Republic v Kanoua [1998] KIHC 40; HCCrR 03.98 (14 September 1998)

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

HCCrR 3/98

THE REPUBLIC

and

BAAKOA KANOUA

JUDGMENT ON REVIEW

This case has been referred to the High Court for review by the People's Lawyer on behalf of the accused. On 21 October 1997 the accused pleaded guilty before the Nonouti Magistrates' Court to one count of unlawful wounding and one count of damaging property. He was sentenced to two years' imprisonment. In addition, a residence order was made in these terms: "Repatriated to his home island Rabi/Banaba after completion of his sentence and stay there for one year". It is this residence order which is the subject of the present complaint.

Under section 37(1) of the Penal Code Cap. 67 a court has the power to direct that an accused be conveyed to his island of origin or island in which he is ordinarily resident, to remain there for a period not exceeding one year. Obviously only one island can meet either of those descriptions. While the relationship between the islands of Rabi and Banaba is well known, a person cannot originate from both, or be ordinarily resident in both. A residence order must state with certainty the island to which the accused is to be sent. The order presently under review does not do that, and is therefore void.

There is another matter which ought to be mentioned. From the minutes, it does not appear that the accused was made aware that the magistrates were thinking of imposing a residence order. The High Court has said on many occasions that if the magistrates' court intends to impose a residence order then it must give the accused an opportunity to be heard. The accused may or may not have a good reason why such an order ought not be made. In the interests of justice, he should be allowed to say something on his own behalf in that regard. It is important that the magistrates inform the accused that they are thinking of making a residence order but that they will consider anything he has to say on the matter.

It follows from what I have said that the residence order ought not be allowed to stand. The sentence imposed by the Nonouti Magistrates' Court is accordingly altered by setting aside the residence order.

THE HON R B LUSSICK
CHIEF JUSTICE
(14 SEPTEMBER 1998)