke says that his aunt told him that Mr Li's mother is Reeti Tomi. The respondents say they have been prejudiced because Mr Areke's aunt is the person they would have relied upon to defend the criminal proceedings against them.

[5] There have also been post-charge delays which are said to involve breach of the respondents' right under s.10(1) of the Constitution of Kiribati, as persons charged with a criminal offence, to "a fair hearing within a reasonable time by an independent and impartial court". [Emphasis added].

[6] Although, as we have seen, the charges were filed in the High Court on 25 October 2011, the court did not schedule any hearing until 2 October 2012 – a delay of nearly another year – when the respondents made their first appearance. The case was called again for mention in April 2013, at which point the defence indicated an intention to seek a stay. The application for a stay was made on 17 September 2013 – a little under two years after the charges were laid. It was heard by Zehurikize J on 29 July 2014. He delivered his judgment and stayed the prosecution on 27 August 2014.

[7] Zehurikize J noted the existence in s.17 of the Constitution of a procedure for the enforcement of the protective provisions in ss 3 to 16 in respect of which the High Court has original jurisdiction. The proviso to s.17(2) states, however, that the High Court may decline to exercise its powers under the subsection if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under other provisions of the Constitution or under any other law. The respondents' application had not mentioned the Constitution but counsel eventually invoked s.17 during the High Court hearing. The Judge concluded, however, that the application was not in fact brought under s.17 and correctly proceeded to deal with the matter under the common law, referring to s.300(1) of the Criminal Procedure Code which gives the High Court in the exercise of its criminal jurisdiction the ability to issue any writ or order which may be issued by the High Court of Justice in England. That includes the power to issue a stay.

[8] The resort to s.17 of the Constitution was not raised before us but we draw attention to a line of decisions of the Judicial Committee of the Privy Council deprecating the use of a provision of this kind where the common law or another statutory provision can provide an effective remedy if the applicant can show a breach of his or her rights. This is of course consistent with the proviso to s.17(2). In the first of these cases, on parallel constitutional provisions, Harrikissoon v Attorney-General of Trinidad and Tobago [1980] AC 265, Lord Diplock said at p. 268:

"The right to apply to the High Court under section 6 of the Constitution for redress when any human right or fundamental freedom is or is likely to be contravened, is an important safeguard of those rights and freedoms; but its value will be diminished if it is allowed to be misused as a general substitute for the normal procedures for invoking judicial control of administrative action. In an originating application to the High Court under section 6(1), the mere allegation that a human right or fundamental freedom of the applicant has been or is likely to be contravened is not of itself sufficient to entitle the applicant to invoke the jurisdiction of the court under the subsection if it is apparent that the allegation is frivolous or vexatious or an abuse of the process of the court as being made solely for the purpose of avoiding the necessity of applying in the normal way for the appropriate judicial remedy for unlawful administrative action which involves no contravention of any human right or fundamental freedom".

[9] That was a civil case but the Board's attitude to the use of the procedure was the same in Chokolingo v Attorney-General of Trinidad and Tobago [1981] 1 WLR 106 where the applicant had been imprisoned for contempt of court. The protection of constitutional guarantees can ordinarily be invoked in a criminal case without need to bring an application under s.17. Reference can also be made to Jaroo v Attorney-General of Trinidad and Tobago [2002] UKPC 5 and Durity v Attorney-General of Trinidad and Tobago [2008] UKPC 59 for further examples of reluctance to approve the use of the constitutional procedure unless the common law or a statutory provision cannot provide an adequate remedy.

[10] Zehurikize J dealt with the respondents' applications under the High Court's inherent common law power to control its own processes. He cited the following well-known passage from the judgment of Lord Lowry in R v Horseferry Road Magistrates' Court, exp. Bennett [1993] UKHL 10; [1994] 1 AC 42at 74:

"I consider that a court has a discretion to stay any criminal proceedings on the ground that to try those proceedings will amount to an abuse of its own process either (1) because it will be impossible (usually by reason of delay) to give the accused a fair trial or (2) because it offends the court's sense of justice and propriety to be asked to try the accused in the circumstances of a particular case. I agree that prima facie it is the duty of a court to try a person who is charged before it with an offence which the court has power to try and therefore that the jurisdiction to stay must be exercised carefully and sparingly and only for very compelling reasons. The discretion to stay is not a disciplinary jurisdiction and ought not to be exercised in order to express the court's disapproval of official conduct. Accordingly, if the prosecuting authorities have been guilty of culpable delay but the prospect of a fair trial has not been prejudiced, the court ought not to stay the proceedings merely "pour encourager les autres".

[11] After reviewing the facts, the Judge found that the prosecution could not be blamed for the slow pace at which the case had moved from the time of filing. But the Court would "share some blame". In any case, the Judge said, he did not find that the delay was "so inordinate as to attract any form of condemnation".

[12] But despite this, and looking at the whole of the delay during the longer period "from the time when the offence is alleged to have been committed and the time when the accused first appeared in Court", the Judge said that the respondents would be grossly prejudiced by the death of the second respondent's aunt if the case proceeded:

"The person who supplied material facts on which the applicants based the first applicant's application for citizenship or passport and which facts are the cause of this prosecution was a very vital witness to the defence. Their trial cannot be fair in her absence. ....... The continued prosecution of the applicants offends the Court's sense of justice and propriety. Having lost the said vital witness and given the passage of time the applicants cannot be expected to reconstruct what is here known as "the family tree" so as to explain away the allegations against them. It should be noted that the Court's decision is not intended to disapprove the conduct of the prosecution in this case nor even merely the time taken to prosecute the accused but that if the prosecution was allowed to proceed, the accused would not get a fair trial".

A stay was therefore ordered.

Pre-charge Delay
[13] Delays in the prosecution of this case occurred during two distinct periods: before charges were filed and afterwards. The matter had been brought to the attention of the police two or three years after the alleged offending. Their investigation took about a year and a half. But of course there is no statute of limitations in relation to prosecutions of this kind under the Penal Code and the overall period down to the filing of the charges was not such as to give rise to any problem of faded memory of anyone now available to give evidence. Prosecutions are not infrequently brought after similar or even much longer periods from the time of alleged offending. There can be no question of any stay being issued merely because of such a lapse of time before charging unless some event has occurred that makes a fair trial impossible and nothing occurred here that would bring the case within Lord Lowry's (very rare) second category.

[14] It is said for the respondents that the death of the aunt has made a fair trial impossible. Contrary to the view taken by the Judge, we do not consider that it has been shown by the respondents that they will suffer such prejudice from the death of Erika Kauongo that there will not be able to be a fair trial. We say this because, although the Court will not be able to hear the deceased's account of the family tree, Mr Arekeor another family member will be permitted to give evidence of what his aunt said about it. Such a secondhand account is hearsay evidence but there has long been an exception to the rule against hearsay for evidence of pedigree. The exception was first stated by Lord Mansfield in Goodright v Moss [1777] EngR 38; (1777) 2 Cowp 591. In Vowles v Young [1806] EngR 344; (1806) 13 Ves Jun 140 Lord Erskine explained the necessity of the exception:

"Courts of law are obliged, in cases of this kind, to depart from the ordinary rules of evidence, as it would be impossible to establish descents according to the strict rules by which contracts are established, and subjects of property regulated; requiring the facts from the mouth of the witness who has the knowledge of them. In cases of pedigree, therefore, recourse is had to a secondary sort of evidence; the best the nature of the subject will admit, establishing the descent from the only sources that can be had".

[15] Therefore it is possible for Mr Areke or another member of the family to give evidence of what his aunt said about the first respondent's relationship with the family. It is to be noted that in an affidavit Mr Areke has said that his aunt taught him about the family tree. In a society with a strong oral tradition it is to be expected that he would be able to relate what he was told by her. Admittedly his evidence could be subjected to cross-examination as to his credibility and to that extent the defence may possibly be disadvantaged. It has been said that almost every declaration of relationship is accompanied by some feeling of interest, which will often cast suspicion on the declarations, but has never been held to render them inadmissible: Doe d. Jenkins v Davies [1847] EngR 10; (1847) 10 QB 314 at 325 cited in Halsbury's Laws of England 3rd Edition Vol 15 para 564. But, on the other hand, if what Mr Areke says is accepted as a true account of what his aunt told him, the prosecution has lost the ability to cross-examine her about the family tree. We add that it would be surprising if the only person in the family who received the aunt's teaching about the family tree was Mr Areke.

[16] We have therefore concluded that the aunt's death has not made trial of the charges unfair.

Post-charge Delay
[17] As has already been mentioned, unreasonable post-charge delay attracts the protection of s.10(1) of the Constitution. The prosecution may not be at fault in respect of it in this case but the Republic bears responsibility under the Constitution for any unreasonable delays within the Court system after a person has been charged with a criminal offence. Furthermore, though not covered by the constitutional guarantee, lengthy pre-charging delay may sometimes be of indirect relevance as it may properly lead the Court to be less forebearing of post-charging delay, i.e. as a background consideration against which post-charging delay is to be assessed.

[18] We view with concern what we are told by counsel is the practice of the courts of Kiribati in not immediately a charge is filed allocating a date for the first appearance of the defendant. The mere fact of a defendant having to appear may in some cases bring the matter to a head and the case may be able to be disposed of at that stage by a guilty plea.In any event, the courts should be closely supervising the progress of criminal cases towards the earliest possible trial. Some delays are reasonable, even perhaps inevitable, given the volume of cases in the court system and its relatively limited facilities. What is a "reasonable time" for the purposes of s.10 must be assessed with some tolerance on that account. But we are obliged to say that the delay of nearly a year before the respondents' first appearance considerably exceeds that tolerance and was unreasonable and in breach of s.10.

Remedy for Unreasonable Delay
[19] It does not follow, however, that a stay should have been issued by the Judge. It is clear that he was not referred by counsel to recent authorities establishing that where a fair trial is still possible a stay is not mandatory or even the usual remedy for
post-charge delay in breach of a constitutional guarantee. The remedy must be in proportion to the breach. It is not a proportionate response that an accused should avoid facing trial except when the delay is of such duration that it is egregious or there has been serious prosecutional misconduct. A stay is a drastic remedy for use only where a fair trial cannot be conducted or in truly exceptional circumstances where allowing a case to proceed would tarnish the integrity of the Court: see, for example, Darmalingum v The State [2000] 1 WLR 2302 (PC) where the defendant had the charges hanging over him for about 15 years while the case dawdled through the Court system in Mauritius.

[20] In Attorney-General's Reference (No. 2 of 2001) (2003) UKHC 68, [2004] 2 AC 72 at [24] Lord Bingham, speaking for a majority of nine judges of the House of Lords, said:

"The appropriate remedy will depend on the nature of the breach and all the circumstances, including particularly the stage of the proceedings at which the breach is established. If the breach is established before the hearing, the appropriate remedy may be a public acknowledgment of the breach, action to expedite the hearing to the greatest extent practicable and perhaps, if the defendant is in custody, his release on bail. It will not be appropriate to stay or dismiss the proceedings unless (a) there can no longer be a fair hearing or (b) it would otherwise be unfair to try the defendant. The public interest in the final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy will be just and proportionate in all the circumstances. The prosecutor and the court do not act incompatibly with the defendant's [Constitutional] right in continuing to prosecute or entertain proceedings after a breach is established in a case where neither of conditions (a) or (b) is met, since the breach consists in the delay which has accrued and not in the prospective hearing. If the breach of the reasonable time requirement is established retrospectively, after there has been a hearing, the appropriate remedy may be a public acknowledgement of the breach, a reduction in the penalty imposed on a convicted defendant or the payment of compensation to an acquitted defendant. Unless (a) the hearing was unfair or (b) it was unfair to try the defendant at all, it will not be appropriate to quash any conviction. Again, in any case where neither of conditions (a) or (b) applies, the prosecutor and the court do not act incompatibly with the defendant's [Constitutional] right in prosecuting or entertaining the proceedings but only in failing to procure a hearing within a reasonable time".

[21] Importantly, Lord Bingham also observed (at [22]) that judges should not be vexed with applications based on lapses of time which, even if they should not have occurred, arouse no serious concern.

[22] Attorney-General's Reference was followed by the New Zealand Supreme Court in a case about the guarantee of trial without post-charge undue delay under that country's Bill of Rights. In R v Williams [2009] NZSC 41, [2009] 2 NZLR 750 the delay between arrest and conviction was five years and was "plainly excessive". The trial judge had given the appellant an 18 month reduction from a sentence which would otherwise have been six years' imprisonment. The Supreme Court refused to overturn the conviction. A stay would not have been a proper remedy. It described the reduction in sentence as "generous" and said that the appellant should regard himself as lucky to have that benefit, in light of the authorities. These included Elaheebocus v State of Mauritius [2009] UKPC7, where there had been cumulative delays of 7½ years between the arrest of the appellant and the conclusion of his appeal against conviction. The Judicial Committee of the Privy Council remarked (at [23]) that the finding of breach of the trial within a reasonable time guarantee in the Mauritius Constitution "could well be thought redress enough". A reduction in sentence from 4 years to 3½ years was nevertheless ordered.

[23] It is to be remembered that the purpose of any reduction is not disciplinary but to mark the breach and to compensate the defendant for undue prolongation of the uncertainty of outcome in having to face trial.

Decision

[24] In the present case, we quash the High Court's order for a stay. Instead we give the respondents redress by our finding that there has been a breach of s.10 and we order that their case must now speedily be progressed to trial. If necessary, the High Court should set a timetable for this to happen. In the event of any conviction, it will be for the High Court, in light of the then circumstances, to determine whether a modest reduction in sentence should be given for the breach of s.10. It is a matter for the High Court to make that assessment and to decide whether any reduction at all is warranted.

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Paterson JA

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Blanchard JA

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Handley JA