Republic v Tekabu [1996] KIHC 7; HCCrC 31.94 (11 April 1996)

IN THE HIGH COURT OF KIRIBATI
(BEFORE THE HON R LUSSICK C.J.)

HCCrC 31/94

THE REPUBLIC

versus

TAKENUEA TEKABU

Ms P Atanraoi for the Republic
Mr D Lambourne for the Accused

SENTENCE

This case has an extraordinary history.

On the 22nd April 1988 the accused, who was employed by the Kiribati Oil Company, prepared two invoices totalling $4,200 in the name of her sister and also two receipts to show that the invoices had been paid. On the pretext that the order had subsequently been cancelled, she then prepared a payment voucher for $4,400 as a refund. A cheque was issued but because of the suspicious circumstances surrounding the transaction the cheque was cancelled before the accused could cash it. She was dismissed from her employment that same day, that is, the 22nd April 1988.

Presumably some enquiries were put in train by the police but, for some unexplained reason, the accused was not interviewed until 15 November 1989, some 18 months after the offence had occurred. In her statement to the police she admitted preparing the documents referred to but explained that she had done so under instructions from a superior officer who undertook to accept the blame if they were discovered. I am told that the superior officer, an expatriate, was himself dismissed over the incident and went back to his own country.

There followed an inordinate period of apparent inactivity of almost 5 years during which the accused quite understandably began to think that she was not going to be prosecuted.

Then on 27 July 1994 an indictment was filed charging her with attempted larceny by a servant contrary to section 266(a)(i) of the Penal Code (Cap. 67).

On 23 September 1994 the People's Lawyer on her behalf applied to the High Court to have the accused discharged on the ground that the delay in prosecuting her was so unreasonable as to amount to an abuse of process. This application was heard on 5 October 1994 by Muhammad C.J. Either on that day or sometime later he dismissed the application in open court. This is apparent from a letter he wrote to the Attorney General on 11 January 1995. It seems that he intended to hand down a written judgment at some later stage but left office without doing so. Thus, although it is clear that the learned Chief Justice considered the merits of the application, his reasons for refusing it are not known.

The case was adjourned several times in 1995 and three times this year. There were several reasons for these adjournments which I do not intend to go into here except to say that the accused cannot be blamed for them.

In the event, the accused now stands before the court for her case to be dealt with some 8 years after the occurrence of the offence.

A fresh indictment has recently been filed alleging a second count of fraudulent falsification of accounts contrary to section 299(1) of the Penal Code. It is to this second count that the accused pleads guilty. In the circumstances, Ms Atanraoi, State Advocate for the Attorney-General very properly does not seek a conviction on the first count and has accordingly entered a nolle prosequi.

The accused is a 36 year old single mother with two young children aged 5 years and 10 months respectively. The younger child is still being breast fed. She is a first offender. Since being dismissed from her position at Kiribati Oil she has had difficulty obtaining permanent employment and is at present unemployed.

For the past eight years she has lived with the dread of a serious offence hanging over her head for which she could well be imprisoned. Under the Constitution she had a right to a fair hearing within a reasonable time. I appreciate that Muhammad C.J. must have considered the relevant issues before dismissing her application to be discharged. Nevertheless that does not erase the anguish of all those years of uncertainty, not to mention the prejudice arising from the delay had she attempted to defend the charge.

The offence is without doubt a most serious one, justifying in normal circumstances a term of imprisonment. I might add that I do not altogether accept the accused's explanation that she was acting under the superior officer's threat of dismissal in committing the offence. I suspect that she was quite a willing accomplice.

However, after all this time, I do not consider that justice would be served by sending the accused to prison. She is therefore convicted and sentenced to imprisonment for a period of two years, but such sentence is to be suspended for two years and is not to take effect unless during that period she commits another offence punishable with imprisonment and thereafter the High Court orders that the original sentence shall take effect.

THE HON R LUSSICK
CHIEF JUSTICE
(11/04/96)