Matioro v Republic [1998] KIHC 58; HCCrA 25.98 (12 November 1998)

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

HCCrA 25/98

BETWEEN:

MAURITAAKE MATIERO
Appellant

AND:

THE REPUBLIC
Respondent

Ms J Fleer for the Appellant
Ms P Tebao for the Respondent

Date of Hearing: 12 November 1998

JUDGMENT

The appellant pleaded not guilty in the Bairiki Magistrates' Court to two charges, one of theft contrary to section 254(1) of the Penal Code and one of unlawful wounding contrary to section 223 of the Penal Code. He was sentenced on the charge of theft to imprisonment for 6 months and on the charge of unlawful wounding to imprisonment for 12 months, making a total of 18 months' imprisonment. The appellant now appeals against both conviction and sentence on the following grounds:

(1) The magistrates erred in law by hearing two unrelated cases together

(2) Further, and in the alternative, the appellant was not given an opportunity to testify or in any way address the court

(3) Further, and in the alternative, the magistrates sentenced the appellant without making any findings and without convicting the appellant

(4) Further, in all the circumstances, the sentence is manifestly excessive.

In respect of ground 1, the fact that a court hears two unrelated cases together is not necessarily of itself an error in law. However, in doing so in the present case the magistrates appear to have gotten into a muddle. The minutes show that in the hearing on the charge of theft conducted on the 18^th August 1998, the prosecutor applied for and was given an adjournment until the 2^nd September 1998. However, the only evidence given on the 2^nd September 1998 was in relation to the charge of unlawful wounding. It therefore appears that the proceedings on the charge of theft were adjourned part heard and never continued. According to the minutes, on the 2^nd September 1998 after hearing evidence of a statement given by the appellant relating to the charge of unlawful wounding, the court proceeded to sentence the appellant on both charges. The minutes are obviously in a very unsatisfactory state.

As regards ground 2, the appellant has given sworn evidence before this court that he was not told by the Magistrates' Court that he could remain silent or could give evidence or call evidence in his case. The appellant's evidence is certainly consistent with the minutes of the lower court proceedings. It therefore appears that the Magistrates' Court was in contravention of its obligations under section 196 of the Criminal Procedure Code Cap. 17.

As regards ground 3, the appellant has also given sworn evidence to this court that on 2^nd September 1998, the magistrates did not ask him any questions but proceeded to sentence him immediately after the evidence of the witness Moanibong Tabuto. Again, the appellant's evidence is consistent with the minutes of the lower court proceedings. The minutes do not show any findings by the Magistrates' Court and no reasons for the decision. The magistrates in this regard have clearly overlooked their obligations under section 150 of the Criminal Procedure Code Cap. 17 which provides for the necessary contents of judgments.

In view of what I have said, it is not necessary to consider the last ground of appeal. In my view, the irregularities in the proceedings in the Magistrates' Court are so serious as to render those proceedings a complete nullity. It follows that the appeal must succeed.

The convictions and sentences of the Magistrates' Court are accordingly set aside. I note that the appellant has already spent 2 months in prison. I will not order a re-trial but will leave that question up to the Attorney General.

THE HON R B LUSSICK
CHIEF JUSTICE
(13/11/98)