Republic v Taabere [1982] KIHC 1; [1985] LRC (Crim) 8 (25 June 1982)

[1985] LRC (Crim) 8

IN THE HIGH COURT OF KIRIBATI

REPUBLIC

V

TAABERE AND ANOTHER

High Court: Jones, C.J.
25th June 1982 (Betio)

Criminal trial - Fundamental rights - Timely trial - Delay - Constitutional guarantee of fair trial with reasonable time - Constitution of Kiribati, section 10(1) - Delay exceeding two years before trial after charge - Whether delay unreasonable - Relevance of vexation.

On 3rd March 1980 the applicants were charged with arson. On 29th April 1982, not having been brought to trial, they applied to the High Court seeking to be discharged on the ground of unreasonable delay contrary to the protection guaranteed by the Constitution of Kiribati, section 10(1), which provides:

"If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.”

HELD: Applications allowed; applicants discharged unconditionally.

In determining whether delay in bringing an accused person to trial, after a criminal charge has been laid against him, is unreasonable, and therefore contrary to the fundamental right guaranteed by the Constitution, it is relevant to consider whether the delay would render a trial vexatious. The delay to be considered in this connection is that following the date of the charge, not the date of the offence. Even if there is no evidence that the defence has been hindered by the delay, a long delay in itself must tend to hinder the defence. Although the applicants had not been in custody they had not themselves contributed to the delay of two and a quarter years since the charge was laid and, despite the seriousness of the charge, this was an unreasonable delay.

Cases referred to in judgment:
Grant v Director of Public Prosecutions [1982] AC 190, [1981] 3 WLR 352, PC
R v Gray's Justices, ex parte Graham [1982] QB 1239, [1982] 3 WLR 596, [1982] 3 All ER 653, 75 Cr App R 229, DC
R v Robins (1844) 1 Cox CC 114
Wemhoff v Federal Government of Germany Eur Court HR, Judgment of 27th June 1968

Legislation referred to in judgment:
Constitution of Kiribati, section 10(1)

Other sources referred to in judgment:
European Convention on Human Rights, 1950, Article 6.1.

Bell, People's Lawyer, for the applicants.
Tuarirake, State Attorney, for the Republic.

25th June 1982

JONES, C.J.:

This application is brought under section 10(1) of the Constitution, which reads as follows:

"If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law."

Mr. Bell, the People's Lawyer, for the applicants submits that the applicants have been awaiting trial for an unreasonable time and should be discharged. The facts are that the two applicants, Taabere and Kautu Binoka, are charged with the offence of arson alleged to have been committed on 24th June 1979. The information was laid in the High Court on 3rd March 1980 and the case was transferred by the then Chief Justice to the court of the single magistrate. It was not heard. It is an Abemama case. Since I was soon to go to Abemama to hold High Court sessions, I transferred the case to myself on 11th May 1982. Meanwhile, on 29th April 1982, the People's Lawyer had filed the present application.

Mr. Tuarirake, State Attorney, has conceded that the delay has been the fault of the Attorney - General's Chambers. He has told the court that the charge had been sent to the police headquarters in December 1979. Unfortunately from January 1980 to December 1980 there was only one State Attorney. He could not say why the case had not been ready for trial in 1981. Other cases of a similar nature dating from April 1979 were heard in the first half of 1980.

Mr. Bell asked me to say that on the wording of this section, time does not necessarily begin to run from the day the information is laid. He submits that time should run from the date of the alleged offence, if the alleged offenders were then known. In support of this submission he points out that the section reads:

"If any person is charged . . ." and not "When a person is charged...”

It cannot read anything significant into this wording and the later wording "the case shall be afforded a fair hearing" persuades me that the section means time to run from the date of the charge, since there is no 'case' before the charge.

In the case of Wemhoff v The Federal Government of Germany (1968) the European Court of Human Rights stated that the aim of the provision was to ensure that accused persons did not have to lie under a charge for too long. In another case the Supreme Court of Cyprus decided similarly.

In R v Robins (1844) 1 Cox CC 114 Alderson, B., directed the jury to acquit an accused because he considered it "monstrous" to put a man on trial after a lapse of time of 22 months since the alleged offence. In Grant v Director of Public Prosecutions [1981] 3 WLR 352 the Privy Council considered that a lapse of three and a half years "after the event which gave rise to the charge" would not have been a fair hearing within a reasonable time, had it not been that the accused persons had been the main cause of the delay.

Despite these later cases I consider that the wording of section 10(1) is a such that the relevant starting point is the date of the charge.

In Wemhoff the European Court of Human Rights said that the question of "reasonable time" must be applied in relation to the particular circumstance of the proceedings concerned, and especially with regard to:

(a) the complexity of the case as a whole;

(b) the manner in which the case has been handled by the national judicial authorities and the courts; and

(c) the applicants' own conduct.

In R v Grays Justice, ex parte Graham, Times Law Report 17th May 1982, the English Divisional Court held that, unless the delay in prosecuting alleged criminal offences is sufficiently prolonged to render c criminal proceedings vexatious and an abuse of the process of the court, mala fides on the part of the prosecution must also be established before an order prohibiting the proceedings will be granted on an application for judicial review. In that case the offence was alleged to have been committed in January 1980, and the trial was scheduled to begin in December 1981. It was not considered that this delay since the date of the alleged offence was sufficient to render the proceedings vexatious. Mr. Bell, in citing this case, distinguishes it on the ground that the question of vexation does not arise under section 10(1) of the Constitution. I do not think that this is so. In my view the question of vexation is a factor in deciding whether the delay in hearing the case is reasonable or not. It will be unreasonable if the defence is seriously hindered thereby.

In the present case it is not shown that the defence has been hindered by the delay. However, it seems to me, that any long delay must tend to hinder the defence. The applicants have not been in custody. They have not contributed to the delay although it appears that one occasion they caused trouble on board Nei Nimanoa, which was to bring them to Betio in respect of the investigation, and were disembarked by the skipper.

I agree that the delay in this case has been unfortunate. The cause of the delay has been unusual. However, it is now three years since the offence was committed in June 1979 and two and a quarter years since the charge was first laid. Taking the cases I have mentioned as a guide, and despite the seriousness of the offence charged, which I consider to be a relevant factor, I am of the view that this delay is unreasonable. In all the circumstances I uphold this application and I order that the accused be discharged unconditionally.