Mantaia v Republic [2019] KICA 14; Criminal Appeal 5 of 2019 (21 August 2019)

IN THE KIRIBATI COURT OF APPEAL ] Criminal Appeal No. 5 of 2019
CRIMINAL JURISDICTION ]
HELD AT BETIO ]
REPUBLIC OF KIRIBATI ]

BETWEEN KAUTUNAMAKIN MANTAIA APPELLANT

AND THE REPUBLIC RESPONDENT

Before: Blanchard JA

Handley JA

Heath JA

Counsel: Raweita Beniata for appellant

Ereta Bruce for respondent

Date of Hearing: 15 August 2019
Date of Judgment: 21 August 2019

JUDGMENT OF THE COURT

[1] The appellant was convicted on one count in the Information on a charge of indecent assault contrary to s.133(1) of the Penal Code and on two counts of defilement of a girl under the age of 13 contrary to s.134(1) of the Code. He was sentenced to imprisonment for seven years and seven months.

[2] The appellant has appealed on conviction and sentence. His appeal against conviction is based on two grounds, the first being that the trial was conducted irregularly, as a result of the Judge’s interventions. The second that the verdict was unsafe and unsatisfactory because it was based on the credibility of the complainant alone. The sentence was challenged as being manifestly excessive.

[3] The appeal against conviction was supported by the affidavit of defence counsel.

[4] The first count was for defilement of a girl under 13, but counsel for the Republic in opening the case said that the accused had only sucked the victim’s breast. The judge intervened and said that the count as framed could not be supported. Counsel for the Republic then applied to amend the count to allege an indecent assault. This was an alternative verdict open under the Code on a charge of defilement. Defence counsel is recorded as saying “we may accept the amendment”.

[5] This created a problem with the particulars to count 2 which required another amendment. Defence counsel had no objection to the amendment either.

[6] The trial then proceeded. The complainant was called and gave her evidence in chief. The Judge intervened from time to time to ask counsel for the Republic to clarify an ambiguous question or to ask non-leading questions without objection at the time.

[[7] The appellant’s written submissions quote extensively from the transcript of the trial over nine pages during the complainant’s evidence in chief where the Judge questions the witness. Counsel for the Republic was having difficulty during her examination in chief in asking appropriate questions, and in clarifying ambiguities in the complainant’s evidence. We have carefully considered the passages relied upon.

[8] The interventions in the nine pages must be evaluated in the context of the 30 pages for the whole of the complainant’s evidence and the 15 pages for the evidence of the accused.

[9] In our judgment the interventions, although extensive, were not inappropriate or excessive in the circumstances confronting the trial judge.

[10] During the cross examination of the complainant the Judge again intervened to ask defence counsel to clarify or limit his questions. He also intervened to discharge the Court’s duty under s.14 of the Evidence Act to limit cross examination of a complainant on her sexual activity to that with the accused. Defence counsel did not apply for leave to cross examine on matters within the prohibited area. No objection could be taken or was taken to the Judge’s interventions in this regard.

[11] After defence counsel concluded his cross examination the Judge asked two questions to clarify the complainant’s evidence. Counsel for the Republic then attempted to re-examine but the Judge intervened to disallow questions he considered did not arise from cross examination or were otherwise irrelevant.

[12] Counsel for the Republic then said she had no other witness. The Judge asked her if she had a birth certificate. Counsel apologised and tendered the complainant’s birth certificate by consent. Defence counsel told the Judge that there was no dispute about the complainant’s birth date. In any event she had earlier given oral evidence of her birth date without objection.

[13] Defence counsel foreshadowed a no case submission. The Judge then directed the attention of counsel for the Republic to some problems with the wording of counts 1, 2 and 3. In counts 1 and 2 this involved the identity of the owner of the house in which the first offence was alleged to have occurred and the precise location where the offence charged in the third count was alleged to have occurred.

[14] Defence counsel objected to the amendments on the ground that they were prejudicial to the defence. Discussion followed on the question of prejudice and defence counsel conceded that he would not have run the trial differently if the amendments had been made at the start and he did not point to any other prejudice.

[15] The Judge allowed the amendments, holding that they were of a minor nature and reflected the way the evidence had come out. Defence counsel did not ask for the complainant to be recalled for further cross examination despite the Judge’s invitation. The Republic then closed its case.

[16] Defence counsel submitted that there was no case to answer on Counts 4 and 5. After legal argument, the Judge ruled that there was no case and entered verdicts of acquittal.

[17] The defence case consisted of the evidence of the accused.

[18] In his affidavit in support of the appeal against conviction defence counsel focussed on the Judge’s intervention at the end of the prosecution case drawing attention to the variances between the particulars of the charges and the evidence given by the complainant.

[19] This submission is answered by s.241(2) of the Criminal Procedure Code which provides:

“Where, before a trial upon information, or at any stage of such a trial, it appears to the Court that the information is defective, the Court shall make such orders for the amendment of the information as the Court thinks necessary to meet the circumstances of the case unless .... the required amendments cannot be made without injustice”.

[20] The section requires the Court to act of its own motion when “it appears” that the information is defective. Although the Judge was at pains to get counsel for the Republic to make an application to amend, he could have acted without such an application. In these circumstances his intervention which provoked an application by counsel for the Republic was legally justified and occasioned no injustice to the appellant.

[21] The Judge accepted the evidence of the complainant as proving beyond reasonable doubt the guilt accused on the charges on counts 1, 2 and 3. Having directed himself appropriately he was entitled to accept her evidence and reject that given by the accused.

[22] The appeal against conviction fails.

[23] The appellant was sentenced to imprisonment for seven years and seven months running from 17 June 2019 when he was first remanded in custody.

[24] The Judge took as his starting point a sentence of five years for defilement.

[25] He listed the aggravating features, among others the breach of trust by the appellant who was the complainant’s uncle, the use of a knife as a threat in the offences charged in counts 1 and 2, the age disparity and the youth of the complainant.

[26] Applying this Court’s decision in the Republic v Uriano Arawaia [2013]
KICA 11 he increased the starting point by three years. He then deducted five months for delay and the absence of prior convictions to give a sentence of seven years and seven months.

[27] We can discern no error of principle. No mitigating factor was overlooked or inappropriately recognised. In our judgment the sentence was within the Judge’s discretion.

[28] The challenges to the conviction and sentence fail and the appeal is dismissed.

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Blanchard JA

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Handley JA

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Heath JA