Toara v Republic [1979] KIHC 30; 1979 KILR 90 (18 September 1979)

[1979] KIHC 30; [1979] KILR 90

HIGH COURT OF KIRIBATI

Criminal Appeal No 24 of 1979

NEI TERINGA TOARA

v

THE REPUBLIC

(O'BRIEN QUINN C.J.)

Betio: 18th September 1979

Criminal appeal - appeal against conviction and sentence - taking a bicycle - Traffic Ordinance (Cap 71) - section 25(1) and (3) - claim of right - appeal against conviction dismissed - suspended sentence of 3 months' imprisonment substituted for fine - charge badly drawn - two separate parts of same section should not have been included.

The owner of a bicycle had bought it soon after he had received $150 in respect of payment for work which he was carrying out on the building of the house of the appellant's husband and the appellant went to the owner's house and took the bicycle away because she was of the opinion that the owner had bought the bicycle with the $150 instead of using it for building the house. The Magistrates' Court found that the appellant had no right to take the bicycle but should have pursued her civil remedies. She was fined $20 and appealed.

HELD: (1) That a bona fide claim of right was not made out as in this case the bicycle was taken and sold without any basis upon which it could be said that the owner had bought it with money which was not his own;

(2) That a fine of $20 was not suitable in a case where a person took the law into her own hands and a sentence of imprisonment would be substituted;

(3) That the charge under section 25(1) of Cap 71 covered the facts adequately and that section 25(3), which covered an entirely different point, should not have been included.

Authorities referred to:

Archbold's Criminal Pleading, Evidence and Practice, 38th Edition, pgh 1461

R v Wade 11 Cox 549

Obeta Tawaia, Appellant's husband, for the Appellant
Republic not represented

O'BRIEN QUINN C.J.:-

This is an appeal against the judgment of the Magistrates' Court for the Betio Magisterial District in which, on 1st August 1979, Nei Teringa Toara was found guilty of taking a bicycle, the property of Rino Tokiau, on 30th May 1979 "contrary to section 25(1)-25(3) of the Traffic Ordinance Cap 71," and sentenced to pay a fine of $20 or to go to prison for six weeks in default of payment within 4 weeks. She was also ordered to return the bicycle or pay the owner the value of it within one week.

2. It appeared from the evidence in the Magistrates' Court that the owner of the bicycle had bought it soon after he had received the sum of $150 in respect of payment for work which he was carrying out on the building of the house o the appellant's husband and that the appellant had gone to the owner's house and taken the bicycle away. The Magistrates, in a reasoned judgment, found that the appellant took the bicycle and that she had no right to do so as if the story told about the owner's having used the $150 to buy the bicycle were true, which the Magistrates found not to be true, then the appellant should have pursued her civil remedy and not have acted as she did.

3. On the appeal, the appellant's husband put forward the same arguments as before but embellished them somewhat by saying that he had approached the owner very soon after he had got the $150 from the Housing Corporation and that the owner said that he wished to buy a bicycle so that he could use it for his work and that he agreed that it could be taken from him if he failed to carry out his work. This point was not canvassed before the Magistrates' Court and I do not attach any weight or credence to it. It was obviously "manufactured" at a later stage.

4. On the whole of the case it appears to me that while the issue of a claim of right ought to be considered I do not consider that, on the facts and the evidence, such a bona fide claim was made out. I base this on the decision in R v Wade 11 Cox 549 as set out in Archbold 38th Edition at paragraph 1461 as in that case the goods were taken as security for payment while in this present appeal the bicycle was taken and sold without any basis upon which it could be said that the owner had bought it with money which was not his own.

5. I consider that there are extenuating circumstances but I would uphold the Magistrates' decision on the facts and confirm the conviction.

6. On the question of sentence, however, I consider that a fine of $20 is not suitable in the circumstances of this case and, in view of the fact that people should not be allowed to take the law into their own hands, I set aside the fine and substitute a sentence of 3 months' imprisonment but suspend it for a period of one year in view of the mitigating factors.

7. I should like to draw attention to the drafting of the charge as it contained reference to two subsections of the same section, the second of which was clearly inappropriate. Section 25(1) of Cap 71 deals with taking a vehicle without authority and covered the facts adequately. Section 25(3), however, is merely a means whereby, if a person is charged with stealing, and the facts show only that he took it without authority then the offence of stealing may be reduced to one of taking without authority. It should not have been included in the statement of offence and this should be noted for future reference. In this case it caused no injustice to the appellant and I ignored it in coming to my decision.

8. The fine of $20 is, therefore, set aside and a 3 months' term of imprisonment imposed, but suspended for one year, and the order for the return of the bicycle or its value to the owner Rino Tokiau is confirmed but extended to six weeks but as, on my advice, the appellant's husband is going to pursue his civil remedy against Rino Tokiau in the Magistrates' Court, I ordered that the value of the bicycle, stated to be $103, could be paid into the High Court pending the outcome of the civil case in the Magistrates' Court instead of being paid to Rino Tokiau.