Republic v Teoiaki [1993] KIHC 1; [1993] 3 LRC 385 (13 March 1993)

[1993] 3 LRC 385

IN THE HIGH COURT OF KIRIBATI

REPUBLIC OF KIRIBATI

v

TEOIAKI AND ANOTHER

High Court
Muhammad CJ
13 March 1993

Constitutional law - Fundamental rights - Fair trial within a reasonable time – Delay - Court looking at circumstances surrounding delay - Balancing exercise - Delay caused by prosecution inaction - Whether applicants prejudiced by delay - Whether applicants right to a fair trial within a reasonable time infringed - Constitution, ss 10(1), 17(1)

In 1990 both applicants were charged with offences of dishonesty concerning financial irregularities during the course of their employment with the same financial organisation. Both pleaded not guilty to all charges. On 7 November 1990 amended charges were put to the applicants and again both entered not guilty pleas. The case was originally set down for trial on 11 November 1990 but the prosecution were unable to proceed on that date as their witnesses were unavailable. Nothing happened until April 1992 when the lawyer for the first applicant wrote to the Attorney General requesting him to proceed with the trial, but he received no reply. The applicants claimed that their right to a fair hearing within a reasonable time guaranteed by s 10(1) of the Constitution was violated by the delay which had taken place to the prejudice of their defence. The applicants sought appropriate relief from the court under s 17(1) of the Constitution.

HELD: Application allowed.

All criminal prosecutions caused some degree of concern and hardship to the accused but such side-effects should be kept to a minimum and the trial brought on within a t reasonable time. What was meant by 'a reasonable time' would vary from case to case and would depend on the circumstances and local conditions. The court would have to strike, a balance between having an effective system of administration of justice and the protection of individual rights under the Constitution. In carrying out such an exercise the court would consider not only the period of delay but the reasons therefor. In the present case the respondent had given no reasons for the delay, apart from the non-availability of prosecution witnesses when the case initially came up for trial and the fact that certain prosecuting counsel felt unable to act on ethical grounds due to their relationship with the applicants. When the present application was before the court the respondent was still unable to indicate when, if at all, the matter would come to trial. Although it was not in the public interest that persons charged with criminal offences went free without trial, an accused person was presumed innocent and was entitled to a fair trial. If an accused was unable to receive a fair trial through no fault of his own then he was entitled to an acquittal. In the present case it could be presumed that the applicants would be prejudiced by the delay in establishing their defences as the allegations in the charges concerned events going back a number of years which would have the result that the applicants, or at any rate any witnesses, would be unable to recollect with accuracy what had really happened. Accordingly, the court would find that the applicants were unable to obtain a fair trial within a reasonable time and would therefore order that the charges against them be discharged (see pp 387, 388 - 389, post). Republic of Kiribati v Tabere (1982, unreported), Kiribati HC, Bell v DPP of Jamaica [1986] LRC (Const) 392 applied. Mungroo v R [1992] LRC (Const) 591 considered.

[Editors’ note: Section 10(1) of the Constitution is set out at p 387, post. Section 17(1) of the Constitution, so far as material, is set out at p 387, post.]

Cases referred to in judgment
Bell v DPP of Jamaica [1986] LRC (Const) 392, [1985] 2 All ER 585_, [1985] AC 937, Jam PC
Kimisi v DPP (Crim case No 67/1990, unreported), Sol Is HC
Kiribati (Republic of) v Tabere (1982, unreported), Kiribati HC
Mungroo v R [1992] LRC (Const) 591, [1991] 1 WLR 1351, Maur PC

Legislation referred to in judgment
Kiribati
Constitution of Kiribati 1979, ss 3-17

Mauritius
Constitution of Mauritius 1968, s 10

Solomon Islands
Criminal Procedure Code

Appeal
The applicants, Thomas Teoiaki and Baraniko Bakarereua, applied to the High Court under s 17(1) of the Constitution claiming that their right to a fair trial within a reasonable period under s 10(1) of the Constitution was infringed due to the delay of the respondent, the Republic of Kiribati, in prosecuting charges against the applicants which initially had been laid before them in May 1990. The facts are set out in the judgment.

B Berina for the first applicant.
T Teiwaki for the second applicant.
D Evans for the respondent.

13 March 1993. The following judgment was delivered.

MUHAMMAD CJ. In May 1990 both accused were charged with eight offences of dishonesty, three charges charging them jointly and the others separately. All offences arise from improper financial, transactions conducted during the course of their employment. Both accused were employed by the Kiribati Provident Fund; the first accused as an inspector and the second accused as its General Manager. They both pleaded not guilty to all the charges against them. On 7 November 1990 amended charges were put to the accused and again they both pleaded not guilty to all the charges. The case was set down for trial on 11 November 1990 but the prosecution were not unable to proceed because they did not have their witnesses. It appears that nothing happened after that and the first - named accused, who had by this time had two lawyers come and go from the country, sought assistance from his present lawyer, Mr Berina. On 2 April 1992 Mr Berina referred to the plight of his client and asked the Attorney General to proceed with the trial. He never received a reply to his letter. Although the second accused did not take any steps to invite the Attorney General to proceed with the case his suffering is no less because he claims that he cannot get a permanent post, although he is temporarily employed, because his employers are concerned about the likely outcome of this case.

It could end in an absurd result if the accused were to be treated differently. Therefore, for the purpose of this application, I shall treat them as if it were a joint application.

The application they now make is under s10 of the Constitution which is as follows:

'10(1) 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.'

The applicants do not allege that there would not be a fair hearing by an independent and impartial court but allege that such a hearing, if it ever is held, would not be 'within a reasonable time' and in the circumstances would not be fair because of that delay they would be prejudiced in their defence.

The court has jurisdiction to grant such redress as they seek under s 17 of the Constitution. Section 17(1) provides:

'. . . if any person alleges that any of the provisions of sections 3 to 16 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him ... then, without prejudice to any other action with respect to the same matter which is lawfully available, that person ... may apply to the High Court for redress.'

All criminal prosecutions cause concern, inconvenience and a certain amount of hardship to those who have to defend themselves. The purpose of the constitutional provisions is that such harm should be kept to a minimum and trial be brought on within a reasonable time. The question as to what is meant by 'within a reasonable time' has arisen here and elsewhere where similar constitutional provisions exist. It would not be proper to draw a line and say that beyond such and such period it would be unreasonable. Again the local conditions must play an important role in deciding the question and following legal authority strictly from other jurisdictions on this point could create a different situation.

We have to strike a balance between the necessity of having an effective system of administration of justice and protection of the rights of the individual as guaranteed under the Constitution. Kiribati is a young country with its own peculiar problems. It is a developing country with very limited economic resources. Travelling between different parts of the country is expensive and at times impossible. Its own airline cannot serve all the parts of the country and to bring witnesses to court, say from Kiritimati Island, would require a great deal of organisation and expense. There is a shortage of skilled manpower. In this case the first applicant has seen three People's Lawyers who succeeded each other. Two lawyers in the Attorney General's Chambers who succeeded each other as prosecutors are-no longer in those chambers. This court has been short of a judge for three years. We have to live with these constraints and provide as effective a system of criminal justice as we can and view the constitutional provisions in the light of our own circumstances.

In a Privy Council case, Mungroo v R [1992] LRC (Const) 591 at 594-595, [1991] 1 WIR 1351 at 1355 Lord Templeman, for the Board, expressed the following view:

'Problems which are considered to be complex in one administration may be dealt with more expeditiously and with greater certainty and understanding in another. At the same time the constitutional rights of the individual must not be placed at the mercy of inefficiency. The expressed constitutional right contained in s10 to a hearing of a criminal case within a reasonable time injects the need for urgency and efficiency into the prosecution of offenders and demands the provision of adequate resources for the administration of justice but, in determining whether the constitutional rights of an individual have been infringed, the courts must have regard to the constraints imposed by harsh economic reality and local conditions.'

Their Lordships were dealing with a case on appeal from Mauritius which is an island state and certainly without the travelling difficulties I have mentioned above. The Board dismissed the appeal where the appellant was claiming a delay of some four years. Section 10 of the Constitution of Mauritius is similar to s 10 of our Constitution.

In my view it is not the period of delay alone which should be decisive factor, but it is all the circumstances of each case which should be considered. In my view if the prosecution have made an effort to comply with the requirement of s 10 and tried to afford a trial within reasonable time and the local conditions prevented such compliance, then, I am sure the court would find it difficult to grant this application.

In this case the Attorney General has given no reasons for the delay. Once the matter was set down for trial on 11 November 1990 in my view it became urgent and if it was not tried it should have come up in the following session. When the applicants' lawyer wrote to inquire about the, case and requested a hearing it should have at least at that stage become urgent. Even in October 1992 when the notice of this application was served the Attorney General could have done something about it. Not even in response to the application, nor indeed in court, were the prosecution able to say when, if at all, this matter can be brought to trial.

I have not heard the reasons for the delay, whether they were complexities of the case or non-availability of witnesses. In fact one of the applicants says, in his affidavit, that when this case came up, all the prosecution witnesses were on Tarawa. One reason given by one of the prosecuting counsel, in his affidavit, is that for ethical reasons he and his other colleague could not appear. But they, both did appear on taking of the pleas. They drafted the charges, they appeared to take pleas and I find it difficult to understand the ethics where if the accused pleads guilty it is alright but if he pleads not guilty counsel's relationship with the accused prevents him from proceeding with the case. However, even if such reasons existed for some counsel, that did not prevent the others from proceeding with the case.

In Republic of Kiribati v Tabere (1982, unreported) in this court, Jones CJ, in discharging the two accused persons, said:

'I agree that delay in this case has been unfortunate. The cause of delay has been unusual. However it is now 3 years since the offence was committed in June 1979 and two and a quarter years since the charge was first laid ... I am of the view that this delay is unreasonable.'

In Kimisi v DPP (Crim case No 67/1990, unreported), Sol Is HC Ward CJ said that where the accused was told for the first time of the transaction which took place 27-32 months earlier it would be 'impossible' to defend himself in court.

It is not in the public interest that people charged with criminal offences should not be tried. It is unjust that those who are guilty of serious offences should go free without even being tried. However, there is a presumption of innocence and these applicants are entitled to be treated as innocent until found guilty after a fair trial and if such trial cannot be afforded without any fault on their part then they should remain innocent. The purpose of the constitutional provisions is that no innocent person should suffer unduly.

Mr Teiwaki has mentioned the prejudice his client has suffered in securing employment. I do not think that kind of consideration should play an important role in considering prejudice to the accused in properly defending himself. That is an inconvenience and sometimes hardship which to a greater or lesser degree is suffered by every person who is charged with criminal offence.

I think the view expressed in Bell v DPP [1986] LRC (Const) 392, [1985] AC 937 is correct that there is a presumption of prejudice. In this case some allegations arise from transactions which took place in 1985 and others from 1986 to 1988. By the nature of the offences there would be documents and of course e conversations recorded and unrecorded. Even if the accused could be expected to remember everything which would be unfair to expect, how could the witnesses who were not so interested as the accused, both for the prosecution and defence, remember what happened some seven years ago?

In view of the aforesaid I have no doubt that in all the circumstances of this case the delay in bringing this case has been unreasonable. The question is whether - as the applicants claim - they should be acquitted or discharged, as Jones CJ did in Tabere’s case. In Kimisi v DPP, supra, Ward CJ referred to a provision in the Solomon Islands' Criminal Procedure Code which entitles the accused to a final decision. I have not been directed to any such provision in our law. The English practice is that the matter be laid on file and not proceeded with without the leave of court.

I shall follow the practice of this court and discharge both applicants from all the charges before me.